December 23, 2015 AMERICAN COUNCIL OF ENGINEERING COMPANIES. Abbie R. Goodman Executive Director

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1 December 23, 2015 AMERICAN COUNCIL OF ENGINEERING COMPANIES of Massachusetts Abbie R. Goodman Executive Director 617/ American Council of Engineering Companies of Massachusetts The Engineering Center One Walnut Street Boston, MA Phone 617/ Fax 617/ Web Clinton Dick Executive Director, Board of Registration of Architects Massachusetts Division of Professional Licensure 1000 Washington Street, Suite 710 Boston, MA Dear Clinton, I am writing on behalf of the American Council of Engineering Companies of Massachusetts, a business association of member Engineering, Architecture/Engineering, Land Surveying and related professional service firms in Massachusetts. I am writing to submit our comments on the most recent draft of 231 CMR that we have seen. ACEC/MA has grave concerns about the proposed changes to the regulations as well as parts of the current regulations. In addition we continue to have serious concerns with MGL Ch. 112, 60L(8). Chapter 112 was passed into law more than 50 years ago, well before combined architecture/engineering firms became common in the industry. Chapter L(8) fails to recognize the diversity of the current design market place and its needs for more flexibility in managing multidisciplined national design businesses, while protecting the health, welfare and safety of the public. We think that this section of law places an undue burden on business in the Commonwealth and does not provide any benefit to the public. We believe it should be repealed. ACEC/MA Member Firms employ approximately 7,000 people in Massachusetts, including Professional Engineers, Architects, Professional Land Surveyors, Licensed Site Professionals, Planners, Geologists and other professionals working on projects in the natural and built environment. ACEC/Massachusetts is affiliated with the American Council of Engineering Companies in Washington, DC. Council members numbering more than 5,000 firms representing more than 500,000 employees throughout the country are engaged in a wide range of engineering and design projects that propel the nation's economy, and enhance and safeguard America's quality of life. These projects allow Americans to drink clean water, enjoy a healthy life, take advantage of new technologies, travel safely and efficiently and live and work in safe buildings. ACEC member firms employ hundreds of thousands of engineers, architects, land surveyors, scientists, and other specialists, responsible for more than $200 billion of private and public works annually. About one third of the members are small businesses with ten or fewer employees. Our member firms range in size from single employee entrepreneurs to the corporate headquarters of large national or international firms, and are involved in a 1

2 wide range of public and private engineering works that contribute to the economic viability and quality of life in the region and beyond. ACEC/MA welcomes the opportunity to continue a constructive dialogue with the Board of Registration of Architects, the Division of Professional Licensure leadership and staff, and the Administration about the current and proposed changes to 231 CMR. Sincerely yours, American Council of Engineering Companies of Massachusetts Executive Director Attachment: Chart of ACEC/MA concerns with draft 231 CMR Cc by Chuck Borstel, Director, Division of Professional Licensure Kevin Scanlon, General Counsel, Division of Professional Licensure John Miller, AIA, Chair, Board of Registration of Architects John Nunnari, Executive Director, AIA/MA 2

3 Chart of ACEC/MA Concerns with draft 231 CMR Section Language Concerns 2.04 Architect Officer - means an Officer of a Business Enterprise who is registered to practice architecture in the Commonwealth of Massachusetts. This definition is problematic given Section 4.00's focus on Architect Officers Practice of Architecture - means, consistent with the definition in M.G.L. c. 112, 60A, performing or agreeing to perform or holding one's self out as able to perform professional services in connection with the design, construction, enlargement or alteration of a building including, but not limited to, consultations, investigations, evaluations, preliminary studies, aesthetic design, the preparation of plans, specifications and contract documents, the co-ordination of structural and mechanical design and site development, and administration of construction contracts. Said definition shall also be deemed to include any other similar service or combination of services in connection with the design and construction of buildings, including the interiors of buildings and space within the site surrounding such buildings regardless of whether one or all of these services are being performed and regardless of whether these services are performed in person or as the directing head of an office or organization performing them, as well as such engineering work as is incidental to the practice of architecture. The highlighted language is an issue of concern for engineers and engineering businesses. We understand that the ARB has agreed to mirror MGL c. 112, 60A and not try to redefine the law. We support the existing law. 3

