Are PN22 statements and PS4s working for you?

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Hi all,

I am seeking your feedback on how PN22 design coordination statements and PS4’s are working for you. I have had feedback on the one hand that they are placing undue liability on fire engineers and on the other hand that the system works well and shouldn’t be tampered with.

PN22 was produced some years ago and a small section of it covers design coordination statements. With Councils often asking for design coordination statements and the NZIA recommending to its members not to sign design coordination statements, it often leaves the fire engineer as the only party providing one. This can leave the fire engineer exposed to an unfair portion of liability if another consultant has designed something incorrectly and it is beyond the expertise of the fire engineer to pick it up.

One example I have of this is a current determination that I am involved in which could potentially open us all up to liability for any external wall construction we have signed off on unless it is totally non combustible, right through from external cladding to internal lining including any timber framing. We don’t know what we don’t know.

With PS4’s there is no real guidance for fire engineers on the level of inspection required to provide a PS4. Fire engineers are often not responsible for directly designing any of the fire safety features yet often sign off on them.

In litigation I have been involved in, the laywers have been relentless in their search for liability of the fire engineering consultant even if they never set foot on site and only answered questions. Again we might think we are doing a thorough job of construction observation however we dont know what we dont know and could be overlooking key items through a lack of detailed knowledge of other disciplines designs.

If you think the systems are working well then please let me know why.

If you think the systems should be abandoned then also let me know why.

Lastly if you think the systems can be improved then let me know what improvements could be implemented.

Either respond privately or on the forum. On the forum is preferred so we can all benefit from your insights.

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Hi Michael
PN 22’s don’t work for me, as many of my projects are spread over 5 - 10 phases, over multiple years. For a simple, clean single phase project they may work.
PS4’s need specific handling. I produce a schedule that covers every fire related element, with responsibility for detailed design, installation, and provision of the relevant PS3’s, plus who is responsible (for each element) for sire observation and/or witnessing. My PS4 is then proscribed around the schedule, so that each element has a clear responsibility path, plus any final on site inspections. Note that a PS4 can take months to finalise, with multiple iterations - particularly if there is a main contractor with multiple sub contractors. The system works (for me), but I just wish that the Producer Statement regime had some basis in law - which would then give us some guidance.

Paul C

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The PN22 guideline is primarily abused by Fire Engineering New Zealand as they word their statements as if it is mandatory, which has created a lot of confusion within BCAs. Design coordination statements are only a work around to the intent of PN22. So my question is why do we still have PN22?

That said I’ve noticed increased interest in helping architects develop compliant and functional fire resistance rated details. I have no doubt that there are many projects where the detailing may not comply and would be problematic to construct. More review and input would lead to compliant construction but PN22 is not the practical path to achieve that.

With respect to PS4’s we probably need some legal review to determine if it is a valid tool for fire engineers. Perhaps we should look at what role fire engineers play in the compliance environment. We put forward performance designs to be incorporated by others, but it that the right role? If we change that role do we have enough professionals to deal with the workload? Is there a better way to address the liability, improve compliance and not increase compliance bureaucracy?

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In my opinion we as Fire Engineers should only be signing off items we design and specify. This is in line with all other engineering disciplines. This means the fire engineer is not responsible for the GIB wall or the fire damper, which are designed and specified by others. The architect’s or mechanical services contractor’s design decision drives the liability - eg. GIB wall v’s solid concrete; I know as I Fire Engineer which one I’d choose in terms of reliability of construction!

As you will be aware, the NZIA has advised it members not to sign PS4s or anything equivalent. So the Councils do their best to dump the liability onto the Fire Engineer. Why are we talking liability for everyone else’s design and construction? I am aware that many Fire Engineers are signing off on the basis of PS3s from contractors. Recent litigation cases, typically settled out of court, have shown these (PS3s) carry no weight, and that the engineer carries the liability and wears the cost as they have insurance. Fire Engineers continue to provide PS4s and in my opinion, are acting as a de facto private building certifiers in this respect. Some Councils are requiring the Fire Engineer’s sign off on anything remotely linked to the fire report, including passive fire stopping, wall construction, junction details, cladding, automatic doors, intumescent paint (including preparation)… the list goes on.Why are Fire Engineers are still providing PS4s for these items that are so obviously outside their skill set?

