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Home , Building code

Fall 2016

Building code compliance: managing the risks

To many and (A/E’s), the words Gail S. Kelley, P.E., J.D. ConstructionRisk, LLC “ code” have a distinctly negative connotation. This is not entirely surprising— the words often come up in the context of an obscure requirement that no one understands. Or even worse, two obscure requirements that appear to contradict each other. Being able to design to the applicable building code is a non-negotiable In agreeing to comply with applicable codes, Rather than developing an entire building element of an A/E’s work. however, the A/E should be careful to code, states generally base their codes on a Even if a contract does not understand exactly what they are agreeing to. model code developed by a standards require compliance with In addition, if there are aspects of the design organization. For most of the 20th century, that the A/E is not familiar with, or the there were three commonly-used model applicable codes, courts will project is in a jurisdiction in which the A/E codes in the U.S.: the Uniform Building Code generally find that failure to does not typically work, the A/E might want (UBC), the Code comply with the building to consider using a code consultant. Administrators National Building Code (BOCA/NBC) and the Standard Building Code code is negligence. Model codes (SBC). The UBC was primarily used in the Building codes and standards are the midwestern and western states, the BOCA/ rules and guidelines that specify the minimum NBC was used in the northeastern states and acceptable level of safety for and the SBC was used in the South. The other structures. The primary objective of organizations that published these codes building codes and standards is to protect merged in 1994 to form the International , safety and general welfare as Code Council (ICC) and in 2000 discontinued they relate to the and publication of all three codes. In their place, of buildings and other structures. the ICC publishes the International Building Code (IBC) which, with only a few exceptions, has now replaced the prior model codes as the basis for all state and local building codes.

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The international code family A listing of which states and territories have adopted which codes can be found at: Although references to the “building code” http://www.iccsafe.org/wp-content/uploads/ usually refer to the IBC, the ICC currently stateadoptions.pdf publishes 15 “I-Codes.” They are as follows: (Despite the fact they are referred to as •• International Building Code (IBC) “International” codes, they have not been •• International Energy Conservation Code widely adopted by other countries.) A listing (IECC) of which codes have been adopted by local •• International Existing Building Code (IEBC) (city or county) governments can be found at: •• International Code (IFC) http://www.iccsafe.org/Documents/ •• International Fuel Gas Code (IFGC) jurisdictionadoptions.pdf •• International Green Construction Code Although the IBC has now replaced its three (IGCC) legacy codes (the BOCA/NBC, which was •• International Mechanical Code (IMC) published by the Building Officials Code •• ICC Performance Code (IPC) Administrators International; the UBC, which was published by the International •• International Code (IPC) Conference of Building Officials; and the •• International Private Sewage Disposal SBC, which was published by the Southern Code (IPSDC) Building Code Congress International), •• International Property Maintenance Code there are still a number of model codes (IPMC) other than the I-Codes in use. •• International Residential Code (IRC) All but three states have adopted the •• International Swimming Pool and Spa National Electric Code (NEC) published by Code (ISPSC) the National Agency (NFPA) •• International Wildland Urban Interface statewide as the basis for their electrical code Code (IWUIC) requirements. In these three states (Arizona, •• International Code (IZC) Missouri and Mississippi), the NEC is typically adopted at the local level. Up until the 2006 As of October 2015, the International code cycle, the ICC also published the Building Code was in use or adopted in International Electrical Code (IEC), which all 50 states and the District of Columbia was referenced in section 2701 of the IBC. (D.C.). The International Residential Code However, the IEC was just an administrative was in use or adopted in 49 states provision that referenced the NEC. Since (all but Wisconsin) and D.C. The International 2009, section 2701 of the IBC has referenced Energy Conservation Code was in use the NEC (NFPA 70) directly. As of October or adopted in 48 states (all but California 2015, the current edition of the NEC is the and Indiana) and D.C. The International 2014 edition. However, several states are Mechanical Code was in use or adopted in using the 2011 edition and a few states 46 states (all but California, Hawaii, Maine are using the 2008 edition. and Vermont) and D.C. The International Fuel Gas Code was in use or adopted in 43 states The NFPA 1 Code is used in several states in and D.C. The International Fire Code was in lieu of the IFC. Although the codes are quite use or adopted in 42 states and D.C. The similar, NFPA 1 provides a more compre- International Plumbing Code was in use hensive approach to and includes or adopted in 35 states and D.C. a definitive breakdown of specific safety measures for operations and processes within The remaining codes have been adopted specific types of and for various in fewer states and are often only adopted building services. at the local level. The most recent code, the International Green Construction Code, was Other currently used model codes include first released in 2012 and as of October 2015 the Uniform Plumbing Code (UPC) and had been adopted at the local level in Uniform Mechanical Code (UMC), both Arizona, Colorado, Idaho, New Hampshire published by The International Association and Washington State, and statewide in of Plumbing and Mechanical Officials. Florida, Maryland, North Carolina, Oregon About a dozen states have either adopted and Rhode Island, as well as in D.C. The the UPC or developed their own plumbing I-Codes have also been adopted in Guam, codes based on the UPC. the Northern Marianas Islands, the U.S. Virgin Islands, Puerto Rico and Bermuda. 2 Fall 2016

