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Responsible Charge an Essential Concept for Design Professionals

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 01-23-2024 02:37 PM

  
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Laws and regulations governing the practice of architecture, engineering, geology, and other design professions require that professional services be performed under the “responsible charge” of an appropriately licensed, registered design professional. What that means in practice varies by applicable laws and regulations and may be subject to varying interpretations. This article examines the applicability and meaning of “responsible charge” and presents related, key concepts for practitioners.

Terms such as, “’[architect] [engineer] of record” and “’[architect] [engineer] -in-responsible-control” are typically construed as having the same meaning as, “’[architect] [engineer] -in-responsible-charge”. In many organizations, the terms are used interchangeably for a given design discipline. For convenience and uniformity, the term “responsible charge” is used in this article.

Applicability

Laws and regulations governing the practice of the design professions require that a licensed, registered design professional serve in responsible charge, including sealing and signing instruments of service such as technical reports, calculations, drawings, specifications, and other documents, when such services constitute the practice of architecture, engineering, or other design profession. Typically, one of the first provisions of such laws and regulations defines what constitutes the practice of architecture, professional engineering, or other design profession.

Although statutes concerning the practice of architecture, engineering, or other design professions typically require that only certain instruments of service be sealed and signed for certain, specific purposes, they require an appropriately licensed, registered design professional serve in responsible charge for all activities constituting the statutory definition of the practice of the subject design profession, regardless of project stage.

The National Council of Architectural Registration Boards (NCARB) publishes model statutory language governing the practice of architecture in the United States.  NCARB Model Laws and Regulations includes the following definition at Section 103.15:

“15) Practice of Architecture –

“The art and science of designing, in whole or in part, the exterior and interior of Buildings and the site around them, in a manner that protects the public health, safety, and welfare. The Practice of Architecture includes providing or offering to provide planning services; developing concepts; preparing documents that define form and function; coordinating consultants; and construction administration.

“a. Planning services include, but are not limited to, programming and planning.

“b. Developing concepts includes, but is not limited to, preliminary studies, pre-design, investigations, and evaluations.

“c. Preparing documents that define form and function includes, but is not limited to, drawings and Technical Submissions, including incorporation of the requirements of the authorities having jurisdiction.

“d. Coordinating consultants includes, but is not limited to, the coordination of any elements of Technical Submissions prepared by others.

“e. Construction administration includes, but is not limited to, evaluation of construction to determine that the work is proceeding in accordance with the contract documents.”

Similarly, the National Council of Examiners for Engineering and Surveying (NCEES) publishes suggested language for state and territorial laws and regulations governing the practice of professional engineering and land surveying in the United States. NCEES’s Model Law (revised September 2021) Section 110.20.A.5 defines the following in part:

“5. Practice of Engineering—The term “Practice of Engineering,” as used in this Act, shall mean any service or creative work requiring engineering education, training, and experience in the application of engineering principles and the interpretation of engineering data to engineering activities that potentially impact the health, safety, and welfare of the public.

“The services may include, but not be limited to, providing planning, studies, designs, design coordination, drawings, specifications, and other technical submissions; teaching engineering design courses; performing surveying that is incidental to the practice of engineering; and reviewing construction or other design products for the purposes of monitoring compliance with drawings and specifications related to engineered works.

“Surveying incidental to the practice of engineering excludes the surveying of real property for the establishment of land boundaries, rights of way, easements, and the dependent or independent surveys or resurveys of the public land survey system…”

Of course, engineers should not practice architecture and, architects should not practice engineering. Because, to the best of this writer’s knowledge, no state or territory has adopted NCARB’s and NCCES’s model laws and regulations in their entirety and each has its own, unique statutory language, practitioners must verify the definition of what constitutes the practice of architecture, engineering, or other design profession in the jurisdiction where their project is located. Thus, activities that fall under the applicable statutory definition of the practice of architecture must be performed under the responsible charge of a suitably licensed, registered architect, and services falling under the applicable statutory definition of the practice of engineering must be performed under the responsible charge of an appropriately qualified, registered, licensed professional engineer.

