Board Response 2

[msquared48]

I have attached below an interesting state board response to a question that raises a few questions to me:

1. In this particular case, the board seems to be implying that it is acceptable for the new engineer to make changes to the original plan set, changes necessitated by any comments of the local jurisdiction. To me, this would constitute a new set of documents that would have to be stamped by the new engineer. If the original documents were approved with no changes, no worries, but I hardly think that will happen.

2. The board, and it looks like the reviewing agency, missed the point that the entire project will have to be redesigned under a newer code edition considering the 5 year time lapse. This also would predicate a new set of documents and a stamp by the new engineer.

3. I also think the legal issue of who is the "Engineer of Record" in this circumstance, a critical issue for the reviewing agency, was not addressed by the board. The board only mentioned at the construction phase as the involvement of the new engineer... Seems nebulous to me as to who the ultimate project engineer of record is in this circumstance.

Your thoughts?

Mike McCann, PE, SE (WA)

 

[JAE]

1. The deceased engineer is the EOR as the board stated...even after their death this can still be true.
2. There was no mention of a newer code and the 5 year lapse doesn't necessarily imply that there is a new code.
3. The board states that the new engineer can still provide professional engineering services through the construction phase when they weren't necessarily the original design engineer. I think this is generally true.
4. The problem comes into play when there is a change in the design. Here I think the board is still correct in that they say the new engineer would have to thoroughly review any changes and those changes: [blue]"would need to be explained and thoroughly evaluated to ensure overall design integrity."[/blue]

If there is indeed a new code, then I'm with you - the new engineer would have to thoroughly review and redesign all those elements affected by the new code requirements.

Your last point number 3 assumes that on a project you can have only one EOR. The board obviously feels that in this case, a design-only EOR is fine and services performed by a new EOR during construction is OK. Doesn't happen much where I live but I can see it work assuming the new engineer is aware of how changes, alterations, substitutions and field issues can be resolved without significantly affecting the deceased EOR's design.

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[WARose]

One thing that really jumps out at me is the fact there seems to be no wiggle room for stamping a reviewed set of drawings prepared by others. As the board states: ...it is not acceptable for a PE to stamp a plan that was not prepared by them or under their direct supervision.

A lot of states say it must be prepared by you/under your direct supervision.....or something you have reviewed (and find acceptable). This appears to be Washington state, so kudos to them. A lot of people are using that "review" clause to let them stamp stuff that was done overseas.

In any case, if the permit was never issued and the applicable codes have changed since the design was done....then I would think the set would have to get sealed by a practicing engineer to ensure acceptability.

 

[BAretired]

1. In this particular case, the board seems to be implying that it is acceptable for the new engineer to make changes to the original plan set, changes necessitated by any comments of the local jurisdiction. To me, this would constitute a new set of documents that would have to be stamped by the new engineer. If the original documents were approved with no changes, no worries, but I hardly think that will happen.

Even if there are no changes to the original documents, there is nobody who can bear responsibility for the design if the original engineer has died. The new engineer should review the original design before sealing the documents. That means the new engineer bears responsibility for design.

2. The board, and it looks like the reviewing agency, missed the point that the entire project will have to be redesigned under a newer code edition considering the 5 year time lapse. This also would predicate a new set of documents and a stamp by the new engineer.

A five year time lapse does not necessarily mean that the applicable code edition has changed in that jurisdiction. In any case, the documents should be reviewed by the new engineer before sealing them.

3. I also think the legal issue of who is the "Engineer of Record" in this circumstance, a critical issue for the reviewing agency, was not addressed by the board. The board only mentioned at the construction phase as the involvement of the new engineer... Seems nebulous to me as to who the ultimate project engineer of record is in this circumstance.

The new engineer has to be the Engineer of Record. Who else is available to take responsibility for design?


BA

 

[msquared48]

Thanks all for the thoughts, and I do see the points here.

BA, though, in point #3, I agree that there is logically only one live engineer to take the total responsibility for the project here, but the board appears to be saying that his stamp can stand under certain conditions, deceased or not. To me, that does pose a problem legally, in that you cannot sue a deceased individual. Close to the statue of limitations any way(6 years here) due to the 5 years...

