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Use of Automated Machine Guidance within the Transportation Industry (2018)

Chapter: Chapter 5: Legal Aspects of AMG Data

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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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Suggested Citation:"Chapter 5: Legal Aspects of AMG Data." National Academies of Sciences, Engineering, and Medicine. 2018. Use of Automated Machine Guidance within the Transportation Industry. Washington, DC: The National Academies Press. doi: 10.17226/25084.
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NCHRP Project 10-77 41 CHAPTER 5: LEGAL ASPECTS OF AMG DATA The objective of this portion of the research is associated with Task 3: Identify any current legal barriers that may prevent the use of AMG processes, either by state transportation agencies or contractors, including electronic file use disclaimers, organized labor issues, and state statutes. Sources of information were obtained from the Internet, LexisNexis Legal database, the literature review, acquired agency DOT specifications, and the project’s expert contract group. The primary drivers of potential legal barriers that could hinder the adoption rate of AMG technology can be synthesized into two primary areas, according to our research: • Owner/agency reluctance to share EDD with contractors • Definition of functional roles regarding 3D project delivery OWNER/AGENCY RELUCTANCE TO SHARE EED WITH CONTRACTORS For the AMG process to function, DTMs or 3D terrain models that can be interpreted by construction equipment must be created. Creating these models requires technical expertise in surveying and construction. Most significantly, it is time consuming for the contractor. If the owner/agency can share EED with the contractor, it saves the modeler time, versus completely reverse-engineering the data from 2D paper drawings. It is most probable that construction projects will be delivered completely in 3D at some point in the future. In the private sector of the commercial building segment of the industry, this trend is well underway with BIM and its associated contracting mechanism, Integrated Project Delivery (IPD). On the transportation side, agencies such as the NYSDOT are currently transitioning to 3D for the entire project lifecycle. When these transitions to 3D delivery do occur, electronic models will replace paper drawings as official contract documents. Owner/agencies are hesitant to transform their business processes to 3D, because it entails massive transformation of their design functional areas. To make the transition, agency design functions must not only attain and train personnel in new software and re-engineer their work processes, but they need to adopt an entirely different mental paradigm, through their designers. Once this change occurs—to 3D contract documents—it could present transportation agencies and subsequent legal cases with some challenges, because of the contract delivery systems mandated by public works statutes and the Spearin doctrine. Design-Bid-Build (D-B-B) is a contract delivery system in which the facility project is prepared to a theoretical 100% level of definition in design and contract documents, at which point a contractor is procured by the owner through a competitive bidding process. Once a bidder is selected, a contract is awarded for construction. Some courts have theorized that the level of design maturity is acknowledged as less than 100% in many unit-price contracts, as the contractor’s consideration (payment) is based upon units installed (or not). WARRANTY OF DESIGN The Spearin doctrine is the name of the precedent Supreme Court case that defined the legal principle of “Implied Warranty of Adequate Design Documents Furnished by the Owner” almost a century ago. The United States Supreme Court issued a ruling in 1918 (United States v. Spearin, 248 U.S. 132 (1918)), which influences how parties to Design-Bid-Build construction project delivery develop their contracts, plans, specifications, and administrative processes. The courts have used the Spearin doctrine, with some recent exceptions, to decide construction disputes involving mistakes or errors in the project owner’s contract documents. The Smith, Currie & Hancock law firm explains the legal precedent as: “The owner’s implied

