Do You Indemnify & Hold Harmless Your 'ICC Report' Author?

A generic statement typically heard in the marketplace today is, “you need to have an ICC report.” This implies that if you have an "ICC report," everything is fine and all product evaluation or construction defect risk is covered. 

A concept to consider, in the context of the shifting of risk, is that many product evaluation entities require indemnification and hold harmless provisions similar to that found in all ICC-ES contracts, where it reads as follows:

Other examples of similar indemnification provisions can be found with the Intertek Commodities Division contractCommodities Division contract, with International Association of Plumbing and Mechanical Officials (IAPMO) and with Underwriters Laboratories (UL).

Given this a best practice to consider follows:

  1. Have one of your staff review all of your contracts for indemnity language from all your:
    1. product suppliers,
    2. product evaluators,
    3. third party inspectors,
    4. engineering service providers
    5. and so forth.
  2. Have one of your staff review all each of your “ICC Report” writer contracts for indemnity language, where the review ensures a full understanding of the following items:
    1. Scope of work of each party.
    2. Scope of responsibility of each party
    3. Do they sign and seal their work if they are engineering firms?
    4. Do they sign and seal their work if they are third party inspection firms?
    5. Do they have profession liability insurance?
    6. Value of services in the context of risk assumed or expected to be taken by each party.
    7. Value of service in the context of risk shifted to another party.

Many certification bodies that employ professional engineers have the ability to do so. This may be important because it means the accredited product certification body takes on the engineering responsibility for all the specific engineering related scopes of work that are performed. An engineering group generally provides professional liability insurance coverage for any errors and omissions, and also works within and is privileged by professional engineering laws.

The best construction-oriented ANSI ISO/IEC 17065 accredited product certification bodies are accredited in a broad range of engineering and construction categories, including but not limited to the following listing:

13 ENVIRONMENT. HEALTH PROTECTION. SAFETY

     13.220 Protection Against Fire

21 MECHANICAL SYSTEMS AND COMPONENTS FOR GENERAL USE

     21.060 Fasteners

71 CHEMICAL TECHNOLOGY

     71.100 Products Of The Chemical Industry – Wood protecting Chemicals

77 METALLURGY

     77.140 Iron And Steel Products

     77.150 Products Of Non-Ferrous Metals

79 WOOD TECHNOLOGY

     79.040 Wood, Sawlogs And Sawn Timber

     79.060 Wood-Based Panels

81 GLASS AND CERAMICS INDUSTRIES

     81.040 Glass

83 RUBBER AND PLASTIC INDUSTRIES

     83.080 Plastics

91 CONSTRUCTION MATERIALS AND BUILDING

     91.040 Buildings

     91.060 Elements Of Buildings

     91.080 Structures Of Buildings

     91.100 Construction Materials

     91.120 Protection Of And In Buildings – Siesmic, Thermal, Water Proofing, etc.

93 CIVIL ENGINEERING

In summary, it is likely that an important best practice consideration is to find “ICC Report” suppliers that take responsibility for their specific scope work. A simple approach is to evaluate suppliers by their willingness to stand behind their work by “signing off” on it. The contrast to this is to ask each “ICC Report” supplier to tell you what their indemnity and hold harmless provisions are with respect to the products or services provided.

 

 

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