3.2.1 An architect
can practice as a sole proprietor, or through a partnership, a professional
corporation or a professional association pursuant to
Miss. Code
Ann. 79-10-1, et seq., as amended, or through a professional limited
liability company pursuant to
Miss. Code Ann. 79-29-901, et
seq., as amended, subject to the following conditions:
A. as to a partnership, at least one active
partner must hold a certificate to practice architecture in Mississippi and
each active partner shall hold a certificate to practice architecture or
engineering in that partner's state of residence.
B. as to a professional corporation ("PC") or
a professional association ("PA"), each must meet the following conditions:
1. at least one active stockholder must hold
a certificate to practice architecture in Mississippi; and
2. each stockholder, director and officer
shall hold a certificate to practice architecture or engineering in that
person's state of residence; and
3.
no person shall be entitled to be a stockholder, officer or director of a PC or
a PA offering architectural services in this state other than licensed
architects and engineers.
C. as to a professional limited liability
corporation ("PLLC"), each must meet the following conditions:
1. at least one owner of a membership
interest in the PLLC shall hold a certificate to practice architecture in
Mississippi; and
2. each owner of a
membership interest and any managers of the PLLC shall hold a certificate to
practice architecture or engineering in that person's state of residence;
and
3. no person shall be entitled
to hold a membership interest in or be a manager of "PLLC" offering
architectural services in this state other than licensed architects and
engineers.
It is a specific purpose of this rule to restrict or
condition the issuance of shares of a professional corporation and the issuance
of membership interests in a professional limited liability company which is to
advertise or otherwise hold itself out to be an architect or to be authorized
to practice architecture to only licensed architects or engineers.
3.2.2 All
stationery, printed matter, title blocks, and listings of an architectural firm
or business, including a sole proprietorship, shall contain the name of at
least one (1) person who is registered as an architect in this state, and any
firm or business name listed on such documents shall be the firm or business
name(s) provided in conjunction with the architect's registration with the
Board. No person shall be named on any card, stationery, title block, printed
matter or listing of such a firm (partnership, professional corporation,
professional association, or professional limited liability company) used in
this state unless there is designated thereon whether or not such person is
licensed in this state. Employees of a firm that are not registered as an
architect or engineer in any jurisdiction are allowed to use business cards for
that firm, provided that the job title of the individual is clearly stated and
said title does not lead the public to believe the employee is a licensed
architect in this state.
3.2.3
Registered architects are allowed to practice under or through a firm or
business entity in compliance with
Miss. Code Ann.
§
73-1-19 and all applicable rules.
Allowable firm or business names are names which:
A. contain the name of at least one
individual who holds an active Mississippi license; or
B. contain no person's name, provided
however, that the name of at least one individual licensed in Mississippi is
disclosed on any announcement, stationery, printed matter, contract, title
block or listing; or
C. contain the
name or names of individuals who were once licensed architects (in any
jurisdiction) but are now retired or deceased, provided however, that the name
of at least one person licensed in Mississippi is disclosed on any
announcement, stationery, printed matter, contract, title block or listing.
Firm and business names are considered improper if they
contain the name or names of individuals actively licensed in another
jurisdiction if none of the individuals named in the firm name are actively
licensed in Mississippi.
EXAMPLES (Provided as guidelines only. This is not an
exhaustive or complete listing of scenarios.):
|
ALLOWED
|
NOT ALLOWED
|
|
Smith and Jones Architecture (provided Smith and/or
Jones are licensed architects and one or both is licensed as an architect in
Mississippi)
Williams and James Architecture John Doe, Architect
(only if both Williams and James are retired or deceased)
Architecture Unlimited John Doe, Architect
Doe and Smith, Architects and Engineers John Doe,
Architect (when Doe is licensed as an architect in Mississippi and there are
multiple architects in the firm)
ABC Architects and Engineers John Doe, Architect
(when Doe is licensed as an architect in Mississippi and there are multiple
architects in the firm)
|
Smith and Jones Architecture (when Smith and/or
Jones are actively licensed in another jurisdiction, but neither is licensed in
Mississippi)
Williams and James Architecture (where Williams
and/or James are actively licensed in another jurisdiction, but neither is
licensed in Mississippi)
Architecture Unlimited (when the name of the
architect licensed in Mississippi is not also provided)
Doe and Smith, Architects and Engineers (the
Mississippi architect must be identified)
ABC Architects and Engineers (when the name of the
architect license in Mississippi is not also provided)
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3.2.4 For the purpose of properly identifying
drawings, specifications, and contract documents, each architect shall obtain a
stamp of a design approved by the Board to be used as the stamp required by
Miss. Code Ann.
