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Code Evaluation Reports and California Professional Engineering Rules

Code Evaluation Reports and California Professional Engineering Rules

Code Evaluation Reports and California Professional Engineering Rules

As a topic for discussion:
Are code evaluation reports erroding the legal authority granted to professional engineers? Should professional engineers be concerned? Below are 5 questions related to code evaluation reports with consideration of California engineering rules and laws.  Note that the open letter below has NOT been sent to any state engineering board.
Local jurisdictions increasingly require code reports for alternate construction materials. On the surface, such requirements appear to be above-and-beyond the requirements of building code; however, to practicing professional engineers it is unclear how these reports may be used while maintaining conformance to the Professional Engineers Act and Board Rules. Several issues which require clarification are outlined herein for review and comment by the board with the intent that the board will clarify how the Professional Engineers Act and Board Rules apply to code evaluation reports.
1. With respect to the Professional Engineers Act and Board Rules, how is a code report (such as those by ICC-ES or IAPMO-ES) classified? Is it an engineering report governed by the Professional Engineers Act and Board Rules?
Applicable Code Sections: Professional Engineers Act 6701, 6731
The Professional Engineers Act explicitly includes the act of "evaluation ... for the purposes of securing compliance with specifications ..." in the definition of "professional engineer".  Code evaluation reports, which evaluate compliance to the building code, summarize this type of evaluation except that the evaluation is issued outside the scope of any specific construction project.  Regardless, the decision to issue a code evaluation report based solely on the engineering judgment of the evaluation agency staff and the evaluation report applicant oftentimes must hire a consulting engineer to render professional judgments important to the evaluation process.
Evaluation reports are not developed or issued under a consensus process generally used for the development of nationally recognized codes and standards.  Instead, code evaluation reports are issued solely based on the judgment of the evaluation agency staff. Moreover, many 'Acceptance Criteria', contain numerous violations of the building code. Most commonly, testing code recognized structural materials, such as dimensional lumber, light-gauge steel members, and mechanical fasteners, in lieu of designing the materials in accordance with code adopted reference standards. Instances where the minimum requirements of the building code are not met inherently require engineering judgement.
2. From the standpoint of the Professional Engineers Act and Board Rules, what is the classification of an entity like ICC-ES or IAPMO-ES? Do these organizations have special recognition to practice truly "corporate" engineering? And, if so what credentials are required for a firm to practice in such a manner?
Applicable Code Sections: Professional Engineers Act 6738
The Professional Engineers Act and Board Rules permit individual practicing engineers to offer to practice under the name of a business; however, they do not permit the corporate practice of engineering. It is important to note that while ICC-ES and IAPMO-ES are subsidiaries of standards writing organizations the evaluation process and issuance of code evaluation reports is NOT a standards development function.  Furthermore, adoption of the International Codes by a jurisdiction does not grant ICC-ES or IAPMO-ES special authority or recognition as a corporate entity.

The Professional Engineers Act and Board Rules also prohibit businesses to offer to practice outside the scope of their license. In the case of IAMPO-ES, it has retained an outside engineering firm, VanDorpe Chou Associates, Inc., to provide engineering evaluation services beyond the scope of their expertise.  Similarly, ICC-ES oftentimes requires applicants to hire consulting engineers for the purposes of rendering professional judgments important to the evaluation process. Again, engineering services are being offered to the public through an organization without the engineering expertise in-house.  
3. For organizations such as ICC-ES and IAPMO-ES that perform engineering evaluation outside of a specific project or jurisdiction, at what point do documents prepared by such organizations need to conform to board rules? At what point does the engineer having responsible charge for the product evaluation need to be identified? Who has responsible charge over such evaluations?
Applicable Code Sections: Professional Engineers Act 6735
ICC-ES and IAMPO-ES don't offer "evaluation" services for any specific project or jurisdiction making is unclear which, if any, engineering rules or ethical standards apply to these organizations. As a result, when code evaluation reports are used as the sole basis of product approval by local code officials or design professionals, ICC-ES and IAMPO-ES have effectively circumvented the laws and rules that govern professional engineering while providing such services defined and professional engineering to the public. Responsible charge CANNOT exist for code evaluation report because under ICC-ES and IAMPO-ES process the evaluation report applicant has control over the selection of testing laboratories and design professionals. As a result, the evaluation agency has no idea whether the information provided was obtained through "lab-shopping" or "opinion-shopping". The applicant has an inherent conflict of interest, yet the applicant has control of the evaluation through control of the information provided. ICC-ES has no internal laboratory and no means to confirm the validity of submitted data.
4. Do local building officials have the authority to require ICC-ES or IAPMO-ES reports and exclude consideration of engineering reports prepared by properly licensed design professionals? Can local authorities usurp states laws and board rules?

Applicable Code Sections: Professional Engineers Act 6704.1, 6730.2, 6735
The Professional Engineers Act and Board Rules regulate individuals engaged in engineering acts and require such individuals to be licensed with no recognition of corporate engineering practice. However, marketing materials provided by ICC-ES and IAPMO-ES imply that code evaluation reports alone are sufficient for approval by the local building official and in many cases local officials no longer consider engineering evaluation reports prepared by properly licensed professionals.  In effect, the responsibilities granted to professional engineers under the Professional Engineers Act are unknowingly usurped by local officials based on marketing materials provided to them by ICC-ES and IAPMO-ES.
5. Can design professionals use an ICC-ES or IAPMO-ES code report without knowing specifically what aspects of the report are based on engineering judgment and without having access to the supporting evidence? Without such information can the requirement for responsible charge be met? Is acceptance and use of an ICC-ES or IAPMO code report aiding in the practice of unlicensed individuals?