Certain activities commonly undertaken by architects and engineers do not fall under applicable statutory definitions of the practice of architecture, engineering, or other design profession, including: performing services that are purely computer-aided design (CAD) or building information modeling (BIM); obtaining samples and performing testing, whether in-situ or in a laboratory; and others falling under exemptions expressly indicated in the applicable law or regulation. Such services need not be performed under the responsible charge of a licensed design professional. Also see: Sealing and Signing Divisions 00 and 01: Is it Architecture or Engineering?, previously published on this writer’s blog.

No design professional should ever practice outside their area of competence or when they and their employer are not properly licensed to do so. Thus, design professionals should never offer or perform services that may be construed as legal advice, insurance or risk management advice, accounting, financial advisory, or other services for which they are not qualified and licensed to offer or provide, and for which they are not properly insured. 

Some Common Practices 

While seemingly everyone in the design professions has some awareness of the concept of responsible charge, how responsible charge is viewed and exerted varies considerably from one design firm to the next and, in some cases, from one licensed design professional to another.

In many design firms, especially those with fewer staff, it is reasonably common for only one or a small number of senior staff to be authorized by the firm to serve in “responsible charge”. Whether such senior staff properly exercise responsible charge may, perhaps, be another matter. For example, this writer recalls a post in the online community of a non-profit organization representing design professionals in which a principal of an architecture firm indicated he was in responsible charge of all his firm’s projects and sealed and signed deliverables for five to ten projects per week. Given the often-significant time commitment of serving in responsible charge as recommended in this article, it may be difficult to conceive how an individual could properly serve in responsible charge of five to ten projects every week.

Where a senior staff member at a design firm seals and signs instruments of service for a significant number of projects, it may not be possible for that person to be appropriately involved in day-to-day decisions on technical matters on their projects. In such cases, when the instruments of service are drafted and a deliverable is due, the architect- or engineer-in-responsible-charge reviews and marks up the draft deliverables before sealing and signing them for subsequent delivery. Such post-preparation reviews may fall short of the requirements for exercising responsible charge under applicable laws and regulations. It is arguable whether such practice truly constitutes properly serving in responsible charge. Individuals and firms who engage in such practices should consider their potential response and action in the event they must justify their actions concerning responsible charge to the applicable state or territorial licensing board. Design firms’ personnel time sheets documenting the extent of such reviews may become evidence in such circumstances.

Other, more-significant deviations from what constitutes a proper exercise of responsible charge may happen from time-to-time. Examples shared orally with this writer over the years by professional colleagues (not with the writer’s current employer) include instances of: (1) a professional engineer directing unlicensed staff to use and apply the PE’s seal and an electronic facsimile of their signature to deliverables when the PE was out of the office for an extended period; and (2) a licensed design professional who allowed their license to lapse but continued to seal and sign instruments of service for their employer for 18 months.

Practices such as these may be contrasted with the recommendations presented below regarding what this writer believes constitutes appropriate conduct for licensed design professionals serving in responsible charge.

The meaning of “Responsible Charge”

Below are recommended practices for design professionals serving in  “responsible charge”. This list was developed in part by adapting recommendations set forth in an article by David Peeler, PE, in The North Carolina Bulletin, (newsletter of the North Carolina Board Of Examiners For Engineers And Surveyors), December 2004/Fall Issue. A licensee serving in responsible charge should:

1.     Possess current, valid license and registration for the design discipline(s) involved.

2.     Be competent by training and experience in the discipline(s) required.

3.     Actively supervise, for the project or assignment, the individual(s) performing the services.

4.     Obtain or establish project parameters and criteria relative to performing technical aspects of the required design discipline(s).

5.     Actively require changes to the work (and instruments of service) and direct the manner and method of how the technical services are performed.

6.     Be actively involved, from start to finish, as the services are performed.

7.     Ensure procedures and quality programs are in place supporting the licensee’s control of the technical aspects of the services.

8.     Spend sufficient time with personnel performing the services to be familiar with details of such technical services.