§
73-1-35. The manual, electronic,
or digital signature of the architect and date of execution shall appear over
the stamp on all documents prepared by the architect or under the architect's
responsible control for use in the State of Mississippi.
3.2.5
A.
"Prototypical Documents" consist of drawings or specifications not intended as
final and complete construction documents for a building project, but rather as
a sample or model to provide general guidance for a building or buildings to be
constructed in more than one location, with substantially few design changes or
additions, except those required to adapt to each particular site. Prototypical
Documents may or may not be premised upon laws, rules and regulations, or
adopted building code of a particular state, county, or municipality, but shall
be adaptable to the regulations or codes of each applicable construction
location. Prototypical Documents are generally not designated for a specific
climate, weather, topography, soil, or other site-specific conditions or
requirements, but are intended to be adapted to those and other site-specific
conditions. Prototypical Documents may or may not originate from a registered
design professional (architect or engineer).
B. Nothing in these rules precludes the use
of Prototypical Documents for a Mississippi project, provided the architect:
1. obtains written permission from the design
professional who prepared or sealed the Prototypical Documents, or from the
legal owner of the Prototypical Documents, to use, revise, amend and otherwise
adapt the Prototypical Documents; and
2. thoroughly reviews the Prototypical
Documents, makes necessary revisions, and adds all required elements and design
information (including the design services of engineering consultants if
warranted), so that the Prototypical Documents become suitable construction
documents, in full compliance with applicable codes, regulations, and
site-specific requirements; and
3.
independently performs, and maintains on file, necessary calculations to verify
the public health and safety suitability of all elements or features portrayed
by the original Prototypical Documents; and
4. after reviewing, analyzing, calculating
and making revisions and additions, re-draws and issues the documents with the
architect's title block and Mississippi seal (or the seals of engineering
consultants as applicable), maintaining responsible control, as defined in Rule
4.5.2, over the use of the final adapted documents as if they were the
architect's original design, assuming full responsibility as the architect of
record.
C. An architect
may produce prototypical plans for use by others. However, such documents must
be clearly marked as "Prototypical Design Documents - Not for
Construction."
3.2.6 A
licensed architect can combine with a duly licensed general contractor or a
professional engineer in order to participate in a "Design/Build" undertaking
whereby the architect prepares plans and specifications through individual or
collective agreements with the owner or contractor in order to meet the owner's
requirements for unified control in the design and construction services
rendered under the following conditions:
A.
that nothing herein shall be construed so as to allow the offering or other
performance of any architectural services by anyone who is not duly licensed as
an architect in this state; and
B.
that full disclosure is made in writing to the owner as to the duties and
responsibilities of each of the participating parties in such agreements;
and
C. the architect shall not
furnish any services in such a manner as to enable a contractor, owner or
others to perform architectural services or to evade the public health and
safety requirements; and
D. the
architect shall not be an employee of a licensed contractor or a person not
licensed to practice architecture or engineering in Mississippi and must have a
separate contract for architectural services either with the contractor or the
owner; and the architect shall not sign or seal drawings, specifications,
reports or other professional work which was not prepared by or under the
responsible control of the architect as defined in Rule 4.5.2; and
E. nothing in this rule shall prevent the
administration of construction contracts by a licensed contractor or architect.
Commentary - An architect must always maintain
responsible control over the design of a project to ensure all applicable
federal, state and local building laws and codes are incorporated into the
design and construction of a project. In order to comply with the responsible
control requirements, the architect must be able to act independently and not
be subject to the control of others. Where the architect is the employee of a
contractor, the potential exists for the contractor to exert financial pressure
on the architect to forgo compliance with certain building code requirements in
order to provide a financial benefit to the contractor to the exclusion of the
health, safety and welfare of the individuals occupying the built
environment.
3.2.7 In a design/build undertaking where the
general contracting firm is owned by the architect of record, the general
contracting firm and the architectural firm must be two distinct and separate
entities and there must be separate contracts for both the construction and
architectural services. If the architect of record is also an owner in the
contracting firm for the project, the architect should advise the owner of the
potential conflict of interest so that the owner can have the opportunity to
employ a third party to provide construction administration.
