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Sealing and Signing Divisions 00 and 01: Is it Architecture or Engineering?

by Kevin O’Beirne

Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients.

Should design professionals seal and sign Division 00 documents and Division 01 specifications? In the past, when the architect or engineer prepared all the construction documents and administered the project’s construction alone, it probably did not matter much. In modern times, however, where an owner’s procurement department, a construction manager, or the owner’s program manager may prepare part or all of Divisions 00 and 01, the answers are less clear and more important.

Most design practitioners recognize that all US states’ and Canadian provinces’ laws and regulations governing the design professions require architects, professional engineers, professional geologists, and other design professionals to seal and sign “specifications.” What is meant by this may be debatable.

Sealing and Signing Division 00

Some people believe construction “specifications” are everything between the project manual’s covers.  Others more pragmatically recognize CSI MasterFormat indicates that “specifications” are the documents in Divisions 01-49, whereas MasterFormat’s “Division 00 – Procurement and Contracting Requirements,” is comprised of a solicitation, instructions to bidders, bid form, agreement, general conditions, supplementary conditions, and related documents, and is not “specifications”.

Relevant to what truly needs to be sealed and signed are: (1) what contractually comprises “specifications;” and, (2) statutorily, what constitutes the practice of architecture or engineering.

Section 1.1.4 of AIA A201—2017, Standard General Conditions of the Contract for Construction, says, “The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services.” More precisely, the “Specifications” are to be enumerated in Article 9 of AIA A101—2017, Agreement between Owner and Contractor (Stipulated Sum).

EJCDC’s parallel language is quite similar to AIA’s. Paragraph 1.01.A.39 of EJCDC C-700—2018, Standard General Conditions of the Construction Contract, defines: “Specifications—The part of the Contract that consists of written requirements for materials, equipment, systems, standards, and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable to the Work.” Paragraph 7.01.A.5 of EJCDC C-520—2018, Agreement between Owner and Contractor (Stipulated Price), indicates the contract documents include, “Specifications as listed in the table of contents of the project manual (copy of list attached).”

From EJCDC’s and AIA’s contractual definitions, it appears Division 00 documents are not “specifications,” because Division 00 solicits bids or proposals, establishes the parties to the contract and the basic contractual terms such as compensation and time of performance, and basic responsibilities and risk allocations. Division 00 does not establish standards of workmanship for the specific project. To reinforce that Division 00 is not “specifications,” when referring to Division 00 components, both AIA and EJCDC employ document titles (e.g., “Agreement,” “General Conditions,” “Supplementary Conditions”) rather than the term, “Specifications.”

Next, consider the definition of “architecture” or “engineering” where you practice.  New York and Pennsylvania’s definitions are typical examples.  New York State Education Law, Title VIII, Article 145, §7201, states:

“§7201. Definition of practice of engineering… is … performing professional service such as consultation, investigation, evaluation, planning, design or supervision of construction or operation in connection with any utilities, structures, buildings, machines, equipment, processes, works, or projects wherein the safeguarding of life, health and property is concerned, when such service or work requires the application of engineering principles and data.”

Similar language defines the “practice of architecture” in New York State Education Law, Title VIII, Article 147, §7301.

Pennsylvania’s Act 367 of 1945 (PL 913) governing engineering and establishes:

“(a) (1) ‘Practice of Engineering’ shall mean the application of the mathematical and physical sciences for the design of public or private buildings, structures, machines, equipment, processes, works or engineering systems, and the consultation, investigation, evaluation, engineering surveys, construction management, planning and inspection in connection therewith….

“(2) The term ‘Practice of Engineering’ shall also mean and include related acts and services that may be performed by other qualified persons, including but not limited to, municipal planning, incidental landscape architecture, teaching, construction, maintenance and research but licensure under this act to engage in or perform any such related acts and services shall not be required.”

Similar language defines the “practice of architecture” in Pennsylvania’s Act 281 of 1982 (PL 1227).

All such definitions read by this writer for various US states indicate practicing the design professions entails applying architectural, engineering, and scientific principles to solve technical and aesthetic problems related to buildings, equipment, and systems affecting public health, safety, and welfare.