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Hi All,

For what it is worth I asked the question of the Manager for Consents at Auckland Council. He responded with the following:

Fire engineering designs are performance documents and it is very rare that fire engineers design the required construction. I would not like to issue a PS4 for construction work I had no part in designing.

I guess that hits in on the head…as we do not design then how can a PS4 be issued and what liability do we (as CPEng) carry for doing so. The Act does not require that a PS4 is provided, although the BCA/TA may ask for one. The lead designer is the architect, so they should do the PS4 (if anyone). To sign off on some construction that you have not inspected, nor are 100% confident of is pure folly. I took the view (at BIA/DBH/MBIE) that it may be a good document to assist the BCA, but it should come from the architect. I still hold that view.

I appreciate that some companies do issue PS4, I would always advise against it. The liability for the PS4 would extend to 10 years under the Act for ALL aspects of the building (as means of egress is a function of the building system as a whole - according to some!). To rely on PS3 to issue a PS4 is highly suspect and should not be relied on - it will give you no defence in Court…

The Auckland Policy does not make it a requirement and MBIE were happy with that when the Policy was released. I know that some would like it changed, but what about the commercial risk to us as CPEng? Fire “designers” do a similar work to us, but are not expected to issue a PS (because they can not do so), so who signs for that.

Why are we so interested in assisting commercial suicide?

Can I suggest that ALL Posts on subjects are on the forum so the wider membership can see the comments and the response likely from the SFPE?

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Paul, how do you get the others to sign off their works, particularly architects? In my experience they simply wont do it. This is combined with “design and build” elements by contractors, such as HVAC and passive fire. these “designers” do not fall under the CPEng Act and regulations, have no insurance, no money and no real liability as a result.
Now if most of what you do are industrial buildings where the litigation risk is low (for this particular issue) and the items to be inspected are simple - 1*office wall and maybe a floor, you may consider it to be an acceptable risk. teh litigation is mainly around apartments.
Practice Note 23 was intended to provide guidance for PS4s, but ENZ (IPENZ) have shelved it for now, focusing on B2 durability for structural engineers (being half the membership…). There was a key part that came out of the working group was that every other discipline is limited to their work only that they have designed and specified. The structural engineer with his 3 bits of steel making a portal frame over the door, or the geotech engineer who came up for a solution for an unexpected soft spot in the ground under a foundation is only responsible for the solution for soft spot, not any others undiscovered or not included. We get hit with anything that has “fire” in it in any form.

