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Code Evaluation Reports and California Professional Engineering Rules

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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".