NCHRP Project 10-77 42 warranty of the adequacy of the plans and specifications furnished by the owner is of immense importance to the contractor, and the breach of this warranty forms the basis of a large portion of contractor claims. The existence of an implied warranty regarding owner-furnished plans and specifications was recognized in United States v. Spearin. The so-called Spearin doctrine has become well established in virtually every American jurisdiction that has considered the question of who must bear responsibility for the results of defective, inaccurate, or incomplete plans and specifications. In layman’s language, the doctrine states that when an owner supplies the plans and specifications for a construction project, the contractor cannot be held liable for an unsatisfactory result attributable solely to defects or inadequacies in those plans and specifications.” (Kelleher, 2005) The Spearin doctrine is central to many of the potential legal issues associated with AMG in that: • Owners are legitimately concerned with the implied warranty of their designs in D-B-B delivery (on all projects, as well as those involving AMG). • Owners are legitimately concerned about derivative works (such as DTMs) created from sharing EDD with contractors (to enhance their productivity and efficiency) and, therefore, incur liability under Spearin. • If owners share EDD with contractors, they seek an assurance that their liability is limited under Spearin. • If owners share EDD with contractors, they seek an assurance that the intent of their design is communicated to and implemented by the contractor, again, under Spearin. • DTMs typically require a level of design detail that the design professional does not include in the contract drawings. This creates a situation in which the contractor creates additional design data, for their own use, to perform AMG. How does the “design intent” stay preserved to not trigger Spearin liabilities? The current state of affairs for transportation agencies and AMG is that the Contract Documents are issued in 2D and, therefore, DTMs and other EDD are not considered part of the contract. Agencies are sharing EDD because of pressure from contractors, who are realizing the efficiencies gained by adoption of AMG. This sharing occurs under the framework of business and contracting processes designed for 2D delivery. In fact, many of the AMG specifications (amendments to standard and special provisions), which we obtained in this research, define new processes required for 3D, in a 2D environment, and especially regarding sharing EDD. One of the consistent elements of the AMG specifications that we obtained was the limitation of liability, under Spearin, in the form of separate liability waiver forms or clauses in the specifications themselves (most common). Sample liability clauses embedded in AMG specifications follow in this chapter. The Montana DOT (MDT) has a Waiver of Liability form for the sharing of EDD via “computer- generated disks” with utility companies. This form is interesting in that MDT states it is not responsible if the data is converted into an alternate file format, that notification of design revisions will not be made or supplied, that the agency is not responsible for viruses or loss of data on the recipient’s computers, that the EDD is only to be shared with consultant engineers involved with the project, and that the utility company agrees to share EDD back to the agency on said project. Statements from the Delaware DOT (DelDOT)’s “Release for Delivery of Documents in Electronic Form to a Contractor” is provided in Figure 5-1:

NCHRP Project 10-77 43 All parties agree that the ELECTRONIC DOCUMENTS are not, nor shall they be construed to be, a product or products. It is specifically agreed by the CONTRACTOR that there are no warranties of any kind in such ELECTRONIC DOCUMENTS or in the media in which they are contained, either expressed or implied, including any warranty of merchantability or warranty of fitness. Any warranty of merchantability or warranty of fitness is expressly waived by the CONTRACTOR. It is understood by the CONTRACTOR that the media in which any ELECTRONIC DOCUMENTS are transmitted can deteriorate over time and under various conditions. In addition, any conversion of the format is solely the responsibility of the CONTRACTOR. The CONTRACTOR understands and agrees that the conversion of ELECTRONIC DOCUMENTS from the machine-readable format used by the DEPARTMENT to some other format may introduce errors or other inaccuracies. The CONTRACTOR therefore agrees to confirm the accuracy of any converted ELECTRONIC DOCUMENTS before using them. The CONTRACTOR agrees to accept all responsibility for any errors or inaccuracies and to release the DEPARTMENT from any liability or claims for recovery of damages or expenses arising as the result of such errors or inaccuracies. The CONTRACTOR agrees to waive any and all claims for liability against the DEPARTMENT resulting in any way from use of the ELECTRONIC DOCUMENTS or from any failure by the CONTRACTOR to comply with the requirements of this Agreement. Figure 5-1. Statements from DelDOT’s “Release for Delivery of Documents in Electronic Form to a Contractor” Statements from the California DOT (Caltrans), in a non-standard special provision for District 11 are provided in Figure 5-2, for “5-1 Machine Control Grading”: The electronic information provided is available solely for the convenience of the Contractor. It is expressly understood and agreed that the Department assumes no responsibility in respect to the sufficiency or accuracy of the electronic information. Use of the electronic information shall be subject to all of the conditions and limitations set forth in Section 2-1.03, “Examination of Plans, Specifications, Contract, and Site of Work,” of the Standard Specifications and these special provisions. Figure 5-2. Statements from California DOT (Caltrans) states, in a non-standard special provision for District 11. Statements from the Iowa DOT, in “Developmental Specifications for Global Positioning System Machine Control Grading” are provided in Figure 5-3 (boldface added by the authors of this report).