State versus local codes adoption The IBC is updated on a three-year schedule; the most recent release is the 2012 edition. As a general rule, model codes are adopted Although a jurisdiction can choose to under one of three schemes: continue using an older version of a model •• Codes are adopted at the state level, code, most jurisdictions update their codes with or without amendments. Local regularly to avoid having to deal with A/Es modifications and amendments are seeking variances based on what is allowed not allowed. by the newer edition of the model code. •• Codes are adopted at the state level, Nevertheless, there is always a lag between with or without amendments, but the release of a new edition of a model local amendments and modifications code and when a jurisdiction adopts it. are allowed to some or all of the The adopting authority must review the codes. Usually, these amendments changes in the new edition, evaluate the and modifications can make the code effect on any amendments it has enacted requirements more stringent but not and ensure that its code inspectors are less stringent. aware of the changes. A model code does not become “ •• Codes are adopted at the local the in any jurisdiction (city or county) level. The ICC website (state, county or city) until About two-thirds of the states adopt their All of the I-Codes published between 2000 and 2012, including the recently-released it is adopted by a vote of the building codes at the state level. These states typically have an agency that is charged with International Green Building Code, can be designated adopting authority.” administering the building codes. The agency viewed online for free at www.iccsafe.org. To will promulgate a set of regulations to carry see all of the codes, search for “ICC free out this responsibility. Generally, the first resources” and select the International Codes regulation will be that the agency is adopting option. To see a particular code, search for a specific edition of a model code. The other that code, for example “ICC IBC 2009” and regulations will be changes to various select the link for publicecodes. sections or subsections of that code. The For the 2009 IBC, this would be: other one-third of the states adopts their http://publicecodes.cyberregs.com/ building codes at the local (city or county) icod/IC-P-2009-000019.htm. level. Generally, the codes are adopted While the codes can be viewed for free, a through a vote of the city council or county paid subscription is required to either print commissioners after a staff review. or save any code or section of a code. In the early 1900s, before model codes were The ICC website also contains information widely available, it was common for cities to about which codes have been adopted by develop their own codes. Many of these which states. There is a webpage for each codes were written by companies state that shows the codes adopted by that who were motivated by reducing the risk of state; the webpage also contains contact fire to buildings they had insured. Over time, information and links for relevant state most cities have migrated to model codes and agencies. For example http://www.iccsafe. is the only major city that still uses its org/about-icc/government-relations/map/ own code. In some states, codes are adopted massachusetts/ is the web page for state-wide for certain types of facilities, such Massachusetts. as healthcare facilities or schools, but are adopted locally for all other types of facilities. The ICC website is not always up to date, but it does provide a starting point for Adoption of a model code researching applicable codes. The document download found at http://www.iccsafe.org/ A model code does not become the law in gr/Documents/AdoptionToolkit/ any jurisdiction (state, county or city) until it is HowStatesAdopt_I-Codes.pdf explains adopted by a vote of the designated adopting the code adoption process in each state. authority. When a jurisdiction adopts a model building code, it adopts a specific edition of the model code, for example, the 2009 International Building Code. When adopting the model code, the jurisdiction can add, delete, or modify sections to address concerns specific to the jurisdiction. 3 Fall 2016

Standard of care In order to prove a negligence claim against a for code compliance design professional, it is generally necessary to have an expert witness testify to the In the U.S., building codes fall within each standard of care and the fact that the state’s general “police power” to protect the design professional’s conduct fell below health, safety and welfare of its communities. the standard of care. This means that each state can determine the design requirements for structures built In addition, several states require a plaintiff within that state. filing a professional negligence claim against a design professional to obtain a Certificate Unless the A/E’s contract requires a particular of Merit from a design professional within standard of care for compliance with codes, the same field. The Certificate of Merit the standard applicable to the rest of the (referred to as Affidavit of Merit in some contract would apply to code compliance. states) must state that the plaintiff’s claim If the contract does not set a standard of has merit. Finally, and perhaps most care, the state’s common lawi standard of important for an A/E, a negligence claim care would apply. Most states use a so- may be covered by Professional Liability called local standard of care for design Insurance; whereas a breach of contract professionals. This is often