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A troll around the publicly available High Court judgements on the Ministry of Justice website is an interesting read on a wet weekend - actually it explains why I could never be a lawyer. However, although they are to do with leaky buildings and weathertightness issues, the judgements have a number of common themes that certainly apply to us. The Nautilus case is worth a read - http://bankside.ongoing.co.nz/wp-content/uploads/2015/12/Judgement-of-Gilbert-J.pdf.
This was more than $25m of the Auckland Ratepayers money and I have no doubt the building had fire issues as well although they weren’t part of the claim. The council was ~15% liable, but had to pay for everyone as last man standing.
A recent change in NZ is the arrival of litigation funders and commission lawyers who collect a percentage of the win. James Hardies is facing a couple at present. While I have little sympathy for JH with leaky buildings, it means that a lot of cases that would not see the light of day will now go ahead as they promise a “no money down” solution. I have talked to a couple of lawyers in this area. While Councils are the target since they have the money and can’t disappear, so pay for everyone, they will also target engineers, specifically looking for PS4s or any construction involvement. It is any excuse to get the engineer into the claim. If they are not into the claim before the 10 years is up, then they are away free, so it is a “shoot first” approach of lodge the claim, and then look for proof or justification. The leaky building litigators are deliberately looking for fire issues at present for this reason. If the plaintiffs (building owners) don’t sue you, the defendants certainly will to reduce their liability, reduce the amount they have to pay out and muddy the waters for liability.
Bear in mind that you sign a PS4 personally as a CPEng, so the PS4 will follow you and any disciplinary action is against you personally. This brings up a recent (ish) move which should be of particular concern to engineers is the move to sue people personally as well as the company. I know of a few current or past SFPE engineers over the years where this has been the case, and it is especially prevalent in other areas such as facades (being driven out of leaky buildings). This is not saying they have any fault or did anything wrong, just that they were unlucky and shotgunned in. Many more have settled out of court I am sure.
The court judgements also reference producer statements. Without dragging out the particular judgments, it was clear that PS3s carry no weight and in fact the judgments came out that Councils should not rely on them – e.g. Nautilus case link above para 115.

It would not be appropriate for a territorial authority to accept any producer statement without question. The extent to which a particular producer statement should be relied on in considering whether code requirements had been met would depend on all relevant circumstances. These would include, for example, the skill, experience and reputation of the person providing the statement, the independence of the person in relation to the works, whether the person was a member of an independent professional body and subject to disciplinary sanction, the level of scrutiny undertaken and the basis for the opinion. The territorial authority would also need to consider any other information relevant to whether the works had been carried out to an appropriate standard and could be expected to meet code requirements. This would include the skill, experience and reputation of the party carrying out the works, the complexity of the works, the likely consequences of noncompliance and whether any concerns had arisen regarding the quality of the works.

Consider the PS3s we receive. Based on this, would you say they met these requirements? I would not. I had some beautiful PS3s for a hotel. Despite these PS3s that said everything was wonderful, it took $1-2m and 9 months to fix it to close to being correct for fire stopping.
Interestingly enough in the Nautilus case the Council wanted a PS4 from Walker Architects for the façade, who did not provide one, accepting a PS3 from Façade Technologies instead. It is discussed in para 133.
You can’t rely on the Licensed Building Practitioner regime, it is broken beyond repair with automatic name suppression and a big fine being $2k, and doesn’t apply to the sort of buildings we do. It is cheaper for the builder to do a poor job and pay the fine than do it properly.
Which brings us to insurance. Won’t PI insurance will cover your costs right (except the excess)? It doesn’t cover the 5 years of stress (as most of these cases run to that length of time), and marriage breakups, management time and other costs which are significant.
It also only applies to cases where the insurance is current. If the company has gone through or has changed to a different company even if the trading name is the same or similar and the old one hasn’t paid the insurance premium, you are on your own – refer to the personal liability above…

As ENZ doesn’t seem to be interested and MBIE found it also rather hard and complex, it then lies with us to do something about it. It is not easy and unless everyone moves in unison, it won’t work. It is why the NZIA has been successful, as every member follows their advice to the letter. Ultimately, it will need law changes such as proportionate liability.

What to do?
*Don’t do it.