9.     Train, or be otherwise personally familiar with capabilities of, the personnel performing the services.

10.  Have close proximity or regular access to, or communication with, individuals performing the services.

11.  Be duly authorized by their employer to serve in responsible charge of the associated design discipline(s).

Applicable requirements concerning responsible charge vary by jurisdiction and, thus, licensees should review laws and regulations governing the practice of the design professions where their projects are located.

The National Society of Professional Engineers’ (NSPE) Position Statement on Responsible Charge includes the following key text:

“The professional engineer in Responsible Charge is actively engaged in the engineering process, from conception to completion. Engineering decisions must be personally made by the professional engineer or by others over which the professional engineer provides supervisory direction and control authority. Reviewing drawings or documents after preparation without involvement in the design and development process does not satisfy the definition of Responsible Charge.”

For engineers, Section 240.20.E of NCEES’s Model Rules (revised August 2022) defines responsible charge in a manner that is different from this article’s recommendations set forth above, and uses the following language:

“E. Plans, plats, specifications, drawings, reports, and other documents will be deemed to have been prepared under the responsible charge of a licensee only when all the following conditions have been met and documented:

“1. The client requesting preparation of such… documents makes the request directly to the licensee, or a member or employee of the licensee’s firm;

“2. The licensee supervises the preparation of the… documents and has input into their preparation prior to their completion;

“3. The licensee reviews the final… documents; and

“4. The licensee has the authority to, and does, make any necessary and appropriate changes to the final… documents.

“The licensee is responsible for meeting all of the preceding requirements whether the work is being performed remotely or locally.”

For architects, NCARB Model Laws and Regulations includes the following definition at Section 103.16:

“Responsible Control – Responsibility for exercising the ultimate authority over, and possessing the knowledge and ability to oversee, delegate, and integrate the design and technical decisions related to the preparation of the project’s instruments of service and the project’s implementation in conformance with the standard of care.”

Section 4.01.2 of NCARB’s Model Laws and Regulations also states, in part, “…By sealing a technical Submission, the Architect represents that the Architect was in Responsible Control over the content of such Technical Submissions during its preparation and has applied the required professional standard of care.” A footnote to Section 401 also includes the following, “…The seal also represents that the Architect is in Responsible Control of the design, is familiar with all aspects of the document preparation, and the submission is complete for construction….” Section R401.1 also includes language clarifying the meaning of the architect’s application of their seal to instruments of service. As demonstrated here, NCARB’s Model Laws and Regulations requirements on “responsible control” may perhaps be considered less detailed than this article’s recommendations concerning responsible charge, above.

Some states have adopted language in their laws and regulations governing the design professions that differs from, and may be more clear to licensees than the NCARB and NCEES model language, discussed above, and appears to be closer in meaning and intent to this article’s recommendations. For example, revisions in November 2015 (effective on January 1, 2016) to the Commonwealth of Virginia’s Laws and Regulations governing the practice of Architecture, Engineering and other design professions clarified appropriate conduct for personnel in responsible charge. These revisions included important clarifications in 18 Va. Admin. Code § 10-20-740 concerning what is meant by “direct control and personal supervision”, stating in part:

“18VAC10-20-740. Professional responsibility.

“A. Unless exempt by statute, all architectural, engineering, land surveying, landscape architectural, and interior design work must be completed by a professional or a person performing the work who is under the direct control and personal supervision of a professional.

“B. A professional shall be able to clearly define his scope and degree of direct control and personal supervision, clearly define how it was exercised, and demonstrate that he was responsible within that capacity for the work that he has sealed, signed, and dated. For the work prepared under his supervision, a professional shall:

“1. Have detailed professional knowledge of the work;

“2. Exercise the degree of direct control over work that includes:

“a. Having control over decisions on technical matters of policy and design;

“b. Personally making professional decisions or the review and approval of proposed decisions prior to implementation, including the consideration of alternatives to be investigated and compared for designed work, whenever professional decisions are made that could affect the health, safety, and welfare of the public involving permanent or temporary work;

“c. The selection or development of design standards and materials to be used; and

“d. Determining the validity and applicability of recommendations prior to incorporation into the work, including the qualifications of those making the recommendations;

“3. Have exercised his professional judgment in professional matters that are embodied in the work and the drawings, specifications, or other documents involved in the work; and

“4. Have exercised critical examination and evaluation of an employee's, consultant's, subcontractor's, or project team member's work product, during and after preparation, for purposes of compliance with applicable laws, codes, ordinances, regulations, and usual and customary standards of care pertaining to professional practice.”