stated in words claim may not be covered. similar to those used in American Institute of Architects B101: Contracts for complex or novel projects may establish a more specialized standard of care. § 2.2 The shall perform its For example, the contract for the design of services consistent with the professional an art museum may require that the A/E's skill and care ordinarily provided by services comply with the "standard of care of architects practicing in the same or other design professionals with experience in similar locality under the same or designing art museums in major cities." Such similar circumstances. provisions are usually insurable, as they simply A few states use a national standard require the A/E to have a particular set of of care, typically stated as: skills and exercise the standard of care appropriate to the project type. Likewise, Design professionals have a duty to a court may find that an A/E that has exercise the ordinary skill and competence represented himself or herself as having of members of their profession. expertise in a particular type of design Despite the difference in wording, (e.g., medical facilities or sustainable design) a court’s interpretation of these two is required to comply to a standard of care requirements is likely to be very similar. corresponding to those representations, Both standards are interpreted to mean rather than the common law standard for a that while an A/E is not required to generic building type. Provided the A/E does guarantee perfection, he or she is not warrant that the design will achieve a expected to perform competently. certain rating or qualification, the specialized standard of care will generally be insurable. When a contract simply restates the common law standard of care, failure to conform to However, an A/E should never agree to a the stated standard of care would be contract that requires the design to be negligence (professional malpractice) and without defects. Similarly, an A/E should be could result in a negligence-based breach of wary of contracts that require services of the contract. This distinction between an ordinary "highest" or "best" quality. Failure to comply breach of contract versus a negligent act, with the client's understanding of the best error or omission can be significant. In many quality could lead to an uninsurable breach states, the statute of limitations for filing a of contract claim. An A/E should also be negligence (tort) claim is shorter than the cautious about agreeing to "strict compliance statute of limitations for filing a breach of with all applicable codes, , regulations contract claim. If the theory for a breach and standards." While the requirement seems of contract claim is based on negligence, reasonable, on all but the simplest projects the tort statute of limitations may be there are likely to be hundreds of applicable applied to limit the time in which the codes and standards. Often provisions will be claim can be filed against the design firm. susceptible to different interpretations and in some cases the provisions of one code will conflict with those of another. 4 Fall 2016

Absolute language such as "strict The larger and more complex a project, compliance" and "all codes" puts the the greater the need may become to retain A/E in a situation where, no matter how one or more code consultants to assist the reasonable the A/E's services may be; its designer in identifying and designing to the client can prove breach of contract based on codes and requirements that are applicable noncompliance with a specific, but perhaps to the project. meaningless, provision in a code, standard, As many of the building code requirements rule or regulation. Likewise, the A/E could be relate directly or indirectly to fire and egress in breach of contract for not complying with safety, the code compliance services field has all codes, despite the fact that compliance traditionally been dominated by Fire was impossible. Protection Engineers. However, many firms Compliance with codes and regulations that began by offering fire code consulting should, if possible, be tied to the professional have expanded to include consulting on standard of care, using wording such as, building codes and accessibility compliance, "The A/E shall use the professional standard indoor air quality consulting, egress studies, of care to comply with applicable codes,” energy analysis, materials research, or, "The A/E shall exercise professional preliminary project programming for code care and judgment to design in compliance compliance and assistance with zoning. Thus, with requirements imposed by govern- code consultants may also be architects or mental authorities having jurisdiction over structural, mechanical or electrical engineers the project." with an in-depth knowledge of both the code requirements for their work and the code Code compliance consultants review and approval process. A/E’s engaged in innovative projects with The range of services provided by Fire nontraditional elements or building materials and Life Safety code consultants includes: often find that their designs raise issues that •• Analysis of code requirements are not explicitly addressed by the codes. Resolution of conflicts between Designs for medical and laboratory facilities; •• different codes stadiums, arenas, convention centers, and other large assembly areas; airports; large •• Documentation of code compliance schools; assisted-living complexes; and •• Equivalency formulation warehouse facilities often involve complex •• Analysis of means of egress code issues. These types of building may •• Analysis of hazardous materials also involve regulatory compliance issues •• Fire and egress modeling generated by special concerns such as proper •• Site investigations and surveys ventilation, smoke control and storage of hazardous materials or accessibility. Unless •• Smoke management system an A/E has considerable expertise in the analysis/testing design of such facilities and experience in •• Accessibility consultation the jurisdiction where the facility will be •• Preparation of The Joint Commission (TJC) built, the A/E might want to consider Statement of Conditions (SOC) encouraging the owner to engage a Code consultants can recommend effective code consultant. solutions to problems that might otherwise Code compliance consulting services emerged require design changes, increase construction in the 1970s with the trend toward design of costs or delay building occupancy. Benefits nontraditional structures such as atriums that to using code consultants can include: were not specifically addressed in the building •• Reduction in potentially costly redesigns codes. As codes and standards have become more complex, the demand for experts in •• Improvement in scheduling efficiency code compliance has expanded. It is not •• Reduction in delays in building occupancy possible to do an in-depth review of when •• Improvement in fire protection services and how to use code compliance consultants tailored to the project in this article. What can be said is that the •• Easy-to-understand presentations use of a code consultant to augment the of life safety concepts A/E's in-house knowledge and skills can •• Time savings by efficient research analysis be a very valuable risk-management resource. and gaining early approvals •• Cost savings through innovative equivalencies 5 Fall 2016

Code consulting: Code consultants may also provide specialized Code compliance review design services such as Fire Sprinkler Design, healthcare facilities Code compliance review, whether done by Sustainable Fire Sprinkler Design, Fire in-house personnel or a code compliance Healthcare facilities tend to be Sprinkler Corrosion Assessment, Fire Alarm consultant, should begin early in a project specialized environments with Design, Mass Notification Design and Low so that any conflicts between applicable extremely complex, ever-changing Voltage Design. Code consultants often codes can be resolved before they become functions. Code consultants with maintain libraries of contemporary and too difficult or expensive to correct. The expertise in such facilities can often historical construction codes, allowing them review should include structural, electrical, provide valuable assistance in ensuring to research the exact requirements for a HVAC, fire, seismic and ADA consultants as compliance with requirements of The building at the time of construction, currently, applicable. Often the review begins during Joint Commission (TJC) and the and at any time in between. Their knowledge the schematic design phase. The schematic Centers for Medicare & Medicaid of the code allows them to not only design is analyzed and a preliminary report Services (CMS). TJC is an independent, determine the literal meaning of a code that includes a code summary and potential not-for-profit organization that provision, but to know the history and intent code-related design issues is prepared. accredits and certifies healthcare of the provision. The code summary should contain basic organizations and programs in the Many code consultants also provide litigation information such as applicable codes, United States. TJC requires healthcare support as their knowledge of the codes and occupancies, egress requirements and facilities to document that a fire-safe experience in applying the codes allow them materials requirements. Some jurisdictions environment is maintained and to be valuable expert witnesses. Their services have a code compliance checklist that must demonstrate compliance with the can include: be submitted with the permit drawings. intent of the Life Safety Code (NFPA In other jurisdictions, A/E’s will often 101). The TJC Statement of Conditions •• Analysis of building and develop their own checklists to track (SOC) helps organizations document fire code compliance code compliance information. conditions and develops plans to •• Interpretations of building and fire code provisions to determine the intent correct deficiencies. The Plan for Building code officials do not Improvement (PFI) portion of the SOC of a requirement allows an organization to manage any •• Evaluation of fire alarm and automatic have a duty to find errors in deficiencies that it discovers, bring its sprinkler system designs to determine the plans buildings into compliance through compliance with applicable codes and More than one A/E has been in the designated activities, set completion standards uncomfortable position of having a building dates and track progress. •• Analysis of value pricing for fire protection that he or she designed fail an inspection system designs The code consultant will perform a due to a code-related design defect. While survey that documents building •• Analysis of the effects of a fire and the plans might have been reviewed for occupancies, as well as fire protection the response of fire protection devices compliance with the code and various errors features such as sprinklers, fire alarm through computerized modeling and event noted, the plan checker will likely not find systems, smoke control systems and reconstruction every error in every drawing. fire-rated wall plans. The survey will •• Assessment of products and equipment From a practical standpoint, this would not show the location of items that through testing of performance in be possible. Within the amount of time comply with the SOC requirements, simulated environments allotted to check a set of plans, there is no along with deficiencies, including any •• ADA review and analysis for deficiencies way a plan checker can flip back and forth necessary corrective actions. Code and Department of Justice complaints between dozens of drawings and make sure consultants can also prepare the everything is coordinated. In most cases, validations surveys required by CMS. there would be no point. Usually, at the time plans are submitted for permits, certain design decisions have not been made and dimensions may be intentionally left off or approximated.

