July/August 2017

Legal Beat
PE Exam, Liability, Record Drawings

BY ARTHUR SCHWARTZ, DEPUTY EXECUTIVE DIRECTOR AND GENERAL COUNSEL

Question: I recently learned that Texas has “decoupled” the experience requirements for engineering licensure and the PE exam. What does this mean? (Arkansas)

Answer: In 2016, the Texas licensing board implemented rules to allow for the “decoupling” of the experience requirements for licensure and the approval to take the PE exam. This change allows a Texas engineer-in-training to register and take the PE exam prior to meeting the full experience requirements.

The National Council of Examiners for Engineering and Surveying began discussing decoupling experience and exams in 2000. Changes were made in 2001 and 2003 that resulted in NCEES Model Rule changes, but experience was still required prior to the taking of the PE exam until 2014. At the August 2014 NCEES Annual Meeting, the council approved a change to its Model Law to “decouple” experience and timing of the PE exam. Said the Texas board, “decoupling does not change the current requirements for PE licensure or the PE exam itself in Texas but instead offers a more flexible time line to accommodate different career and life paths of future engineers.” Several states, including Nevada, New Mexico, Kentucky, Louisiana, Illinois, South Carolina, and Wyoming, have decoupled the experience requirements from the examination. Other states are also considering similar changes.

Question: My engineering firm is developing a set of agreements for use on projects with clients, and we are considering including a limitation of liability provision. Can you explain how a limitation of liability provision works and when it might be appropriate? (Nevada)

Answer: Under such a provision, one party (e.g., client) agrees that it will not seek more than a limited amount of damages from the other party (e.g., engineer) for certain actions or failures to act, regardless of the actual amount of the damages it may incur. Such an agreement binds only the two parties who have agreed and does not limit a third party’s right or ability to recover damages that it is due under the law.

A limitation of liability provision might be considered in the following circumstances: (1) where the project circumstances are unique, new, or otherwise subject to limited prior experience; (2) where the risk is out of proportion to the compensation or the engineer’s ability to control it; (3) where insurance for the risk is either too expensive or not available at all; or (4) where a judgment against the engineer or engineering firm that is greater than a specific amount could threaten the firm’s continued existence.

Question: I’m a PE and recently prepared a set of documents for a client. During construction, the client and construction contractor made several modifications to the documents, which resulted in changes in the manner in which the facility was constructed. The client is now requesting that I incorporate those contractor changes into the final design documents for the client’s permanent files and that I sign and seal those documents. Would this be appropriate? (Colorado)

Answer: State laws generally allow only a licensee to seal documents that were prepared by the professional engineer or under the licensee’s responsible charge, meaning direct control or personal supervision. Record drawing documents are generally a record of what the contractor installed and thus are generally not prepared under the licensee’s direct control or personal supervision. As a general rule, a licensee is not allowed to seal those documents. The best solution is to educate your client about the statute and why requiring licensees to seal record drawings puts you—the licensee—in a difficult position, both ethically and legally.

Depending on your jurisdiction’s law, it may be acceptable for you to prepare the record drawing documents without sealing them. A carefully worded disclaimer should also be executed, stating the limited purposes for which you have prepared the record drawing documents. This statement should indicate that any revisions to the licensee’s final and approved design drawings, plans, and specifications as represented in the record drawing documents provided to the client (1) reflect changes in the work made during construction, (2) were subsequently communicated to the professional engineer by the owner and the contractor, and (3) are based on data furnished by the owner and the contractor to the professional engineer following the submission of final design documents. The statement should also indicate that the PE shall not be responsible for the accuracy or completeness of the information provided by the owner and the contractor.