Professional Engineer on Federal Properties

[BandBH]

thread765-134447
I've seen many threads elsewhere on this topic, i.e., must an engineer be registered in the particular State for work on a Federal property. All of the responses I have seen are from individuals who either convey themselves as knowing the answer or from individuals who are relaying answers they attained from someone else, be they a State official or not, but without any reference to enacted law or regulation. While the specifics of such activity must be checked with each State's board, my answer for work on Federal property regardless of the Federal Department/Agency and location is "YES"... and here is why:
Unless a Federal Agency is exempt from following its own Federal Acquisition Regulation the acquisition of engineering services falls under Subpart 36.6 (The FAR is readily accessed from acquisition.gov). Here are statements extracted from that section in quotes which together support this answer.
"When the contract statement of work includes both architect-engineer services and other services, the contracting officer shall follow the procedures in this subpart if the statement of work, substantially or to a dominant extent, specifies performance or approval by a registered or licensed architect or engineer."
AND
"Contracting officers should consider the following services to be “architect-engineer services” subject to the procedures of this subpart: Professional services of an architectural or engineering nature, as defined by applicable State law, which the State law requires to be performed or approved by a registered architect or engineer".

Before I provide my supporting statement, consider this:
a motor-vehicle operator cited for exceeding a speed limit in a National Park would be cited against 36 CFR 4.21 (Federal) because such federal code for speeding exists. If that same operator presented the Federal officer a driver's licence (resident State)that was not valid. The Federal officer would cite the State law (of the State the National Park is in).

From Article 4 of the Constitution:
"The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State".

Since there is no Federal P.E. controlling engineering practice on Federal property, the FAR applies the applicable State law. Once the work is considered engineering work (as defined by the applicable State Law), the P.E. is required. Fed Land in Georgia means Georgia P.E., because (1) a P.E. is required and (2) only Georgia law for the P.E. is the applicable law.

I am not a lawyer and I might be wrong, but I think I have this spot on.

 

[JAE]

I guess I "know" the answer because for about 25 years I've done work for the USPS, NPS, DoD, National Guards, etc. and never ever was required to use the local state PE seal on my plans.

The laws you cite above seem to state that, yes, you need professional Architects and Engineers but it doesn't say that they need to be locally licensed. They talk more about WHEN you need to use professionals.

In fact, I was challenged in one western state once when doing engineering.
Their board eventually backed down when they discussed it - it was:
[blue]a federally financed project
on federal land
managed by the feds. [/blue]

We didn't even submit a set of plans for city permit.

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[BandBH]

I was not referring to any State requiring PE license for Federal work on Federal properties. I am referring to the Federal Agency requiring State PE for engineering work. If in your long experience, you were not required to have a PE in a particular state, that is something the CO would need to answer the IG on, unless the Department has a stated exception. I do not know the regulatory exception for say the DOI/NPS. If you know, please share.

The 'when' is when the Federal Agency acquires engineering service, defined by the applicable State law. I can't see how in the Reg above, the law from a different State could apply. Within the Agency, the Federal employee does not have to be licensed in a particular State, and I suppose the State has no control over that.

Permitting is a more complicated matter. If a state or local permit is required for Federal work, e.g., storm water, the State governs that permitting process. In some instances, such is required.

 

[JAE]

I was not referring to any State requiring PE license for Federal work on Federal properties. I am referring to the Federal Agency requiring State PE for engineering work.

You are correct to point out that all of my examples above were when I was working for a private consulting firm, we had a contract with a Federal agency (NPS, USPS, etc.) and we were doing a project on Federal properties located in another state where I was not a licensed engineer in that state. I could still do the engineering, seal the drawings (if the agency required seals..sometimes they didn't) and perform all the required engineering services expected of a licensed professional engineer.

In my examples, it was sometimes the State that "tried" to enforce me being licensed in their state but in all cases they backed down once they saw that the project was Federal...and on Federal properties.

The key in that situation is that the work is not really IN THAT STATE and thus not technically under any state jurisdiction. Thus, for a Nevada project where I wasn't yet quite licensed, I could perform the engineering without being licensed there. In all cases, whether NPS, USPS, DoD, etc. there was no issue -just use your local state PE stamp (if a stamp was required) and that was fine. The federal agency didn't even seem to check if we were even licensed anywhere - but I supposed they assumed we were a practicing firm and thus had licensed engineers.