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Code consulting: Furthermore, from a legal standpoint, the Violation of the building code: hazardous materials courts in many states would hold that the negligence versus negligence plan checker does not owe the A/E any legal The storage, dispensing and use of duty to find errors in the plans. The reason per se hazardous materials—those which that plans are checked for compliance with In some states, an A/E's violation of the present either physical or health the building code is the same reason that building code is viewed as simple negligence; hazards—is highly regulated by building codes are adopted—to ensure the in others it is considered negligence per se. building codes, fire prevention codes safety and protection of the public at large. When a violation is viewed as simple and NFPA standards, as well as by Because the duty to find errors in the plans negligence, the violation is considered, along insurance underwriters. As non- is owed to the general public rather than with all evidence to determine whether the compliance issues can be both any particular individual, many states would A/E's conduct fell below the professional dangerous and expensive to mitigate, find the A/E has no basis for a claim. This standard of care. When a violation is design for hazardous materials holding—that a private individual cannot negligence per se, there is a presumption requires thorough knowledge of bring a negligence claim when the duty that that the A/E's conduct fell below the applicable regulations. Thorough was breached is owed to the general public— professional standard of care. The plaintiff's knowledge of the applicable is known as the public duty doctrine. burden of proof is thus much lower; a regulations and the ability to prove Even those states that do not follow the plaintiff alleging negligence per se does compliance to the Authority Having public duty doctrine, do not charge a plan not have to prove that a reasonable A/E Jurisdiction (AHJ) can also prevent checker with the responsibility of finding all would have acted differently—the conduct costly "over-design." of the errors in a set of drawings. As the is automatically considered negligent; the Minnesota Supreme Court stated in Hoffert v. burden is on the A/E to show there were Code consultant services extenuating circumstances. can include: Owatonna Inn Towne Motel, Inc., 293 Minn. •• Hazardous materials classification 220 (1972), building codes, permits and In order for the violation to be negligence per inspections are designed to protect the public se, the injured party must belong to the class •• Building and fire code analysis and and are not meant to be an insurance policy that the law is designed to protect and the conflict resolution by which the city guarantees that every injury must be of the type the law is designed •• Site investigation and analysis building is built in compliance with the to protect against. As an example, in Morris •• Equivalency concept formulation, building and zoning codes. The court further v. Horton, 22 Cal.App.4th 968 (1994), a analysis and presentation noted that the fee charged for building homeowner brought a negligence per se •• Hazardous Materials Inventory permits was to offset the expenses incurred claim against its contractor, alleging the Statement (HMIS) and Hazardous by the city in promoting the public interest; it in the house were narrower and steeper than Materials Management Plan was not an insurance premium that made the what was allowed by the building code. (HMMP) preparation city liable for defective construction. The court found while this could be •• NFPA 30 flammable liquid decision If a design is non-standard in any way, it negligence, it was not negligence per se, tree analysis can be helpful to get a preliminary review by because the law was designed to prevent •• Development of fire detection and code officials during design development so people from getting hurt on the stairs. suppression system design criteria / that potential compliance concerns can be In this case, the only injury the homeowner design document preparation resolved early in the design process. However, suffered was the cost to reconstruct the jurisdictions and even the various agencies stairs so that they were in compliance within a jurisdiction vary in their receptivity with the building code. to this approach. Some will not perform such It should be emphasized that compliance reviews, while others encourage it. with applicable codes is not a defense Even if the jurisdiction will not do a general against a negligence claim. Courts have plan review, they will generally review a universally held that building codes set particular detail. An A/E who is concerned only minimum standards. Or more about some aspect of a design should colloquially, “the code sets a floor not schedule an appointment with the building a ceiling.” The code cannot address department to review the detail in question. every aspect of a particular situation. To avoid having an inspector interpret the If a reasonable professional would have detail differently during construction, the designed to a higher standard than A/E should get written confirmation that the what the code required, an A/E that detail has been approved. However, the A/E designed to code requirements could should realize that the approval will generally be found negligent. be for the detail that was discussed and if there are any changes, the detail may need to be re-approved.