  • If you must, insist that others do their job. They refuse to sign off their work? Well then neither can you because if they don’t believe the work complies with the Building Code and Consent, you certainly can’t. If they believed it was all good, then I am sure they would have no issues signing it off.
  • If you must do it, you have to do it well and know what you are looking at. If you use a sub consultant to look at it, they need insurance to match yours, qualifications etc so you have reasonable grounds, and even then you are still responsible for it all despite relying on their advice.
  • Scope very clearly what is included and most importantly what is not. Make sure your PS4 refers to this scoping letter and other documents. Many builders just put in the PS4 page and I threatened one with a police complaint for fraud doing this. I now put the number of pages in the document set on my PS4 and refer in the PS4 to the scope letter, (which excludes everything in the building as I haven’t designed anything).
  • Have a method of showing you have seen “enough” to draw a conclusion that you can defend, especially on a large job. Have a look at ISO2859-4 (ISO 2859-4:2002 - Sampling procedures for inspection by attributes — Part 4: Procedures for assessment of declared quality levels) and the other ISO2859 series. They are hard going, but you need to look at more than you think to have a valid sample size.
  • Some people issue a PS4 on a single walkthrough at the end - is this enough? It depends on the scope of engagement, expectations and duty of care, especially if it is for the BCA. Do you feel lucky?
    Follow the builders and developers example of wash the company regularly to leave behind old liabilities behind with a new company.
  • If you belong to the “pointy haired boss” school of management, get your juniors to do all the work and take the risk… It helps dilute directors liability as well - or at least it worked for Mainzeal since the directors didn’t have day to day control…
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I agree don’t sign a PS4 or if you do exclude everything unless of course you have actually designed part of a system.

Be wary of signing off anything as what I have found in the current environment is that there are a lot of construction companies that will try to avoid completing work to save costs. This is driven in part by companies buying the construction contracts and hoping to make money through variations. I’ve seen this on a job with approximately 200 unsealed or improperly sealed penetrations through fire rated construction when the building was built new in the late 2000s. Trust is something that should be in short supply.

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Something that I pointed out in my original post is that there’s more interest from designers with respect to checking drawings to see that they’ve implemented the performance requirements correctly. I believe that is a more helpful approach.

The concept of a design conformity statement is essentially a cop out. The design conformity statement is a positive statement that a designer has understood the requirements. At no point is there anyone checking that they have misunderstood or in fact have any idea what they are doing. I would not rely on the statement without them confirming how the performance requirements affected their design and how they were incorporated into the design. If they have made a mistake then there is a step in the process to correct a design mistake.

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The points above all seem to have merit and are generally following a particular view about PS4 issue and the use (or not) of PN22 etc. However I note that these comments are from the smaller independent companies. None of the “larger” companies are represented on this topic (Holmes/BECA/Olsens/OnFire/WSP/Opus etc…).

For the benefit of the wider group it would be informative to see their views posted and helpful to see how they deal with this contentious problem. It may inform how we as SFPE can address the issues (especially if the larger companies have the same views).

We continue to attract liability on the basis of a PS4 for 10 years as individuals - why? when fire “designers” have no such requirement placed on them and therefore no liability…and do not rely on PS3s…

I know that we have lost out on jobs because we were 12K plus more expensive due to construction monitoring and that the company who won the contract had no such requirement placed on them (because they were not Chartered…umm seems a bit wrong to me…)

Just as a final thought - the special interest group is supposed to benefit all in the industry, and therefore should be the vehicle for the industry to combine and drive for a level playing field, so is it about time that SFPE wagged the tail of MBIE/BOINZ and the Local Authorities? If everyone agrees with then surely the forum should represent ALL views from ALL parties…

If any decision is made it should be taken from a collaborative discussion and that discussion should take place on the forum for all to see and comment on. That way it removes any behind the scenes/private/secret dealings…

Mike - firstly thanks for trying to include everyone in this discussion. I now put it to he committee that any comments that are provided privately should be posted before that become part of the decision so we can all add to the overall direction.

A

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Did anyone else hear the Radio New Zealand News today? It was about the non compliant buildings (partitions/ceilings and sprinkler installations). And some fire engineers are lining up to sign off a PS4 for all aspects…really?

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Did not hear the article, but have read the KOA report.

“Fire systems scored reasonably well and nearly all appeared to have been installed to good trade practice, suggesting the contractors installing these systems understand the importance of post-earthquake functionality and follow NZS4219 and NZS4541. However , as above, many fire systems installations were let down by a weak link such as poor or unproven fasteners, excessive spacing between restraints and unrestrained range ends.”

