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The Technology Benchmark-Requiring licensure for digital stakeout.

June 1, 2007
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A strikingly important phenomenon in the field of surveying is currently sweeping the nation. Some states are now requiring that a licensed engineer or surveyor be in responsible charge of “digital stakeouts” or 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, rather, 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.

Two occurrences have brought this phenomenon to the forefront. First, engineers and surveyors have complained to their state licensing boards that their work was being minimized or eliminated by contractors with the new technologies of 3D GPS machine-controlled equipment. Second, mistakes by data prep companies are beginning to cause construction errors. The actions resulting from these occurrences may be producing one of the most pivotal decisions in surveying history.

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 some states. If it isn’t a clear violation, it could be aiding and abetting a violation; either way, it is a sign that the profession is notably changing.



Possible Scenarios

Consider the following scenarios and how these situations could affect you or your firm.

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 abusing the law of 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 surveyor 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. Performing this service may be in violation of state statutes that require a licensed engineer or surveyor be in responsible charge of the modeling effort.

Scenario 3: After acquiring data from a licensed engineer and placing it into service in an automated dozer, 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.

Scenario 4: An engineer or surveyor 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" 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 modeler 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 modeler. Failing to receive it, the contractor turns the engineer or surveyor into the state board for developing an incomplete work product and an insufficient set of design data. He claims that the preparer has not met the standards of practice nor his responsibilities as an engineer or surveyor 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 dozer 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 a licensed person, or at least that the manipulation of that data must be. This data is something I have referred to as “digital stakeout” in various articles and lectures, and it seems like the state boards are agreeing that this digital data has the same importance and validity (and hence accountability) as stakeout data.



Position Statements

New rules are not being written about data prep responsibility. Instead, existing rules are expanding to cover the new technology of 3D machine control. I learned more about these developments by researching the position statements created in some states regarding licensure for data prep.


Figure 1. 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.

Kentucky

To start, I spoke with 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, Ky., 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 versus the 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 construction in 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.

So, licensed professionals will now be obtaining fees for work that they were previously being methodically cut out of; however, they now run the very real risk of not actually having the skill to produce the required data set. For instance, if the professional engineer or licensed surveyor prepares an inadequate data set, then he/she may be held liable for delivering an incomplete work product. See Figure 1 for an example of the type of millimeter-accurate 3D model needed for 3D GPS machine control. If engineers and surveyors cannot provide this level of accuracy and quality, they may find themselves charged with delivering an insufficient 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 (just ask a local contractor if you doubt this statement).

The business model for the surveyor often does involve 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 in many cases--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 and surveying firms will respond to the call and increase their use of technology, train their staff in the use of software to 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 that is 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.” He says, “The data preparation of the 3D model is fine just so long as the contractor doesn’t create new data. 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 100 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. Dated Nov. 21, 2006 and signed by Cindi Christenson, PE, executive officer of California’s board, the letter is titled “Clarification regarding the use of Global Positioning System equipment by unlicensed individuals.” Excerpts from the letter state:

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 Engineer, then that unlicensed individual would be practicing land surveying or civil engineering without legal authority.

Another very important group of statements follow:

If a Professional Land Surveyor or Professional 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 touted its benefits to 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 seems to be performing as promised, it is producing significant savings for developers and profits for contractors. With the advent of subscription-based real-time GPS networks, contractors can now set their own control without the need for a traditional surveyor. With easy-to-use 3D engineering software, many can prepare their own 3D data sets, and with RTK GPS many can collect their own as-builts. The combination of 3D machine control technology with real-time GPS networks is becoming a force to be reckoned with--and the state boards are beginning the reckoning.

Please contact me at hward@carlsonsw.com and let me know where you stand on this extremely important issue.

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