4 (6)(2) Responsible Control - means that amount of control over and detailed professional knowledge of the content of technical submissions during their preparation as is ordinarily exercised by a registered architect applying the required professional standard of care. Except as permitted by 231 CMR 4.01(5), review and correction of technical submissions after they have been prepared by others does not constitute the exercise of responsible control because the reviewer has neither control over nor detailed professional knowledge of the content of such submissions throughout their preparations. A registered architect must provide the following as a condition of renewal:... A certification to the Board that he or she understands that an Architect Officer must exercise all architectural and supervisory control over all architectural services provides by Business Enterprises. This definition is problematic in light of 231 CMR 4.04(1)(a)(3)'s requirement that architectural services performed by the Business Enterprise must be performed under the responsible control of the same Architect Officer who executed the agreement. It is our contention that once an architect is licensed to practice architecture than that individual should be deemed capable of exercising responsible control over the content of technical submissions. That is a right that was vested to the architect when the Commonwealth of Massachusetts issued that architect the license. As much is stated in the definition, i.e. "as is ordinarily exercised by a registered architect applying the required professional standard of care." The public is protected by a licensed architect's exercise of responsible control, regardless of whether that architect is an officer, by the Business Enterprise's professional liability insurance. The public will actually be better served by not limiting responsible control to Architect Officers who executed the contract since the attention required for responsible control would create an enormous time and effort burden for the Architect Officer while the business enterprise has a sufficient amount of qualified licensed architects to exercise responsible control. This section is overly burdensome. First, it implies that Architect Officers must exercise greater control than responsible control, i.e., they must exercise architectural control. Architectural control is not defined in the regulations but it infers control over every detail of the Business Enterprise's architectural practice. Moreover, this section would seem to contradict 231 CMR 4.04(1)(a)(3)'s right to delegate (which you will see in our comments to 24.04(a)(a)(3) is already contradicted in the section itself). Lastly, by forcing registered architects to make this declaration the Board, in reality, is stripping that architect of their right to exercise responsible control, which was a right that was vested to the architect when the Commonwealth of Massachusetts issued a license to that architect to practice architecture. 4

5 3.05(6)(5) 4.01(5) 4.04(1)(a)(1) A registered architect must provide the following as a condition of renewal... Such other information as the Board may require. Responsible Control The Business Enterprise must have an Architect Officer a. If the Business Enterprise is a partnership or limited liability partnerships, the Architect Officer must be a partner; b. If the Business Enterprise is a corporation, the Architect Officer must be an officer as established by the articles of organization or by-laws of that corporation; c. If the Business Enterprise is a limited liability company, the Architect Officer must be a manager (or a member, if the management of the business is vested in one or more members). We feel this language is unacceptable because it is overly broad. Registered architects are entitled to reasonable and foreseeable requests for information to have their registration renewed. This limits the Board to neither reasonable, nor foreseeable requests. We feel that if the Board is going to request information from an architect as a condition precedent for renewal the information it can request should be specifically and narrowly defined in the regulation We feel the language in 4.04(1)(a)(3) significantly hampers the allowable responsible control set forth in this section. Under this section responsible control is permissible for any registered architect. For reasons set forth in our comments to sections 2.04 ("responsible control") and 4.04(1)(a)(3) we feel it should be left that way. We feel this unfairly restrains the trade of large A/E firms. See e.g., N.C. State B. of Dental Exam'rs v. Fed. Trade Commn., 135 S. Ct (2015). This will force the large A/E firms to create corporate structures simply to practice in Massachusetts even though they have a sufficient number of Massachusetts registered architects to perform the work and they have professional liability insurance to protect the public. Moreover, it will force these firms to reorganize their corporate structure when the architectural scope of work might only be a small portion of large engineering focused projects. This will also discourage large A/E firms who have sufficient resources from doing business in Massachusetts. This will make it harder for Massachusetts entities, such as the MBTA, to retain capable A/E firms to take on larger infrastructure projects. It will also drive up the design costs as owners, including public entities, will have to 1) retain an architecture firm and an engineering firm, or 2) retain an engineering firm that will have to retain an architecture firm. We understand this regulation is premised on M.G.L. c. 112, 60L(8), however, that statute was passed into law 50 years ago, well before combined architect/engineering firms became common in the industry. It is no longer effective in dealing with 5

