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This month I am taking a break from covering the 2021 Uniform Plumbing Code updates to cover some upcoming events and news in the code, standard and legislative areas.
The American Society of Mechanical Engineers will have held their summer 2021 meeting of the ASME A112 Main Standards Committee on Plumbing Materials and Equipment by the time this column is published. I have been participating on the A112 committee since 1999.
For the last year and a half, ASME has held its meetings online. The ASME A112 main committee meets twice a year; the summer 2021 meeting was held online June 18, in conjunction with the Canadian Standards Association’s 2021 annual conference June 14-18.
The 2022 ASME winter meeting is tentatively scheduled to be held virtually on Jan. 10-14. ASME Executive Director and CEO Tom Costabile says the organization continues its plan for 100 percent virtual events through December 2021. The 2022 meeting location or format should be finalized or confirmed at the June 2021 meeting.
The 2022 ASME summer meeting is scheduled to be held in Canada in conjunction with the CSA annual meeting. Tentatively it is scheduled for June 22, 2022. The 2023 ASME winter meeting is scheduled for Jan. 23-27 in San Juan, Puerto Rico.
International Plumbing Code Update
The International Code Council’s committee action hearings for the 2024 International Plumbing Code were held April 11 through May 5. This year’s virtual hearings offered attendees the opportunity to provide input on the proposed code changes to the Group A international codes (I-Codes).
The I-Codes are a family of model codes used throughout the world that establish minimum requirements for the construction and maintenance of safe, sustainable buildings. The Group A I-Codes include the International Building Code, the International Fire Code, the International Fuel Gas Code, the International Mechanical Code, the International Plumbing Code, the International Private Sewage Disposal Code, the International Property Maintenance Code, the International Residential Code, the International Swimming Pool and Spa Code, the International Wildland-Urban Interface Code and the International Zoning Code.
The International Plumbing Code hearings schedule for the remainder of the year is as follows:
• May 24: Web posting of “Report of The Committee Action Hearing”
• July 2: Deadline for cdpACCESS online receipt of public comments
• Aug. 13: Web posting of public comment agenda
• Sept. 19-22: ICC Annual Conference
• Sept. 21-28: Public comment hearings, Pittsburgh, Pa.
• Oct. 12-26 (tentative): Online governmental consensus vote (OGCV)
• Web posting of final action: Following validation and certification of OGCV and ICC board confirmation
New Head of ICC Plumbing, Mechanical and Fuel Gas Group
The International Code Council and Plumbing Manufacturers International announced the transition of PMI’s Matt Sigler to the role of Plumbing, Mechanical and Fuel Gas (PMG) executive director at the ICC, effective July 6, 2021.
In his new role, Sigler will lead a team of subject matter experts and business managers from all parts of the ICC family of solutions to advance strategic goals in support of manufacturers and stakeholders.
Sigler is a well-known and highly respected technical expert in the industry, with more than 20 years of experience in construction, codes and engineering. He most recently worked as the technical director for PMI, the management trade association representing plumbing fixture and fitting manufacturers.
I have known Matt for many years while participating in various code and standard meetings with him. I know he will apply his skills, knowledge and technical abilities to his new position.
In addition, Shawn Strausbaugh took over as government relations lead for the ICC PMG team. As senior director of PMG technical resources, Strausbaugh will oversee the government relations PMG technical experts and work closely with Sigler to promote safe, effective and affordable plumbing codes and standards globally.
PMI’s CEO/Executive Director Kerry Stackpole says PMI will greatly miss Sigler. “We congratulate Matt on his new position with the International Code Council,” he notes. “Matt has been a collaborator, strategist and builder of member value at PMI, addressing the most critical technical and legislative issues facing our members. We all wish him well in this new endeavor.”
IAPMO Uniform Codes: First Round of 2024 Hearings
The International Association of Plumbing and Mechanical Officials completed their first round of code hearings on the 2024 Uniform Plumbing Code and the 2024 Uniform Mechanical Codes. The hearings were held online and available for anyone to view.
However, testimony was restricted to only those who pre-registered to speak on a specific code change. This restriction made it impossible for those tuning in to the code hearings to provide any additional testimony or rebuttal when they heard code change testimony go off the rails. Even if you were a proponent of a code change, you could not testify if you did not register and request to speak well in advance of the code hearings.