3.2.8 A non-resident architectural firm, with
no members registered in this state, may form a joint venture or association
with a resident architectural firm if:
A. the
non-resident firm complies with Miss. Code Ann. §
73-1-19; and
B. the firm agrees to consent to the
jurisdiction of the Board; and
C.
the construction documents and specifications are prepared under the
responsible control of the architect licensed in Mississippi; and
D. one member of the non-resident
architectural firm holds a valid NCARB Certificate; and
E. one member of the non-resident
architectural firm shall apply for licensure in Mississippi within ten (10)
days of the date of formation of the joint venture or association.
3.2.8.1 A non-resident architect, not
registered in this state but registered in another state, may serve as a
consultant to an architect registered in this state if:
A. the non-resident architect holds a valid
NCARB Certificate; and
B. all
construction documents and specifications are prepared under the responsible
control of the architect licensed in Mississippi and are signed and sealed by
the architect licensed in Mississippi; and
C. the non-resident architect shall not use
the title "architect," or any prefix, suffix or other form thereof, or any
title, sign, card or device to indicate that such person is practicing
architecture, or is an architect, in this state, unless it is stated thereon
that such architect is participating as a consultant; and
D. the non-resident architect consents to the
jurisdiction of the courts of this state.
3.2.9All architects holding ownership or
supervisory positions in an architectural firm or other entity through which
architectural services are offered or rendered shall be responsible for the
conduct of all non-registered employees (and non-registered associates and
contracted persons) under the control of the firm regarding acts,
representations and services of the non-registrants, related to the practice of
architecture and while acting for, or on behalf of, the firm, if said conduct
constitutes a violation of
Miss. Code Ann.
§
73-1-1 or the Professional Code of
Conduct. Such architects shall maintain responsible control of all
representations made by, or in reference to, unlicensed individuals employed by
the firm in order to ensure that the unlicensed individuals are not presented
in a manner that may lead the public to assume they are licensed.
Commentary - It is common practice for architects to
provide professional services in the setting of a firm consisting of other
architects, other design professionals, and non-registered individuals such as
draftspersons, marketers, clerical staff, construction administrators, intern
architects, licensure candidates and others. The Board recognizes that many
such non-registered individuals perform many acts and services for the firm
that constitute or support the practice of architecture, such as marketing,
design, detailing, specification writing, client contact, and contract
administration. In the interest of protecting the health, safety and welfare of
the public, it is incumbent upon the registered professionals to maintain
responsible control of the firm and its staff persons regarding their acts,
duties and work product relating to the practice of architecture. The Board has
long held that "responsible control" (previously "direct supervision") of the
preparation of drawings and specifications was required in order for the
architect to place the architect's seal thereon. This rule clarifies that
"responsible control" of other activities of the practice is required as well,
such as firm marketing and representation of qualifications, pre-design
activities, etc. The architect is not expected to be responsible for conduct or
acts committed by non-registrants under the architect's employ or control when
said conduct is related to activities or services performed outside of the firm
(e.g. "moonlighting" by a draftsperson).
3.2.10 Architects shall seek employment as
follows:
A. with respect to public projects,
various public procurement statutes and regulations, including Miss. Code Ann.
§
31-7-13.2, require the use of a
qualifications-based selection procedure for certain projects. In cases where
qualifications-based selection is required, public entities must publicly
announce requirements for architectural services and procure these services on
the basis of demonstrated competence and qualifications, negotiating contracts
at fair and reasonable prices after the most qualified firm has been
selected.
B. with respect to
private projects, architects are encouraged to seek professional employment on
the basis of qualifications and competence for proper accomplishment of the
work. This procedure restricts the architect from submitting a price for
services until the prospective client has selected, on the basis of
qualifications and competence, one architect or firm for negotiations. However,
competitive price proposals may be submitted or solicited for professional
services if and when all of the following guidelines are met:
1. the prospective client has first sought
statements of qualifications from interested licensees; and
2. those licensees chosen by the client on
the basis of qualifications and competence for proper accomplishment of the
work have received in writing a comprehensive and specific Scope of Work;
and
3. assurances have been given
by the prospective client that factors in addition to price will be considered
in selecting the architect.
Commentary - The Board encourages the use of
qualifications-based selection for all projects, as the Board believes it is
the method of procurement of professional design services that is in the best
interest of protection of the public's life, health and
property.
