The following was reported in the Dec. 31, 2007 issue of The Zweig Letter: "…the A/E business will continue to globalize in 2008 and one of the impacts will be increased off-shoring of design work from the United States to other countries. The Internet and the growth of Voice Over Internet Protocol (VOIP) technology are making international communication much more affordable. In addition to potential cost savings, off-shoring is also a way for firms to address the challenge of the tight labor market in the United States. In 2008, work will increasingly flow to the most competent, lowest-cost professional service provider, regardless of where that person or firm is physically located. India, China, Mexico, and the Philippines are popular options for off-shoring services."

The off-shore engineering trend has raised some questions in the minds of licensed professional engineers (and engineering licensure boards) about how state requirements that the professional engineer of record must exercise responsible charge over engineering work will be met when the licensed professional engineer in responsible charge is in the United States and the design work is being performed in India, China, Mexico, the Philippines, or elsewhere.

Today, every state engineering licensure law either in statute or in regulation defines or refers to responsible charge, responsible control, or some similar term. At one time, many state engineering licensure laws and regulations required physical presence by the licensed professional engineer to exercise responsible charge or responsible control over engineering work. This requirement was based upon the notion that only through physical proximity can a professional engineer adequately provide the necessary direct control and personal supervision over subordinates to determine if the work comported with acceptable engineering standards and was consistent with the public health and safety.

Today, many state engineering licensure laws continue to refer specifically to physical presence as the superior method to achieve responsible charge. However, increasingly, state laws and regulations are trending toward allowing a greater degree of practice flexibility, and are redefining responsible charge to acknowledge that effective oversight can be exercised through alternative means, such as electronic modes.

A good example of this recent evolution can be found in the Florida Administrative Code (Section 61G15-18.011), which defines the term responsible charge in significant detail. The Florida Code begins by defining responsible charge as "…that degree of control an engineer is required to maintain over engineering decisions made personally or by others over which the engineer exercises supervisory direction and control authority." The code continues by stating that the degree of control necessary includes "personally mak(ing) engineering decisions or reviews and approv(ing) proposed decisions prior to their implementation, including the consideration of alternatives, whenever engineering decisions that could affect the health, safety, and welfare of the public are made." Importantly, the code recognizes that in making said engineering decisions, the engineer shall be "physically present or, if not physically present, be available in a reasonable period of time, through the use of electronic communication devices, such as electronic mail, videoconferencing, teleconferencing, computer networking, or via facsimile transmission."

The Florida Code also imposes on the engineer in responsible charge to "judge the validity and applicability of recommendations prior to their incorporation into the work, including the qualifications of those making the recommendations. Engineering decisions by the engineer in responsible charge include decisions concerning permanent or temporary work that could create a danger to the health, safety, and welfare of the public and include (1) the selection of engineering alternatives to be investigated and the comparison of alternatives for engineering works; (2) the selection or development of design standards or methods and the materials to be used; (3) the selection or development of techniques or methods of testing to be used in evaluating materials or completed works, either new or existing; and (4) the development and control of operating and maintenance procedures.

To test whether the engineer is exercising the requisite degree of responsibility, the Code mandates that the engineer must be capable of answering questions relevant to the engineering decisions made during the engineer’s work on the project, in sufficient detail as to leave little doubt as to the engineer’s proficiency for the work performed and involvement in said work. It is not necessary to defend decisions in an adversarial situation, but only to demonstrate that the engineer in responsible charge made them and possessed sufficient knowledge of the project to make them. The engineer in responsible charge must be completely in charge of and satisfied with the engineering aspects of the project, have the ability to review design work at any time during the development of the project, and shall be available to exercise in reviewing these documents and have personal knowledge of the technical abilities of the technical personnel performing the work and be satisfied that these capabilities are sufficient for the performance of the work.

The Florida Administrative Code clearly has incorporated a well-developed definition of responsible charge that applies broadly to all practice settings, and is not limited only for those engineers exercising responsible charge for engineering work performed at a foreign location. However, as engineering practice evolves, for those engineers exercising responsible charge over engineering work performed at off-shore locations and the state engineering licensure boards that regulate them, cultural differences, local custom and practice, language barriers, and other factors may create some unique and unanticipated practice issues and regulatory challenges.

Arthur E. Schwartz serves as a deputy executive director and general counsel for the National Society of Professional Engineers. He can be reached at 703-684-2845 or via e-mail at aschwartz@nspe.org. Visit www.nspe.org for more information on this or other ethical matters.