TOPICS: 1. PBO3-1022: Responsible Control and Direct Supervision 2. ANNOUNCEMENT: Procurement of Professional Services PB03-1022 Responsible Control and Direct Supervision Hafa Adai! This bulletin is issued to guide registrants in their practice and insure compliance with the Professional Engineers, Architects and Land Surveyors Law. The subject of this bulletin are the terms `direct supervision’ and `responsible control’ which are cited in the PEALS Law 24-263 Section 32116(d)(5) and the Rules of Professional Conduct (Code of Ethics) Section 2(c). The terms have not been clearly defined although the intent is reasonably clear. For this reason, they can be the subject of differing and varying degrees of interpretations. The Board understanding its limitations has sought advice from its Legal Counsel to produce an opinion with which the Board will be able to determine if registrants are practicing within the scope of the law in this particular area and provide enforcement for any registrant that may be in violation. The applicable section of the law states in Section 32116 Certificate -Seals. (d)(5) :“The seal and signature shall be used by registrants only when the work being stamped was under the registrant’s complete direction and responsible control, provided that if the work was performed at an office outside of the locale in which the registrant permanently resides, then the seal may be used only if the registrant supervised the work on a full-time basis.” Section 32103(q) Responsible Control reads: “The term `Responsible Control’, as used in this Act, shall mean direct control and personal supervision of engineering, architectural or land surveying projects.” Direct supervisory control is also brought to bear on registrants under Section 2(c) Competency for Assignments stating: “The Engineer, Architect or Land Surveyor shall only affix his signature and seal to any engineering, architectural and land surveying plans or documents dealing with subject matter for which he has competence by virtue of registration by the Guam Board and to any such plan or document prepared by him or under his direct supervisory control.” In both of these citations, the statutory definition is not clear and precise. However, with the assistance of the legal counsel, alternate legal interpretations are available to help the Board interpret and develop a working definition of “direction and control” or “direct supervisory control”. Legal Counsel refers to the NCEES Model Law under Section 15 Certificate and Seals (c)(4) and (6) which read as follows: (4) The seal, signature, and date shall be placed on all originals, copies, tracings, or other reproducible documents in such a manner that the seal, signature, and date will be reproduced. The application of the licensee’s seal and signature shall constitute certification that the work thereon was done by the licensee or under the licensee’s control. In the case of multiple sealings, the first or title page of drawings shall be sealed, signed, and dated by all involved. In addition, each sheet shall be sealed, signed, and dated by the licensee or licensees responsible for each sheet. In the case of reports or specifications, the cover sheet shall be signed, sealed and dated. In the case of an authorized firm, under Section 22 of this Act, each sheet shall be sealed, signed and dated by the licensee or licensees involved. The principal in responsible charge shall sign, seal, and date the title or first sheet (Emphasis added). In (6) the Model Law establishes four specific factors that must be met before any plans, plats, specifications, drawings, reports, or other documents will be deemed to have been prepared under the immediate personal supervision of a licensee: (6) Direct Personal Supervision. Plans, plats, specifications, drawings, reports or other documents will be deemed to have been prepared under the immediate, personal supervision of a licensee only when: (a) The client requesting preparation of such plans, plats, specifications, drawings, reports, or other documents makes the request directly to the licensee, or a member or employee of the licensee’s firm, so long as the firm member or employee works in the firm’s place of business and not a separate location; (b) The licensee supervises the preparation of the plans, plats, specifications, drawings, reports, or other documents and has input into their preparation prior to their completion; (c) The licensee reviews the final plans, plats, specifications, drawings, reports or other documents; and (d) The licensee has the authority to, and does, make any necessary and appropriate changes to the final plans, plats, specifications, drawings, reports or other documents. All these factors must be met before direct personal supervision can be recognized and the licensee allowed to place his seal and sign the documents. In Florida, the matter of “responsible supervising control” was addressed in the Supreme Court of Florida in Markel v. Florida State Board of Architecture, 368 S.2d. 374(1972). The court upheld the District Court of Appeals of Florida, Third District decision in the matter. Florida statutes, similar to Guam’s did not clearly define “responsible supervising control” and that pursuant to Florida precedent, the determination would have to be whether these words have sufficient meaning to enable a person with ordinary knowledge of language to understand what conduct is permissible and not permissible under the statute. The summary of the judgement found that Markel had a very small part in the overall preparation of the architectural drawings. The client initially contacted a draftsman to prepare plans and there was no personal contact with Markel. Only when the plans were near completion, that the draftsman took the plans for inspection and approved by Markel. It was at this point that Markel began to exercise “responsible supervisory control”. The court further stated that after-the-fact ratification of a non-professional’s prior unsupervised work product is generally alien to professional standards. The Florida Supreme Court felt that Markel entered into the picture too late to have truly supervised the overall preparation of the architectural drawings. Although Guam’s law may not be definitive enough, it can be concluded that thorough review of standards established throughout the United States that final review is not sufficient to meet the definitions and obligations of