Using another DP's plans/designs

[Sifu]

For the DP's out there I am curious. I have a sealed plan, from a P.E. It includes a comprehensive set of notes, design criteria, etc, robust foundations, steel columns, base plates, tube steel framing structure. It was approved 6 months ago.

I now received a revision, from a different P.E., with a significantly different foundation. No other plans, so they are trying to use the original engineer's existing design for the remaining structure, but the new foundation doesn't does not work with the previous framing design. When I reached out to the original design firm to ask what is going on, they curtly said all questions need to be directed to the owner.

The contractor has changed from a large commercial contracting firm, to a handy-man service.

The original sealed documents contain the copyright notation. There is no reproduction of the original plans, but they are intending to use pieces of them in the construction.

So what about the revising engineer? I am just curious if there is as much professional irresponsibility here as I think there is.

 

[e hilton]

So what about the revising engineer? I am just curious if there is as much professional irresponsibility here as I think there is.

Only if they get reported.
Edit. I thought you said “responsibility”. I agree with your comment.

 

[khsmith55]

Kick it back. Let them know the framing plans need to be coordinated with the foundation plan. Let the owner figure out who will be responsible for the COMPLETE, comprehensive and coordinated submittal.

 

[Sifu]

Kick it back. Let them know the framing plans need to be coordinated with the foundation plan. Let the owner figure out who will be responsible for the COMPLETE, comprehensive and coordinated submittal.

That is a given. I am just curious to hear opinions from the DP's on the forum. I have encountered this type of thing a few times, this is the worst example I have seen. In some cases I have received written consent from the relevant parties. Not sure I'll get that in this case.

 

[RLGA]

There may be reasons for the change; hence, the original engineer's comment about directing questions to the owner. The owner may have terminated the agreement with the original engineer for cause or convenience. Depending on what the owner-AE agreement states, the design, including the copyright, may have become the property of the owner.

When the AE is terminated for cause, the owner typically has the right to continue to use the documents and give them to another AE to use and modify.

When the AE is terminated for convenience, many standard agreements (e.g., AIA, EJCDC, ConsensusDocs, etc.) state the copyright remains with the AE and the owner cannot take the documents to another AE. However, the owner/AE agreement may have been modified to eliminate that restriction on the owner.

 

[Sifu]

Does the building official have any responsibility to be involved with any of these contract issues? Or just reject the incompatible plans? Is the building official sticking their nose where it doesn't belong, or doing a favor for the original designer, or maybe both?

Code says we need documents that demonstrate compliance with the code, and in many cases local practice requires they be prepared by a design professional, but not which design professionals, or when. Is there any responsibility to contact an original designer when their plans are being used by another designer, whether they are sufficient to demonstrate code or not? Who is the copyright note aimed at?

 

[RLGA]

In my opinion, the AHJ has no involvement in contract issues. If the construction documents are prepared and sealed by a properly licensed professional and the design conforms to the code, then you can approve it. If it does not comply with the code, return--with comments--for resubmittal.

Issues regarding intellectual property rights are solely between the owner and the AE. The AE is perfectly within their right to sign away any intellectual property rights on their design to the owner; however, they would be a fool to do so, in my opinion, without some limitations.

 

[Sifu]

Perfectly willing to stay out of it. I appreciate the perspective. I will stay in my lane.

 

[e hilton]

Sifu ... you didn’t say if the new plans have all the required stamps by the new engineer.

 

[Sifu]

The single page plan has a stamp and digital signature.

 

[Mark K]

For the DP's out there I am curious. I have a sealed plan, from a P.E. It includes a comprehensive set of notes, design criteria, etc, robust foundations, steel columns, base plates, tube steel framing structure. It was approved 6 months ago.

I now received a revision, from a different P.E., with a significantly different foundation. No other plans, so they are trying to use the original engineer's existing design for the remaining structure, but the new foundation doesn't does not work with the previous framing design. When I reached out to the original design firm to ask what is going on, they curtly said all questions need to be directed to the owner.

The contractor has changed from a large commercial contracting firm, to a handy-man service.

The original sealed documents contain the copyright notation. There is no reproduction of the original plans, but they are intending to use pieces of them in the construction.

So what about the revising engineer? I am just curious if there is as much professional irresponsibility here as I think there is.

If the original designer, the current designer, and the Owner know about this, the ownership of the intellectual property is not something for the building department to concern itself. The response from the original designer says a lot. Focus on the Code.

There needs to be a single engineer of record for the entire project. You need to see a complete set of drawings signed by a single engineer. Ask for a complete set of construction documents.

Process this as a modification of the currently approved drawings. The design of the superstructure must be compatible with the new foundation design. Should you void the previous approval?

Request a meeting with the Owner and the engineer that will be the Engineer of Record for the completed building. If appropriate consult with the City attorney in addition to the licensing board..

 

[Joe.B]

[A] 107.3.4 Design Professional in Responsible Charge

Where it is required that documents be prepared by a registered design professional, the building official shall be authorized to require the owner or the owner's authorized agent to engage and designate on the building permit application a registered design professional who shall act as the registered design professional in responsible charge. If the circumstances require, the owner or the owner's authorized agent shall designate a substitute registered design professional in responsible charge who shall perform the duties required of the original registered design professional in responsible charge. The building official shall be notified in writing by the owner or the owner's authorized agent if the registered design professional in responsible charge is changed or is unable to continue to perform the duties.

