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On at least one occasion here at Construction Law Musings, I have discussed the need to operate your business as a corporation or LLC.  The primary reason that I, as a construction attorney, recommend this is for the liability protection against attacks on your personal assets.  Proper use of incorporation can and does protect your home and other personal assets from attack by creditors with a firewall of sorts that separates your business liabilities and assets from your personal ones.

However, the Henrico County, Virginia Circuit Court recently reminded us all why I italicized “proper” in the last sentence.  In ACE Electric Co. Inc. v. Advance Technologies Inc., the Virginia court considered a lawsuit by ACE Electric against Advance, a defunct engineering firm, and the owner and principal of Advance, Erik Butler.  The suit revolved around the improvement of boilers at the University of Richmond, here in my home town.  The essential facts are that Mr. Butler assured ACE and the university that his company was well qualified to take on the project.  As the project progressed it became abundantly clear that the assertions were untrue.

Under most circumstances, even in a case such as this where fraud could have been alleged, the claims against the principal of the company would not have worked out for the plaintiff.  However, in a somewhat unusual decision, the Henrico, VA court found that, aside from failing to keep separate corporate and personal books and failing to maintain the “corporate formalities” required for the basic protections,

[I]t would work a profound injustice to allow Mr. Butler to escape liability for repaying this debt

In short, the court allowed ACE to “pierce the corporate veil” and attack Mr. Butler’s personal assets.  Such a result was clearly much better for ACE because its judgment will not go into the trash heap of judgments against defunct or judgment proof companies (barring an appeal and reversal).

The takeaways?  First, always explore the possibility of veil piercing of the type found in this decision, you may be able to get better leverage and a more collectable judgment.  Second, and possibly most importantly, assure that you as a construction company take the fairly minimal steps necessary to assure that your company is protected against just this sort of attack.  Make sure that you keep your corporate and individual books, expenses, liabilities and assets separate (particularly in the case where you, like me, are either the only member of the company or are in a small company that passes through its taxable income).  Also, assure that you keep a paper trail of corporate formality intact with the State Corporation Commission.

Taking these fairly simple steps and with the help of an accountant and attorney, incorporation will provide solid protection against those wishing to attack your personal assets.  As the ACE decision described above reminds us all, failure to take these steps can lead to disaster.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

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For this week’s Guest Post Friday Musings, we welcome Nick Pacella.  Nick is an architect licensed in New York, New Jersey and Connecticut. His practice has spanned several economic swings and he has been able to reposition the eggs in his basket to make the most of each recovery. He is currently focusing on adapting existing commercial buildings to take advantage of materials and processes that promote improved energy efficiency for both the owner and the tenants. For a more colorful rendition of projects you can visit his company’s website, www.nmparch.com.

I remember as a kid when the attendant at gas stations would not only clean your windows but also check the oil level of your vehicle as it was filling up with $0.25 per gallon gas. (I did say that I have seen several economic swings) These services have mostly disappeared, and to no great effect to your car since most cars go much longer between oil changes. Other than a slightly dirtier windshield it hasn’t affected your ability to drive and maintain your car.

This is not so with professional services. Architects used to include many services that are now sourced to others. Project Management, Owner’s Representatives and Program Managers now populate the landscape. In many cases they came to be because architects either did not provide the service their client’s were looking for or they allowed themselves to be put into an adversarial relationship with their clients. They were likened to foxes watching the chicken coop, especially for project management and owners representative services. Client’s have had others buzzing in their ears “are architects really going to look out for my interests above theirs?’” Of course the clients never ask if the new wave will do any better at rallying behind their interests.