3.2.11 No person may use the title
"architect" or any form thereof without having have secured a license from the
Board, except as provided in rule
2.6 as pertains to an intern
architect. In architectural practice, the person or persons licensed as
architect(s) in Mississippi shall maintain responsible control of all work
performed in Mississippi. This shall include, but is not limited to, signing
contracts, sealing documents, and all services as described in
Miss.
Code Ann.
§
73-1-3.
3.2.12 No professional corporation,
professional association, professional limited liability company, nor any
partnership shall be entitled to a license to practice architecture in this
state. Licensure is issued to individuals only. In conjunction with Mississippi
licensure and renewal of licensure, applicants and architects must provide
information as to any and all business entities through which the architect may
be practicing architecture in Mississippi.
3.2.13 No architect shall practice through a
firm if the name of the firm is misleading as to the number of registrants or
the licensure status of those individuals named in the firm. For example, a
firm with one person licensed as an architect cannot use a name which includes
the word "Architects". For purposes of determining plurality and the use of the
word architects in a firm name, one should consider the number of individuals
licensed as architects in Mississippi or in jurisdictions recognized by the
Board.
EXAMPLES (Provided as guidelines only. This is not an
exhaustive or complete listing of scenarios.):
|
Not Allowed:
John Doe Architects
This is an improper firm name in a case where John
Doe is the only individual in the firm licensed as an architect.
|
Allowed:
Smith, Jones and Doe, Architect and Engineers John
Doe, Architect This is a proper name in a case where Doe is the only individual
in the firm licensed as an architect.
ABC Architects John Doe, Architect This is a proper
use of a trade name if there are at least two (2) individuals in the firm who
are licensed as architects, and if the name of at least one architect licensed
in Mississippi is disclosed in conformance with 3.2.3.
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3.2.14 In Mississippi, a "Registered Design
Professional" is defined as an architect, an engineer, or a landscape architect
who is registered or licensed to practice in the State of Mississippi, provided
that the individual is practicing in compliance with the registration
laws.
3.2.15 As to interior
architecture, the practice of architecture is defined at
Miss. Code
Ann.
§
73-1-3(c). This
statute provides that a person is engaging in the practice of architecture if
that person is held out as able to perform any professional service such as
planning, design, including aesthetic and structural designs, and consultation
in connection therewith, or responsible inspection of construction, in
connection with any non-exempt buildings, structures, or projects, or the
equipment or utilities thereof, or the accessories thereto, wherein the
safeguarding of life, health or property is concerned or involved, when such
professional service requires the application of the art and science of
construction based upon the principles of mathematics, aesthetics, functional
planning, and the physical sciences.
As planning and design, including aesthetic and structural
designs, encompass the entire structure, both interior and exterior, the Board
holds that engaging in only partial aspects of the definition of architecture
remains the practice of architecture and may be performed only by one who is
licensed as an architect in conformance with Miss. Code Ann.
§§
73-1-1 et seq. Thus, the practice
of interior architecture in buildings is the practice of architecture.
Accordingly, individuals who engage in the practice of planning and designing
any life safety elements of the interior of any non-exempt buildings, including
any aesthetic element, shall be considered practicing
architecture.
3.2.16 In
regard to construction administration, if, under Mississippi law, an architect
must prepare, or supervise and control the preparation of the contract
documents for a new building or the alteration of or an addition to an existing
building, construction administration services of an architect on the
architectural aspects of the project are deemed necessary to protect the life,
health and property of the public. In such event, construction administration
for the project shall be conducted by an architect or by a person working under
the responsible control of an architect. Construction administration as defined
herein constitutes the practice of architecture as defined by the Board.
A. For purposes of this rule, "construction
administration" means the administration of the portion of the construction
contract described and documented in the contract documents, including, but not
necessarily limited to, the following services:
1. visiting the construction site at
intervals appropriate to the contractor's operations to determine that the work
is proceeding generally in accordance with the technical submissions submitted
to the owner and/or the building official at the time the building permit was
issued; and
2. processing shop
drawings, samples, and other submittals required of the contractor by the terms
of construction contract documents; and
3. notifying an owner and any building
official of any code violations; changes that affect code compliance; the use
of any materials, assemblies, components, or equipment prohibited by a code;
major or substantial changes between such technical submissions and the work in
progress; or any deviation from the technical submissions that the architect
identifies as constituting a hazard to the public, which the architect observes
in the course of performing the architect's duties.
B. On a project where the architect of record
has not been engaged, or is no longer engaged, to perform construction
administration services, as defined above, the architect of record shall report
in writing to each of the following parties that the architect has not been
engaged or is no longer engaged to perform construction administration
services, or is not providing construction administration services as defined
above:
1. the building official;
2. the Board;
3. the owner;
4. the client; and
5. the contractor.
Commentary - In order to assure a project that is
required by law to be designed by an architect is constructed in accordance
with the plans and specifications, the architect of record should provide
construction administration services as part of the protection of the life,
health and property of the individuals using the built environment. Where the
architect of record was not originally contracted or is no longer engaged to
perform construction administration as defined above, or is providing only
limited construction administration services, the architect is required to give
the notice outlined above to assure that all parties to the construction
project are aware that construction administration is not being performed by
the architect of record or is limited in scope. This specifically provides a
building official with notice so that the building official may compel the
owner to provide someone to perform those services if the building official so
chooses.
3.2.17 In circumstances where a Mississippi
registered architect or registered design professional can no longer provide
services on a project due to death, retirement, incapacity, or disability, or
mutual agreement to terminate a contract for architectural services, a
successor architect, who is a registered Mississippi architect, may undertake
to complete the architectural services including any necessary and appropriate
changes provided:
A. a legal transfer of the
contractual work has occurred; and
B. all references to the original architect
(title block, seals, signatures, etc.) must be removed from all documents;
and
C. the successor architect
accepts responsible control for the project; and
D. the successor architect complies with all
applicable statutes, rules and regulations of the State of Mississippi,
including but not limited to the provisions of Miss. Code Ann.
§
73-1-19; and
E. the successor architect notifies the
Board, in writing, of any projects he is undertaking under the provisions of
this rule.
F.
3.2.18 In the case where an architect is
awarded the design contract for a public or private project which will be
competitively bid, neither the architect, nor any entity owned in whole or part
by the architect, may bid for the construction of the project.
Commentary: The Board is of the opinion that such a
situation creates a conflict of interest for the architect in that the
architect is the designer and the contractor for the project, thus removing the
checks and balances which assure that the project is constructed in accordance
with the plans and specifications.
3.2.19 An architect, if properly qualified by
training, education and experience, may perform construction management
services without obtaining any additional license or certification, provided
that the architect does not perform any construction work on the project being
managed.
3.2.20 The following
determines whether a project meets one of the exemptions provided in
Miss. Code Ann.
§
73-1-39:
A. pursuant to the exemptions established by
Miss. Code Ann.
§
73-1-39 (h) for
buildings other than farm buildings and one-family and two-family residences
and domestic outbuildings, one must consider the overall building size in
determining the application of the exemption, and not merely the size of the
space within the building being erected, enlarged or altered. A project is not
exempt if:
1. the overall building is 5,000
square feet or greater; and/or
2.
the space to be erected, enlarged or altered is within a building that is 5,000
square feet or greater; and/or
3. a
building that is less than 5,000 square feet prior to an alteration or
enlargement will measure 5,000 square feet or more after the proposed addition
or enlargement; and/or
4. the
building is more than two (2) stories in height, regardless of size;
and/or
5. a two (2) story building
will exceed two (2) stories after the proposed alteration or
enlargement.
B. pursuant
to the exemptions established by
Miss. Code Ann.
§
73-1-39 (b) which
applies only to publicly-owned projects, one must consider the overall building
size in determining the application of the exemption, and not merely the size
of the space within the building being erected. A project is not exempt if:
1. the overall building is 10,000 square feet
or greater; and/or
2. the space to
be erected, enlarged or altered is within a building that is 10,000 square feet
or greater; and/or
3. a building
that is less than 10,000 square feet prior to an alteration or enlargement will
measure 10,000 square feet or more after the proposed addition or enlargement;
and/or
4. the building is more than
two (2) stories in height, regardless of size; and/or
5. a two (2) story building will exceed two
(2) stories after the proposed alteration or enlargement.
C. A building, as defined by the Board,
includes the total gross floor area, both heated and/or unheated, within the
surrounding exterior walls. Areas of the building not provided with surrounding
walls shall be included in the building area if such areas are included within
the horizontal projection of the roof or floor above.
D. Pursuant to Miss. Code
Ann.
§
73-13-45, public works involving
the practice of architecture or engineering in which the expenditure exceeds
one hundred thousand dollars ($100,000), and construction of public buildings
using political subdivision work forces which involve the practice of
architecture or engineering and in which the expenditure exceeds one hundred
fifty thousand dollars ($150,000), require the services of a registered
architect or professional engineer.
