Orange County Branch Newsletter

August 2015

Law and CE News

Are You in 'Responsible Charge' of Your Projects?

After a tough economic downturn that left design professionals scrambling for work, the general sense throughout the industry is that projects are, for lack of a better phrase, coming out of the woodwork.  Strong marketing efforts, lobbying for federal, state and local funds to go towards infrastructure, transportation, and other much needed projects over the last several years have paid off, but now engineers are faced with a new and somewhat familiar challenge: completing projects timely, within budget, and to do so while meeting and often exceeding the standard of care.  More projects on an engineer’s desk usually translates to less time to dedicate to each one.  The typical design process includes the use of licensed and unlicensed staff, from drafters, to designers, to field representatives collecting site data and information.  The California Business & Professions Code requires that any engineer signing and stamping plans and specifications be in “Responsible Charge” of the work.  But what does that really mean and how can an engineer make sure they truly meet the Board of Engineer’s expectations as the engineer of record?

“The phrase ‘responsible charge of work’ means the independent control and direction, by the use of initiative, skill, and independent judgment, of the investigation or design of professional engineering work or the direct engineering control of such projects. The phrase does not refer to the concept of financial liability.” CA Bus. & Prof. Code § 6703.  Much like “the difference between an ‘engineer’ who must be registered and a ‘subordinate’ who need not be,”[1] the engineer in responsible charge of a project has a higher level of responsibility and resulting liability exposure than other engineers or other unlicensed professionals who may have worked on the project, whether those other professionals are licensed or not.

On one end of the spectrum, it is not necessary that an engineer perform every task and make every decision on a project in order to fulfill the “responsible charge” mandate.  Just as obvious, an engineer cannot meet the requirements of Bus. & Prof. Code § 6703 if he or she had no input or control throughout any portion of the design process.  But there exists a large gap between doing all the work and doing none of the work, which is where the issue of responsible charge is less clear.

The ASCE is itself concerned with the idea of responsible charge as addressed in Policy Statement 509 related to the use of “off-shore” engineering services.  As stated therein, “ASCE is concerned about the retention of unambiguous professional responsible charge in off-shoring as it relates to the signing and sealing of engineering documents.”  But what does that mean as no one-size-fits-all approach exists to provide professional engineers with guidance?

Another industry association for professional engineers has weighed in on this issue as well.  The National Society of Professional Engineers has defined responsible charge in part as follows:

[T]hat degree of control an engineer is required to exercise over engineering decisions made personally or by others over which the engineer provides supervisory direction and control authority. In making and approving engineering decisions, the engineer should be physically present or, if not physically present, be available in a reasonable period of time, either personally or through the use of electronic communication devices. Responsible charge and direct supervision are not satisfied with drawing or other document review after preparation without involvement in the design and development process as described above.[2]

With today’s technology, being involved in the design process along the way is as easy as making a phone call, reviewing a plan on your computer or sending an email.  But unlike the heroes in Hollywood movies, a professional engineer in responsible charge cannot simply ride in at the last moment and save the day by placing his or her seal on the finished product.  Purposeful involvement in the design process and decision making along the way is critical for the engineer who plans to sign and stamp a set of plans or other instrument of service and avoid lawsuits and trouble with the state board.

There are countless ways for an engineer to achieve the necessary involvement to be the engineer in responsible charge.  From regular meetings and involvement with the design team along the way, to meetings with the clients where project needs and desires are discussed.  It is never too soon or too often for the lead engineer to be involved.  Periodic involvement and participation throughout all phases of the design process is a good indication that an engineer is endeavoring to satisfy the intent as well as the requirements of Bus. & Prof. Code § 6703.

[1] Prof'l Engineers In California Gov't v. State Pers. Bd. (1977) 70 Cal. App. 3d 346, 350.

[2] NSPE Position Statement No. 1745.

Please contact us to discuss further.

Christie Bodnar Swiss | cswiss@ccmslaw.com  

Christian E. Bredeson  | cbredeson@ccmslaw.com 

Collins Collins Muir + Stewart LLP

Nothing contained in this article should be considered legal advice. Anyone who reads this article should consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.