For the most part Owners Representatives and Project Managers are well trained and offer a dependable service, but the issue still remains; is the architect still a part of the main team in terms of the dissemination of information? The more information from the client is filtered as it is passed on, the more dissimilar it is to the original. Just think of any game of ‘telephone’ and how the first phrase that is whispered is mutated and transformed by the time it reaches the last pair of ears. This becomes even more disjointed if the disseminator is deciding what information each person ‘needs to know’. I have worked with many skilled PM that can do this well. Unfortunately, I have seen a trend to hiring younger and less experienced (cheaper) staff that is not experienced. Information is portioned out so as to protect their interests/job and not those of the client or the project. In the end the architect will be held responsible for a design that does not meet the clients needs even when he did not receive all the pertinent data.

I also see a disconnect happening at the construction administration side of projects. This time it is more of a cost saving move by owners who may have facilities staff and feel they don’t need CM services from the architect. Decisions are made on the site that have a negative domino effect and could have been avoided if the architect was engage during the CM process. Usually the costs to reconcile any problems are far in excess of the fee an architect would have charged to attend weekly meetings. Again, a seasoned facilities engineer would know when to call in the architect or engineer when a question that is outside their expertise comes up. The trend to hiring younger, less seasoned staff has extended to these positions as well and they tend to shoot from the hip as a matter of course just to show they have game.

The other central factor in limiting services is the architect themselves. As access to projects becomes more competitive, fees become are being set for a limited scope of services, almost like a Chinese menu approach, so that the base fee presented with the bid is as low as possible. If you want services for specifying furniture that is extra, or you are allowed only one schematic design or no bid supervision. It can go on and on and the service that is offered for the base bid is almost useless in producing viable construction documents.

This can produce a disastrous soup when you combine documents that do not fully describe the scope of work to be done with inexperienced project management or facilities personnel. Peer review of documents would go a long way to aiding he architect in providing adequate documentation, but I don’t see much of that happening any more. The same goes for lessons learned sessions after the project is completed. No money in the budget to do that and so it is off to the next billable hour.

As we move forward with new dictates for greater sustainability and owners’ expectations of higher energy efficiency in the designs they are paying for I only see this scenario getting worse, except, that is, for lawyers.

As always, Nick and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this weeks Guest Post Friday here at Construction Law Musings, we welcome back Melissa Dewey Brumback.  Melissa (@melissabrumback) is a construction attorney and partner in the firm Ragsdale Liggett, PLLC in Raleigh.  Although not as old as some crusty lawyers, she has already spent over a decade representing engineers and architects, advising them on contract proposals to limit risks, and defending them when litigation does arise.  She is the author of the award-winning Construction Law in North Carolina a blog dedicated to the A/E community.   Melissa is rated AV, the best rating of the Martindale Hubbell  lawyer rating system, is a certified LEED Green Associate, and serves as President of the RL Mace Universal Design Institute.

Nixon.  Clinton.  Edwards.  It’s always the cover-up that brings a person trouble.  Likewise, attempting to ignore or cover up a possible claim against your work on a construction project can get you into financial trouble.

No one likes to face the reality of a possible professional negligence claim.  However, you must report any such claim as soon as you become aware of it.  Almost all insurance companies (and, specifically, Errors & Omissions policies) require notification right away.  Unlike a minor fender-bender, where you may be just as well off settling the case without reporting it to your insurance company, a construction lawsuit can mean big bucks.  A typical construction lawsuit can cost well over $100,000, and can take thousands of hours of man-hours.  If you face a claim of negligence, run, do not walk, to your carrier and ‘fess up.

For starters, if you do not report a possible claim right away, the insurance carrier could deny the claim.  Sure, no one likes to admit a possible mistake, or risk having their insurance premiums increase, but even worse would be to pay for insurance, delay reporting the claim, and then face the possibility of a claim denial.

Just as important, though, is that your insurance carrier is not the enemy.  They have a vested interest in keeping you out of expensive litigation and having you remain a long-time, paying customer.   Most construction liability carriers have experienced lawyers on staff who can help you minimize potential claims if you contact them immediately.  Sometimes, the carrier will hire a local construction law attorney for you, at their expense.  They can help you to respond to letters claiming errors or omissions in your work, so that you are protected from later lawsuits.  This service is called “loss prevention.” It is generally not considered a claim (since no lawsuit has yet been filed), you usually do not have to pay your deductible, and you get free, and often critical, assistance at the first whiff of potential trouble.