NCHRP Project 10-77 44 Article 1105.04 of the Standard Specifications shall apply with the additional clarification that information shown on the plans shall govern over the provided electronic data. This information shall not be considered a representation of actual conditions to be encountered during construction. Furnishing this information does not relieve the Contractor from the responsibility of making an investigation of conditions to be encountered including, but not limited to site visits, and basing the bid on information obtained from these investigations, and the professional interpretations and judgment of the Contractor. The Contractor shall assume the risk of error if the information is used for any purposes for which the information was not intended. Any assumptions the Contractor makes from this electronic information shall be at their risk. The Contracting Authority will develop and provide electronic data to the Contractor for review as part of the contract documents. The Contractor shall independently ensure that the electronic data will function in their machine control grading system. Figure 5-3. Statements from Iowa DOT, in “Developmental Specifications for Global Positioning System Machine Control Grading” Statements from the Indiana DOT (INDOT) Draft Specification for allowing Stakeless Excavation on a Highway Contract, Section 105.08 are provided in Figure 5-4. The plans may contain or indicate areas of the project where the Department is providing electronic surface models of the roadway embankment construction. The remaining areas may be constructed with conventional survey techniques unless the contractor chooses to develop and submit a Digital Terrain Model (DTM) to the Engineer for review. The Contractor using the Contract Documents and any Department furnished DTM data, if available, shall independently develop the DTM. To use any Department furnished DTM data, the Contractor shall release the Department and its designers from all liability for the accuracy of the data and its conformance to the Contract Documents furnished by the Department. Figure 5-4. Statements from the Indiana DOT (INDOT) Draft Specification for allowing Stakeless Excavation on a Highway Contract, Section 105.08. Further, California Department of Transportation in a non-standard special provision for District 11, "5-1 Machine Control Grading" states the following: Electronic information, consisting of survey and design information including but not limited to cross-section models, alignment data, and plan view geometry, does not constitute part of the bid or contract documents. This information, used for project design and quantity estimation purposes, is provided for the bidder’s use in automation of bid estimating, grading and contractor staking if provided in the contract. Furnishing this information does not relieve a bidder or contractor from the responsibility of making an investigation of conditions to be encountered. The bidder or contractor shall assume the risk of error if the information is used for any purposes for which the information was not intended. Any assumptions the bidder or contractor may make from this electronic information is at the bidder or contractor's risk. The bidder or contractor assumes the sole risk of liability or loss if the bidder or contractor does rely on this electronic information to its detriment, delay or loss. Figure 5-5. Statement from California DOT (Caltrans) states, in a non-standard special provision for District 11. From these examples, only one expressly states that the EED is a part of the contract documents. The others either expressly state that the EED is not a part of the contract documents or refer to existing standard specifications that define the duty of the contractor to ensure alignment of the contract

NCHRP Project 10-77 45 documents with actual field conditions of the project (which, under precedent law and most standard specifications, is requirement in the bidding stage). This brings up the significance of when the EED is shared with the contractor. If it is shared in the bidding stage by agencies, is it not then considered as “bidding documents,” which typically are a part of the contract documents? Would a court classify EED as part of the bidding documents, despite a liability waiver or clause? Interestingly, agency contract administrators who were not sharing EED with contractors thought, by a margin of 2:1, that the EED exchange should occur with the bidding documents. Agencies that are currently sharing EED with contractors polled 3:1 that the exchange is made after a contract is issued and a preconstruction meeting occurs (see Table 5-1 to Table 5-8 cornering survey outcomes on this topic). COPYRIGHTS The exercise of copyrights has a basis in the United States through the Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code. The federal law addresses copyrights of architectural works, but not specifically those of engineers, surveyors, or civil facilities. Copyrights attributed to engineering and surveying works must be claimed indirectly through the federal law’s language pertaining to pictorial, graphic, and sculptural works. In the private sector of the industry, the emergence of BIM has addressed the issue of original works contributed by stakeholders to a community digital model with restrictions on content use via licensing agreements. In the public works sector, where the owner is an agency or a government, copyright law becomes more complicated. While the federal copyright law preempts state law, each state is free to decide its own copyright laws, as they pertain to works that are self-created (which is the case when a transportation agency produces the design and contract documents either internally or through consultants). Each state can enact its own copyright provisions of self-created works (within the bounds of the federal law) or let them fall into the public domain. Legal research on this issue revealed significant information about employee copyrights while under the employ of agencies and about how many states copyright their own laws (codes). (Self-created works by the federal government are not copyrightable.) The literature review discovered an unpublished paper on the Florida Surveying and Mapping Society website, which attempts to make the case that surveys are copyrightable works (Florida Surveying and Mapping Society, undated). The paper, however, does not distinguish between private and public works contracts, or between state and federal copyright law, instead using precedent legal cases to make its arguments. Neither the project surveys nor the expert contract group legal workshop session specifically addressed copyright issues, although survey respondents had many opportunities to raise the issue, if it was a concern. As 3D design becomes more commonplace in the public works and transportation segment of the industry, copyright could potentially become an issue. DEFINITION OF FUNCTIONAL ROLES As stated, AMG technology is disrupting status quo business processes that have been in place for decades (for 2D project delivery). The shifting of business processes and tasks entails changes in the functional roles that are responsible for implementing the shift. The major functional roles associated with AMG processes are surveying, layout and staking, and designing. These functional roles have traditionally fallen under the responsibility of professionally-licensed land surveyors, engineers, and architects. Each of these professionally-licensed roles is regulated in the United States by state licensing boards, which define the requirements and responsibilities for attaining and maintaining these licenses. The board requirements often become legislative state codes (state law). Our research revealed three principal areas associated with AMG, which appear to be barriers to AMG process implementation:

NCHRP Project 10-77 46 • Approval and certification of design intent • Definition of design, engineering, and surveying • Responsible charge Approval and Certification of Design Intent As in traditional 2D project delivery, for the benefit of the public, engineering expertise is applied to contract documents before construction is implemented. Contract documents, specifically the drawings, must contain a professional “seal,” indicating the professional’s approval and application of sound engineering skill and knowledge in their development. Typically, these “seals” are applied to paper drawings with a tool like that which a notary public uses. When the drawings are distributed in electronic formats, without paper for crimping with the seal, an alternate method of approval and certification is required. Some jurisdictions are using “digital signatures,” which are given legal significance in the United States. These types of digital signatures involve mathematical algorithms and cryptography to ensure the identity of the signatory. The requirements are not standard across all the states. Two examples of digital signature requirements, which differ, are presented below. The two state license boards differ as to how EED can be signed and sealed by a professional engineer. Statements from the North Carolina Board of Examiners for Engineers and Surveyors, 21 NCAC 56.1103, Standard Certification Requirements are provided in Figure 5-6 (boldface added by the authors of this report): (d) Electronically Transmitted Documents. Documents, including drawings, specifications and reports that are transmitted electronically beyond the direct control of the licensee shall have the computer-generated seal removed from the original file, unless signed with a digital signature as defined in Paragraph (e) of this Rule. After removal of the seal the electronic media shall have the following inserted in lieu of the signature and date: “This document originally issued and sealed by (name of sealer), (license number), on (Date of sealing). This medium shall not be considered a certified document.” Hardcopy documents containing the original seal, signature and date of the licensee may be duplicated by photocopy or electronic scanning processes and distributed either in hardcopy or electronic medium. The scanned digital files of certified documents are not subject to the requirements of this Paragraph. The electronic transmission beyond the direct control of the licensee of CAD, vector or other files subject to easy editing are subject to the requirements of this paragraph. Easy editing is based on the file consisting of separate elements that can be individually modified or deleted. Documents that are excepted from certification by a statement meeting the requirements of Subparagraphs (c)(1) through (c)(5) of this Rule are not subject to the requirements of this Paragraph. (e) Documents to be electronically transmitted beyond the direct control of the licensee that are signed using a digital signature, shall contain the authentication procedure in a secure mode and a list of the hardware, software and parameters used to prepare the document(s). Secure mode means that the authentication procedure has protective measures to prevent alteration or overriding of the authentication procedure. The term “digital signature” shall be an electronic authentication process that is attached to or logically associated with an electronic document. The digital signature shall be: (1) Unique to the licensee using it; (2) Capable of verification; (3) Under the sole control of the licensee; and (4) Linked to a document in such a manner that the digital signature is invalidated if any data in the document is changed. (f) A digital signature process may be submitted to the Board for approval that it meets the criteria set forth in Subparagraphs (e)(1) through (4) of this Rule. The licensee shall confirm that if another process is used, that it meets the criteria. Figure 5-6. Statements from the North Carolina Board of Examiners for Engineers and Surveyors, 21 NCAC 56.1103, Standard Certification Requirements. Statements from the Florida Board of Professional Engineers, 61G15-23.003 Procedures for

