Hi
I’m in receipt of a PS3 where I am being linked into the supposed construction/design/specification. See below, the companies name has been blacked out as I don’t want to cause them issues despite the fact they are causing me issues.
On this particular project we asked for penetrations to be fire rated. We did not specify products or solutions, we did ask that whatever is used is tested and appropriate for the situation in which its installed.
The contractor asked us various questions about various products and we always responded with asking is there a test report and is it suitable for the situation in which you intend on using it.
What do others think about this? I’m very unhappy I’m being used in this way in the PS3 but the contractor is refusing to remove us (they have removed my name and company name but still say ‘site fire engineer’).
Looking at this from another angle the contractor does appear to be accepting liability for their work only.
There is a difference between the architectural design details, fire engineer designs, or construction contractor designs but no distinction has been made between these. To be accurate they should be excluding liability for the architectural design details which is what they should be working from, as those the consent documents.
If you have not issued any specific instructions for detailing or solving problems on site then they should substitute fire engineer with architectural designer.
Also ask them to remove the word “site” as that implies a higher level of construction monitoring (which I expect is incorrect).
Thanks Kenneth for your response, yes I’ve tried looking at it from their angle.
However I understand (perhaps incorrectly?) they were employed to provide design and installation services for passive fire. The consent docs are performance based - ie. it pretty much says fire rate the penetrations (in a few more words than that but you get my meaning). They were to come up with the solutions for the specific situations and they’ve asked us if particular products are OK or not and we’ve asked if they have test data to back these products up in these situations.
If they were told to install particular products in particular locations by ourselves or architects then yes I agree, however this would have been in the consent docs and they could have referred to them rather than the ‘site fire engineer’.
As it was, we wanted a specialist company to do this work as they have the expertise in penetrations, not us and we wanted to avoid any passive fire penetration issues during construction and sign off…
The statement “to the best of our endevours and reasonably practicle” should be queried. I would ask where they believe their works does not fully comply with the certified systems.
Nothing wrong with the statement about not taking responsibility for the Fire Design.
The fire engineer normally does not specify “systems” for construction - that is normally covered in the architectural/structural/building services specifications. If the systems are installed from your fire report specification then the cart blanche exclusion of systems specified by the fire engineer is not acceptable.
If you have given instruction and sanctioned variations to tested systems then the contractor could quite rightly exclude certification of those areas. I presume that the variations to the tested systems are being cited as “engineering judgement”.
Where there are situations where there is no practicable tested system then a variation to the consent should be considered where deviations to the consented systems can be evaluated and adjusted for consent.
Your PS4 must rely on a clear statement of compliance from the contractors. If they are unable to provide that statement then there is probably some non compliance. Try and extract from the contractor the specifics that prevent them from providing the clear statement of compliance. Do this in writing. If they are unable to provide the specifics preventing their statement of compliance then they are probably prevaricating. Write back stating due to their inability to provide specific areas of non compliance, you are taking their statements and subsequent correspondence as an indication that they have no reason to expect their works do not comply.
Failing all of that; refuse to certify until another contractor has replaced the offending penetration systems.
I think it’s probably time to go back to the wording of their design and build contract. If this can be resolved as a contractual matter perhaps that will provide a way forward.
I’ve assumed their wording of their PS3 is made up of standard exclusions. You may want to check if they have any concerns about site activities. Subcontractors are at the mercy of main contractors, and it is worth checking if something may have been concealed from the design team.
Hi Debbie,
Based on contractors “endeavors and reasonably practical” statement, passive fire protection work is not fully complies with the Acceptable Solution testing requirements. In some situations it is not possible to find fully tested solution. However, Building Code does not have performance criteria for penetrations. As soon as building is designed and constructed with low probability of fire/smoke spread, and tenability criteria is met, passive systems deem to comply as an Alternative Solution.
Design/specification of passive systems is not in the scope of professional fire engineers, we can only express our engineering judgment to support proposed Alternative Solutions, designed by Architectural designers and specialists in passive fire protection. As we are not designers, I agree, we shall not be referred to in PS3 statement.
Any specified system, including passive fire protection, requires a Building Consent, and shall be constructed in accordance with a Building Consent plans and specifications. I am not sure if this is only Auckland practice, but our BCA requires us to submit Building Consent documentation for each type of passive penetration at consent stage. If during construction work new type of penetrations is encountered, we apply for minor variations with full details/specifications. Proposed solutions reviewed and accepted by Council together with PS3 - contractors’ certificate of work in accordance with consented plans and the NZBC.
In relation to our PS4, our assumption of low probability of fire and smoke spread is based on PS3 from the contractor; however, regardless of passive fire protection compliance, our design allows for “the likelihood and consequence of failure of any fire safety systems”, including passive.
Tania
I had a similar issue with a “specialist” (to use the term loosely) passive fire contractor recently. Possibly the same one although the words were different. The project didn’t have any specifically designed elements of any sort, including passive fire.