The foregoing language appears to preclude a Virginia architect or professional engineer from being able to rely on subordinates to perform their technical services without the active, direct, personal supervision of the licensee, followed by the licensee’s subsequent review of the professional work product and sealing and signing thereof. The detail and clarity in Virginia’s statute is striking and appears to establish an appropriate example for professional engineers, architects, and other licensed design professionals, whether practicing in Virginia or elsewhere. Laws and regulations governing the design professions in states other than Virginia include language clearly establishing the intent of “responsible charge”.

In contrast to Virginia’s requirements, as discussed above, some jurisdictions’ laws and regulations governing the design professions appear to establish a lower standard concerning responsible charge. For example, in New York State, Section 29.3.a.3 of Part 29 ("Unprofessional Conduct") of the Rules of the Board of Regents, which pertains to architects, engineers, and other design professionals licensed by the state, appears to be the only statute addressing requirements for responsible charge by design professionals in New York State. However, Section 29.3.a.3 appears to address the matter somewhat peripherally.

Another example is the decision for the case of The State Board Of Architects v. James Clark (Court of Special Appeals of Maryland), No. 633, Sept. Term, 1996, February 27, 1997), which included the following:

“Under section 3-501(a) of the Maryland Architects Act, a licensed architect is permitted to affix his or her seal to drawings when the architect has either prepared or approved the document. Md. Code Ann., Bus. Occ. & Prof. § 3-501(a) (“the licensed architect who prepared or approved the document shall sign, seal and date the document”). Thus, the Legislature has unambiguously acknowledged that an architect need not supervise every aspect of a drawing prior to certifying it. If an architect, after review, “approves” a document, he or she is permitted to stamp that document.”

The 1997 decision in the Maryland case contrasts with the 2015 revisions to the Virginia statute discussed above. Because, at the time of this writing, nearly 27 years have elapsed since the decision in State Board of Architects v. James Clark, practitioners in Maryland should be aware of current, applicable laws and regulations and decisions by licensing boards and appeals courts and exercise the appropriate standard of care.

As highlighted by the Virginia statutory language and Maryland court decision, discussed above, practitioners should verify and understand the laws and regulations governing the practice of the design professions where their projects are located.

Key Concepts for Practitioners

While a design firm retains the contractual liability associated with its business, it is the individual licensed, registered design professional who seals and signs the instruments of service who possesses the individual professional liability associated with those instruments of service. Thus, a person serving in responsible charge, who seals and signs the design firm’s work product, may potentially be liable to the design firm’s client or other entity, including members of the general public. This entails significant risk for the individual, while the design professional’s employer (the design firm) receives the benefit (profit) and the potential liability (loss) obtained from the associated professional services.

A design firm’s bylaws should expressly address how the firm handles risks associated with its employees serving in responsible charge. In most cases, a design firm’s bylaws provide for the firm to indemnify and defend, at the firm’s expense, employees who have acted in good faith, in accordance with applicable laws and regulations and the scope of the responsibilities assigned to them by the firm. An employer’s assumption of responsibility for defending an employee does not, however, shield the employee from the jurisdiction of a professional licensing board, although the firm will typically provide the employee’s legal defense. Employers should never request or attempt to require that their employees act contrary to applicable laws and regulations.

The licensee who will serve in responsible charge should be selected during the opportunity phase, prior to the design firm developing and submitting its proposal to its client. Because potential exists for personnel serving in responsible charge to become unavailable or separate from their employer before their professional services are completed, it is advisable to have a successor designated in advance, to reduce disruptions and delays during project implementation.

Individuals serving in responsible charge should be properly authorized to do so by their employer. Rules for how this should be done vary by jurisdiction and employer.  Regardless of statutory and employer requirements, it is often advisable for an individual who will serve in responsible charge to be expressly designated for such responsibility for each assignment. Typically, such individual should be designated only by an officer of their employer’s organization authorized to perform such designations. Delegation of the responsibility to serve in responsible charge should typically be in writing, clearly indicate the assignment and specific design discipline(s) to which the authorization applies, and be saved in the design firm’s project file and in the licensee’s personal file. An example for requesting such authorization is:

This is to request designation of [indicate full name] to serve as the “[architect] [engineer]-in-responsible-[charge] [control]” (also known as “[architect] [engineer]-of-record”) for the [indicate project; also consider indicating design firm’s project number] [if the designation is for only a part of the project, such as only for civil/site work while another design professional serves in a similar capacity for, say, electrical work, clearly indicate the applicable part of the project].

The general nature of the project is [indicate information].  The general nature of our firm’s services for the project is [indicate information; for example, “performing preliminary and final design, and serving in responsible charge for the construction phase, of a new hotel”, or other appropriate language].  The responsibilities of the [architect] [engineer]-in-responsible-[charge] [control] are expected to commence on [indicate date] and conclude by approximately [indicate date).  Our firm’s project manager is [indicate name} and the principal-in-charge is [indicate name].

The reason I am requesting designation as the “[architect] [engineer]-in-responsible-[charge] [control]” is [indicate reason(s)]; [I] [or indicate name of candidate for responsible charge] am currently a licensed, registered [professional engineer] [architect] in [indicate state or territory].  The experience [I] [or indicate name of candidate] possess to serve in responsible [charge] [control] for this project includes [indicate information].

This request is presented to you because you are an officer of [indicate design firm’s name].  Please respond to this request in writing, such as via e-mail.  To avoid adversely affecting the schedule for [preparing and submitting our proposal] [performing our services] for the project, your response is requested by [indicate date].”

An example for authorizing a person to serve in responsible charge is:

You are hereby designated as the licensed professional in responsible [charge] [control] for the Project indicated above for the following elements of the Project, in accordance with [indicate design firm’s name] scope of professional services:

[Indicate; example: “Structural engineering for all elements of our firm’s Project scope.”].”

When a licensed design professional is assuming responsible charge as a “successor engineer”, “successor architect”, or successor in another design profession, additional requirements may apply before that person may serve in responsible charge of an ongoing project. For advice on this topic, see the article by David L. Pond, PE, in The North Carolina Bulletin, April 2012/Spring Issue. Laws or regulations governing the subject design profession in the jurisdiction where a given project is located may have specific requirements governing the proper designation of a successor design professional. For example, in New York State, Section 29.3.a.3.i of Part 29 ("Unprofessional Conduct") of the Rules of the Board of Regents, which pertains to architects, engineers, and other design professionals licensed by the state, addresses the matter as follows:

“a licensee who signs and seals documents not prepared by the licensee or by an employee under the licensee's direct supervision shall prepare, and retain for a period of not less than six years, a thorough written evaluation of the professional services represented by the documents, including but not limited to drawings, specifications, reports, design calculations and references to applicable codes and standards. Such written evaluation shall clearly identify the project and the documents to which it relates, the source of the documents and the name of the person or organization for which the written evaluation was conducted, and the date of the evaluation, and the seal and signature of the licensee shall also be affixed thereto; …”

In contrast, as another example, to the best of this writer’s knowledge, the Commonwealth of Pennsylvania’s laws and regulations governing the design professions does not address requirements for successor architects, successor engineers, and the like.

Many architects, especially on architect-led vertical construction projects, do not prepare their own construction specifications. Rather, many architects retain the services of an independent specifications consultant who assists the architect-in-responsible-charge by providing consulting services relative to selection of certain building products, developing the project’s construction specifications, and providing selected consulting services to the architect, relative to the specifications, during construction. Some specifications consultants are registered architects, but many are not. Specifications consultants typically do not seal or sign the construction specifications they produce for their clients; rather, the architect-in-responsible-charge typically seals and signs both the drawings and specifications. When an architect retains the services of a specifications consultant, the architect-in-responsible-charge should exert appropriate supervision and control over the specifications consultant. In contrast, it is most common for engineers, whether on architect-led vertical construction or engineer-led infrastructure and industrial process projects, to develop, seal, and sign their own construction specifications, typically without retaining a separate specifications consultant.

Because construction drawings and specifications are intended to be coordinated with each other to communicate the contractual requirements and design intent of the design professional-in-responsible-charge, one design professional should typically seal and sign the drawings and specifications for a given design discipline for a given element of the completed project. Indeed, it may be difficult to apportion liability when separate design professionals seal and sign the drawings and specifications for a given design discipline for a given element of a project.

Properly exercising responsible charge for a given design discipline for a very large project may present additional challenges. Effectively serving in responsible charge for a design team that may include dozens of personnel is likely to necessitate adopting unique management approaches so that the design professional in responsible charge is sufficiently aware of the status and progress of the design, associated technical matters, and has the opportunity to effectively exert responsible charge. In other cases, it may be necessary or appropriate to apportion between multiple design professionals of a given discipline responsible charge for distinct elements of a very large project.

Some design firms in the United States employ overseas personnel to assist in preparing instruments of service. When personnel performing such services are located many time zones away from the design professional in responsible charge, regardless of whether both fluently communicate in the same language, appropriately exercising responsible charge may be more challenging. In such circumstances, additional time and effort by the licensee may be necessary to comply with requirements of laws and regulations concerning responsible charge. As just one example, on November 21, 2014, the Texas Board of Professional Engineers issued a policy advisory regarding exercising responsible charge over individuals working remotely at overseas locations. The advisory responded to the following questions, among others: “Is there any part of the engineering work… that is acceptable to work-share overseas when the EoR [engineer of record] is in Texas and not available or in the overseas work-share office?... Can the EoR do a review and seal the final engineering documents after they have been completed by an overseas work-share office when the work wasn’t present or directly supervised by the EoR?”

In response, the Texas board advised that its regulations are, “broad enough to allow flexibility in a variety of today’s work environments while ensuring that the responsible licensed professional engineer (P.E.) has sufficient input into and oversight [of the instruments of service and professional services performed].” The Texas board responded in part, “an engineering company can [emphasis in the original] share any engineering work with overseas/remote offices as long as the responsible Texas licensed P.E. has sufficient oversight no matter his or her location.” The advisory reiterated Texas professional engineering statutory language that a professional engineer must exercise “direct supervision” of professional engineering services, “through physical presence or the use of communications devices.” The board further advised “the Board Statute and Rules are silent on the kind or type of communication devices that are acceptable… The Board expects periodic review by either physical presence or through the use of communication devices.”  The Texas Board’s advisory is, however, applicable only to professional engineering for projects in the State of Texas.

Conclusions

Serving in responsible charge is among the most significant aspects of performing a licensed design professional’s obligations. While statutory requirements concerning responsible charge vary by jurisdiction, complying with the practices recommended in this article will likely constitute acceptable conduct regardless of the project’s location in the United States. Licensed design professionals who practice a lower standard should verify that their practices are consistent with applicable laws and regulations. In many cases, serving in responsible charge while taking a hands-off approach rather than actively supervising and controlling the personnel performing technical aspects of the assignment may entail considerable risk for both the licensee and the firm.

Acknowledgments: 

The author gratefully acknowledges the assistance of the following, who kindly reviewed and commented on drafts of this article: David Metzger FAIA, FCSI; retired Vice President of Heller & Metzger, architectural specifications consultants in Washington DC; James K. Lowe, Jr., Esq., P.E. (VA, emeritus), who has more than 45 years’ experience in the A/E industry; and Jerry Cavaluzzi, Esq, of Westchester County, NY, who is Chief Risk Officer and General Counsel for Kennedy/Jenks Consultants, Inc. In addition, Mr. Lowe also furnished information on the Maryland case and Texas policy advisory discussed in this article. The author is solely responsible for the final content of this article.

Copyright 2024 by Kevin O’Beirne

The content of this blog post is by the author alone and should not be attributed to any other individual or entity.

The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney..

Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 35 years of experience designing and constructing water and wastewater infrastructure for public and private clients.  He is the engineering specifications manager for a global engineering and architecture design firm.  He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter.  He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area.  Kevin O’Beirne’s LinkedIn page. 

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