Applicable Code Sections: Professional Engineers Act 6730, 6730.2
Board rules require engineers to thoroughly review engineering work performed by others before taking professional responsibility for such work.  In the case of code evaluation reports, the evidence submitted, such as calculations and/or test data are not available to design professionals.  Furthermore, the completed report does not indicate what portion(s) of the report are based on test data or engineering calculations/engineering judgment. Finally, the evidence submitted is prepared by design professionals that may not be licensed in the jurisdiction where the report is to be used. Additionally, as noted in Question 3, the reviewing engineer has no way to assess the validity of test data or engineering judgements which were supplied by the product manufacturer and may be the result of "lab-shopping" or "opinion-shopping".

RE: Code Evaluation Reports and California Professional Engineering Rules

What legal authority? I know of no legal authority granted to PEs.

They are however held responsible for what they do and when asked need to substantiate their design. Being a PE is not a license to specify whatever they want.

Rafiq Bulsara

RE: Code Evaluation Reports and California Professional Engineering Rules

Rafiq...the legal authority given to engineers is to practice as such, which includes the items noted by AggregateInterlock.

AI...I agree this is a nebulous area.  Fairly often the evaluation service requires and references engineering documentation necessary to establish the properties or claims.  Still, it seems to me that the evaluation service is practicing engineering and should be held to the same criteria as any firm offering engineering services.

I have many issues with the validity of evaluation reports.  In many cases, they are just a means of getting around a legitimate code requirement.  They rarely establish true equivalence and they are rarely enforced as the code requires (for instance, if a material or process is substituted under an evaluation report as being "equivalent" to the code requirement, the building official is supposed to review and sign off the application on a project specific application.  He has that authority.  Further, the evaluation report is to be followed EXACTLY to achieve code compliance and in my experience, subcontractors don't have any idea what the ER says and they don't have a copy to follow on the jobsite.

This is an example of poor initiation and even poorer follow-up to achieve the intent of an ER.  I would like to see the state boards, not just California, for the evaluation services to comply with the law.

Good discussion point, AI!

RE: Code Evaluation Reports and California Professional Engineering Rules


In ALL states if you are offering engineering design services to the public, for any discipline of engineering, you must be a Licensed Professional Engineer.

Outside of state PE board rules, the International Building Code, which is adopted as state law in most states, Section 104.11.1 Alternative Materials, specifically grants the authority to write "Research Reports" for alternative materials (materials not addressed by the code) to "approved sources". In IBC Chapter 2, the definition of an "approved source" is a Professional Engineer.

RE: Code Evaluation Reports and California Professional Engineering Rules

I understant that.

I am only referring to your first sentence which kind of sets the tone of your write up (I did not read the rest in detail as structural is not my expertize).

Licensing is a permission... not sure word "authority" is the correct use. Being qualified to practice something is not same as having authority (legal powers) over anyone.

Authority gives legal power to force someone to do something. Even law authorities are subject to challenges..never mind engineering opinions.

Code evaluation report writer will also be in the same boat, they may be qualified to write the reports, but would have no authority over anyone.

Rafiq Bulsara

RE: Code Evaluation Reports and California Professional Engineering Rules


If you are not licensed you are not authorized to practice--you do not have the legal power to do something--engineering in this case.

In all states being "qualified" to offer engineering to the public requires a license.  As you put it, you must have legal "permission".

If you are not providing engineering to the public, say you work for a corporation and only provide engineering within that corporation, then you are not required to be licensed. This is often the case for engineers working outside the construction industry.

In the law.com dictionary, authority and permission are synonyms.  I am using the word "authority" to mean "right coupled with the power to do an act."

authority n. permission, a right coupled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a corporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority, including "apparent authority" when a principal gives an agent various signs of authority to make others believe he or she has authority; "express authority" or "limited authority," which spells out exactly what authority is granted (usually a written set of instructions) "implied authority," which flows from the position one holds and "general authority," which is the broad power to act for another.

RE: Code Evaluation Reports and California Professional Engineering Rules

As previously noted, the license is a legal authority to practice engineering.  A company must have (in most states) a "Certificate of Authorization", again providing the legal authority to practice.

Rafiq...I see your point, but it is somewhat semantic and splitting hairs on the legal definition.

Let's get back on point here....I think the issue of evaluation reports being issued by non-conforming entities is a violation of most engineering laws.  If such reports are not done under the supervision of a licensed professional engineer, how do we rely on their validity?

RE: Code Evaluation Reports and California Professional Engineering Rules


In the past I had worked with ICC-ES to author code reports and to create Aceptance Criteria, but one day I realized I was shooting my myself in the foot.

This epiphany occured when I was EOR on a project where a code report was used. I had worked on this particular code report so I had detailed knowledge of the basis for the report. In this specific application of the product it was necessary to use the product in a manner different from what was specified in the code report; however, the local official refused to permit ANY deviations from the code report.

The fact that the engineering judgement expressed in the code report outweighed that of the actual EOR made me realize that these reports are a detriment to the practice of engineering.  The fact that many local building officials regard these reports as part of the building code rather than a combination of manufactured supplied test data and engineering judgement is disturbing.

If local code officials are using code reports as a substitute for licensed professional engineers then the reports should be held to the same standards as the engineers they are supplanting.

RE: Code Evaluation Reports and California Professional Engineering Rules

AI... I agree COMPLETELY! I have run into the same issues and find that building officials don't know what they are reading in some instances and don't know how to apply it in others.  

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