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Re: California contract law BORPELS

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Dennis, thank you for your "horror story."  You discuss at length the designer's deficiencies, but barely mention the HEART of the problem, as I see it, which is the licensed PE who stamps the designer's work.  Isn't s/he the main "bad boy" in this situation?  Without him/her there would not be a problem, because the designer probably couldn't continue to do what s/he's doing.  Isn't the PE accepting all of the liability in this situation, if anything goes wrong?

Ralph Hueston Kratz, S.E.
Structural Engineer
Richmond CA USA

In a message dated 11/5/05 11:05:20 AM, dennis.wish(--nospam--at) writes:

I have a couple of question in regards to what you may have learned:
     1.     It has been my interpretation that a contract is required between a non-professional and the EOR or his/her firm. However, when working with a General Contractor or Architect directly, a written contract is not required under the California Business and Professions Act. I don't recall the exact wording or section of the code where I read this, but I believe it still stands. Do you have any information as to the accuracy of my question. Remember that we are often called upon on short notice to address issues by the GC or Architect while a project is already under construction and there is little if any time to prepare a work agreement and keep the labor productive.
     2.     I've mentioned this before and have a complaint entered with BORPELS that is now over 18 months old. After reading the latest Bulletin, I understand why it is taking so long to get resolved;
     •     There is a local who is advertising his services as a "structural engineering consultant" to contract and provide services for to intent of submitting structural engineering work and obtaining permits. The individual owns the firm but he is not licensed and he does not have a partner who is licensed. He is experienced and may be educated in the field of structural engineering, but he has never taken the PE exam in California.

     •     He claims BORPELS only made him take his name off the drawings and change the name of the company from his name to another (he now uses his initials in the name of the firm).
     •     He is currently designing high end tract homes and has been for many years while employed by the engineering firm where he gained his experience.
     •     His work may be adequate at best - designing as his clients want - to the minimum standard of the code in order to maximize the developers profits.
     •     He hires a licensed engineer or any of a choice of engineers to review his work and wet stamp the work submitted for plan check and permit issuance.
     •     I received an e-mail from a long time friend who works for a company that does contract plan check work. He indicated that he received a package from this individual but in his experience had seen others perform the same type of service and while he feels it is probably wrong, he does not feel he has the right or responsibility to submit a complaint to BORPELS for every offense that crosses his desk.

I'm not arguing the over debated issues related to California Title laws.  However, here is a designer, albeit with experience in the field, who is simply "thumbing his nose" at the rules for professional practice. He is walking a fine line that changes in the opinion of BORPELS due the ability of professionals to work as a team over the Internet. The limits of which, if any "laws" have been broken are unclear. Furthermore, the issues of which administrative measure is violated and whether it is criminal (as related to public safety), ethical (as related to Business and Professions Code of conduct), or citable (violations of licensing rules). Almost all of this is clear until the engineer who wet seals his work enters into the picture.

The California Architectural Board operates on a different standard that would allow this unlicensed individual to do the work and have an architect wet seal his work exclusively. BORPELS takes the approach of mitigating a potential hazard by addressing a design weakness or violation before damage can occur. CAB will not even address the matter and recognizes that the Architect has complete autonomy until the point where damage (or loss of life) occurs and then will investigate to find out if the Architect is negligent or potentially liable.

We seem to have enough problems with the issues of Outsourcing and non-immigrant status professionals (H-1b) who are hired to fill positions in the United States and who many feel is simply a side-step to permanent immigration into the United States. However, in many respects I feel it is not as insidious a violation as this one designer who is an small business owner passing himself off as a qualified professional and who while trained has not proven his competency to the satisfaction of the Department of Consumer Affairs in California (the government office that regulates licensing).

The final point is a comparison; As to the issue of outsourcing, I can't argue on the merits or competency of the engineer who had designed the project for a low fee as long as there is an engineer licensed in the state or jurisdiction in which the project is to be constructed and who has been involved in the choices and coordination of work from start to finish. However, I would argue (based on the mitigation nature of BORPELS for example) the "designer" who has made all decisions and choices during the project but who seeks to hire a licensed or registered professional to seal his work so as to make it "legal".

It creates a potential problem protecting the safety of the public. Although he may be trained, he opens the doors for others with even less understanding to complicate and mock the licensing rules but for the most important reason, places the public safety in jepordy.

It's been nearly two years and now it appears that this complaint will come up in the next years BORPELS issue. In the mean time a great number of homes have been and will continue to be designed by those figuring out ways to bypass the rules for sake of money and an inherent lack of concern for the public safety.

Dennis S. Wish, PE