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Code consulting: Code versus standards This can present a problem if the current edition of a standard prohibits construction fire and egress modeling While the building code sets the general allowed by earlier editions or increases requirements that designs must comply Fire and smoke modeling includes a safety factors or loading requirements. with, the specific requirements for materials, range of applications such as ensuring In such cases, the A/E must consider equipment and processes are typically a structure can withstand a fire and what a “reasonable A/E under the same specified in standards that are incorporated ensuring smoke does not threaten the circumstances” would do. If most A/E’s by reference into the code. For example, building’s occupants. Using models working in that city or county would know Chapter 35 of the IBC lists the standards such as the National Institute of of the changes to the standard and would that are incorporated into the IBC, along with Standards and Technology’s (NIST) agree that the changes should be followed, the code sections that reference the standard. Fire Dynamics Simulator (FDS), code the “professional standard of care” consultants can model the effects of A state or county cannot require that a requires the A/E to follow the new, a fire on a proposed design and particular standard apply to all construction; stricter requirements. the requirement must be through adoption present the results via 3-D computer It can also present a problem when the of a code which references the standard. models that depict those effects, same standards are also referenced in the However, the parties to a contract can including temperature, smoke specifications, which is often the case for agree that a particular standard will apply movement and toxic gas many of the ASTM standards. Typically the to the contract by including the requirement concentrations. This graphical specifications will require use of the most in the contract documents, typically in modeling allows designers, owners recent version of the standard. To avoid the specifications. and code officials to see the conditions having two different versions of a standard in a proposed building and the level Many of the standards referenced by the apply to the project, the specifications of safety provided by the design. IBC and other model codes, as well as those should state that the applicable standards are Fire and smoke modeling is often included in specifications, are developed by "those in effect as of the date of the contract used in conjunction with egress organizations such as the American National documents, unless a different revision date modeling to demonstrate how fire Standards Institute (ANSI), ASTM International is specified for the standard under the codes protection and life safety systems (ASTM) and Underwriters Laboratories (UL). listed on the Drawings." Reference standards are also developed by combine to provide for the safety Confusion sometimes arises because professional associations such as the of a building’s occupants. Code A/E’s refer to a number of documents as American Society of Civil Engineers/Structural consultants can also use a variety “codes” when they are actually standards. Engineering Institute (ASCE/SEI) and trade of simpler models and tools to assist For example, ACI 318, Building Code associations such as the American Institute of the design team in addressing fire Requirements for Structural Concrete, is Steel Construction (AISC), whose goal is to protection and life safety issues. generally referred to as “the concrete code” establish appropriate use of the materials and These tools range from engineering or just “the code” by engineers who systems manufactured by their members. calculations and hydraulic–based specialize in concrete construction. However, Reference standards must be consensus- models to sophisticated video while ACI 318 can be used to set minimum based, meaning that the standard developer animations that track the movement concrete construction requirements in must allow public comments on the standard of individual occupants through a jurisdictions where there is no legally adopted and that discussions and hearings on new building. A timed egress analysis can building code, it is not written as a building standards and changes to existing standard be used in conjunction with computer code. Instead, it is written to be incorporated must also be open to the public. fire modeling to determine if, and into a building code. This is made clear in ACI to what extent, mechanical smoke When a jurisdiction adopts a model building 318 § 1.1.1, which states: control is needed to provide safe code, it implicitly adopts all of the standards This Code provides minimum exiting for the building’s occupants. referenced by that model code. Generally, the requirements for design and construction standards referenced will be the most current Fire and egress modeling allows of structural concrete members of any editions as of the model code’s publication building designs to move beyond structure erected under requirements of date. However, given the time lag in adopting the specific requirements of the codes the legally adopted general building code a model code, the applicable standard in any and provides the design team with of which this Code forms a part. increased flexibility. Modeling can be particular jurisdiction is often not the most used to develop performance-based current edition of that standard. solutions for fire protection and life safety issues. This can be extremely helpful in solving design problems, such as when a mixed-use facility needs open access between areas to provide functionality.

