03/09/2016 by Attorney J. Brandon Sieg
Authored by J. Brandon Sieg
Unlicensed A/E employees may contribute to the design of a project so long as they are under the “direct control and personal supervision” of a licensed architect or engineer. This issue is most notably addressed in the requirement that each place of business have a “resident, responsible person” and that drawings may only be sealed if the licensed professional “exercised direct control and personal supervision the work to which [his seal] is affixed.” 18 Va. Admin Code §§ 10-20-760, -780.
These regulations were revised in November 2015, and the revisions became effective on January 1, 2016. Among the revisions is a structural change to where “direct control and personal supervision” is defined. Whereas this term previously appeared as one of many defined terms, the substantive requirements are now provided directly in the section discussing “professional responsibility.” 18 Va. Admin. Code § 10-20-740.
This revision appears to emphasize that “direct control and personal supervision” of work is not merely a prerequisite to sealing drawings. It is instead a component of a licensed A/E’s professional responsibility. All A/E’s should review these requirements.
As the responsible professional, you must be able to “clearly define your scope and degree of direct control and personal supervision” and to show how you exercised this control and supervision. For all work prepared under your supervision, you must:
- Have detailed professional knowledge of the work;
- Exercise direct control over the work;
- Exercise professional judgment in all professional matters that are embodied in the work and the drawings, specifications, or other documents involved in the work; and
- Exercise 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 requirement to “exercise direct control” includes:
- Having control over decisions on technical matters of policy and design;
- 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;
- The selection or development of design standards and materials to be used; and
- Determining the validity and applicability of recommendations prior to incorporation into the work, including the qualifications of those making the recommendations.
It is not sufficient to rely on your employees to develop a design and then to simply “review” their work before you stamp the drawings. Investigations by the Department of Professional and Occupational Regulation can arise suddenly, even on projects where you did not think there were any design issues. If you consistently exercised “direct control and personal supervision” throughout the project and documented the scope of your control and supervision, then you are more likely to have the investigation dismissed.
1 A copy of the revised regulations is available at http://register.dls.virginia.gov/details.aspx?id=5283. “Professional responsibility” is addressed in 18 Va. Admin. Code § 10-20-740.