6 4.04(1)(a)(2) 4.04(1)(a)(3) All agreements by the Business Enterprise for the performance of architectural services are executed on its behalf by an Architect Officer. All architectural services performed by the Business Enterprise must be performed under the responsible control of the same Architect Officer who executed the Agreement. For purposes of this requirement, an Architect Officer may delegate the performance of architectural services, including the signing and sealing of technical submissions, to another registered Architect so long as: A. All technical submissions are prepared in compliance with 231 CMR 4.01(5); and The Architect Officer who executed the agreement retains professional and supervisory control over the Registered Architect performing the services. the modern A/E corporate environment and ACEC/MA is ready to suggest amendments to this law as well. We reiterate our comments made in 4.04(1)(a)(1). This regulation further restrains trade and prohibits corporations from practicing architecture by designating the same Massachusetts licensed officer as the only officer eligible to sign contracts for architectural services. In addition, it is unclear what agreements this requirement applies to. For example, if the scope of services is predominantly engineering within a line item that might be architectural does it still have to be signed by an Architect Officer? What about IDIQ contracts where the general scope is engineering, but a work order comes in that might require some architecture work? See comments to 2.04 (Responsible Control). The addition of the delegation language does not alleviate our concerns because it still mandates that the architecture services performed by the Business Enterprise be performed under the responsible control of the same Architect Officer who executed the Agreement. Therefore, while the Architect Officer may delegate the performance of architectural services, including the signing and sealing of technical submissions, the Architect Officer is still required to exercise responsible control which requires control over and detailed professional knowledge of the content of technical submissions. The Architect Officer also runs the risk of running afoul of 4.04(1)(a)(4) if it delegates responsible control authority to another registered architect without Board approval. Moreover, the addition of the Architect Officer retaining professional and supervisory control over the Registered Architect performing Services reinforces the requirement that the Architect Officer exercise responsible control. We want to note that the public is protected if a Business Enterprise utilizes a nonofficer registered architect for responsible control by the Business Enterprise's professional liability insurance. 6

7 4.04(1)(a)(4) 4.04(1)(b)(4) 4.04(1) Once an agreement to perform architectural services has been executed by an Architectural Officer, a Business Enterprise may not change the Architect Officer who is in responsible control of those services unless that change is first approved by the Board. A certification from the chief executive office or the equivalent highest ranking corporate officer or administrator in charge of total management of the Business Enterprise that he or she understands that an Architect Officer must execute all architectural contracts and exercise responsible control over all architectural services provided by that Business Enterprise in Massachusetts. If the Board, in its discretion determines that the responsible control burden undertaken by an Architect Officer may exceed his or her capacity (when other responsibilities of the Architect Officer are taken into account), the Board may direct the Business Enterprise to provide additional records, which may include the following: 1. With respect to every project in Massachusetts for which the Business Enterprise is currently engaged to provide architectural services: a. A description of the project identifying the project owner and the location and scope of the project; b. The name of the Architect Officer who signed the agreement by the terms of which the architectural services are being performed; c. The date of the agreement; and d. The name of the Architect Officer who has the project in his or her responsible control. 2. A log maintained by the Architect Officer which indicates the nature and extent of the Architect Officer's control, time dedicated, and detailed knowledge of the technical submissions prepared for each of his or her projects. A copy of the log shall be submitted to the Board quarterly. This is an inappropriate use of state resources that interferes with a company's business operations. The Board should not be able to dictate what officers can be in responsible control. This also could cause significant business interruption if the Business Enterprise has to seek Board approval every time it thinks it might be changing an Architect Officer who is in responsible control. We feel this certification should not have to be made in light of our comments regarding Architect Officers. We have fundamental and practical concerns with this regulation. First, we feel this regulation allows the Board too much intrusion into a firm's business operations, especially since it is at the Board's discretion whether the Architect Officer exceeds his or her capacity. A firm's dissemination of projects and work load is an internal business evaluation that should be left entirely to the firm. It is not the proper for the Board to insert itself into the firm's business operations. Secondly, the log and the detail required in the log is impractical especially in light of the requirements 4.04 places on Architect Officers. It is simply not possible to log all the time and detailed knowledge of each technical submission that the Architect Officer is working on. The irony is that the responsible control requirements imposed on Architect Officers by these regulations is what makes this logging requirement impractical. 7

8 4.04(1)(f) It shall be the duty of every Architect Officer to ensure that his or her practice within a Business Enterprise complies with the provisions of 231 CMR 2.00 to It shall further be the duty of each Architect Officer affiliated with a Business Enterprise to notify the chief executive officer or the equivalent highest ranking corporate officer or administrator in charge of total management of the Business Enterprise that an Architect Officer must execute all architectural contracts and exercise responsible control over all architectural services provided by that Business Enterprise in Massachusetts. We feel the second sentence should be deleted in light of our concerns expressed herein. 8