In essence, for the owner, without an entirely new design, the new engineer would have to take the total responsibility for the project, at a lesser fee than if he had originally designed it. Would he really want to do that?

Regarding the 5 year lapse requiring a new design, I would be very surprised here if a new design based on the current code was not mandated by the jurisdiction.

This circumstance is just screaming for a totally new analysis to me, regardless of the Board's view.

Mike McCann, PE, SE (WA)

 

[JAE]

I would be very surprised here if a new design based on the current code was not mandated by the jurisdiction.

In our area we have a jurisdiction that just recently moved from the IBC 2006 to the IBC 2012. So 5 years is nothing. Not every city jumps to a new code every 3 years.

The seal/signature on a set of plans gives assurance that a licensed engineer has had direct supervision in the preparation of the plans and specifications.
[red]It doesn't give assurance that the same engineer is upright and taking nourishment. Or that lawyers have someone to sue.[/red]

Having said that - the owner might want to have it re-done unless they had confidence in the deceased engineer's abilities and the new engineer's ability to watch over the design during construction.

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[WARose]

[blue](JAE)[/blue]

The seal/signature on a set of plans gives assurance that a licensed engineer has had direct supervision in the preparation of the plans and specifications.
[red]It doesn't give assurance that the same engineer is upright and taking nourishment. Or that lawyers have someone to sue.[/red]

Exactly.

 

[Ron]

In my state, there is a specific procedure for assumption of engineering responsibility for plans prepared by another engineer, dead or alive. It requires a thorough review of the design such that the new engineer can take full responsibility for the plans. The new engineer is then required to sign and seal the new plans which may or may not refer to the original plans.

 

[BAretired]

Having said that - the owner might want to have it re-done unless they had confidence in the deceased engineer's abilities and the new engineer's ability to watch over the design during construction.

It is not enough for the owner to have confidence in the deceased engineer's abilities. The owner is not qualified to make that judgment. It is necessary for the new engineer to understand and agree with the design which he is being asked to enforce during construction, something he cannot do without first reviewing the drawings.

BA

 

[JAE]

It is necessary for the new engineer to understand and agree with the design which he is being asked to enforce during construction

BAretired - I don't think that is what is necessary. The original engineer was duly licensed. They performed the design. The client paid the fee. The fact that the engineer died does not then legally require the plans to be reviewed, redesigned and resealed by another engineer. The board in this case (Washington state) clearly indicated that it was permissible for another engineer to assume the duties of reviewing shop drawings, etc. without assuming status as the EOR. The EOR was someone else. No engineering law I'm aware of requires you to be breathing during construction.

In the 24 states I'm licensed in, the signing/sealing of plans is primarily intended to simply identify the design engineer to allow the Authority Having Jurisdiction an assurance that a licensed engineer performed the design. It doesn't certify or warrant anything, it simply identifies.

Ron - I think you are correct that IF the new engineer is to assume full responsibility (due to death or getting fired) then there's the review, redesign, re-seal process.

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[JAE]

....and - after re-reading BAretired's post, I think I mis-read it.

What I think you are saying, BA, is that if the new engineer is to review shop drawings, answer questions, respond to problems and issues during construction, then the new engineer must review the plans and have a pretty good understanding of how the original design was put together. Is that right?

I'd totally agree with that.

I just don't believe that the new engineer has to sign and seal those original plans. Only the services that they provide during construction.

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[BAretired]

I believe the new engineer should have more than just a good understanding of the contract documents. He should review them in sufficient detail to satisfy himself that the design is sound and that public safety is protected. If problems arise during or after construction which are found to be the result of faulty design, the new engineer might try to claim it to be the responsibility of the deceased engineer; we can only speculate on how that defense would be received by the courts. For his own protection, the new engineer should assume full responsibility for the project. He is, after all, the EOR.

If the original documents are deemed satisfactory without significant change, I see no need to produce new documents. Signing and sealing of the original plans by the new engineer may be a requirement in some jurisdictions but in my view is just a formality indicating that a plan review has been completed by the new engineer.

