Virtual Stringline: Requiring Licensure for Data Prep, Part 1
by Harry O. Ward , PE
May 1, 2007
Requiring Licensure for Data Prep, Part 1
Click to read Part 2 of this column.
A strikingly important phenomenon in the field of machine control is currently sweeping the nation. Some states are now requiring that an engineer or surveyor be in responsible charge of the 3D data models created for use in 3D machine control systems. In some cases, states are requiring that a licensed individual must be in charge when any type of data manipulation occurs. This phenomenon is not occurring through new legislation, but by clarifying existing legislation. The state boards of licensure are clarifying that data preparation and/or the manipulation thereof is an engineering and/or surveying function, and thereby requires a professional license.
Based on my research, providing CAD files or CAD data to other parties who plan to use them for construction without a licensed engineer or surveyor on staff could be a violation in many states. If it isn’t a clear violation, it could be aiding and abetting a violation; either way, it is a sign that our industry is changing very rapidly.
Possible Scenarios
Some states are now requiring that an engineer or surveyor be in responsible charge of the creation and manipulation of 3D TIN models such as this one for use in 3D machine control systems.
Scenario 1: An engineer has provided CAD drawings to a contractor who was awarded the construction of the project. The contractor will then prepare a 3D model of the engineer’s data for use in 3D machine-controlled equipment. If the engineer is aware that the contractor does not have a licensed professional engineer or land surveyor on staff, he may be aiding and abetting an abuse of the law in certain states that requires a licensed engineer or surveyor to be in responsible charge of that information and its intended use for grading purposes.
Scenario 2: Because the engineer at a firm does not develop data conducive for use by machine-controlled equipment and the contractor has no desire to learn CAD or 3D modeling, a data prep firm has been utilized. Having the service performed without a licensed engineer or surveyor in responsible charge may be in violation of state statutes.
Scenario 3: After acquiring data from a licensed engineer and placing it into service in an automated bulldozer, a contractor encounters an issue on the project that requires him to alter or manipulate the data so the project can move ahead under deadline. By manipulating that data, the contractor may be in violation of state statutes that require a licensed engineer or surveyor to be in responsible charge of that modeling effort.
Scenario 4: An engineer has provided data to a contractor. Although this data was sufficient to obtain review and approval from the local jurisdictions, the contractor requires a level of grading detail to construct the site that is far greater than what the engineer provided. (In many cases contractors require a model that is accurate to at least a 3/8 inch tolerance.) For instance, the contractor complains that a cul-de-sac has only one contour running through it, making it impossible to determine exactly how the area should be graded. When the contractor calls for assistance, the engineer responds, “I have no more budget on that project and the plans you have are all you are going to receive. They should be good since they are approved for construction.” This lack of quality causes loss of time and money on the project, and so the contractor seeks reimbursement from the engineer. Failing to receive it, the contractor turns the engineer into the state board for developing an incomplete work product and an insufficient set of design data. He claims that the engineer has not met the standards of practice nor his responsibilities as an engineer to a sufficient level that the project can be built. The state investigator agrees that the plans are devoid of enough information for an automated bulldozer to construct the site. Trouble ensues.
As you can see, the scenarios are almost boundless. Some states are declaring that the development of 3D modeling data must be in the responsible charge of the licensed person, or at least that the manipulation of that data must be. It seems that the state boards are agreeing that this digital stakeout data has the same importance and validity (and hence accountability) as stakeout data.
State Position Statements
New state rules are not being written about data prep responsibility; rather, existing rules are expanding to cover a new technology--3D machine control. I learned more about these developments by researching the position statements created in some states regarding licensure for data prep.
Kentucky
To start, I talked to Dennis Smith, PE, LS, the chairman of the Kentucky Board of Licensure for Professional Engineers and Land Surveyors. As the owner of the oldest engineering consulting firm in Bowling Green, Kentucky, he has a keen interest in both the regulatory and the business side of the issue.
Smith says that firms in Kentucky have recently been involved in cases where data prep errors have occurred. One was due to incorrect usage of the U.S. Survey foot vs. International Survey foot, which threw the project off a significant amount. Another involved storm structures being built to the grading plan elevations when they should have been built to storm structure details that were overlooked. As a result, in October 2006 the Kentucky board released the following position statement:
Kentucky Board of Engineers Position Statement
3D Modeling Statement
The development of electronic engineering-related or surveying-related design data shall be subject to licensure requirements under KRS 322. Development of data such as templates, cross sections, Digital Terrain Models, etc. to be used for the purposes of construction, earthwork, grading, mining and stakeout is within the definition of the practice of engineering under KRS 322.010(4)(a)1 and shall be performed under the responsible charge of a Professional Engineer. Any such data that establishes, reestablishes, locates property lines, locates real property rights or defines real property lot divisions and layout is within the definition of the practice of Land Surveying under KRS 322.010(10)(a)1 and shall be done under the responsible charge of a Professional Land Surveyor.
I asked Smith what is required if a hard copy drawing is provided to the contractor and the contractor creates the model themselves or has a data prep company prepare the model for use with 3D machine control. He responded that if it is converted to a 3D model, it is to be done under the supervision of a PE or LS. The principles and procedures are the same regardless of the media used for presentation.
According to Smith, if a data prep company prepares the data, it must have a licensed person in the state in responsible charge. The thinking is that if a licensed individual were involved, he or she may have caught those errors or at least have been held responsible to catch those errors.