NCHRP Project 10-77 47 Signing and Sealing Electronically Transmitted Plans, Specifications, Reports or Other Documents are provided in Figure 5-7 (boldface added by the authors of this report): (1) Engineering work which must be sealed under the provisions of Section 471.025, F.S., may be signed electronically or digitally as provided herein by the professional engineer in responsible charge. As used herein, the terms “digital signature” and “electronic signature” shall have the meanings ascribed to them in Sections 668.003(3) and (4), F.S. The affixing of a digital or electronic signature to engineering work as provided herein shall constitute the sealing of such work. (a) A scanned image of an original signature shall not be used in lieu of a digital or electronic signature; (b) The date that the electronic signature file was created or the digital signature was placed into the document must appear on the document in the same manner as date is required to be applied when a licensee uses the manual sealing procedure set out in Rule 61G15-23.002, F.A.C. (2) A professional engineer utilizing a digital signature to seal engineering work shall assure that the digital signature is: (a) Unique to the person using it; (b) Capable of verification; (c) Under the sole control of the person using it; (d) Linked to a document in such a manner that the electronic signature is invalidated if any data in the document are changed. (3) A professional engineer utilizing an electronic signature to seal engineering work shall create a “signature” file that contains the engineer’s name and PE number, a brief overall description of the engineering documents, and a list of the electronic files to be sealed. Each file in the list shall be identified by its file name utilizing relative Uniform Resource Locators (URL) syntax described in the Internet Architecture Board’s Request for Comments (RFC) 1738, December 1994, which is hereby adopted and incorporated by reference by the Board and can be obtained from the Internet Website: http://ftp.isi.edu/in-notes/rfc1738.txt. Each file shall have an authentication code defined as an SHA-1 message digest described in Federal Information Processing Standard Publication 180-1 “Secure Hash Standard,” 1995 April 17, which is hereby adopted and incorporated by reference by the Board and can be obtained from the Internet Website: http://www.itl.nist.gov/div897/pubs/fip180-1.htm. The licenses shall then create a report that contains the engineer’s name and PE number, a brief overall description of the engineering documents in question and the authentication code of the signature file. This report shall be printed and manually signed, dated, and sealed by the professional engineer in responsible charge. The signature file is defined as sealed if the signature file’s authentication code matches the authentication code on the printed, manually signed, dated and sealed report. Each electronic file listed in a sealed signature file is defined as sealed if the listed authentication code in the signature file matches the electronic file’s computed authentication code. Rulemaking Authority 471.025(1), 668.006 FS. Law Implemented 471.025 FS. History–New 8-18-98, Amended 9-4-05, 5-6-09. Figure 5-7. Statements from the Florida Board of Professional Engineers, 61G15-23.003 Procedures for Signing and Sealing Electronically Transmitted Plans, Specifications, Reports or Other Documents. Definition of Design, Engineering, and Surveying All stakeholders involved with the construction contract, as well as society in general, benefit from a system in which engineering and surveying competencies are incorporated into project design by licensed professionals. AMG processes and technology involve not only the sharing of EED, but creating a derivative work from that of the professional. The level of detail required in a DTM for machine readability often exceeds what the designer or surveyor is required to provide. In essence, the party practicing AMG must ascertain the “intent” of the designer and, then, add additional detail to the model, which adheres to the final specified product. This does not appear on the surface to differ from the standard practice of shop drawings or working drawings that are of greater detail than contained in the contract documents. These shop drawings are submitted to the owner or their agent for review and approval to communicate the contractor’s interpretation of the design intent, as it relates to fabrication and/or construction means and methods. Disregarding political considerations, confusion and issues with the role of the professional are apparent when it comes to the AMG process and manipulation of EED. The literature review collected the following clarification memorandum from the license board in California (boldface emphasis added by

NCHRP Project 10-77 48 the authors of this report). Statements from the Board for Professional Engineers and Land Surveyors, State of California, Clarification Regarding the use of Global Positioning System Equipment by Unlicensed Individuals, November 21, 2006 is provided in Figure 5-8 (boldface added by the authors of this report). If an unlicensed individual, such as a grading contractor, performs topographic surveying and calculations for construction staking without being under the responsible charge of a Professional Land Surveyor or a Professional Civil Engineer, then that unlicensed individual would be practicing land surveying or civil engineering without legal authority. However, a determination whether someone is practicing land surveying or civil engineering without legal authority can only be made by the Board on a case by case basis after a full investigation and review of all the specific facts involved in the case. In addition, the use of GPS equipment by an unlicensed individual does not constitute the practice of land surveying or civil engineering on its face. It is the specific tasks that are being performed that may constitute the practice of land surveying or civil engineering; not the equipment used to perform those tasks. If a Professional Land Surveyor or Professional Civil 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. Figure 5-8. Statements from the Board for Professional Engineers and Land Surveyors, State of California, Clarification Regarding the use of Global Positioning System Equipment by Unlicensed Individuals, November 21, 2006. Comments from a surveying professional in a trade publication (Harry, 2007) are provided in Figure 5-9 (boldface added by the authors of this report).

NCHRP Project 10-77 49 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. 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. 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. Figure 5-9. Comments from a surveying professional in a trade publication (see Harry, 2007) A professional engineer reports in a trade publication concerns about North Carolina’s interpretation regarding DTM detailing (Harry, 2007) as provided in Figure 5-10 (boldface added by the authors of this report). 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% 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.