The registered design professional in responsible charge shall be responsible for reviewing and coordinating submittal documents prepared by others, including phased and deferred submittal items, for compatibility with the design of the building.

 

[Yankee Chronicler]

Perfectly willing to stay out of it. I appreciate the perspective. I will stay in my lane.

Any copyright or contractual issues between/among the owner and the two engineers is, indeed, not your concern. But in the opening post, you wrote that the new foundation design doesn't work with the framing design. That's not a copyright issue or an owner-engineer contract issue, that's a code issue. Deny the permit on those grounds and let them figure out how to submit a coordinated set of construction documents.

 

[Yankee Chronicler]

There needs to be a single engineer of record for the entire project. You need to see a complete set of drawings signed by a single engineer. Ask for a complete set of construction documents.

I disagree. There can be multiple engineers-of-record. The most prevalent example is pre-engineered steel buildings. The pre-engineered steel building manufacturer has an engineer who seals and signs the drawings for the superstructure. Those drawings provide the reactions and the frame/column bases, and the owner hires a local structural engineer to design a foundation that meets the applicable local code and that will support the loads indicated in the metal building superstructure drawings.

 

[Yikes]

There needs to be a single engineer of record for the entire project. You need to see a complete set of drawings signed by a single engineer. Ask for a complete set of construction documents.

I hear what you're saying, yet don't entirely agree. We've all seen projects where an addition was built onto an existing building that received C of O under a separate permit / separate engineer.

1. I agree that you do not have to be directly concerned with copyright issues.
2. If I understand correctly, what was once a single, unified project has now become TWO projects:
(a) a foundation-only permit with design by a new engineer, and
(b) a vertical construction permit with design by the previous/original engineer.
This is not unlike when we have a pre-engineered metal building (from a manufacturer that has their own engineer), and we are required to provide a site-specific foundation design. In that instance, at a minimum the foundation designer reviews the vertical design with their shop drawing stamp, and reference all loads and reactions on their foundation design plans. some jurisdictions may require the foundation designer to become the DPOR of the entire project.

In your situation, I would tell the Owner:

• Until they make a formal change to the permit set of plans, you can only inspect for the approved foundation design (which they don't want anymore)
• If they want to split it into 2 projects with 2 different engineers, then vertical set (#b above) needs to have all foundation plans removed its permit needs to be revised to show "foundation by others - under separate permit" as a deferred approval, to be submitted prior to allowing vertical construction to commence.
• The original engineer will need to revise and resubmit his plans. No one has a right to delete his foundation design except for him.
• The new foundation engineer (permit #a) above will provide plans and calcs and incorporate the loads that were shown on vertical permit set (b); IMO they should reference that set by permit # on the foundation plans.

Back to Ownership of the design:
FWIW, and Owner doesn't need to own a copyright on the plans. All they need is a "license" to use the plans.
When I was a kid, I think my first LP record was a Chicago album. If I owned the copyright, I should have been receiving royalty checks all these years. Instead, I owned a round vinyl disc and I was granted a license from both the songwriters and the performers to play that music for my personal, noncommercial use.

Same concept applies to building design. We as DPOR retain the copyright but grant our clients a nonexclusive license to use the plans solely for that particular project.

 

[Joe.B]

some jurisdictions may require the foundation designer to become the DPOR of the entire project.

[A] 107.3.4 Design Professional in Responsible Charge

Where it is required that documents be prepared by a registered design professional, the building official shall be authorized to require the owner or the owner's authorized agent to engage and designate on the building permit application a registered design professional who shall act as the registered design professional in responsible charge.

 

[Yankee Chronicler]

There is a distinction that has to be made -- and recognized -- between the design professional-of-record, and the design professional in responsible charge.

The design professional-of-record is the designer (architect or engineer, or -- for small structures -- an unlicensed designer) who is responsible for the design of a structure -- or some portion thereof. For a sort of run of the mill office building, for example, there is probably an architect, a structural engineer, a mechanical engineer (who may do both plumbing and HVAC, but maybe there are two), an electrical engineer, and very possibly a fire protection engineer. Each of those is the design professional of record for the portion of the work they designed or oversaw the design of, and for which drawing(s) their seal and signature is affixed.