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Conclusion Under the Public Buildings Amendments of 1988, 40 U.S.C. 3312, buildings constructed Working with a client to solve a particular or altered by a federal agency must comply design problem is central to what an with nationally recognized codes, to the A/E does. Understanding both the client's maximum extent feasible. Both federal requirements and the constraints under Executive Orders and federal laws, such which the A/E will be working is critical to as The National Technology Transfer and the process of solving the problem. These Advancement Act, 15 U.S.C. §3701, constraints include the resources available encourage agencies to use standards and for a project, including the means available codes developed through a voluntary to cover the costs of construction, fees and consensus process in lieu of agency-specific other expenses. While compliance with the requirements, provided the standard or code building code is simply one more constraint meets agency needs and achieves agency on the development of a solution, it is also objectives. The technical requirements of essential to the development of a solution. these codes and standards supplement Addendum agency requirements mandated by federal “Understanding both the client's laws and Executive Orders, as well as other requirements and the constraints Code compliance on federal buildings criteria that have been established to meet There are a number of federal agencies that the unique requirements of the agency. If under which the A/E will be build, own, operate and/or lease various there is a conflict between agency-specific working is critical to the process types of buildings. The General Services requirements and a nationally-recognized Administration (GSA), for example, has an code or standard, the agency's requirements of solving the problem.” extensive portfolio of office buildings that it will generally prevail. builds, owns and operates for other agencies. Federal agencies do not adopt model codes The Department of Defense constructs and the way state and local governments do, but operates thousands of commercial, office and they do use model codes as requirements residential buildings, both within the U.S. and when they request bids to construct or abroad, to support the mission of the Armed renovate their properties and facilities. Forces. The Department of Energy (DoE) Their building managers and operators and the National Air and Space Agency also use various model codes, such as the (NASA) own and operate a variety of International Fire Code (IFC), for maintenance building types, including laboratories, and upkeep of the buildings in their portfolios research facilities and office buildings. to ensure the safety of their building’s The Veterans Administration (VA) constructs employees and visitors. However, since and operates medical facilities such as federal agencies have a direct, contractual hospitals, ambulatory care centers, and relationship with both their own employees nursing and long-term care facilities. and the entities they contract with to build, The Architect of the Capitol maintains operate and maintain their buildings, they a number of buildings in the District of can require use of the codes without the Columbia, including the U.S. Capitol and need to formally adopt the codes into law. the House and Senate office buildings. Each federal agency can determine which codes it will follow. For example, the GSA uses the technical requirements of the National Electric Code (NFPA 70) and the I-Codes, but uses the egress requirements of the Life Safety Code (NFPA 101) in lieu of the IBC egress requirements. To ensure flexibility, it is GSA policy to make maximum use of equivalency clauses in all nationally recognized codes. The latest edition of each code in effect at the time the design contract is awarded must be used throughout design and construction of the project.