NCHRP Project 10-77 50 Figure 5-10. Professional engineer reports in a trade publication concerns about North Carolina’s interpretation regarding DTM detailing (see Harry, 2007) The surveying profession is a good example of functional role change occurring. Statements from Joseph (2007) are provided in Figure 5-11: It means that with the wide-spread access to highly automated positioning technologies such as laser scanning, regional network RTK positioning and GPS based machine control has put a huge percentage of traditional surveying measurement scope of practice into the public domain. Prior to this, surveyors have worked in a relatively narrow domain of service providers such as boundary/construction surveying, mapping agencies, utilities, engineering, architecture, public highways, etc. Surveyors will now find themselves in demand across a broad spectrum of industries who can find many uses for this new domain of affordable, high speed, high precision positioning and measurement systems. There are a growing number of licensed surveyors shifting from engineering firms to construction firms as staff surveyors in charge of GPS related construction surveying operations. Just how large this shift is remains to be seen. Next, there is a parallel shift of party chiefs (sometimes along with their field assistants) with GPS experience over to construction companies. They are motivated by decreasing construction staking work in their engineering firms, with higher wages paid on construction jobs and better benefits. Third, it seemed that every construction company that had made a significant investment in machine control had also purchased a RTK setup as well. Surveyors have told me that after they do the initial stakeout of a job site, the contractors will locate the hubs with their own GPS so that they can replace the hubs as necessary and do spot checks as the work progresses. The surveyors are not called back again until it is time for curb and gutter or critical infrastructure such as sewers, etc. Figure 5-11. Statements from surveying profession (see Joseph, 2007) Yet another perspective (see Harry, 2007) is provided in Figure 5-12: 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. Figure 5-12. Comments from Harry (2007) considering issues of accountability and liability Responsible Charge Signing and sealing drawings for professional architects, engineers, and land surveyors is conditional upon their having an expressed level of control over the services being performed. “Responsible charge” of engineering refers to that degree of control a professional is required to maintain over design, engineering, or surveying decisions made personally or by others over which the professional exercises supervisory direction and control authority (Responsible Charge Determination, 2003). These requirements are stipulated by the various licensing boards and appear to be typically

NCHRP Project 10-77 51 uniform when read in context of typical 2D construction project delivery. Violation of these rules could potentially result in loss of license and/or criminal charges. When AMG processes are considered considering these requirements, where 3D CAD files may be shared and then manipulated for machine control use, the language and definition of “responsible charge” seems to be unclear. A professional surveyor has expressed this phenomenon in a trade publication (Harry, 2007) as provided in Figure 5-13 (boldface added by the authors of this report). 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. 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. In Kentucky, 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. 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. Figure 5-13. Comments from professional surveyor has expressed this phenomenon in a trade publication (see Harry, 2007) SURVEY RESULTS Tables 5-1 through Table 5-8 summarize key outcomes from the legal issues survey outcomes.

NCHRP Project 10-77 52 Table 5-1. At What Contract Stage Should EED be Exchanged? Survey Question: If public works agencies elect to share EED with contractors, WHEN, in your opinion, should the exchange occur? Answer No. Percentage With the Bidding documents (A) 16 13% With the Contract documents (B) 1 1% After contract is executed and pre-construction meeting has occurred (C) 8 7% Other* 1 1% No answer 32 26% Non-completed 63 52% *Other: Contract, Preconstruction and Design Reviews Table 5-2. At What Contract Stage is EED Exchanged? Survey Question: If your agency shares EED with contractors, WHEN does the exchange occur? Answer No. Percentage With the Bidding documents (A) 4 3% With the Contract documents (B) 2 2% After contract is executed and pre-construction meeting has occurred (C) 12 10% Other 7 6% No answer 33 27% The project investigators developed a separate, specific survey questionnaire to gain information about the perceived legal issues surrounding AMG. Only 12 people responded and only one respondent was an attorney (who did not provide identification or contact information). The most pertinent piece of information gained from the survey was in response to the question, “Are you aware of any legal issues regarding 3D design or the sharing of EED in general?” One respondent provided this answer: “An administrative ruling by the PE and PLS licensing board requires [professional engineer/professional land surveyor] PE/PLS to build the 3D model. This is being challenged. Essentially, if the design is complete, then building the model is a CAD technician function that does not involve design decisions.” Additional questions about legal issues associated with the filing of claims and the sharing of EED were included in the survey questionnaires for contractors, agency design, and agency procurement/construction functions. In response to the question, “Has your agency been involved in any ‘claims for equitable adjustment’ or arbitration associated with shared electronic design and/or DTMs?” only three responses answered affirmative out of 304 total respondents to the three questionnaires (or two of 57 answering yes or no to the question). These responses are shown in Table 5-3. Table 5-3. Respondents Reporting Claims or Arbitration Related to AMG Contractor Agency Designer Agency P/C Answer No. Percentage No. Percentage No. Percentage Yes (Y) 2 1% 1 2% 0 0% No (N) 21 18% 12 18% 21 17% No answer 48 41% 15 23% 37 31% Non-completed 47 40% 37 57% 63 52%

NCHRP Project 10-77 53 Table 5-4 reveals that agencies feel more exposure to liability because of sharing EED than contractors feel they should. Table 5-4. Contractor and Agency Opinions of Liability Exposure with EED Exchange Sharing EED with contractors exposes agencies to liability. Contractor Agency P/C Strongly Agree 0 1 Agree 4 15 Disagree 20 17 No Opinion 3 2 No Answer 44 23 Non-Completed 47 63 Table 5-5 reveals that a majority of both contractor and agency respondents who answered the question strongly agree that the sharing of EED contributes to a culture of cooperation between the stakeholders. Table 5-5. Contractor and Agency Opinions of Sharing EED and Cooperation Sharing EED with contributes to cooperation between owner-contractor. Contractor Agency P/C Strongly Agree 16 5 Agree 9 31 Disagree 1 0 No Opinion 1 3 No Answer 44 19 Non-Completed 47 63 Agency Procurement and Construction Function Perspective Agencies that share EED with contractors reported liability waivers as the most common protection from contractor-created models used in AMG that is derived from agency design files. Agency procurement and construction personnel were asked if they shared EED with contractors. Respondents were almost evenly split between yes (25) and no (27) answers. The survey questionnaire delivered different follow-up questions based upon this yes/no question (See Table 5-6 and Table 5-7).

NCHRP Project 10-77 54 Table 5-6. How Agencies Not Sharing EED Should Limit Liability Survey Question: If public works agencies elect to share EED with contractors to efficiently deliver projects and project quality, how should the agency’s liability (for errors in the DTM) be limited? Answer No. Percentage Not an issue if there is no sharing (A) 0 0% Liability Waiver included as part of the contract documents (B) 19 16% Not Sure (C) 4 3% Other* 3 3% No answer 32 26% Non-completed 63 52% *Other: It would seem this would be the same liability associated with the rest of the project design. Most states have the "paper plans rule in case of a conflict" specification. For the first few years of "implementing" this technology, this is OK. However, after a specified period of time, the public works needs to produce electronic plans that take precedence over paper. Since a consultant should develop the data, their errors and omissions insurance should cover any errors, similar to other data used in the construction of a project. Table 5-7. How Agencies Currently Sharing EED Limit Liability Survey Question: If your agency shares EED with contractors to efficiently deliver projects and project quality, how is the agency’s liability (for errors in the EED) limited? Answer No. Percentage Not an issue if there is no sharing (A) 0 0% Liability Waiver included as part of the contract documents (B) 12 10% Agency chooses not to limit its liability (C) 1 1% Not Sure (D) 4 3% Other* 5 4% No answer 36 30% Non-completed 63 52% *Other: We provide the electronic documents for their use. They must convert the data to a useable form for their equipment and software and we are not responsible for the accuracy of the data. Pilot projects, we work closely with contractor and data to deal with issues and limit risk exposure. Agency responsibility defined in standard specs. Liability Waiver provided when data requested. Data provided on request only. Liability waiver is executed upon request/delivery of the EED. Agency Designer Perspective Agency personnel responding to the Designer survey were clearly more concerned with implied design warranty issues and the manipulation of their design data for the creation of models for AMG. This concern is expressed in responses shown in Table 5-8.

