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Make Things Easy on Yourself -

Consider Hiring an On-Call Engineer Before You Actually Need One

By Eric E. Muñoz, Shareholder

When it comes to advising clients on construction-related matters, there are few things I hate more than having to tell a superintendent that they must stop in their tracks and put the project on a temporary hold because of legal requirements that may not have been considered prior to our telephone call. [WAIT: Before you start to tell yourself that this particular article might not apply to the project you are planning because it is “not construction,” bear in mind that I used the term “construction-related” for a reason]. Ironically, it is the smaller projects that prove to be the most problematic. The point of this article is not to list every single requirement that you will have to comply with when procuring and completing a small project. Rather, it is to show you one concrete step you can take to mitigate some of the delays that can arise and make the project go more smoothly.

But, before we get to that, let’s identify some of the characteristics of these so-called “small projects.” These may not all apply to every single small project, but they are the ones that, after years of doing this, present themselves again and again. Most of the small projects that are the target of this article involve some of the following:

Procurement is being made through a purchasing cooperative.
There is no engineer/architect involved.
The project is the result of an emergency/unforeseen situation.
The project needs to get going ASAP.

Get Yourself an On-Call Engineer

“Eric, can you review this contract for us? It’s a simple HVAC replacement, and it’s a co-op vendor, so we can hit the ground as soon as we sign on the dotted line.”

My first question: “Do you have an engineer on the project?” Why do I ask that? Simple. The vast majority of the time, the law will require the involvement (in one way or another) of a licensed design professional. Here’s a quick rundown:

Cooperative Purchases: Every time you buy “construction-related goods or services” over $50,000 through a purchasing cooperative, you are required before you sign the contract, to obtain a written certification that the project either (1) does not require engineering/architecture, or (2) an engineer/architect has prepared the plans and specs as required by law. Thus, regardless of whether your project requires engineered plans/specs, you must have someone prepare this certification. My best recommendation is that you have a licensed engineer be the one to certify whether a project requires engineering.

One variant I often hear is this: “Well, the engineering is included.” This does not get you there. Remember that state law explicitly prohibits a school district from buying engineering through a purchasing cooperative.

All Purchases (including Cooperative Purchases): Two potential sources of law will dictate whether you need an engineer/architect on a project:

The Texas Occupations Code:

Engineering: Any project that involves the practice of engineering and meets either of the following thresholds: $8,000 if the project involves electrical/mechanical engineering, or $20,000 if not.
Architecture: Alterations/additions costing more than $50,000 if the building will be used for education/assembly/office occupancy and requires the removal, relocation, or addition of a wall/partition or the alteration/addition of an exit.

The Texas Government Code: Aside from the Occupations Code, a project procured using Competitive Sealed Proposals requires that an architect or engineer prepare the plans or specifications.

Before going any further, let me say that I do realize there is a difference between an engineer and an architect. For the most part, anytime I use the word “engineer” in this article, you can read it as saying “engineer or architect, whichever is appropriate.” Of course, that does not apply to the discussion of the Texas Occupations Code above.

What is an “on-call engineer”? Just what it sounds like. One of the biggest hiccups districts can face after realizing that an engineer is necessary is actually finding and engaging one. This can add weeks to a project timeline. The better alternative is to have an engineer already under contract, even if you don’t have any projects currently in the works. Thus, should you run into an unexpected issue, you will already know who to call and you won’t have to worry about negotiating a contract while in a bind. Better to get that established before the need arises.

How do you hire an “on-call engineer”? Easy peasy. As you know, you are not allowed to hire an engineer on the basis of price. You must first make a selection on the basis of demonstrated competence and qualifications (the “MQBCQ” as it were) and only then may you ask about and negotiate price. So, you may publish a formal Request for Qualifications seeking one or more firms to cover the various disciplines (civil, structural, mechanical, electrical, plumbing). Or, if you already have a firm you’re familiar with, ask them to provide updated information on their qualifications. Once you are ready to negotiate, you’ll want to enter into a master contract that governs any services you might need during the term of the agreement. At that point, you’re set.

As the year goes along and you encounter situations where you might need engineering services, you can issue a work order under the master agreement. The work order will describe the specific project and the services needed. When the next project comes along, you issue another work order. Sometimes, you might need full design and construction administration. Other times, you might simply need consulting work or a written certification for a project procured through a purchasing cooperative.

The virtue of having an on-call engineer is that it helps you meet your legal requirements in an efficient and timely manner. If you run into an unanticipated need (whether it’s because of an emergency situation or perhaps just an oversight during the planning process), you will know exactly who to call and will already have contractual terms worked out.

When should you do this? Before you need it and as often as you’d like (within reason). The terms of your master agreement will dictate how long the agreement lasts (and, therefore, how long before you need to re-procure). Remember, the primary legal requirement is that your engineer be procured on the basis of qualifications.

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