If you do not have insurance (although really, you should), you still should consider having a lawyer assist you behind the scenes to clear up any potential problems at the first sign of trouble, before they become exacerbated.  Some clients worry that if the owner or contractor knows they’ve “lawyered up,” that it will make matters worse or somehow indicate they are worried about their design.  Don’t let that stop you.  No one has to know that you’ve gotten a lawyer involved.  I’ve ghost-written many letters for clients, that they then put on their letterhead and send out to document a sticky situation.  The other side is none the wiser.

Be honest  and realistic about potential claims, and get help early.  You’ll be glad you did!

Melissa and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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Remember HB 1265 that I discussed here at Musings back on February 6, 2012?  Well, thanks to the efforts of the AGC of Virginia among other groups affected by the bill, it has been amended and a substitute proposed.

My thoughts on the latest changes?  It is a good start, but adds an extra, and unnecessary, notice requirement for Virginia home builders that will only add to the cost of doing business.

First, the good.

• The latest changes limit the additional notice requirements to one and two family residences.
• The latest changes require that either a mechanic’s lien agent or the mailing address for the owner be listed on the building permit so that contractors don’t have to guess where to send their notices.

Now, the issues I have with the change:

• Under the amended bill, not only do residential contractors and suppliers in Virginia need to determine who the mechanic’s lien agent might be regardless of the words on the building permit, a residential contractor now has two notices to file.  The first has been there all along, i. e. the notice to the mechanic’s lien agent (MLA) within 30 days of starting work or posting of building permit.  The second is a notice to either the owner or MLA 30 days prior to filing a lien.
• What if payment is not past due or there is a payment between the time of notice and the time of lien filing?  Does this cause issues?  Does the notice have to be redone to match the lien amount?
• This effectively puts residential builders on a 60 day (instead of a 90 day) lien clock.
• This second notice is just another obstacle for builders to overcome to enforce their lien rights.  It adds no additional notice to the owner or MLA who already knew that work was being performed and that a lien could be filed.  Additionally, while the first of the two notices can be filed only with the MLA and only if an MLA is named in the permit (or at the local building official’s office), this second notice goes to either the owner or MLA depending on what is on the building permit.  Such inconsistencies are the fodder of lawsuits.

As you can see, this bill is still very much in flux.  The latest substitute was proposed only 4 days after my last blog post on the subject so this is likely not the final bill which will be voted on during the 2012 General Assembly session.  I just wanted to keep you updated on its progress.  As always, whenever there is an eventual change in the law, consult with an experienced Virginia construction lawyer to help you react properly to that change.

What do you think?  Do you agree?  Disagree?  Agree, but for other reasons?  If so, please comment below or contact me with your thoughts.

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As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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As any of you that read this construction law blog realize, the Virginia mechanic’s lien statute is near and dear to my heart.  Because of the already picky and statute driven nature of these powerful but detail oriented tools of collection, any change to the statute must be considered for its practical effect on the Virginia construction industry. HB 1265, introduced and out of committee for consideration during the 2012 Virginia General Assembly session, is just such a potential change.The operative language of the bill would amend the basic filing and notice provisions for a mechanic’s lien in Virginia to add the following:

 At least 60 days prior to filing a memorandum of lien pursuant to this section, a lien claimant shall send a copy of the memorandum and written notice of the lien claimant’s intention to file the memorandum by certified mail, return receipt requested, to the owner of the property at the owner’s last known address. After the expiration of this 60-day period, the lien claimant may file a memorandum of lien. The lien claimant shall also file with the clerk a copy of the written notice sent to the property owner and certify that such notice was sent. The clerk shall not accept or record any memorandum of lien filed prior to the expiration of this 60-day period or that is not accompanied by a copy of the notice sent to the property owner.

