Virtual Stringline: Requiring Licensure for Data Prep, Part 2

by Harry O. Ward PE

July 1, 2007

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Requiring Licensure for Data Prep, Part 2

This model shows the proper, millimeter-accurate digital stakeout required for construction.

This article is the second of a two-part discussion regarding the nationwide movement toward licensing data prep work. (Click to access "Requiring Licensure for Data Prep, Part 1” and "Common Themes on GPS Modeling.") This time I will delve into some of the contractor ramifications of the issue.

In the May/June issue of Site Prep, Part 1 of this article discussed the fact that many states are rapidly developing position statements indicating (in various degrees) the requirement for a professional license for anyone creating data prep models. An interesting aspect of this is that it doesn’t appear that any new laws are being enacted; rather, existing laws are being redefined. A simple statement by a state’s board of engineers and surveyors can cause licensure to be required. By taking the position that development of data used for the purposes of construction, earthwork, grading, mining and stakeout is within the definition of the practice of engineering, the board can change the way entire sections of the industry will operate. In this case, practioners who did not previously need a state license now do. These position statements are appearing in the East Coast, through the Midwest, to the West Coast. From the engineer’s and surveyor’s point of view, this position helps to bring back work that they were losing due to advances in technology in the construction field. Consider that:

As access and availability to GPS virtual networks grow, contractors have less need for surveyors to establish project control, since it is established via these subscriptions (see “Subscription GPS Networks for Machine Control,” Site Prep January/February 2007). In fact, a contractor doesn’t even need a base station in these situations since post-corrected GPS coordinates can be acquired directly from the subscription provider.
Traditional engineering/surveying firms are increasingly losing their stakeout work to the use of 3D models created by contractors or data prep companies to run 3D GPS machine control equipment.
Because the equipment with machine control can perform its own as-builts on a daily basis by simply driving over work performed that day, surveyor-sourced as-built computations are being reduced.

Therefore, these moves by the state boards bring data prep back into the realm of the engineer and surveyor who traditionally performed the site layout and stakeout that governed much of the ongoing construction. I call this new form of data prep “digital stakeout.” What the boards are trying to accomplish here for the public safety is to hold someone clearly accountable for the accuracies of this data.

Contractors have differing viewpoints on this issue. Some contractors have been hiring licensed professional engineers and land surveyors all along to check their data models in order to protect themselves on a liability front. Others feel that being forced to hire PEs and LSs is insulting because the people preparing design plans are the very ones causing the problems in the first place. Case in point: if the engineering firms would deliver accurate data in 3D to the contractor, there would be no need to prepare the data in-house or hire a data prep firm at all. The majority of design firms choose not to deliver this data for a multitude of reasons. And if they do deliver it, it is rendered largely ineffective due to all of the waivers the contractors must sign to get it.

The Design Disconnect

The majority of design firms will need to invest in significant training for their staff to put out a model of this accuracy.

The design industry has long been accused of developing plans that are essentially “pretty pictures,” a term that contractors have used to describe the construction inadequacies that they routinely find in plan sets. In defense of the design industry, when one inspects their contracts and required deliverables, they very often don’t describe constructability as part of the product. And certainly, delivery of an accurate 3D model is rarely found in their agreements with the developer, either. Rather, these agreements focus on getting the plans developed in accordance with local code and ordinances, obtaining permits for construction and the approval of such for construction. Once these objectives are attained, the design firm has usually exhausted its budget and is not open to doing much else.

Design firms often place tag lines on their drawings to the effect that “Contractor shall build to suit existing conditions” or “Contractor shall verify all dimensions and conditions at the jobsite.” This broad disclaimer places significant responsibility on the contractor and often dictates that the contractor must rebuild or interpret what the engineer meant. As such, contractors find themselves preparing data models to suit these conditions and dimensions because the drawings are often incorrect or are not conducive toward construction and maintenance of the job.

So, from the contractor’s side of this issue, there is a major disconnect in the business between design, approval and actual construction. This disconnect is one that leaves the contractor holding the liability for much of the project. As a result, contractors are taking the bull by the horns and absorbing as much of the control as possible, which makes them more comfortable taking on that increased liability. When technology assists them in this endeavor, they accept it in increasing numbers.

Modeling Know-how Required

We now have a growing condition that requires engineers and surveyors to be in responsible charge of data prep. Some contractors think this brings a sense of entitlement to the engineers and surveyors. Dan Keeley, a professional engineer who works for an Oregon county’s public works department, says, “In my personal opinion, using the power of the state to create a monopoly via a license requirement when public safety is not involved is wrong. I view most of these efforts of extending licensure requirements to GPS-based construction staking and/or auto control of construction equipment as full employment acts for engineers and surveyors and in opposition to the public interest as well as our basic civil rights.”

But this full employment that Keeley speaks of is a sword that is cutting through the industry now--and one that has a double edge as it swings back. While the engineers/surveyors now have responsibility for this work, they are beginning to find that they must actually be able to produce it. And not only produce it, but produce it of sufficient quality that it can be used as delivered and be directly conducive for machine control construction, thereby eliminating the need for the contractor to perform the data prep or manipulate it. I wonder if these boards polled their respective licensees to see if they were indeed skilled and trained to perform this work before handing down these statements.

As an engineer and contractor myself, I have seen the drawings provided to contractors who are awarded the construction contract and they are woeful (and usually unaccompanied by supporting digital data). The vast majority of design firms need a significant dose of training for their staff if they think they can put out a proper, millimeter-accurate digital stakeout model.