supervisory or direct control. Therefore, as stated in the NCEES Model Law Section 15(c)(6) all these conditions must occur before “direct supervisory” and “responsible control” can be established. All Guam registrants are provided with this information to be guided accordingly in conducting their practice. It is vitally important that all registrants uphold their professional standards and endeavor not only to safeguard but to educate the public and their clients as you promote and advance your professional services (PB03-1022). The PEALS Board wants you to know... The Professional Engineers, Architects and Land Surveyors (PEALS) Board met on May 21, 2003 and discussed the issue of the ‘cease and desist’ notice from the Attorney General issued in response to inquiries into recent procurement practices by the Guam Waterworks Authority. Present at the meeting were PEALS Board Legal Counsel, professional engineers from various professional organizations, as well as the Assistant Attorney General assigned to handle this issue. Rule of Professional Conduct 5.B states that “professionals shall seek work on the basis of qualifications and competence for the proper accomplishment of the work, and shall not solicit or submit proposals for professional services on the basis of competitive bidding”. The problem stemmed from GWA’s announcement of a Request for Proposal (RFP) for professional services to provide a Vulnerability Assessment of Guam’s Water System. The GWA RFP initially specified the requirement for professional engineering services and listed price to conduct the work as a criterion for selection. The Board wrote to GWA informing them that procurement of professional engineering services is by selection on the basis of technical competence and expertise, and advised GWA to amend its RFP by deleting the requirement for price. GWA promptly issued an amendment to the RFP, which removed the price requirement. However, in a subsequent addendum, the previous amendment was repealed, thereby again requiring the submission of a price for the services to be provided. Several other amendments/addenda followed, the final result of which was to extend the deadline for submission, make minor modifications in the scope and remove all references to “engineer,” “consultant” and replacing them with the words “qualified firms.” There was confusion as to whether an engineer could submit a price for the project as a “qualified firm” without being in violation of the Rules of Professional Conduct, simply by virtue of a change in the wording made by GWA. It should be noted that several of the interested parties on the subject project were engineers and/or engineering firms. The Board sought its Legal Counsel’s opinion on this particular RFP. It was the Legal Counsel’s opinion that Rule 5.B of the Rules of Professional Conduct was valid and enforceable for this RFP. After review of the issue by the Office of the Attorney General, the PEALS Board received a demand letter from the AG’s Office requiring the deletion of PEALS Rule 5.B and the cessation of all actions to enforce said rule on the basis of the AG’s determination that such a rule violated the Sherman Anti-trust Act. The AG cited a 1978 decision by the U.S Supreme Court in the matter of NSPE v. United States, wherein the NSPE was forced to delete a similar prohibition against competitive bidding as a canon in its Code of Ethics for Engineers. During the May 21st meeting, two determinations were made: The Board reviewed the final scope of work contained in the RFP (after the numerous addenda and amendments). On the basis of a thorough review of the scope of work and supporting documentation, the Board determined that, although GWA initially issued the RFP requesting professional engineering services, neither the scope of work nor the applicable standards to which the work is to be performed, specifically require engineering services. It is the PEALS Board’s belief that if price was the main consideration for selection on this project, GWA should have used the “Invitation to Bid” process. As the project does not require engineering services, the PEALS Rule 5.B would not apply. Therefore there is no need to amend, revise or delete PEALS Rule 5.B as it clearly spells out the obligation of professionals engineers, architects and land surveyors with regards to procurement of services. After some discussion of the issues surrounding the AG’s demand letter and the context of the Supreme Court ruling in NSPE v. United States, it was the opinion of the PEALS Board that the decision against a private national organization, such as the NSPE, which through its code of ethics, affects interstate commerce in such a way as to violate the Sherman Anti-trust Act, could not be applied to the situation where a state government regulating body, such as the PEALS Board, sets requirements for registration and ethical conduct of its licensees. This opinion was confirmed by the fact that most states in the U.S have similar rules prohibiting competitive bidding and requiring Qualifications Based Selection or QBS. Such QBS requirements mirror federal government policy on A-E procurement established by the Brooks Act (40 U.S.C.). In fact Guam Procurement Law for A-E services also mirrors the Brooks Act. Further, the Assistant Attorney General stated during the meeting that further research into the matter revealed that the AG’s office could not bring suit to enforce its previous opinion and require deletion of Rule 5.B. It was determined that the PEALS Rule is consistent with Guam Procurement Law (Chapter 5, GCA) and the Brooks A-E Act of 1972, which uses a 2-step procurement process for professional services. It was further determined that the PEALS Rule does not violate the Sherman Anti-trust Act and will stand without modification. The PEALS Board’s primary purpose is to safeguard life, health and property, and to promote public welfare through the proper regulation of the professions of engineering, architecture and land surveying. Enforcement of the provisions of the PEALS Law, as they apply to individuals and firms covered by the enabling legislation, is our sworn responsibility. The PEALS Board informs its registrants/licensees that Rule 5.B remains valid, in effect and enforceable (PB03-425). For questions, suggestions and corrections, kindly email us at: info@guam-peals.org or for questions about the site, write the webmaster at: webmaster@guam-peals.com