Many comments were communicated to me from people not happy about the restrictions in the hearing testimony rules. The remainder of the UPC code development hearing process includes these dates, subject to revision (check IAPMO’s website for confirmation):
• May 3-7: UPC Technical Committee meetings (virtual webinars)
• May 17-21: UMC Technical Committee meetings (virtual webinars)
• June 18: Initial ballots to Technical Committee
• July 2: Circulation of comments on ballots
• July 14: Final closing date for ballots
• July 26: Technical Correlating Committee meeting
• Sept. 10: Distribution of Report on Proposals
• Sept. 10: Call for comments
• Sept. 28: IAPMO Assembly consideration session (virtual conference)
• Jan. 4, 2022: Deadline for submission of comments
• March 30: Distribute Report on Comments to committee
• May 2-5: Technical Committee meetings
• May 16: Initial ballots to Technical Committee
• May 30: Circulation of comments on ballots
• June 10: Final closing date for ballots
• July 1: Technical Correlating Committee meeting
• Aug. 12: Distribution of Report on Comments
• Sept. 13: IAPMO Technical Meeting Convention (Charlotte, N.C.)
• Oct. 3: Initial ballots to Technical Committee on Membership Amendments
• Oct. 10: Circulation of comments on ballots
• Oct. 14: Final closing date for ballots
• Oct. 17: Deadline to submit appeals
• Nov. 16: Standards Council meeting
• Nov. 30: Deadline to file written petition to board
• Jan. 18, 2023: Board of directors meets to address petitions
State Legislature Reauthorizes Texas Board of Plumbing Examiners
The Texas legislature almost had a mutiny on their hands in 2019 when it did not vote to reauthorize the Texas State Board of Plumbing Examiners (TSBPE). Its intent was to allow anyone to do plumbing after two hurricanes damaged many homes and buildings in the state and lawmakers did not see why being a licensed and trained plumber was necessary.
Protesters and the plumbing industry organized and marched on the state capitol in Austin shortly after lawmakers recessed without reauthorizing the TSBPE.
In 2019, the Texas Sunset Advisory Commission recommended the TSBPE’s duties and tasks be transferred to the Texas Department of Licensing and Regulation, but the Texas House of Representatives voted against the legislation, which resulted in abolishing the agency.
Based upon the intensive public outrage, the governor signed an executive order extending the TSBPE until the end of the 2021 legislative session. This would give the next set of legislators, which only meets in odd-numbered years, the opportunity to reauthorize the agency by statute.
The TSBPE has now been reauthorized, a move that ensures plumbers will have a licensing board and continue to have a key role in the decision-making process for plumbing-related issues in the nation’s second most-populous state.
The TSBPE oversees the licensing of plumbers in the state of Texas, ensuring the public is aware of the crucial role plumbing plays in protecting the public’s health and safety through community outreach and education, investigating consumer complaints and taking enforcement and disciplinary action against persons who have violated the plumbing license law.
Gov. Greg Abbott signed HB 636 into law May 26.
Texas Legislature Reins in Outdated Contractor Law
The Texas legislature sent Texas Senate Bill 219 to Gov. Abbott for his signature. If this legislation is signed, it will erase the state law that was based upon an outdated and unfair legal doctrine making the contractor the warrantor of, or responsible party of, “owner-furnished plans and specifications unless the prime contract specifically places this burden on the owner.
The Texas House-passed bill HB 1418 that was titled: “Relating to civil liability and responsibility for the consequences of defects in the plans, specifications, or related documents for the construction or repair of an improvement to real property.”
When the bill passed the House, it became SB 219, and the title was changed to include road and highway construction. The revised title was changed to: “Relating to civil liability and responsibility for the consequences of defects in the plans, specifications, or related documents for the construction or repair of an improvement to real property or of a road or highway.”
The highway construction lobby wanted to ensure that such construction projects provided protection from design and specification errors for their contractors, too.
SB 219 Background: Judge Roy Bean
In the United States, 49 of the 50 states follow what is known as the Spearin doctrine (named after the U.S. Supreme Court case of United States v. Spearin), in which owners must warrant the accuracy and sufficiency of owner-furnished construction plans and specifications. Texas is the lone state that does not follow this doctrine.
