Guidelines for Professional Engineering Practice in New York State
Law, rules and regulations, not Guidelines, specify the requirements for practice and violating them constitutes professional misconduct. Not adhering to this Guideline may be interpreted as professional misconduct only if the conduct also violates pertinent law, rules and regulations, some citations of which are listed at the end of this Guideline.
Guideline 4: Design Delegation
The following practice guidelines addressing Design Delegation, developed by the State Boards for Architecture, Engineering and Land Surveying, and Landscape Architecture, with input from the Industry Advisory Council, were designed to provide assistance in the implementation of section 29.3(b)(2) of the Rules of the Board of Regents. Given the evolving nature of practice, these guidelines may be discontinued or updated as appropriate. Consequently, when a licensee faces a question as to a course of action which involves matters of “good practice,” the guidelines may be of assistance in giving a general understanding of the intent of statute and rule; however, the original language of the statute or rule should also be consulted. Having applied the statute or rule to the particular situation at hand, the licensee then has a basis for making the appropriate decision.
Throughout the construction process, from the first meeting of client and design professional through completion of the project, it is in the interest of all parties to know what is involved in the project and where the responsibilities lie in relationship to the work required by the Construction Contract Documents. The Principal Design firm should convey in a manner the firm deems most appropriate, to the project owner, the contractor and the subcontractors, the full scope and nature of the project and those elements being delegated for the design by another licensee.
The following language addresses Section 29.3(b)(2) of the Regents Rules which contains the circumstances and requirements under which design may be delegated. Also provided is a condensed restatement of the formal language with guidance as to how the statement may be implemented.
- Unprofessional Conduct
“Unprofessional conduct shall not be construed to include:
participation as a delegator, or delegatee in delegating or accepting delegation, through an intermediate entity not authorized to provide professional design services, of specifically defined work involving the performance of a design function requiring a professional license, . . . .”
A design professional may delegate through, or accept delegation from, a contractor or subcontractor for the design of certain ancillary building components or systems under the following circumstance:
For the items being delegated that involve those design services for which a license is required, it should be stated clearly that those delegated design functions shall be performed by design professionals currently licensed or otherwise authorized by the State Education Department.
- Design Parameters
Section 29.3 (b)(2)(b)
“the delegator shall specify in writing to the delegatee all parameters which the design must satisfy;”
The Architect, Professional Engineer, Land Surveyor or Landscape Architect of Record (the delegator) shall provide performance specifications in writing for the delegated components or systems.
The delegator must provide sufficient information, in writing, for the delegatee (the licensee to whom the work is delegated) to understand the scope and nature of the delegated work and its connection to the general design. The information that is required to perform the delegated design functions shall be commensurate with the nature of the project, and may include, but is not limited to, technical data, loads, references to the American Society for Testing and Materials and other performance standards and other relevant and related conditions as appropriate and contained in the construction contract documents.
- Performance Specifications
Section 29.3 (b)(2)(c)
“the design function shall be required to be performed in accordance with performance specifications established by the delegator;”
The design professional to whom the design function has been delegated (the delagatee) shall design the component or system in accordance with the performance specifications.
After carefully reading the performance specifications, the delegatee should make any requests for clarification in writing to the design professional of record through the Contractor/Subcontractor.
- Delegatee Responsibility and Requirements
Section 29.3(b)(2)(d) and 29.3 (b)(3)(iv)
“the delegatee shall be required to be licensed or otherwise legally authorized to perform the design work involved and shall be required to sign and certify any design prepared.”
“Certify means a written statement by a licensee confirming responsibility for the work and attesting that the work prepared meets the specifications (as well as conforming to governing codes applicable at the time the work was prepared), and conforms to the prevailing standards of practice.”
The person responsible for the design of the component or system shall be a New York licensee, or otherwise authorized, and shall sign and certify his/her design work.
The Construction Contract documents shall specify the manner in which the designs shall be certified as to meeting the specifications and standards of practice expected of licensees in New York State for projects of similar size and complexity. The delegatee will be professionally responsible for the delegated design work; therefore, before signing and certifying the work, a professional judgment should be made about the reliability and quality of the work.
- Delegator Responsibility and Requirements
Section 29.3(b)(2)(e) & (f)
“the delegator shall be required to review and approve the design submitted by the delagatee for conformance with the established specifications and parameters and such determination shall be in writing;”
“the delegator shall be required to determine that the design prepared by the delagatee conforms to the overall project design and can be integrated into such design and such determination shall be in writing.”
The Architect, Professional Engineer, Land Surveyor, or Landscape Architect of Record is required to review and determine that the delegated component or system design conforms to the performance specifications and any subsequent amendments; to the overall project design; and that it can be integrated into the building system. The Design Professional of Record shall be required to provide written notification of the decision or the submittal may be so marked (Approved; Disapproved; Revise/Resubmit). If not approved, a clear explanation should be provided.
Citations of Pertinent Law, Rules or Regulations:
- Education Law, section 6509 – “unprofessional conduct”
- Education Law, section 6512 – “unauthorized practice of a crime”
- Education Law, section 6513 - “unauthorized use of a professional title a crime”
- Education Law, section 7201 – “definition of practice of engineering”
- Education Law, section 7202 – “practice of engineering and use of title “professional engineer”
- Education Law, section 7206 - “requirements for a license as a professional engineer”
- Education Law, section 7208 – “exempt persons”
- Regents Rules, part 29.1 – “general provisions”
- Regents Rules, part 29.3 – “general provisions for design professions”
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