Although engineers practice engineering and architects practice architecture, both also render associated, “non-professional” services for which professional licensure is not required. For example, an environmental engineering consultant may have an employ obtain groundwater samples for laboratory analysis which is, itself, not the practice of engineering—after all, laboratory employees perform the same function. Preparing BIM and CAD digital models is not the practice of architecture or engineering, because interior decorators and employees at your local paint retailer do it every day, so selecting colors and textures is not the practice of architecture. Many unlicensed “non-professionals” independently perform such tasks without violating laws or regulations governing the practice of the design professions. Thus, preparing a written contract (e.g., Division 00) is certainly not the practice of architecture or engineering, nor is it exclusive to such professions.

Division 00 is often prepared by non-architects or non-engineers, such as an owner’s procurement department, construction manager, or owner’s program manager. Indeed, some consider Division 00 the purview of attorneys. While architects and engineers often assist their clients with drafting Division 00 documents (and are perhaps in the best position to do so for matters such as identifying appropriate bid/pay items and better ensuring fully coordinated and integrated construction documents), Division 00 does not constitute the practice of either engineering or architecture as defined by statutes on the design professions. Accordingly, Division 00 documents usually do not require the design professional’s seal and signature.

However, it is highly advisable for architects and engineers who draft Division 00 for their client to submit the draft documents to their client via a written transmittal explicitly recommending the client’s own legal counsel thoroughly review and comment on the drafts. Design professionals should avoid practicing law, insurance, risk management advice, or financial advisory services, unless duly licensed and insured to practice such professions.

Sealing and Signing Division 01

Requirements for the project’s permanent work are addressed in Divisions 02-49, which unquestionably are “specifications” and require sealing and signing by the design professional-in-responsible-charge.

“Division 01--General Requirements” presents: (1) more-detailed, although still general, administrative and procedural requirements beyond those of Division 00, (2) requirements for temporary facilities and temporary construction, and (3) project-level performance requirements. The full scope of Division 01 is established in CSI MasterFormat.

Division 01 is clearly “specifications,” so, at the very least, parts or perhaps all of Division 01 must be sealed and signed. When the design professional prepares all of Division 01, it is probably appropriate for them to seal and sign all the Division 01 specifications. However, when a third-party not under the design professional’s direct, supervisory control—such as a construction manager or owner’s program manager—drafts all or part of Division 01, should the design professional seal and sign it?

Every US state’s architecture and engineering laws and regulations prohibit architects and engineers from sealing or signing work product prepared by individuals not under the design professional’s direct, supervisory control, unless regulations on “successor architect” or “successor engineer” are complied with. Third-party construction managers and owner’s program managers, no matter how collaborative, are obviously not subject to the design professional’s direct, supervisory control. Thus, if a third-party prepared certain specifications, the design professional-in-responsible-charge should either not seal and sign them or, at the very least, carefully consider the consequences of sealing and signing something over which they were not in control. When the design professional has the opportunity to review and make appropriate, final revisions to a document prepared by others, they may be in a better position to rightfully seal and sign it. Whether they should seal and sign it likely depends on the wording of the applicable statutes and the circumstances of the project.

Because many Division 01 specifications are purely administrative or procedural, the potential exists that they may not, in some jurisdictions, require sealing and signing. For example, a Section 01 31 26 – Electronic Communication Protocols, governing construction stage communications via electronic or digital means, is not regarding the completed project as a functioning whole and does not affect public health, safety and welfare and, therefore, likely does not constitute the practice of architecture or engineering.

All Division 01 specifications that constitute the practice of architecture or engineering must be sealed and signed by the design professional-in-responsible-charge. Which sections qualify as the practice of the subject design profession depends on their content, the project, and the applicable laws and regulations, but in general, this writer believes the following probably generally need to be sealed and signed:

1. Certain sections under “01 14 00 – Work Restrictions”, especially, sections on maintaining facility operations during construction, such as MasterFormat’s “01 14 16 – Coordination with Occupants.” For industrial-type projects, this may be titled, “Coordination with Owner’s Operations” and may include requirements for system tie-ins and shutdowns and construction sequencing. On projects such as rehabilitation of a drinking water treatment plant, such a section will affect the facility’s ability to comply with health codes during construction and has strong potential to affect public health, safety, and welfare, and environmental quality.
2. Whether the design professional must seal and sign “01 25 00 – Substitution Procedures,” and “01 62 00 – Product Options” (the latter governing “or-equals”) is debatable, but there is substantial professional liability associated with the design professional approving substitutes and “or-equals” so, optimally, the design professional, rather than a third-party, should draft these sections and have control of their final content.
3. Section “01 33 00 – Submittal Procedures” should be prepared, and perhaps sealed and signed by, the design professional because the design professional performs the bulk of submittal reviews, even when a construction-manager-as-advisor (CMa) is involved. This section commits the design professional to certain actions with respect to submittal reviews, which is fraught with professional liability (and perhaps contractual liability) for the design professional, even though “submittal procedures” is, itself, administrative and procedural requirements.
4. Certain sections under “01 35 00 – Special Procedures” which directly affect performance of the construction and related services, should be sealed and signed when they affect the public or environment or have strong potential to increase the design professional’s liability.
5. Sections under both “01 41 00 – Regulatory Requirements” and “01 42 00 – References” should be sealed and signed. Among other things, such sections may address permitting (including permits obtained by the owner), regulatory compliance, and compliance with reference standards.
6. Sections under both “01 43 00 – Quality Assurance” and “01 45 00 – Quality Control”, should be sealed and signed, especially “01 45 33 – Code-Required Special Inspections and Procedures,” because these sections address the acceptability of the work and compliance with building codes and, perhaps, other laws and regulations.
7. Many sections under “01 50 00 – Temporary Facilities” may need to be sealed and signed, especially those regarding compliance with laws, rules, regulations, codes, ordinances, and lawful orders of authorities having jurisdiction. Not all these sections require a design professional seal and signature, such as sections on vehicular access and parking, security during construction, and perhaps others. Whether a design professional should prepare, seal, and sign sections on temporary utilities likely depends on project requirements. Both “01 55 26 – Traffic Control” and “01 57 00 – Temporary Controls” will often require sealing and signing because they may affect public health, safety, and welfare, and environmental quality during construction. Temporary erosion and sediment control requirements under “01 57 00” often have associated permit requirements necessitating a design professional’s seal and signature.
8. Sections under “01 73 00 – Execution,” which typically directly affect construction of the completed project, may need to be sealed and signed.
9. Sections under “01 75 00 – Starting and Adjusting,” which include procedures for checkout, startup, initial operation, and initial adjusting of the new construction, may require sealing and signing. Results of such processes has a direct effect on the design professional’s decision to certify the work as substantially complete, with associated professional liability.
10. Section “01 79 13 – Demonstration Testing,” when used, may require sealing and signing because it affects the facility’s operation and the design professional’s decision to certify the project as substantially complete or ready for final payment.
11. Sections under “01 80 00 – Performance Requirements” obviously require the design professional’s seal and signature.
12. Although commissioning agents often draft the “01 90 00 – Lifecycle Activities” sections, mostly concerning commissioning, the design professional needs either substantial input into such sections or, on occasion, to seal and sign them, depending on content.

Conclusions

When part or all the Division 01 specifications are prepared by other than the design professional, perhaps not all of Division 01 should be, or needs to be, sealed and signed, depending on circumstances and applicable laws and regulations.

Because Division 00 documents are not specifications and are often prepared or controlled by others not under the direct, supervisory control of the architect or engineer, Division 00 documents typically do not need to be sealed or signed.

This blog post is general and the reader must read, understand, and comply with its own contract with its client and the laws and regulations governing the practice of the associated design professions in the jurisdiction where their projects are located. Such statutes can and do vary, sometimes, considerably, between jurisdictions.

Copyright 2020 by Kevin O’Beirne

This blog post does not constitute professional advice. Readers must review applicable laws and regulations and contracts and draw their own conclusions. The content of this blog post is by the author alone and should not be attributed to any other individual or entity.