The Fire Industry has been working from many years (following lessons learnt in the 1987 Edgecombe event) at improving the quality of the seismic resilience of its installations, by improving standards and by improving knowledge. There is still some way to go, but it is not dire when measured against other trades.

Other than water supply tank failures in the first Christchurch Earthquake, the majority of issues I am aware of is not due to a shortcoming in the fire protection installation itself, but due to failures of other trades such as unrestrained ceilings, unrestrained plant, unrestrained cable trays and failures of racking systems.

Ceilings were probably the biggest issue, and have been addressed by an almost de facto approach to use flexible droppers today.

NZS4541 is constantly evolving and if MBIE agree to amend the standard, we will once again be improving the seismic reliance of fire safety systems.

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The issues with ceilings and in-ceiling services have been known for some time. The correct standards have been referred to but not necessarily enforced. I’ve seen a substantial change in attitude about seismic restraint over the past 10 years. However that’s a short timescale and the sample of buildings up to 60 years old gives a result that’s not completely surprising. It is concerning that the sample had a 100% failure rate in Auckland. Hopefully services engineers can help with those issues.

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Totally agree here. NZS4219 has been ignored by most trades in most buildings.

Things started to change after the Christchurch events, but momentum has increased following the Wellington event in 2013 - following scrutiny over one building!

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Maybe if we all issue a PS4 then the Fire Engineer can take all liability for all trades and be exposed to law suits. Still no comments from the “big players”…

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Further to this, for those who have not seen it. The issue of whether or not a PS4 could be a condition of consent (and hence the engineer is blackmailed into doing one, like it or not if they want to stay employed) was subject of Determination 2017-024 for recladding an apartment in Hobson St where a PS4 was required for the facade. It has a lot in common with our situation.It is on hte MBIE website and is worth a read in full for context.
Section 8.6 says

8.6 … appraisal and the technical literature from the manufacturer both state that specific engineering design is needed for the cladding system. While specific engineering design was not carried out in this instance, the work done by the manufacturer noted by the third engineer (see paragraph 3.6.3) must be considered the equivalent of such a design.

this is the same as manufacturers literature - e.g a Gib system, or a common and simple fire design, using standard propriety products intended to be installed as per their manufacturer’s instructions and design information. It then goes on to say

8.7 I concur with the views expressed by the architect (refer paragraph 5.2). Independent construction monitoring is not typically required for buildings where a relatively common cladding system will be used and will be installed in accordance with the manufacturer’s instructions with no building-specific design elements.
8.8 I am therefore of the view that independent construction monitoring, in addition to the scheduled inspections by the authority and the provision of the producer statements for the cladding installation, is unwarranted in this case.

Based on the this determination, a PS4 cannot be required as a condition of consent for ordinary fire designs using standard construction, especially an acceptable solution.

If of course you are doing a new shopping centre with complex alarm zoning, smoke control systems that function depending on the alarm location and so on as part of the fire strategy. then while it may be the mechanical engineers design and role, you may want to be involved in the commissioning to ensure it works as planned since I have never had a smoke control system work first time out of the box yet in 20 years of doing them in one role or another. It gets worse the more complex they are such as sandwich pressurization systems. For an AS building or a C/VM2 tin shed of standard construction then maybe not.

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Hi

From speaking to others, I sense the general opinion is that a better construction outcome occurs when construction monitoring by the fire engineer is undertaken. Furthermore, not doing construction monitoring and complaining about poor construction doesn’t appear to be in the best interest of the SFPE … as we should be leading the way on how to improve this industry problem.

