Post-construction evaluation reports: what the engineer affirms and answers for

Most of the windstorm program runs on inspections: a qualified inspector sees the work while it is open and affirms what was seen. For a completed improvement that nobody inspected, section 2210.2515(c) of the Insurance Code substitutes a document. Anyone relying on that document, or choosing who produces it, should know what the statute asks of it.

What the report has to be

Under subsection (c)(2), a professional engineer licensed by the Texas Board of Professional Engineers and Land Surveyors completes and submits a sealed post-construction evaluation report that confirms the improvement's compliance with the applicable building code under the plan of operation, and includes documentation supporting the report on a department form bearing the engineer's seal.

Two things in that sentence are sealed, the report and the supporting documentation, and both are the engineer's. The certificate that follows is the department's, but the evidence it rests on carries a named licensee.

When the department may refuse it

Subsection (c-1) allows the department to deny the application if the evaluation report, or the design affirmation form used under the other completed route, is not fully documented as subsection (c) requires.

The standard is documentation, and a conclusion without the record behind it is the thing the subsection is written to stop.

What the engineer is not asked to assume

Subsection (c-2) says a department form under subsection (c) may not require a professional engineer to assume liability for the construction of an improvement. The engineer answers for the evaluation and the documentation. The builder's work remains the builder's. That line is worth knowing when a party to a transaction treats a sealed report as though it were a warranty of the construction.

Who can call the engineer to account

Subsection (i) authorizes the department to submit a formal complaint under Chapter 1001 of the Occupations Code to the engineering board, related to an engineer's work as reflected in a sealed post-construction evaluation report or other materials submitted under subsection (c). And section 2210.2515(k) bars the department from rescinding a certificate once it has issued. Put together, a certificate that should not have issued stays issued, and the statute's remedy points at the engineer.

The engineering board's own rule already points the same way.

It is consistent with what the seal means in the first place. Rule 137.33 of the engineering board's rules states that the purpose of the seal is to assure the user that the work was performed or directly supervised by the engineer named, and that on sealing, the engineer takes full professional responsibility for that work. Section 1001.401 of the Occupations Code requires the seal on a report issued for a Texas project.

What that means for anyone choosing who produces one

• Ask what the documentation will consist of, because subsection (c-1) makes an under-documented report refusable.
• Ask what happens when a connection or attachment cannot be verified from the record, because the seal is full professional responsibility for what is stated.
• Expect the report to address the improvement, not to warrant the builder's work, because subsection (c-2) keeps the two apart.
• Confirm the engineer's license with the board, and treat an appointment as a separate fact, needed for ongoing work and not, on the department's own page, for completed construction.

The last point needs care. Subsection (c) names a professional engineer licensed by the engineering board, and does not use the qualified inspector language of subsection (d). The department's completed construction page says the same thing in its own words: any professional engineer licensed by the board can perform inspections on completed construction, while appointed qualified inspectors can inspect both completed and ongoing work. The practical difficulty of that route is covered on the completed construction page.

The report route is also the reason the certificate of compliance section puts so much weight on notice before work. Inspection while the work is open records the evidence. A report after the fact has to reconstruct it.