Since the Wild West days of 1907, Texas has followed a Texas Supreme Court ruling which created the Lonergan doctrine, which has been an unfortunate presence in Texas construction law. In its “purest form,” as stated by the Texas Supreme Court, the Lonergan doctrine prevents a contractor from successfully asserting a claim for “breach of contract based on defective plans and specifications” unless the contract contains language that “shows an intent to shift the burden of risk to the owner.”
Unsuspecting contractors in Texas have found themselves feeling a bit like someone on trial in Langtry, Texas. Judge Roy Bean, saloon owner and justice of the peace, held court on the front porch of his saloon, the Jersey Lilly. A sign over the entrance said “Law West of the Pecos.”
The judge was not trained as a lawyer; he was known to look through a law book occasionally to try and be practical with his judgements. Many colorful stories circulate about the judge and his antics. During the trial of a horse thief, Bean was quoted to say:
“It's my duty to inform you that the larceny of an equine is a capital offense punishable by death, but you can rest assured that in this court, a horse thief always gets a fair trial before he's hung.”
Essentially, modern Texas contractors often felt as if they were in Judge Bean’s courtroom when faced with the outdated Texas law and no protection from poor engineering drawings and specifications. The Lonergan doctrine then translates into the contractor being responsible for warranting the sufficiency and accuracy of owner-furnished plans and specifications, even if the plans and specifications are found to be full of errors, unless the contract between them expressly places this burden on the owner.
Restriction of Lonergan Doctrine
Over the years, some Texas courts of appeal have made it more tolerable by sometimes offering compromises of the harsher conditions that are hard to enforce in the doctrine. However, in 2012, the Texas Supreme Court indicated Lonergan was still the law in Texas (El Paso v. Mastec). In 2019, the Texas legislature, with help from highway construction lobby groups, took the first step toward overturning or doing away with the Lonergan Doctrine.
It implemented a new Chapter 473 to the Texas Transportation Code, with respect to certain projects undertaken by the Texas Department of Transportation and Texas political subdivisions acting under the authority of Chapters 284, 366, 370 or 431 of the Transportation Code, adopting, as it were, the Spearin Doctrine in these limited, transportation projects. Now, the legislature has further chipped away at the Lonergan Doctrine with the passage of Texas SB 219, which can apply to all construction projects, including buildings.
The legislation will add a new Chapter 59 to the Texas Business and Commerce Code, which will, with some exceptions, further limit the applicability of the Lonergan Doctrine. It expressly states that,
“A contractor is not responsible for the consequences of design defects in and may not warranty the accuracy, adequacy, sufficiency, or insufficiency in the plans, specifications, or other design documents provided to the contractor by a person other than the contractor’s agents, contractors, fabricators, or suppliers, or its consultants, of any tier.”
Thus, a contractor would now be shielded from any claims based on liability or design defects in those plans, specifications and other design documents. As a practical matter, contractors would no longer be required to include in construction contracts language that allocates such responsibility to the owner, since that would now be the law by statute
In crafting SB 219, the Texas legislature seems to have been aware of the old adage: “With much privilege comes much responsibility.” It began reducing the impact of the Lonergan Doctrine, but it imposes a new statutory requirement on contractors to disclose any “defect, in accuracy, inadequacy, or insufficiency in the plans, specifications, or other design documents” that the contractor actually discovers or that the contractor should discover by “ordinary diligence.”
The new statute defines “ordinary diligence” as the type of “observations” of the design documents that the contractor would make in its “reasonable preparation of a bid or fulfillment of its scope of work under normal circumstances.” In doing so, a contractor is required to act only “in the contractor’s capacity as contractor,” and not as a licensed design professional, nor is a contractor required to engage a licensed design professional to review the design documents and check sizing calculations or pressures, etc.
Importantly though, a contractor who fails to identify a defect that should have been caught may be held responsible for the consequences of that defect. As this requirement is frequently found in project contracts, it likely does not mean a significant practical change for a contractor in reviewing owner-provided plans and specs.