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Legally, buildings on federal property are This includes ordinances relating to exempt from state and local building landscaping, open space, building setbacks, codes and thus would be exempt from maximum building height and historic any amendments to the model codes. preservation. Local regulations must be Nevertheless, federal agencies typically followed when designing systems that impact recognize that state and local amendments off-site terrain or utility systems, such as represent important regional interests and storm water runoff, erosion control, sanitary conditions. Most agencies comply with state sewers and storm drains, water, gas, electrical and local building code amendments to the power, communications, emergency vehicle maximum extent practicable. The appropriate access, roads and bridges. state and officials must The GSA refers to construction of a new generally be given the opportunity to review building on private land for government use projects for compatibility with local plans, as "lease construction"; the building will be zoning, building code compliance and privately owned but leased to the GSA. In construction inspections. This includes such cases, the applicable state and local review of drawings and specifications, government codes, including all local zoning site inspections, building permits, making ordinances apply to the construction; the recommendations for compliance with local developer/owner of the building must obtain regulations and compatibility with local fire the necessary building permits and approvals fighting practices. Agencies generally make from the appropriate state and local an effort to incorporate state and local government officials. While GSA Facilities government recommendations, provided Standards do not strictly apply to Lease they are reasonable with respect to adequacy, Construction, they are recommended for cost and nationally accepted practice, and significant build-to-lease buildings and are are in the best interest of the government. required when the solicitation includes an However, the agency has the final authority option for GSA to purchase the building at to accept or reject any recommendation a future date. When there is a Government from state and local government officials. Option to Purchase, the GSA-adopted codes Where state or local government officials apply in addition to the state and local want to perform code compliance government codes. If the GSA requirements construction inspections, the agency must conflict with either state or local government include provisions in the A/E and contractor’s requirements, the GSA requirements contract to handle the additional requirement take precedence. of coordinating their work with these Law, statutes, rules and regulations inspections. However, state and local Contract provisions requiring compliance with government officials do not have the codes often actually require compliance with authority to reject, accept or make "statutes, laws, ordinances, codes, rules, changes to the work; their role is to assist regulations, standards and orders". Although the agency in achieving code compliance. there is some inconsistency in how these Agencies must consider all requirements terms are used, typical usage is as follows: (other than procedural requirements) of Statutes: A statute is a law passed by a zoning ordinances, design guidelines, and state legislature or Congress. similar state and local government laws Laws: The terms "laws" is often a general during the planning process and development term for any legal requirement, but strictly of associated environmental documentation speaking, a law refers to a law passed by for new construction and renovation projects. a state legislature or Congress.

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About the author: Ordinances: Ordinances are legal Standards: The Specifications for a project requirements passed by a local body will typically reference a number of standards Gail S. Kelley is a risk management (town, city or county). Examples are zoning such as those developed by ASTM and ANSI. consultant with ConstructionRisk, LLC. and parking ordinances. Standards are also incorporated by reference She handles construction and design into the building codes. Strictly speaking, Codes: A code is a collection of laws professional contract reviews and it is not necessary to include a specific addressing a specific topic. Codes can either negotiations. Her background includes requirement to comply with standards; be adopted as model codes, as most building providing consulting on disputes and requiring compliance with a law or codes are, or they can be made up of laws claims involving complex engineering code would require compliance with passed by the Congress or a state legislature issues. As an for many years, any referenced standards. The word (e.g., tax and bankruptcy codes). Gail performed constructability “standards” is also used to refer to specific reviews, due diligence inspections and Rules/regulations: When Congress and regulations issued by a state or federal condition assessments. She provided state legislatures pass laws, the laws rarely agency, however. An example would be litigation support for construction contain enough specific language to guide the Department of Justice’s 2010 ADA defect and delay claims in both state their implementation. It is the responsibility Standards for Accessible Design. and federal court and evaluated of the appropriate state and federal Orders: While the word “orders” is a ancillary building components, administrative agencies to fill in the details somewhat general term, it most likely including vehicle barriers and of new or amended laws with rules and refers to Executive Orders issued by either equipment supports. Gail is a regulations. Although “rules” and the President or the governor of a state. graduate of Cornell University, “regulations” are often used interchangeably, Federal Executive Orders that apply to Massachusetts Institute of "rules" is sometimes used to refer to the construction include those addressing Technology and The American particular provisions issued by the agency Civil Rights and Equal Employment. University School of Law. She is through a rule-making process, whereas the author of “: "regulations" is used to refer to the collection An Introduction for Engineers, of rules. Regulations applicable to the i The common law is that law that applies Architects, and Contractors,” construction agency include those issued by unless a particular issue has been addressed published by RSMeans –John Wiley the Environmental Protection Agency (EPA) by a statute or a contract. It is also referred to & Sons (2013). and the Occupational Safety and Health as “judge-made law,” as it develops through Administration (OSHA). ConstructionRisk, LLC is not a judicial decisions. Each state has its own subsidiary or affiliate of Zurich and use common law, based on previous decisions in of ConstructionRisk, LLC products and that state. The holdings of a particular state services are independent of, and not are not binding on any other state. However, included within Zurich’s products or when deciding an issue that has not been services. Zurich expressly disclaims any addressed by a court in a particular state (a and all damages and other costs that “matter of first impression”), the court may may arise related to the use of or look to the common law of another state for reliance upon the products, services, guidance. information, or representations or warranties provided or made by or on behalf of ConstructionRisk, LLC.

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