Sealed Professional Engineering: Helping Creative Companies Innovate
When building officials reject an engineer’s seal instead of following the code compliance process for alternative materials, products, designs, building system designs and methods of construction, they exceed the authority given to them by the building code and they also constrain trade. This has serious implications for any industry.
A statement that is regularly heard in the marketplace with regard to innovative alternative materials and designs is, “you need to have an ICC report,” in order to incorporate it into a building. For more than 50 years, a sealed truss design drawing (TDD) has been, for all intents and purposes, an "ICC report," for truss use in buildings. This approach has also been used for creating markets for a wide variety of engineered components. The market has accepted this as being the case, and it works well when professional building officials provide astute and valuable written checks and balances.
The good thing about the component framing industry is that there is often a professional engineer involved in the design of structural components. Those engineers are independent, serve under professional engineering law and take professional responsibility by signing and sealing their work. They generally have professional liability insurance. When there is an engineer’s seal on a document, any company using that document has visible assurance that an engineer takes professional responsibility for the work to which the seal is attached and will react professionally as in working with building officials to provide structures that are safe and durable.
The structural framing and components industry has been involved in professional engineering as it relates to innovative and alternative materials, products, designs, building system designs, methods of construction and related construction documents since its inception in 1952. The process typically goes as follows:
- Construction documents include the design, location, and physical characteristics of construction. This is generally considered sufficient approval documentation. Construction and related engineering documents (i.e. technical evaluations, “ICC Reports,” etc.) may also contain information protected by copyright laws and other intellectual property (IP) that by federal trade and professional engineering law are allowed to be protected as confidential. This includes test data, technical analysis, etc.
- Whenever the preparation of construction documents requires technical or design analysis (i.e., design elements of a complex nature, generally requiring computations, evaluations of the loads, stresses, etc.), the documents must be sealed by a registered design professional. This is also likely to be protected intellectual property.
- Based upon technical analysis, the registered design professional specifies the performance of a structural component (specialty or delegated engineering) or the design of a building system or an entire building. This overall building design process is intended to meet the needs of the owner/occupant and the requirements of the local adopted (as law) building code (residential or commercial), which is often based on an ICC Model Code.
A question that can arise during this process, particularly as it relates to the use of innovative materials, products, designs, building system designs or methods of construction that include items such as structural building components sealed by a registered design professional, is: how should an authority having jurisdiction handle compliance and noncompliance?
In this context, general professional engineering law is clear in that authorities having jurisdiction do not have the authority to determine which design professionals can seal the innovative and alternative materials, products, designs, building system designs, methods of construction and any related construction documents.
For example, an authority having jurisdiction cannot reject a landscape architect's seal on plans showing the building's location, grading, roadways, and site details. The authority having jurisdiction does not determine whether it is an engineer or architect who should be sealing the documents when there is a seal. The scope of practice of architecture or engineering is the jurisdiction of the appropriate registration board, not the authority having jurisdiction. Failure to approve the use of innovative and alternative materials, products, designs, building system designs, methods of construction or any related construction documents and failure to issue a certificate of approval constitutes a denial of a professional’s "license." Any denial, along with a written cause and reason for denial and specific associated evidence to support the denial, needs to be brought before the appropriate professional registration board for investigation.
In all cases, the use of the innovative and alternative materials, products, designs, building system designs, methods of construction and/or any related construction documents shall be approved if there is no evidence provided of a relevant code compliance or professional engineering issue. Therefore, documents that are required to be submitted for an approval must be accepted for review by the authority having jurisdiction. A thorough and complete plan examination must be performed. This would include the review of any ANSI ISO/IEC 17065 accredited technical evaluation report information regarding the alternative approach and a relevant code compliance review based on the accredited product certification information provided (i.e. an ANSI code compliance report that includes a digest of intellectual property, engineering analysis, proprietary design value evaluations, professional engineering certifications, etc. Acceptable plan review does not include the request and review of raw test data, test reports and other protected intellectual property).
If the authority having jurisdiction does not issue an approval because there is not full compliance with the Building Code (residential or commercial), then it is assumed that the authority having jurisdiction will respond in writing stating the specific reasons why the alternative materials, products, designs, building system designs, methods of construction and any related construction documents were not approved. Because the Building Code (residential or commercial) is law, SBCA presumes that the authority having jurisdiction will provide a clear set of specific building code citations to allow the SBCA member a straight-forward path to address the non-compliance. This would include citations and how to fix any noncompliance related to information provided by any associated ANSI ISO/IEC 17065 accredited product certification report, sealed design drawings, sealed plans and specs, etc.
There are times when artificial constraints limit the use of innovative alternative materials and designs. Any licensed professional or specialty engineer, through the use of generally accepted engineering practice and provisions in the law that encourage engineering innovation, should be treated consistently and fairly. Doing otherwise is a constraint on trade and may easily be discriminatory.
The code compliance approval process outlined above is a key aspect of the building code and, when followed correctly, encourages innovation and Intellectual Property (IP) creation. It is also in the spirit and mission of the Federal Trade Commission Antitrust Laws (see below for additional information on the FTC). One part of the work of state Attorneys General is ensuring small and medium-sized enterprises have an equitable opportunity to participate in the U.S. economy and are not discriminated against because they are small. A majority of component manufacturers, building material supply companies and professional engineers are small businesses.
Federal Trade Commission
The Federal Trade Commission Act is the primary statute of the Commission. Under this Act, as amended, the Commission is empowered, among other things, to (a) prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce; (b) seek monetary redress and other relief for conduct injurious to consumers; (c) prescribe rules defining with specificity acts or practices that are unfair or deceptive, and establishing requirements designed to prevent such acts or practices; (d) gather and compile information and conduct investigations relating to the organization, business, practices, and management of entities engaged in commerce; and (e) make reports and legislative recommendations to Congress and the public. A number of other statutes listed here are enforced under the FTC Act. The primary statutes governing the FTC’s competition mission include: