On construction projects, engineers are called upon to assess the quality, appropriateness and acceptability of the materials that are used. These assessments are known collectively as construction materials engineering (CME). CME includes the determination of the scope and procedures of testing for the project, the supervision of testing, and the analysis of test results for acceptance purposes or for use in engineering recommendations. Although we most commonly associate CME with the analysis of concrete and soil, CME is conducted on any material used in construction including timber, asphaltic concrete, steel, and polymers.

Because it is engineering, CME must be personally performed by an engineer or be directly supervised by an engineer, and can only be offered to the public in full conformance with the Texas Engineering Practice Act (TEPA). Any CME activities that are contracted by a political subdivision of the State of Texas or an agency of the State must be acquired in conformance with Article 2254.004 of the Texas Government Code (the Professional Services Procurement Act.)

Construction materials testing (CMT), within the context of CME includes collecting samples, performing well-defined test procedures, and reporting of data. Performing tests and sampling using well-defined engineering specifications are not considered engineering activities.

When constructing public works, a State agency or political subdivision of the State must ensure that a licensed engineer directly supervises the construction of engineering components of the project (Section 19, TEPA). Adequate performance of the construction can only be achieved if this direct supervision includes adequate materials testing and engineering. Therefore, a licensed professional engineer must directly supervise CME activities, and those services must be acquired in full conformance with the PSPA. While the supervising engineer may work for the testing firm, the public entity, the design firm or under another contract arrangement, the engineer must personally determine on a project-by-project basis the arrangement that will provide actual direct supervision of CMT and CME services.

Most public entities hire construction materials engineers to perform acceptance testing, a fundamental engineering function. Any element of acceptance testing -- from data collection to final determination -- must be supervised by a professional engineer. When engineers are hired for these services, they must be retained under the PSPA. However, CMT services that are unrelated to acceptance testing may occasionally be acquired using other purchasing procedures provided the CMT services do not include any CME function.

No. Public entities must select CME engineers based on qualifications and demonstrated competence -- not price. In fact, engineers cannot even provide pricing information in the initial stages of selection without facing Board sanctions. However, once the most qualified CME provider is chosen, the public entity may negotiate a fair price for the work. If a price cannot be reached, the public entity may repeat the negotiations with the next most qualified provider until a contract can be established.

Because CME engineers cannot provide pricing in the first stage of the selection process, the Board strongly urges public entities to ask for pricing information only from the most qualified provider at the time of negotiation. This procedure better follows the intent of the PSPA and will make the selection process smoother.

Yes, but only if the CMT services meet two critical conditions. First, the provider’s services must be clearly limited to collection of samples and performing tests defined by a professional engineer in the project specifications. Second, any CMT that is to be used for acceptance purposes must also be directly supervised by the public entity’s engineer.

The scope of services on a CMT activity is very narrow. For example, they cannot include engineering supervision services, provision of sealed reports, review and sealing of reports produced by others, or evaluation of test data. Some standard testing cannot be considered CMT because of its engineering components

The contractor must follow the PSPA when acquiring CME under these circumstances. One of the reasons materials testing and engineering are conducted on public projects is to meet the requirements of Section 19 of the Act. This section requires the public owner to ensure that a licensed engineer is directly supervising the engineer construction – including supervision of the acceptance testing. Engineers who are asked to provide CME services for acceptance purposes may not provide prices to the contractor, since the contractor is essentially authorized to fulfill legal requirements as an extension of the public owner.

The public owner should ensure that CME services are acquired in a manner acceptable under the PSPA, even if the acquisition is delegated to the contractor. The Board strongly recommends that public owners not delegate the acquisition of CME services to the contractor. The Board believes that the public is best served when the engineers who accept or reject materials or work answer only to the owner.

Yes, provided the CMT services meet the conditions described in Question 2.

This contracting arrangement is most common when tests are being performed in support of contractor quality control in Quality Assurance/Quality Control QA/QC contracts. The contractor may utilize price in the initial step of the selection process, and an engineer may provide prices provided there are no engineering services required.

Yes. There are no restrictions on the use of price, but the Board strongly urges all consumers of engineering services to use demonstrated qualifications and experience to select the service providers.

No. CME is an engineering service. Engineering services can only be provided by a licensed professional engineer who is a full-time employee of the company offering the services.

06-00A / Rev: 06-2000