Engineers routinely deliver drawings either in hard copy (the legal approved design) or in digital form. In either case, the drawing usually consists of contours representing the proposed conditions. The only places on the drawing where actual proposed elevations are known are these 2-ft interval contours and related spot shots. In all other locations, the elevations must be interpolated or interpreted. Meanwhile, the contractor must build the project so that it can be built and inspected to a 3/8-inch accuracy (or something similar).

By taking on this additional task and related revenue, the engineers must also take on responsibility and legal accountability for developing a much more accurate model than they have in the past. Sending CADD drawings to a contractor is no longer enough. A digital terrain model (DTM or TIN) must accompany the drawing--one that is accurate enough to be placed directly into the equipment’s control box for immediate use in grading.

The following list proposes what a contractor actually needs if an engineer/surveyor is to accept responsibility for this work. The engineer/surveyor must deliver a DTM:

with 3/8-inch or better accuracy of the entire model.
in the format needed for the contractor’s machinery so no conversion is necessary.
with the understanding of what it represents and what intellectual rights transfer with the data. In other words, can it be modified and, if so, how many times before reverting back to the sender? If not, then who makes all change orders, and how quick is the response time mandated?
directly linked to the CADD drawing for quality control.

The Scales of Liability Protection

Yet there are other sides to this argument, according to contractors. Some contractors believe that these position statements actually protect them by allowing them to transfer the costs of this protection to the owner or developer. Other contractors believe that they should be allowed to retain all of the liability if they wish to.

Chad Bilotta, a project manager with Anderson Excavating, a grading contractor in Morgantown, West Virginia, says, “If we had a position statement to fall back on in our state, it would give us a set method of transferring costs for accountability of the data to the project owner or developer.” He continues, “Currently, my company bears the cost of hiring an engineer to check our data prep work to protect us against liability. If this were the code in West Virginia, it would provide us with a justified way to pass this cost on to the developer where it actually belongs. On one project we have about $100,000 invested in two licensed engineers and a licensed surveyor [who] ensure that our data is correct. These costs might be passed along to the owner under this regulation. On occasion, these costs arise after we bid the project and become sunk costs against our profit.”

Jeff Pearson, a land-surveyor-in-training (LSIT) employed by an ENR Top 10 heavy/highway contractor currently based in Albuquerque, New Mexico, essentially takes the opposite side of the argument: “As a construction surveyor for a national contractor, I feel this is abuse of the system bordering on antitrust violation. The contractor assumes the risk for a project upon being awarded the contract. If the contractor feels it’s in his own best interest to prepare the data, and is willing to assume the risk, of what concern is it to anyone besides the contractor?” Pearson continues, “My understanding of the responsibility of state boards is to protect the interest of the public. What I don’t understand is how a ‘private’ contractor falls under the realm of public interests. If the contractor is taking shortcuts or compromising quality, he will go out of business.”

He adds, “It is then obviously in his best interest to hire the most qualified party to handle his data prep. I am very skeptical that a professional land surveyor, by definition an expert in legal principles and practices of boundary location, is at all qualified, and definitely not the most qualified person to perform this function. It seems to me that the state boards are more interested in protecting their own interests, which is getting paid to perform a function they have no ‘right’ to perform. If there were a designation of professional surveyor, as there is for professional engineers, then there may be a hint of validity to this argument. A professional civil (construction) surveyor could be expected to perform this function, but the generic ‘professional land surveyor’ or ‘professional surveyor’ could be any type of surveyor--geodetic, cadastral, boundary, construction, etc. The point I’m making is that having a PS, PLS or even a PE after your name shouldn’t mean you are qualified or entitled to handle data prep for a contractor that has already assumed the risk of the contract.”

Not all states have taken the position of requiring a PE or PLS for data prep. Joe Rosati of T & M Equipment Corporation of Springfield, Massachusetts, checked with his state’s Board of Registration of Professional Engineers and Professional Land Surveyors, and received a reply from Vice-Chairman Dennis C. Drumm, PLS. The board’s formal statement is as follows: “The Board does not regulate the use of measuring equipment. One such example would be the use of GPS equipment, which has any number of purposes, including land surveying. However, the Board does regulate the practice of using such equipment when its use falls within the definition of the ‘Practice of land surveying’ as defined by Massachusetts General Laws Chapter 112, s. 81D and such use would create a health, safety or welfare issue for the public, as is the case for using such equipment to relate existing or proposed site conditions to a boundary line or when fixing the locations of boundary lines. Traditionally, the Board has not exercised jurisdiction over the performance of construction site grading by Excavation Contractors, however, the Board’s practice could change if a significant public concern is raised.”

A Data Modeling Dilemma

This contentious issue may be one of the most important developments in our industry from a legislative standpoint. But it appears that parts of the market are already adjusting to these position statements by creating new divisions that concentrate specifically on data prep for machine control customers. Other firms nationwide may take this approach in order to prepare high quality and high value models for contractors and clients. In any case, the design firm’s business model must be updated to augment today’s construction business model.

If design firms and their engineers and surveyors are going to partake in data modeling, they need to obtain the construction knowledge and CADD skills to prepare millimeter-accurate data models.

Click to read Harry's wrap-up article, "Common Themes on GPS Modeling."

Harry O. Ward PE
Harry O. Ward, PE, is president of Harken-Reidar Inc. He has been a member of the engineering faculty at George Mason University since 1997 and was named “Outstanding Adjunct Professor” for GMU in 2010. He can be reached at hward@harken-reidar.com or hward@gmu.edu.

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