However, assuming the bill is signed by the time this makes it to print, this obligation to identify a defect would now be statutory. There may need to be more clarification in an estimating design guide or industry standard as to what a contractor should look for when doing a material takeoff or tabulation for purposes of providing a bid.
For example, many cost-estimating books and estimating software programs show all the trim and accessories associated with a pump. If the contractor is old-school and simply tabulates and estimates what is shown on the drawings or called for in the specifications — and the engineer does not show pressure or temperature gauges or check valves or isolation valves on the plans or in the specifications — how far must the contractor go with questioning the design intent while quickly tabulating a bid for a job?
Most projects have a form and procedure to notify the general contractor, construction manager or engineer of an error or omission in the drawings and specifications so that they may be able to notify other bidders with an addendum during the bidding period and get a level field with respect to the bid prices.
SB 219 Application and Exceptions
Texas SB 219 applies to contracts “for the construction or repair of an improvement to real property or of a road or highway.” As the bill does not distinguish between public or private owners, the bill should be interpreted to apply to both private and public works projects.
However, it does not apply to a project that is either a “critical infrastructure facility” itself or that is “necessary to the operation of and directly related to a critical infrastructure facility.” Will this exception contribute to critical facilities such as power plants not having properly engineered drawings and specifications? The recent power outages should have taught some lessons.
The term “critical infrastructure facility” is defined in the statute and covers projects that would service a wide range of industries. (Note that this definition is different from, and does not incorporate the Cybersecurity & Infrastructure Facility Agency guidelines promulgated by the U.S. Department of Homeland Security.)
Generally, the statute will exempt projects in the following industries: petrochemical (such as refineries, pipelines, chemical plants, natural gas compressor stations, etc.); water treatment and distribution; telecommunications; and transportation and cargo (including ports, trucking terminals and airports). However, contractors and stakeholders should examine the statute closely and consult an attorney to determine if a project may be classified under one of the 24 types of critical infrastructure facilities exempted from the statute.
In addition, and apart from the type of facility being constructed, the statute does not apply to three specific situations (generally, where the contractor acts in the capacity of a design professional):
1. Designs provided by a contractor under a design-build contract;
2. Designs provided by a contractor under an engineering, procurement and construction contract;
3. Portions of a construction contract where the contractor has agreed to provide “input and guidance” on design documents. This is provided in the form of signed and sealed work product of someone licensed as an architect, engineer or registered land surveyor and that work product is actually incorporated into the design documents used in construction.
Architect/Engineer’s Standard of Care to Contractor
SB 219 contains another provision, not directly related to the Lonergan case, providing for a nonwaivable, statutory standard of care in a “construction contract for architectural or engineering services or a contract related to the construction or repair of an improvement to real property that contains architectural or engineering services.”
The statutory standard of care for such a contract is “the professional skill and care ordinarily provided by competent architects or engineers practicing under the same or similar circumstances and professional license.”
What does this mean for Texas contractors? If SB 219 is signed into law, it will become effective for contracts entered into (signed) on or after Sept. 1, 2021. The changes to the Lonergan Doctrine contained in the legislation are sensible, and long-awaited by many contractors exposed to design defects in construction documents that they had no control over. They are a welcome development in Texas construction law.
When I worked in Texas, some contractors would hire seasoned construction professionals to look for the errors and omissions in construction and specification documents and provide a low estimate to improve their chances of winning the bid. Then they would hit the owner with exorbitant extras to make a big profit on a job.
The Lonergan Doctrine protected engineers who did sloppy work or owners who did not hire engineers for a specific project yet used a similar set of plans for a different location. It gave owners the opportunity to tell contractors that they should have known what is required in the standard of care or the code despite the errors on the drawings.
The old language allowed owners to require the contractor pay for any damages associated with a design defect or drawings that were inadequate for a number of reasons and make the contractor pay for making it right, even though they gave a bid for exactly what was on the plans. Contractors should be in support of Texas SB 219 as it will eliminate some but not all liability to the contractor for architect/engineer design or specification errors or omissions.
If the legislation is enacted, Texas construction law will take another step toward the logical allocation of design risk, in line with that followed by the United States Supreme Court and the other 49 states. Contractors and engineers should always consult a construction law attorney when dealing with these types of matters.
Next month we will continue with coverage of the 2021 Uniform Plumbing Code changes.
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