In short, the proposed amendment would place yet another hurdle in front of a potential mechanic’s lien claimant in the form of the necessity of a notice to the owner of the property 60 days prior to the date of recording a memorandum of lien.  This notice would have to be sent certified, return receipt and contain a certification of mailing.  The notice would also have to be filed with the Clerk of the Virginia Circuit in which the property is located.  Furthermore, unlike the provisions of the statute that require notice to a mechanic’s lien agent in the residential setting only to protect residential homeowners that do not deal with contractors on a regular basis, this amendment does not make any distinction between commercial and residential projects.

While I really do try and keep this blog apolitical, I feel the need to voice my opinion on the practical consequences I see for my friends and clients in the Virginia construction industry.

My thoughts?  This bill puts an undue burden on both the Circuit Court Clerks and the construction professionals that at times need to file liens to protect their ability to collect for work properly performed.  Given that many construction contract payment terms require payment within 30 days, the amendment would force contractors and subcontractors to perform title searches, hire attorneys, and file notices of intent to lien on even the smoothest of projects, potentially prior to their entitlement to payment, in order to avoid running up against the 90-day recording deadline.

This would increase the administrative and cost burden on all in the construction payment chain and turn a tool usually used as a last resort into one that, should the amendment pass, would require routine notices of intent to lien prior to any chance for negotiation before having to create a cloud on the title of the property with the business consequences on contractor and owner alike.  The potential souring of good business relationships because of statutory mandates (no one wants to have a lien recorded against their property) is yet another reason I don’t like this bill.  Of course this analysis does not even begin to take into account the potential burden on the great clerks of court that will have an additional paperwork burden beyond what they already carry.

While I fully understand the clear intent of this bill to protect owners and give them the ability to deal with potential liens prior to their recording (particularly in the present economy), this bill goes much too far in doing so in my opinion (along with the opinions of the AGC of Virginia and the Virginia ABC).  The noble goal is outweighed by the administrative, economic, and governmental burden it imposes.

As always, these are just my opinions.  What to you think?  Do you agree?  Disagree?  Agree, but for other reasons?  If so, please comment below or contact me with your thoughts.

Update:  The bill has been changed by the House and is set to go before the senate.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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While much has been (rightly) made of the marketing and business opportunities of social media and Web 2.0, as a construction attorney, I still cannot beat face to face interaction for fun and client development.  My view is that contractors (and legal clients in general) are more likely to trust and therefore hire those that they know personally.  Friendships can and do grow into attorney client relationships.

This is particularly true with the construction industry in Virginia (and presumably elsewhere).  Contractors and subcontractors are more likely to work with those they know, whether through an association like the AGC, or a breakfast meeting.  The recent convention refreshed many of these in person bonds and acted as another reminder of why I am so active in the organization.  In short, while a web presence is necessary, I would not give up the personal aspects of marketing.  Not only are a smile and a handshake a great combination for business development, they can, and do, lead to friendships that go beyond the potential business.

Thanks to all of you that said “hi” at The Homestead.  I appreciate the old friendships strengthened and the new ones made.  I also got to put faces to many folks that I’d talked to on the phone or interacted with online.  I really do enjoy meeting people in the Virginia construction industry and hope that we’ll catch up again soon.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

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It used to be that when you bought something (a car, a refrigerator, a television) it came with an owner’s manual that told you how to operate it, take care of it and prolong its usefulness to you. These days most of these manuals have been boiled down to a pdf on a website somewhere that you can access if and when you find the need. I understand that this is mostly in the name of saving cost (and trees) and at least the information is out there if you need it.

The relationship of the construction drawings to the written specifications is much more closely tied and yet most times there isn’t even that lonely little pdf orphaned out in cyberspace for you to hunt down and reference. Drawings, even on their best day, can only hope to tell part of the story. On their worst day they provide a hit or miss collection of thoughts that rely on the contractors good will and honesty to protect your client’s best interests.