NCHRP Project 10-77 55 Table 5-8. Agency Designers Concern with Liability from Sharing EED Survey Question: Is your design unit concerned about liability (for design errors) which may be incurred with sharing design files with the contractor? Answer No. Percentage No (A) 1 2% No-we require liability waivers to be signed by the contractor before use. (B) 5 8% Yes (C) 10 15% Other* 1 1% No answer 11 17% Non-completed 37 57% *Other: Disclaimer states that paper still rules. LEGAL RESEARCH Literature Review The research team attempted to identify and report the major legal issues encountered in the Phase I research of the project. The level of detail regarding legal study of AMG process and implementation is quite large. Other legal issues certainly could be explored. These were some of the additional legal issues that came up through the review of literature and contact with experts: • Radio spectrum use • Details of tort liability • Sovereign immunity A minimal amount of information was discovered about collective bargaining issues. The research team learned that several unions are offering training in AMG and a Davis-Bacon wage and determination was discovered in New London, Connecticut for a Group 3 Power Equipment Operator classified as Grader Operator; Bulldozer Fine Grade (slopes. shaping, laser or GPS, etc.). Legal Survey The Legal survey was offered to 75 of 125 identified state license boards. The licensing boards were identified and a contact e-mail address was obtained either by phoning the organization or from their website. Text String Searches Research was performed in part by using Internet search engines, such as Google Scholar, Google Custom Search-State DOT, and LexusNexis Legal online database. The searches were initiated by creating sets of keywords to concatenate into text strings, which were then pasted into the browser search field. Required connectors between the words differed in the legal database search engine, but a sample string concatenated in a spreadsheet is shown in Table 5-9.

NCHRP Project 10-77 56 Table 5-9. Search Engine Text String Generation Sample String: Liability Waiver + Construction + Contracts + Public Works + Enforceability Topic Discipline Subject Keyword Keyword Liability Waiver 1 Law 1 Contracts 1 Public Works 1 Enforceability 2 Construction 2 Intellectual property 2 DOT 2 Sharing 3 Transportation 3 Spearin 3 Electronic Data 3 4 Engineering 4 Design 4 Digital Data 4 5 5 Surveying 5 5 6 Highway Departments Once a significant quantity of literature was obtained from the text string keywords, the strings became less significant as a resource, because the discovered literature typically provided either additional references to explore and/or provided new search keywords from the documents themselves. TRB Legal Committees The Contract Law Committee (AL030) and Transportation Law Committee (AL010) meetings were attended at the TRB Annual Meeting in Washington D.C. in January 2010. The committees were briefed on the subject matter of NCHRP 10-77 and encouraged to participate in the Legal survey, which was yet to launch. The committees suggested that a precedent in TRB is to request additional funding for legal research on existing TRB research projects. SUMMARY OF LEGAL ASPECTS OF AMG DATA • The use of AMG technology in construction contracting has created changes in business work processes and contract delivery processes, affecting all the contract stakeholders. Some legal mechanism is needed to bridge the implied design warranty concerns (Spearin doctrine) and the ability to include EED as part of the contract documents. Currently, liability waivers and clauses are performing this function, in part, but it is yet to be tested in the courts, according to our research. • The work process changes, resulting in functional role changes, have proceeded faster than the regulatory and legal systems have accommodated. A standard definition of professional roles is needed across all the state license boards, which would help to define the “responsible charge” of the various professional stakeholders. Perhaps after this project, NCHRP could make recommendations to the National Council of Examiners for Engineering and Surveying (NCEES) for their Model Law document (NCEES, 2009, which is intended to “be used as a reference work in the preparation of amendments to existing legislation or in the preparation of new proposed laws. The intent of NCEES in preparing this document is to present to the jurisdictions a sound and realistic guide that will provide greater uniformity of qualifications for licensure, to raise these qualifications to a higher level of accomplishment, and to simplify the interstate licensure of engineers and surveyors.” • Defining professional roles will also require a standardized definition of EED, including what it is not to be used for. The Proposal for Use of EED in Construction created in 2008 by a joint AGC/DOT subcommittee does not address professional roles or duties, nor does it address contractual context. From the AGC document, EED is defined as, “In the civil segment of the construction industry, a three-dimensional representation (surface model) of what is to be constructed. Includes all types of capital project related engineering data which

NCHRP Project 10-77 57 is used for defining, developing, designing, documenting, spatially locating, constructing, and historical recording.” • The good news, according to our project surveys, is that despite the legal hurdles, those with AMG experience perceive that it improves the spirit of cooperation between the contract stakeholders, through improved constructability communications. The project surveys have also indicated that the perception of liability regarding the exchange of EED is quite low.

Next: Chapter 6: AMG Education and Training »
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TRB's National Cooperative Highway Research Program (NCHRP) Web-Only Document 250: Use of Automated Machine Guidance within the Transportation Industry studies automated machine guidance (AMG) implementation barriers and develop strategies for effective implementation of AMG technology in construction operations. AMG links design software with construction equipment to direct the operations of construction machinery with a high level of precision, and improve the speed and accuracy of the construction process. AMG technology may improve the overall quality, safety, and efficiency of transportation project construction.

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