In the two regulation sentences you cite above - let me try to paraphrase what I think they are saying:
1. If the statement of work includes significant A/E services - then you must follow this subpart.
2. CO's shall consider A/E services to be defined by how the local state defines it.

Neither of those two statement demand a local State PE license on the project...just that if you are on a federal property you should define A/E as the locals do. When in Rome do as the Romans do.







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[IRstuff]

The OP has a at least a couple of errors:

The first is "Contracting officers should" Under common usage "should" is not an imperative.

The second is that while the states do retain their ability to enforce their state PE laws, states do not, and cannot have jurisdiction over Federal property.

TTFN
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[BandBH]

I enjoy this dialogue and hope we can continue to share information as such. I didn't copy the whole subpart of the FAR or any of the other subparts it references; they are readily accessed in acquisition.gov. The SHOULD aspect is on how the CO determines the work to be considered professional engineering for regulatory applicability. How else should a CO determine the work to require a professional engineer? If I am not mistaken, the Feds only determined work to be considered professional engineering in the context of the State's definition, since such is up to the State. While work, such as designing a highway bridge, is clearly engineering, I suppose some work (investigatory, analytical, etc.) are not clearly engineering work. Once it IS determined to be or include engineering work(as defined by the applicable State), then the acquisition SHALL be subject to this regulatory subpart of the FAR... unless, as stated in the FARm there is an exception.

 

[JAE]

then the acquisition SHALL be subject to this regulatory subpart of the FAR...

So where in the FAR does it require in-state local PE's vs. licensed PE's in general?



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[BandBH]

I am not a lawyer, and I am not trying to be one.
The FAR subpart (stated above) refers to professional engineering as defined by the applicable State law. So which law is applicable? Can law-governing engineering work on a Federally-owned property located in Tennessee apply law from any State? If you interpret this to mean that it doesn't matter which State: Tennessee, Maine, Vermont..., then I don't have a response. I think this Regulation pertains to the United States Code in Title 40, Chapter 11 on selecting Architects and Engineers (aka the Brooks Act). I won't copy that whole Chapter here. Here are some statements in the law. You can dig in there to see what is stated or if not stated, what is implied, to check if it is out of context.

"...unless such services—(1) are performed under the direct supervision of a professional architect or engineer licensed, registered, or certified in the State, territory (including the Commonwealth of Puerto Rico), possession, or Federal District in which the services are to be performed.."

"....professional services of an architectural or engineering nature, as defined by state law, if applicable, that are required to be performed or approved by a person licensed, registered, or certified to provide the services described in this paragraph...."

"...In subsection (b), the words 'engaged in the lawful practice of their profession' are omitted as unnecessary because of the definition of 'firm' in section 1102 of the revised title...."

"...FIRM.—The term 'firm' means an individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the profession of architecture or engineering...."

 

[IRstuff]

What I was referring to is that "shall" is typically used when a mandatory requirement is stated, "should" usually applies to desires or goals. So, "should" in that sentence is simply a suggestion, not an imperative.

Moreover, government contracts, at least those of the aerospace variety are never fully adjudicated by a single person. There is almost always a government engineer or a Systems Engineering and Technical Assistance (SETA) contractor that deals with the specific technical requirements of the job. To that end, they evaluate the proposals and proposers for technical qualifications, etc., which may include whether a PE is required or desired, and any other qualifications are required. For example, in California, they would still require engineers versed in seismic design, since it's earthquake country.

Now, there's state and federal law, but there's also promotion, which means that most of these guys aren't going to jeopardize their promotions and pensions unnecessarily by picking unqualified engineers and companies to work a contract.

TTFN
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[JAE]

I don't have time to dig through the US Code.

I guess I've never heard of a fed project requiring a local license - UNLESS - the feds were leasing the property.

So perhaps you've found that the letter of the law mandates something that no one is paying any attention to...over years of fed projects...not just mine but many others that I know have experienced the same thing.



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