Drawings are meant to generically represent the size, dimension, shape and relationship of the many components that make up a project. They also show details that depict the relationship of one product to another and how they join. The specifications actually tell you what those components are, who makes them, how you expect them to perform, how they are to be installed and in what finishes and textures. Without the specifications a wide range of products might satisfy the same overall image that the drawings represent. A drawing will say ‘install spray foam insulation Type 1’. The specifications will tell you it is closed cell polyurethane at 7.6 R per inch, the acceptable manufacturer(s), that a Type 1 is to be 5” thick, that it needs a required wrap to meet fire code and it should cure for a certain number of days before it is enclosed by sheet rock. Imagine putting that on the drawings the several dozen times the product occurs (sections, details, plans, etc.) and you get the actual point of using specifications: to help streamline the process. Not to mention if you want to change Type 1 to 7.5” or to open cell you only have to do it in one location, in the specifications.

Think about the project where the potential contractor has received his bid set only to see a lot of notes like “to be confirmed by the architect the field” or “as directed by the architect once the samples are received” or a generic statement that says “provide wood doors, jambs and hardware to our standards” that don’t mention that the products in question are expected to be hand laid up and lacquered sapelle with hand wrought door handles and hinges (haven’t you seen our brochure – that’s our trademark). The contractor who is familiar with what that architect is expecting has a major dilemma on their hands. Do you provide a price that gives the client what they are expecting (because they did hire this starchitect for a reason) or do you bid it like the drawings say, knowing you will be fighting for change order requests down the road, and alienating both the client and the architect. From the contractors that I have spoken, to this is too often the realty rather than the exception, particularly in residential and small commercial projects.

So why does this happen. One could postulate that it happens for the same reason architects don’t use formal contracts. I’ll let you decide whether it is the belief in the benevolence of mankind, or just sloth. Either way, you can get your butt sued and create all sorts of construction administration nightmares along the way. And given the logical outcome that you will, at some point have to go to the site and make all those decisions that you put off to get the drawings out ‘on time’, why not just do it right in the first place? Particularly since field time is much more expensive and less controllable than office time.

As always, Nick and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday here at Musings, we welcome Mike Collignon.  Mike is a co-founder of the Green Builder Coalition.

From November 2-6, code officials, building officials, industry stakeholders and other interested parties gathered in Phoenix for the final round of hearings on the International Green Construction Code (IgCC). Coming into the hearings, there were two big questions: Would this code pertain to low-rise residential structures, and what effect would GG34 have on the final draft? Once the dust settled, the industry is left with a code that is certainly a step in the right direction. However, its adoptability has to be questioned.

In the spirit of brevity, I won’t go into the 2.5 year saga of low-rise residential’s place within the IgCC. (You can read the unabridged story here.) Suffice to say it was in the original draft, and then it was removed by the ICC Board prior to public version 2.0. A group, including members of the Green Builder® Coalition, United States Green Building Council (USGBC), MC2 Mathis Consulting, the Southern Nevada Water Authority and 3 building officials from across the country, developed a comprehensive public comment to reinstate low-rise residential structures into the code. The comment, which can be downloaded in its entirety here, covered commonly accepted principals of sustainable construction (energy, water, site, materials, IAQ). Testifying in opposition to this comment were representatives from the National Association of Homebuilders (NAHB), American Architectural Manufacturers Association (AAMA), Buildings Owners & Managers Association (BOMA), Window & Door Manufacturers Association (WDMA), and 2 building officials. After hearing testimony, the voting members voted approximately 2-1 to disapprove the motion.Therefore, the IgCC only covers commercial and some high-rise residential structures. It turns a blind eye to low-rise residential, which according to the Energy Information Administration, utilizes more energy than commercial structures. In my opinion, this is an enormous hole in what could have been an incredibly impactful code. One opponent to the comment stated that with the housing market in such a tough spot, we don’t need to increase the cost of construction. But my response is, would the industry rather wait until things are going great, then throw a wrench in the works by having almost everyone retool their business practices to incorporate sustainable techniques, possibly risking another dip in the housing market? Why not get the education now, when supposedly everyone has a lot of down time?