A key factor in getting a good construction outcome is being proactive with our construction monitoring, which typically happens by asking the builder / installer what they are going to do before they actually do it. As examples…

  1. We should be reviewing the fire stoppers proposed solutions and associated supporting evidence before they do the installation and the builder has built the floor or wall. In this way, we can foresee an issue before it actually becomes a construction error and get the fire stopper to correct their problem in advance.
  2. Why not ask the builder if they have a copy of the GIB Fire Rated System guide onsite before they begin building the wall. It might become quickly apparent they don’t know how to build the ‘GBTL 60’ GIB wall system as specified by the architect. They can then review the required details and build it right.
    Remember, as we’re typically not the designer/specifier of the construction detail, it’s generally not our problem to find the answer to the problem. The problem solver would typically be the builder / installer or other members of the design team - we should just facilitate this process. Most construction monitoring problems result from retrospectively inspecting poor workmanship at the very end of the project.

It would be helpful to define our (fire engineers) liability regarding PS4’s. SFPE should issue guidance which outlines what issues a fire engineer would typically cover during construction monitoring and how this interfaced with other disciplines. In doing this, it would become clear about what a fire engineer can not and does not do. This would also highlight how the expectations change with differing CM levels (1-5). This could be detailed in an updated version of PN22.

For example:
HVAC ductwork

  • mechanical engineer has primary inspection role; inspect all elements of this system as defined in their specs and drawings (eg. Ducts, connections, fire dampers, fans)
  • fire engineer has secondary role; spot check elements of the HVAC ductwork impacting on the fire design (eg. Fire dampers) and liaise with mechanical engineer and contractor should they need to query any possible installation issues.
    Gib wall or ceiling systems
    (Similar to above but the architect has the primary role and the fire engineer has the secondary role)

Having this information would help clarify to the construction industry (and the legal profession) what good Fire CM is.

I would encourage SFPE to get a legal review to support our stance on Fire CM and highlight the legal risks – we all would benefit from this.

Another key issue is training. To date, most people only learn to do Fire CM through going to site. This likely makes the quality of the CM highly person-dependant. It would be good if we came up with a plan about how to formalise and standardise Fire CM training.

Best regards,
Greg North
Beca

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Hi All,

Here is a summary of where we are to date on this subject. PS4’s appear to be more of a concern that PN22.

Issues raised to date concerning PS4’s

  1. Issuing PS4’s attracts undue liability
  2. Some people say they are being forced to provide a PS4 for work they do not think they are qualified to inspect.
  3. Fire engineers are being asked to carry out construction monitoring for work they did not design.
  4. CPEng Engineers are being required to provide PS4s whereas Fire Designers are not.
  5. There is no clarity on the scope and extent of inspections necessary to demonstrate compliance with the fire design.
  6. There is no industry training on how to carry out construction monitoring.

Some of the suggested solutions in no particular order

  1. Get ENZ to issue guidance similar to NZIA to not issue PS4’s.
  2. Seek legal guidance on our liabilities when issuing PS4’s
  3. Clarify in detail the extent of construction monitoring required to be satisfied that the fire design has been complied with.
  4. Provide construction monitoring training
  5. Clarify who is suitably qualified to undertake the various construction monitoring activities.
    6 Agree up front in detail the construction monitoring activities that will be required to demonstrate compliance with the Fire design and who is appropriately qualified to carry them out. If there is a shortfall in qualified people then the client will need to engage appropriate people.

What is/can SFPE do about it

  1. Currently talking to ENZ about the issue and its extent (subject to member feedback)
  2. Talking to ENZ about legal advice
  3. Possible solutions 3, 4 and 5 are on the agenda for discussion. No doubt some companies are already doing this and may be willing to share their knowledge.

If you have any new perspectives to add to the discussion, please add them.

Regards,

Michael James

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As an independent organisation, albeit a SIG under the ENZ umbrella can/should SFPE take legal advice without waiting for ENZ?

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simply yes is the answer Peter. But the advice should be correct in terms Building Act. The Act does not require a PS4.
This is supported by the recent Determination where the outcome was that they are not required and cannot be used to delay CCC.
Also that advice should be provided in the context of the scope of the involvement of the Fire Engineer in the project and the extended liability for 10 years under the Act.