What IBC 107.3.4 is referring to when it says the BO is authorized to require a "design professional in responsible charge" is not saying that one registered design professional has to assume responsibility and liability for the design work of all the design professionals on the project. This is about establishing a point man for coordinating the flow of documents and submittals throughout the course of the construction process. Here's what the 2021 IBC Commentary has to say about 107.3.4:

At the time of permit application and at various intervals during a project, the code requires detailed technical
information to be submitted to the building official. This will vary depending on the complexity of the project,
but typically includes the construction documents with supporting information, applications utilizing the
phased approval procedure in Section 107.3.3 and reports from engineers, inspectors and testing agencies
required in Chapter 17. Since these documents and reports are prepared by numerous individuals,
firms and agencies, it is necessary to have a single person charged with coordinating their submittal to the
building official. This person is the point of contact for the building official for all information relating to the
project. Otherwise, the building official could waste time and effort attempting to locate the source of accurate
information when trying to resolve an issue such as a discrepancy in plans submitted by different
designers. The requirement that the owner or their representative engage a design professional in responsible
charge is applicable to projects where the construction documents are required by law to be prepared
by a registered design professional (see Section 107.1) and where required by the building official. The
person employed by the owner to act as the design professional in responsible charge must be identified
on the permit application, but the owner can change the designated person at any time during the course of
the review process or work, provided the building official is so notified in writing.

At least around here, where there is a registered design professional in responsible charge, it's usually the architect.

 

[Sifu]

I'll try to address all of these points in this great discussion.

-I am not going to get into the copyright issues.
-The new foundation plans are not compatible with the remaining structural plans. They will be returned for this reason.
-The project is not being proposed to be split into a separate foundation, even if it were it would not be compatible. I am trying to be as discrete as possible, as I believe this may end up including lawyers. But I can share that the previous foundation included significant footings, caissons, reinforcement, steel anchor plates and tube steel framing. The new foundation indicates no footings, some sort of caisson (no size or material indicated) embedded columns (by others). The design went from a complete set of plans from AE design firm, to an out of state engineer for the foundation, likely chosen by the handyman service. Get the picture?
-There was no design professional in responsible charge (DPRC) designated, as I didn't feel the need for it on this small project (which will be duplicated multiple times on this large commercial site), and because there was a de-facto DPRC because the AE firm for the entire project was also the AE firm for this part of it. Now, they have apparently decided that they do not want to use the original design, but have only submitted the foundation changes, which as stated are not compatible.
-There may be a much bigger issue if there has been some deterioration of the relationship between the AE and the owner, as there are multiple other projects included in this development, some under construction, some permitted but not started, some under review but not approved. All by the same AE. This may be the tip of a very big iceberg. Much of it was before my time. The politics of this are staggering.
-I expect DPRC's to be responsible for reviewing and coordinating the other elements of design, whether they be other designs by other engineers, deferred submittals, shop drawings etc. I would usually never require a designated DPRC for something like this, but now I think I need to due to the cherry picking and incompatible plans. I am going to meet with the town officials about this.
-This is not a PEMB but similar in that is is an isolated footing foundation, supporting steel tube framing, anchored by steel base plates. however the design was compatible because it was by the same SE.

The main questions I was trying to convey in the original post goes to the idea that their should be a single engineer for the structural design, and that the revising engineer seems to be somewhat less than diligent in his practice. As stated, using two SE's is often not the case for something like a PEMB. It would be nice if there were, and I have seen too many designs that were not compatible. On projects like that I do not ask for a DPRC unless there are additional concerns, I just make sure the plans are compatible. In this case, they are not. When I spoke with the CBO about tis, his reaction was that there could not be two engineers. But I don't believe there is a citable code that says that so I wanted to hear from the AE community. It seems there is a bit of consensus: stay out of the copyright issue, and there is no real requirement in the IBC that says there can't be two designs, from two engineers, as long as they are compatible, like PEMB's. However, I do think there is a citable code requirement that can be made for a DPRC, and because of these changes that may be the way to go. I will have my meeting and see where this goes.

 

[Yankee Chronicler]

First, I have to disagree with this statement:

using two SE's is often not the case for something like a PEMB.

I've been doing this (either as an architect or as a BO) for more than 50 years. I have NEVER seen a pre-engineered metal building that didn't have two structural engineers. The superstructure is engineered by the PEMB manufacturer. They don't know the local codes or soils and other conditions, so they never design the foundations -- that's always done by a local architect or engineer.

At this point, I think you have no choice other than to repeal the building permit, since the foundation drawings have changed and are now not acceptable. Obviously, if the new foundation drawings are incomplete and unclear, you can't accept them, so the construction can't even begin.

It appears that you now don't know if the original A/E firm is even still involved, so I think that you certainly should ask for a design professional in responsible charge to be designated.

 

[Sifu]

First, I have to disagree with this statement:



I've been doing this (either as an architect or as a BO) for more than 50 years. I have NEVER seen a pre-engineered metal building that didn't have two structural engineers. The superstructure is engineered by the PEMB manufacturer. They don't know the local codes or soils and other conditions, so they never design the foundations -- that's always done by a local architect or engineer.

At this point, I think you have no choice other than to repeal the building permit, since the foundation drawings have changed and are now not acceptable. Obviously, if the new foundation drawings are incomplete and unclear, you can't accept them, so the construction can't even begin.

It appears that you now don't know if the original A/E firm is even still involved, so I think that you certainly should ask for a design professional in responsible charge to be designated.

I see I made that statement, but it was not accurate. I don't really know why I made it, because I 100% agree, I often see two engineers for the structurals, so if I was parroting a different post I didn't do it accurately. Correct, not sure if the original AE firm is involved on any level, certainly not this particular one. I hope to find out more today.