Prior to the hearings, I heard a lot of buzz surrounding GG34 and its desire to reduce the length of the code by 75%. The proponents of this movement were, through a series of proposals in almost every chapter of the code, trying to shrink the document from 220+ pages to 50+ pages. Allegedly, at the core of this movement was a backlash towards the regulation of green. A more marketable way of saying that is GG34’s intent was to simplify the code. After Day 1 of the final action hearings, it certainly seemed like GG34 was going to sweep the IgCC right out the door. The principal members of the GG34 movement only spoke on a handful of proposals. They made their identity and position clear, by their promotional buttons and testimony, respectively. Of the 21 proposals heard on Day 1, 14 were disapproved, which further reduced the length of the code. GG34 Part 1 passed, which took a 2/3 majority, no small feat.

But then, Day 2 came and the tide went out on GG34. So, too, did the attendance. On Day 1, one electronic vote garnered 190 votes. But on Day 2, that number dropped to 130, or almost 32% fewer voting members. I feel that a lot of the voters sympathetic to the GG34 movement made their voice heard on Day 1, but then must have caught a flight back home. Throughout the rest of the week, GG34 Parts 2 through 11 were dismissed. Only GG34 Part 12 would join Part 1 in the victory column. One colleague stated that had all parts of GG34 been considered on Day 1, it would have carried the day… and the green code with it. I can’t disagree with that opinion.

I certainly feel the lowered attendance numbers had a lot to do with the failure of the GG34 movement. On Saturday afternoon, there were 55 votes captured in one electronic vote. In the wee hours of Saturday morning, testimony went past 1:00am CT. There were 34 hearty souls still dedicating their time and opinions to the proposals presented. According to one source, the lowest total seen during the week was 17 voters. However, the attendance numbers alone don’t tell the whole story. Those who voted all week long fully understood the intention of the code, and had a respect and appreciation for those who had devoted the last 2.5 years to its creation. They weren’t about to gut a document that had been reviewed and analyzed by so many.

But now comes the complicated part. Some jurisdictions have already adopted earlier versions of the IgCC. My guess is they will simply update what they’ve already approved. But what about those jurisdictions who voted with the GG34 movement on Day 1? They’re not going to get the drastically reduced code they sought, so will they adopt it at all? What about those jurisdictions who were looking to the ICC for low-rise residential guidance? They, too, are left to contemplate what their next steps will be. Finally, everything that was approved or disapproved in Phoenix is merely a recommendation to the ICC Board. They retain the right to produce whatever they see fit. Will they circumvent their governmental voting members and manipulate the code into something that fits better with their business goals, or adheres to any pre-existing business agreements?

I don’t have any inside knowledge on this, but I’m guessing the last thing ICC wants is a code few adopt. Let’s face it, their business is selling books and educating people on how to enforce the content of those books. The mixed messages heard in Phoenix provide a murky forecast for the IgCC. If you’re a proponent of green building, that’s probably not the verdict you really wanted to see.

As always, Mike and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday here at Construction Law Musings, we would like to welcome back Sean Lintow Sr. (@SLSConstruction) of

I must first echo Brian Hill’s comments in last week’s Guest Musing; truly I am humbled and honored to be invited back to Construction Law Musings for another guest post. Today I would like to not only give a shout out to Brian Hill for his post “True Sustainability –Trust but Verify” but expand on it some. I really have to say, that is one of the best posts I have read recently on the subject and the points made about Quality First, Safety Third, and using Third Party Verifiers.

In regards to Quality Assurance, I would like to discuss one tool that we use not only in the residential arena but also in the commercial & industrial buildings – the Infrared (IR) Camera. While many taut the benefits of using them for Predictive Maintenance, insurance companies are starting to require yearly scans, or as Brian Connolly pointed out in his musing to collecting forensic evidence with IR, they can also be used during the building process. By using it during the building process as part of the QA process, one can hopefully not only catch an issue early, but eliminate the need for someone to collect said forensic evidence later. For more on the cost savings of catching the issue early, I would refer you to the end of my prior guest post.

