Incorporation by reference
Like many solutions in engineering, incorporation by reference was born out of necessity. However, unlike most engineering issues, it did not directly address a physical construct.
Note: The discussion below shall not be construed as legal advice.
The National Electrical Code (NEC), International Building Code (IBC), and state building codes have a mutual characteristic: they cannot be properly used on their own. Rather than develop standards for every building material, installation method, and testing procedure that may be within the standard’s scope, a common practice is to reference existing industry standards, in which one document becomes part of another separate document. The legal community calls this incorporation by reference. (Note that incorporation by reference is only used when a reference is made; copying one document into another is called actual incorporation.)
Why is it important to discuss this? While engineers are not lawyers, engineers do draft legal documents in the form of contract documents and are responsible for making sure that the language they use is correct, complete, and enforceable. Proper practice of incorporation by reference will avoid ambiguity and conflict in the contract documents. We’ll review the history and criteria of incorporation by reference and the proper incorporation of standards. This discussion will also include some considerations that the engineer must be aware of when dealing with standards that incorporate or are incorporated into other standards.
Like many solutions in engineering, incorporation by reference was born out of necessity. However, unlike most engineering issues, it did not directly address a physical construct. Rather, it solved the problem of how to make a voluntary, consensus standard either part of a commercial contract or into a federal standard. Due to the convenience, efficiency, and minimal work required for inclusion, referencing industry standards in construction documents was a common practice in commercial contracts. The United States government had informally adopted a policy of using industry standards when appropriate, but it wasn’t until 1978 that Recommendation 78-4 proposed this practice as an official federal policy. In 1979, the government adopted incorporation by reference via publication in the Federal Register as 1 CFR Part 51.
The initial intent of incorporation by reference in commercial contracts was to reduce the complexity of contracts, whereas the federal government’s intent was to incorporate healthy and safety standards into federal regulations. There are no guidelines for incorporation by reference for the commercial sector; however, 1 CFR Part 51 has a set of guidelines for adopting voluntary, consensus based standards applicable to any federal department and also provides criteria on how to incorporate the reference. Using those guidelines is an excellent way to ensure that the referenced standard is properly incorporated.
When considering incorporation by reference, some basic principles an engineer should measure a standard are: does it conforms to the requirements of a voluntary, consensus based standard; is it accepted by the industry; and is it published and reasonably available to those to who require it. The consensus criteria is meant to exclude trade groups or manufacturers that have an interest in establishing proprietary or limited scope standards. A standard not accepted by the industry implies difficulty enforcing the standard. Ensuring that the standard is available in either physical or electronic form to those who require it is a key component of the government’s guidelines (see the note below for more information on Internet access to standards) and in commercial contracts, ensures that all parties have parity of or equal information.
State building codes are an excellent example of incorporation by reference. Most states or municipalities have adopted a version of the IBC and NEC, but not necessarily the latest version of either code, so the authority having jurisdiction (AHJ) must review the standard to ensure that it meets the need and is enforceable by the AHJ. The IBC is not required to be published as part of the state building code as a reference to the IBC is considered adequate to enforce the code. Or, the state building code may reference and amend certain portions of a code.
A problem incorporating references can be a cascading set of references: the NEC is one of many examples. Suppose a state building code incorporates the NEC by reference. Article 110.12 – Mechanical Execution of Work of the NEC incorporates NECA 1: Good Workmanship in Electrical Construction by reference to define the term neat and workmanlike manner. Even though the state building code may never explicitly mention NECA 1, if the contract documents state that the Contractor must comply with the state building code or state electrical code, the Contractor is legally obligated to uphold the definition of neat and workmanlike as described in NECA 1.
Redefining a term that is already defined in the referenced standard is a common issue. An example is the aforementioned neat and workmanlike manner, which is used in the NEC and defined in NECA 1, yet it is not uncommon to find attempts to define this term on contract documents. Not only is including this definition in the documents a waste of the engineer’s time, but ambiguity has been introduced into the contract documents. NECA 1, which was written by a voluntary committee of industry experts, requires 22 total pages to define neat and workmanlike manner. Condensing that information and depth of knowledge into a couple of paragraphs on the contract documents not only limits the Contractor’s liability if an element or method of construction is missed, but also takes a significant amount of time and effort on part of the engineer.
Scope creep is another issue with incorporation by reference. Much like defining a term, this is specifying information in the contract documents about materials, workmanship, or testing procedures that is already covered in the referenced standard. In some cases, this is necessary and intentional, but it is often unintentional and repeats or contradicts information contained within the standard. Using NECA 1 again as an example, this would include detailed instructions on pulling, terminating, or identifying cable, unless the client or material requires special materials or installation instructions that go beyond the industry standard.
Properly incorporating by reference requires a reference to include the phrase, "incorporated by reference" or similar and must state the reference’s title, date, edition, author, publisher, and identification number of the publication. In contract documents, the front end of the specification typically includes a statement to the effect that "standards cited in the specifications are incorporated by reference." If this is initially stated, from that point on, the phrase "incorporated by reference" does not need to be used, but there are other guidelines that should be followed.
The engineer should keep in mind that in order to properly incorporate a reference, the standard needs to be properly referenced, such as, "shall comply with the NEC," to avoid any ambiguity. The standard should not put any restrictions on the contract documents and should supplement rather than replace or compete with information in the contract documents. Additionally, the standard should be adequate for the proposed use. For example, citing a high efficiency discharge ANSI standard when only light emitting diode (LED) lamps are being used on a project does not mean the applicable ANSI LED standard applies; no lamp standard can be enforced.
The engineer should also note that when deviating from referenced standards, merely stating that the provisions of the standard are replaced is not enough: the standard must be properly identified and clear and concise language should refer to the text that should be removed and replaced.
Incorporation by reference is an important construct in engineering documents that allows enforceable contract documents to include voluntary standards. Because of this, the engineer needs to be aware of standards or documents that rely on this concept and should be familiar with the referenced standards. It is a bit of reading in the beginning, but the end result is a streamlined and technically superior set of contract documents that incorporate rather than rely on industry standards, and possibly some saved time.
Note: Currently, standards that are incorporated by reference into federal documents are only required to be available from the authors. A petition was submitted to the Office of the Federal Register on February 27, 2013 to make those standards freely available in electronic format. As of September 1, 2013, there has not yet been a ruling. However, many standards that are commonly incorporated by reference, such as those published by NECA and NFPA, that are available to view for free online.
For more information, including detailed requirements on how to execute incorporation by reference, see the CFR entry here.
View a list of standards that OSHA currently incorporates by reference here.
Michael Heinsdorf, P.E., LEED AP, CDT is an Engineering Specification Writer at ARCOMMasterSpec. He has more than 10 years’ experience in consulting engineering, and is the lead author of MasterSpec Electrical, Communications, and Electronic Safety and Security guide specifications. He holds a BSEE from Drexel University and is currently pursuing a Masters in Engineering Management, also at Drexel University.