BA

 

[JAE]

"He is, after all, the EOR."

See, that's where we totally disagree. He is not the engineer of record. The deceased engineer is. The board stated that clearly.

The new engineer is simply providing engineering services as defined by the local state board. The fact that they are providing those services on a project designed by others doesn't for a minute mean that the new engineer must take full responsibility for a design performed by others.

The new engineer must have adequate knowledge of the portion of the project affected by the construction issue they deal with, using their engineering judgement as to how familiar they need to be.
If a contractor asks to use an alternative concrete admixture in a submittal, the new engineer doesn't have to re-calculate the building's lateral bracing system to say OK.

I think you are assuming that since the true EOR is dead, then someone else MUST take their place. That is simply not true.



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[BAretired]

JAE,

What happens if, during construction, the new engineer spots a lateral bracing system which he does not believe is adequate? He would be obliged to bring it up with the owner. If the owner tells him to proceed in accordance with the original plans, the engineer is facing an ethical dilemma. Does he proceed as instructed or does he become a whistle blower?

If the EOR is dead, the new engineer, under your assumption, is unable to correct any design errors which become apparent during construction.

The design review process gives the EOR an opportunity to correct any errors which he may have made during design. If the EOR is dead, that opportunity is no longer there. The new engineer has no way of discussing it with the EOR, so he must have a way of ensuring that good engineering practice is carried out. I believe the best way to accomplish this is for the new engineer to review the original contract documents.

BA

 

[JAE]

What happens if, during construction, the new engineer spots a lateral bracing system which he does not believe is adequate? He would be obliged to bring it up with the owner. If the owner tells him to proceed in accordance with the original plans, the engineer is facing an ethical dilemma. Does he proceed as instructed or does he become a whistle blower?

That is a case where, yes, the new engineer must perform ethically and appropriately as required by his license and license-laws. This might involve blowing his whistle to the appropriate authorities.
Look at the opposite case: The design looks fine to the new engineer and he simply approves submittals. Why does he then have to become the design EOR when he didn't design anything?

If the EOR is dead, the new engineer, under your assumption, is unable to correct any design errors which become apparent during construction.

No, the new engineer, if there is a design error, must correct the error - they are obligated to. But if the error is one single beam size, they can perform engineering on that and correct it, again, without assuming the duty as EOR of the whole project.

You keep implying that if any engineer touches a small little piece of a larger project, then they have to assume responsibility for the whole project. That's not correct.

The design review process gives the EOR an opportunity to correct any errors...

The original EOR completed their design and signed and sealed it. What "design review process" are you talking about?

The original engineer, by signing it, believed the design to be true and correct.
They should have already gone through a design review, or quality assurance review, process prior to sealing.

The new engineer should, as you state, review the original contract documents. I'm not disagreeing with you on that.
But the new engineer is NOT the EOR.



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[BAretired]

The original EOR completed their design and signed and sealed it. What "design review process" are you talking about?

Sorry JAE, my error. I meant to say "construction review process". It gives the EOR an opportunity to correct any errors or omissions made during the design process.

The new engineer should, as you state, review the original contract documents. I'm not disagreeing with you on that.
But the new engineer is NOT the EOR.

Okay, we seem to be in substantial agreement about doing a review of the original documents. One question remaining is whether or not the new engineer bears any responsibility for the adequacy of that review. If he is, then I don't particularly care whether or not he bears the designation "Engineer of Record". If he bears no responsibility, then he is doing the review for his own benefit, which is a sensible precaution on his part but may mean the review is less detailed than would otherwise be the case.

I have never encountered this exact situation in my practice but I believe that the authority having jurisdiction in my area would call for the signing and sealing of documents by a "live" engineer.

BA

 

[JAE]

A local AHJ may require that but I bet the state board would say it's not required.

As far as the new engineer bearing responsibility -
For lawyers suing folks in a project that has gone off the deep end, then anyone can be sued - EOR or not.

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[BAretired]

I can't argue with either of those comments.

BA