But the blade swings both ways. For instance, if the professional engineer or licensed surveyor prepares an inadequate data set, then he may be held accountable/liable for delivering an incomplete work product. The dilemma is that the business model for engineers often doesn’t cover actual construction; instead it covers the review and approval of a set of plans in the local jurisdiction. These plans do not include the detailed information required to actually construct the site.
The business model for the surveyor often involves preparing construction grade quality data; however, many surveyors are not familiar with 3D machine control technologies and the specialized data required for this work. In other words, the traditional, point-based stakeout doesn’t cut it anymore--the new technologies require complete, millimeter-accurate surface models. With the licensed person responsible for this information, it must now be of sufficient quality to be used in machine control technology.
According to Smith, if the engineer demands a waiver to turn over the information being requested, thereby absolving himself of the liability, then the contractor needs to have a licensed professional engineer or land surveyor on staff who can be in responsible charge. Smith continues that his board is expecting that engineering firms will respond to the call and increase their use of technology, increase their staff’s skill sets, use their software more effectively and produce this needed information. If they don’t, they are apt to run the risk of providing an insufficient product or, at the least, place their reputations in question with the developers who stand to save or lose a lot of money as a direct result of their response to this issue.
North Carolina
Another state experiencing this phenomenon is North Carolina. According to Andrew Ritter, executive director of the North Carolina Board of Examiners for Engineers and Surveyors, the determination of a violation comes down to the word “manipulation.” “The data preparation of the 3D model is fine just so long as the contractor doesn’t create new data,” he says. “If interpretations need to be made, then the engineer or surveyor should be called and be held responsible for a decision.”
Ritter continues, “The work needs to be one hundred percent complete. If the engineer or surveyor hasn’t prepared a constructible product or if he/she hasn’t met the standards of practice, then that becomes a civil issue between the engineer or surveyor and the contractor.”
Ritter says that the North Carolina board is looking at expanding the definition of engineering and surveying at this time. Note, however, that the strikeouts in the board’s position statement below are intentional and were provided by the board to show some of the thinking that has recently transpired.
3D Modeling for Grading and Stakeout
The creation and design of the controls, profiles, and cross sections for the development of electronic data, such as templates, cross sections, used in the Digital Terrain Models, etc., to be used for the purposes of earthwork grading and stakeout is within the definition of the practice of land surveying and engineering and shall be done under the responsible charge of a Professional Engineer or Professional Land Surveyor.
California
As I continued my research, I was provided with a letter from the California Board for Professional Engineers and Land Surveyors. This is a slightly different position statement on the topic, though largely the same as others. Note the clause on aiding and abetting. Dated Nov. 21, 2006, the letter is titled “Clarification regarding the use of Global Positioning System equipment by unlicensed individuals.” The letter, which was written to clarify statements made in an earlier letter, states:
The intent of the letter was to advise that IF an unlicensed individual, such as a grading contractor, performs topographic surveying and calculations for contruction staking without being under the responsible charge of a Professional Land Surveyor or a Professional Civil Engineer, then that unlicensed individual would be practicing land surveying or civil engineering without legal authority.
Another very important statement follows:
If a Professional Land Surveyor or Professional Civil Engineer knowingly assists an unlicensed individual in performing illegal activities, then the licensee could be subject to disciplinary action for aiding and abetting. Simply providing data, including in electronic format, to an unlicensed individual, such as a grading contractor, is not in itself a violation of the laws--unless the licensee is aware that the unlicensed individual will be using that data to perform tasks that constitute the practice of land surveying or civil engineering.
The letter also states that a determination of whether laws have been violated can only be made on a case by case basis. Overall, I interpret that to mean that it is not the tool that requires licensing; rather, it is the work being done that requires it.
The Root Causes
From my perspective, the new position statements by the licensing boards are the result of several issues converging around this technology, including money and lost opportunity for the surveying community, public safety, accountability, liability and increasing use of technology.
The advertisements for 3D machine control have been touting that its benefits include “minimizing and/or eliminating survey stakeout.” Many design firms have noticed a reduction in their stakeout work due to the contractor’s abilities to perform this task in-house using these new technologies. In terms of public safety, as Smith pointed out, several errors have emerged that produced potentially incorrect construction projects. It naturally follows that the issues of accountability and liability are then raised, and someone needs to be clearly responsible for design, design interpretations and construction. Since the technology is performing as promised, it is producing significant savings for developers and profits for contractors. With the advent of subscription-based GPS (see “Virtual Stringline: Subscription GPS Networks for Machine Control,” Site Prep January/February 2007) contractors can now set their own control without the need for a traditional surveyor. The combination of 3D machine control and real-time GPS networks is becoming a force to be reckoned with--and the state boards are beginning the reckoning.
Part 2 of this article discusses issues and ramifications related to these concepts with the contractor’s point of view.
Please contact me at hward@carlsonsw.com and let me know where you stand on this extremely important issue.
Harry O. Ward , PE
hward@carlsonsw.com
Harry O. Ward, PE, is a registered professional engineer, a state licensed contractor and certified in machine control. He is director of training for OutSource Inc. – A Division of Carlson Software, and has more than 20 years of experience using CADD/CAE in the field of civil engineering, surveying and construction. He has been a member of the engineering faculty at George Mason University since 1997.
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