What is Infrared Thermography & how can it help?

In short, an Infrared Thermographer uses a special camera to detect thermal patterns (infrared energy) being radiated from an object, or looks more specifically for thermal anomalies. (For a more in depth look: IR FAQ) Now unlike the movies, this tool cannot see through a wall or other object, predict a failure before it starts, or see air (love them salesmen). (For more on this: Infrared Training Notes – Day 2)

With that said, while one cannot look through walls; a component that contains water or is denser than the surrounding area will heat or cool more slowly which plays a large factor in spotting issues or verifying that work was done properly.

With this in mind and a little physics, a knowledgeable individual can spot damaged areas on a flat roof, verify that the block walls were grouted, or even spot missing areas of insulation without drilling. In the electrical arena (assuming they are energized & drawing a load), one can help use this to check panels for under or over-torqued connections, spot issues with motor control circuits and other related issues. For places with steam traps, motors, &/or pumps, one can start them up & verify that the equipment is working properly or if there might be a mechanical issue with the equipment before it is turned over to the owners.

Buyer Beware – Qualifications & Certifications:

Along the lines of Trust but Verify one should be careful when hiring an Infrared Thermographer. While the ASNT (American Society for Nondestructive Testing) has recommended qualifications (SNT_TC_1A), and criteria for this field, it is not mandatory. The ASNT simply sets the standards and leaves it up to the employer to “verify” & “certify” their employees. If an individual leaves an organization & joins another one, it is up to that company to decide which level they hold if any. (For more on this: Infrared Training Notes – Day 1)

Where this gets interesting and is confusing for many is for one man shops and smaller companies where the owner (like me) is the “certification” authority. Are they following the ASNT standards and self-certifying, using an organization to manage the certification or do they just go; here’s the camera you are now a Level 1 or 2 Thermographer, or do they just call themselves a Level 1, 2, 3 or 5? (While there is no such thing as a Level 5, that didn’t prevent one individual from trying to use it) As a quick FYI, yes I do follow the standards (inc. the hour requirement) and have completed and passed both the Level 1 & 2 classes from the SNELL group.

The ASNT does have one certification which is for Level 3’s only & they are very specific on how it is used. Individuals certified by ASNT may refer to themselves as “ASNT certified” and/or use the title “ASNT NDT Level 3.”  At no time should any individual be listed as just “certified Level 3” as this can lead to confusion. For those certified by their employer only, they should simply refer to themselves as “Level 3.”  While there are classes & testing specific to the functions a Level 3 performs offered by some organizations like SNELL, as you are not being tested by ASNT so you need to use the term “certified in accordance with Recommended Practice No. SNT-TC-1A,” or simply Level 3.

A Few Last Thoughts:

I know numerous GC’s, PM’s, and other trades people that have added an IR camera to their arsenal – if you do decide to join their ranks I would strongly encourage you to get some training on it. I know when I went through my Level 1 training there were numerous people that had been doing the work for years & to a T, everyone in that class remarked on how much they learned & how much the training helped them. One other great reason to get training is so it will help you identify if what you see, is really legitimate. I have a scan of an electrical panel where it reads almost 300°F in two spots which is generally a real bad sign. Fortunately the issue wasn’t the panel; it was just a reflection of an un-insulated portion of a boiler line that was behind me when I took the picture.

In today’s litigious society or just simply for your piece of mind, if you have a camera – I would recommend using it for checking up on the work. I would then make sure you bring in a professional for any documentation or QA work that needs to be done as the project moves along. Along those same lines, if a spec is listed requiring an IR inspection you might want to confer with a specialist first. I have surprised a few lawyers & dashed some peoples hopes when I explained why their request was either impossible, or what the most that could be gleaned from it would be. The Infrared Camera is a great tool, but like any tool it does have its purpose & limitations.

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© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.