East of Seattle, beyond Lake Washington is the city of Bellevue, fast becoming the land of Microsoft. Building inspectors in this fast growing, software and coffee drinking city are on the cutting edge of enforcing the most stringent interpretation of building codes. It may be the caffeine but what we are seeing is a trend towards a very strict or onerous interpretation of the code throughout the U.S.
You may have noticed that most contracts include a clause that requires subcontractors to install their work in compliance with “governing building codes, as well as in compliance with local jurisdictions.”
Signing a contract agreeing to install work per code seems harmless enough because subcontractors should have a general understanding of the codes related to the work and have to install per code anyway. However, subcontractors should understand that a building inspector’s interpretation of code could impact their bottom line.
Many building inspectors are under the mistaken belief that Underwriters Laboratory (UL) is the only approved testing agency. UL is certainly the most notable, but not the only recognized testing agency by code.
It’s important for subcontractors to understand that the UL is a private testing company providing, among other things, fire, smoke and sound testing for manufacturers or others who want their products/systems to be UL rated. UL has done a great job with selling themselves to code authorities and you have to tip your hat to them. There are many other fire testing agencies that do the same type of testing as UL. In the 18th edition of the Gypsum Association’s Fire Resistance Design Manual, there are 16 different fire-testing companies and 20 sound testing companies.
It’s important that subcontractors know there are multiple testing companies that test fire and sound rated walls, shafts, floors and ceilings. A subcontractor should be aware that tested assemblies by these other agencies or companies are equal to UL tested assemblies.
It is common for manufacturers of gypsum wallboard to want their board tested and not necessarily to be shared by the competition; we can’t blame them for that. As a result, the manufacturers use different testing companies to verify code compliance for the fire rating. The goal for drywall manufacturers is to end up with a 1-hour certification in order to sell their products or system where a 1-hour fire rating is required. You can be reasonably sure that the product or system that was tested may have slight differences. One system may be more labor intensive for a subcontractor than the other. Or the material involved may be more expensive than the other.
When looking at fire rated systems, keep in mind that UL has been around longer than most of its competitors and for that reason UL has tested more products and systems. Because of this and other factors, architects are quick to reference UL numbers for drywall systems rather than listing other testing agencies that have certified a product or system.
When signing a subcontract, subcontractors in most cases agree to install products per code including local codes. Generally before a building is built or a permit is issued, the building department and owner/architect meet many times to review building code requirements, as well as local requirements. Once the building department is satisfied that the plans meet the minimum requirements, the owner/architect can submit for a building permit.
As you know, once construction begins there are various inspections that have to be performed. This is where flaws in the plan review by the building department and owner-architect show their ugly heads. Let’s say that an inspector comes out to inspect your elevator shaft wall that per the plan required you to build it per UL #U429. During the inspection, the inspector finds that the shaft wall is built with a different brand of shaft wall liner than was listed in the UL report. Does he have the legal right to reject the work? Absolutely. What if the inspector noticed that the wall was built without deflection track and was not fire stopped and the plans/specifications did not require deflection or fire stopping of any kind?
UL #U429 requires that the shaft wall liner be cut 1 inch less than floor to ceiling height and that the studs be cut 3/4 inch less than floor to ceiling height to allow for deflection. U429 does not indicate any time for fire rating at the head of wall for fire stopping. However, the inspector may upon his own interpretation require a time rating. In addition, U429 was tested using certain proprietary brands of drywall and shaft liner and only those brands are acceptable.
Most of us in commercial construction know how shaft walls should be built to meet code, however, what the code enforcement departments rely on are test certifications done by various testing agencies and most tests are done using a variety of product brands meeting ASTM. Fire testing is done in accordance with the requirements of ASTM E 119 or CAN/ULC-S101 by recognized independent laboratories.
Architects do not and cannot show everything on the plans or in the specifications. They are relying more and more on making adherence to code the contractor’s responsibility, while meeting the building departments requirements for securing a building permit.
Smart Like a Fox
My grandfather said that the fox is the smartest animal in existence. I don’t know how smart a fox is but I do know that most architects-owners save themselves a lot of time and money by making it the contractor’s responsibility to meet all building codes.
If the general contractor agrees to be responsible for meeting code, you can be sure that the GC is going to make sure the subcontractors are responsible for meeting code. Code compliance in the end rests on the subcontractor’s shoulders and so subcontractors have to be smart like a fox to maximize profit, meet code and limit liability.
One way subcontractors can turn code compliance into an opportunity is to not only know the codes that affect their work but know as much as they can about related subcontractor codes. Fire, smoke and sound requirements can also provide subcontractors with a great opportunity. A subcontractor may want to add language to their proposals that allows them greater flexibility in adherence to fire, smoke and sound ratings. For example, the plan may call for a shaft wall to be built per UL #U429, however, the subcontractor knows from experience that labor and material dollars can be saved by using WHI 495-0528 and still achieve the same fire rating.
The difference between the two tests has to do with the way the shaft is built and the different products and brands it is built with. One tested system costs less to build than the other. Building departments typically don’t really care which system is installed as long as it is tested and certified by a recognized testing agency.
Who Pays for Testing?
The UL 429 system may be more appropriate in certain circumstances, but generally WHI 495-0528 is a little simpler and more cost effective to construct; architects do not know that.
Tests are not cheap but if a manufacturer wants to have a broad acceptance of its products, they have to be tested and certified. Subcontractors are looking for the most cost effective tested and certified product systems they can find and manufacturers want to sell as much of their products as possible. I am concerned we will see the day when certain proprietary product systems are tested and certified and contractors will not be allowed to use an equivalent that is more cost effective.
Feel the Squeeze
We are coming into a new era where there are less manufacturers in given areas and subcontractors will find themselves more or less stuck having to use product systems they would prefer not to use.
The manufacturing industry in the United States is getting smaller because the cost to manufacture keeps climbing. One manufacturer buys the other and little by little manufacturer and supplier options will decrease for a variety of reasons. The same thing is happening to gas stations, banks, grocery stores and pharmacies. There are very few steel mills in the United States and there will likely be less in the future.
Each week, month, quarter or year the cost of doing business goes up. As subcontractors and consumers, the options are simply to work smarter or to cut costs by using the most cost effective product systems we can find at this time.
Remember: Teamwork begins with a fair contract! W&C