I assume it is similar in your case.
In my case, I pointed out their scope was design and build and when they denied being a designer, I pointed out their responsibilities under S14 D and14E of the Building Act which put them clearly on the hook. http://www.legislation.govt.nz/act/public/2004/0072/latest/DLM4356451.html
You probably heard the screams in Te Awamutu…
I suggest a nice letter (maybe from your lawyer), cc the builder (and if you want to be mean, also the Council) may get some action, particularly if you state that you have no faith in the contractor as they will not certify their own work, including their design and state clearly that you are not the designer. If you are providing any sign off certification to anyone, do not provide it until this is sorted.
You should not rely on the PS3 or a statement anyway - it is normally written by the apprentice/labourer who has no idea what they are doing. I could write screeds on this topic, but my thoughts are well known anyway, so if the fire engineer is daft enough to provide a PS4 or rely on a PS3 in order to do so then you are at total risk of a Law suit and under tort unlimited liability. because you have noticed you have been named then the question actually is “how many more am I named in/inferred in/dragged into?”
I did not say I was relying on the PS3 in my query. Furthermore you’ll note from the image above that this was not written by the apprentice/labourer and in fact has some pretty large conditions and disclaimers written by the owner of the company.
If you read my original query you’ll see that I am not happy about being named in their PS3. I did not say that we may or may not be issuing a PS4. Just for your information I am not issuing a PS4, but thanks for calling those engineers who do issue PS4’s ‘daft’.
Some of us have large projects with excellent clients that require a PS4 as a condition of consent. We value and respect our relationship with our client, in turn they value and respect our work that we do. A PS4 at the end of the project is an expectation for many of us. If I could not do PS4’s I would, its hardly our favourite part of our job. However if we did this we would go out of business.
You have a choice not to issue a PS4 anyway, as the fire engineer does not design or specify then that is reason enough.
I see little difference between a PS3 and a PS4 being issued by the Fire Engineer. Neither are in the Act, the BCA can not demand them and architects avoid them. So why are fire engineers doing them? Architects are still in business…
The only way I would ever issue a PS4 is with total Council indemnity.
If the fire engineers (including ENZ) said no they would go away…as you have said that you would prefer not to issue them then as a Fellow and area rep for SFPE maybe you could approach them to discuss?
Interesting to see both sides of the coin. “reasonably practicle” is not a good sign to start with (spelling). I always say if the letters in the words aren’t right then what else in the logic is also wrong.
What may help in the new year is the FPA passive register, which we can refer to in a fire report as the basis for satisfactory work by requiring the use of a product (and supplier) from the register. All products will have been tested to AS 1530.4 and companies supplying those products be members of FPANZ and signatories to their Code of Practice. A ready path for complaints where necessary and an ability to ‘weed out’ those who aren’t members and won’t sign up.
Good luck with finding the solution Debbie. Look forward to your answer!
John, passive fire protection is not restricted building work so any installer such as the plumber or the labourer can install. We cannot force the use of a “specialist” especially since there is not currently any qualification for it to measure it against and hence potentially more than the Building Act requires.
I agree that if the register works as intended for installers, it may provide a small amount of “reasonable grounds” for us, although I don’t think it will be a lot. It also won’t help us against builders and clients that refuse because they don’t have to, or it costs more. I was in this situation recently, and I doubt I will be doing any more work for that builder, architect developer or project manager again as a result.
More to the point, the register won’t protect the engineer against the liability as there is no insurance to claim against, even though the passive installer is legally a designer under S14 of the Act and should have PI insurance like any other designer. Look how well the LPB system works, where a big fine is $2000, and they get automatic name suppression. That LBP is the one installing your fire rated Gib system and is legally accountable under S14 of the Building Act as a “builder” . Ever heard of one being held to account? Maybe we should ask for personal guarantees…
Also note regarding the FPA register, the Building Code doesn’t restrict products to AS1530 (they just have to provide that “low probability of fire or smoke spread” , although C/ASx may do, so you can use a non AS tested system, or an AS system installed in a manner that complies with another standard e.g. UL or EN1366, and it will be perfectly legal. Might be a battle to get the BCA to accept it “on reasonable grounds” if it doesn’t fit their box on the form but that is a question of their process not legal compliance. This is the point Tania made above.
There is no requirement to be a member of FPA to sell or install product, and many companies - both suppliers, designers and installers - (including the one I was at) dropped the membership when the cost/ value equation got way out of kilter a few years ago.
This ultimately comes back to ENZ standing up for their members (us) who pay them a good amount of coin each year to do exactly that and resolve this liability issue of Producer Statements, and their apparent lack of progress for on it for several years. Some blame also applies to government and MBIE, who seem quite happy to let Councils ratepayers pay for all the shoddy work as last man standing as one of the few countries without proportionate liability.
