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should you report non-functioning fire alarm on job you are bidding on / do your fire alarm repair records belong to the subscriber or run with the system June 8, 2018

KEN KIRSCHENBAUM, ESQ 
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE 
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should you report non-functioning fire alarm on job you are bidding on / do your fire alarm repair records belong to the subscriber or run with the system 
June 8, 2018 
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should you report non-functioning fire alarm on job you are bidding on
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Ken,
    We have a question: we bid a fire alarm project of a high rise that has occupants in which the fire alarm system is not functioning, and has not over the course of 6 months. Recently, one of our employees, without management approval, called the AHJ to report the issue. Although we feel it was the moral thing to do, it ended up costing us the project. Someone from the high rise condo board called the city to ask how this was reported and the fire Marshall’s office stated that we called them to report the issue. As a result, we were not awarded the project by the board. Should the person/entity that reported this to the Fire Marshall not remain confidential?
    And, are we as the Fire Alarm contractor bidding a project obligated to disclose these type of issues to the AHJ?
Thank you,
anonymous
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Response
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    You inspected a fire alarm system in order to submit a bid for the job, presumably a take-over of the system or a new system. Before you got the job one of your employees called the AHJ and reported that the fire alarm was not functioning. As a result you didn't get the job.
    You were not under any obligation to call the AHJ to report the non-functioning system. If the bid package contained a confidentiality provision you actually may be in violation of that provision and subject to damages, though damages may be difficult to establish. 
    Whether the AHJ should have maintained the confidentiality of the informant is beyond my pay grade, especially since you characterize it as a moral issue. I suppose you won't be in the habit of notifying this AHJ if you come across non-functioning systems that you are in the process of trying to get a contract to fix. 
    Once you are under contract, especially if you are providing inspection certification to the AHJ or are on record for providing monitoring, the question of whether you should contact the AHJ is a bit more complex. You don't want to be accused of reporting the deficiencies just to line your own pockets with repairs or replacement of the system at your subscriber's expense. On the other hand, if you are on record as having responsibility for the fire alarm and services then you may need to cover your butt by reporting the deficiencies. But we have removed the ambiguity or dilemma for you. How? The updated Fire All in One now provides that you are authorized to notify the AHJ, in your discretion, if the system is not functioning. This update is available in the current form and will be one of the 2019 contract updates.
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do your fire alarm repair records belong to the subscriber or run with the system
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Ken,
    Back in the 1990's we started servicing a fire alarm for a school that was owned by a church. Over the years the church stopped using the building for their own school and leased the building to a private school. That school left and a different school has taken over the building. We have done work, inspection's, testing, etc. for each school (under K&K contracts).
    The church received a violation for the sprinkler alarm in 2008 when they were operating the school. In 2013 the school building was taken over by a private school. They contracted with us to correct the alarm problem, which we did in 2014. In 2016 the building was taken over by another school.
    The church forward the FDNY violation/summons to the current school to have it dismissed, requiring documents that we did the repairs. This is not a usual situation, but does come up from time to time. FDNY typically wants documents to show the repairs were done, and usually wants to see invoices and payment.
    Now the new school is trying to clear the violation and requested copies of the invoices and other records. We issued a letter to the prior school that stated the facts: 2008 alarm not working, 2014 repaired and subsequent testing good.
    Question,
  Should the FDNY still want to see documents that are from another subscribers account, can we legally provide them without concern?
Thank you,
Jeff
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Response
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    Yes. First of all, the FD is the AHJ [governmental AHJ, not some other loose definition of an AHJ] and it's request should be honored. You worked on the system, which hasn't changed, only the occupant of the building has changed.         Hopefully you have a new contract with each new occupant of that building, because you need one.
    I don't see any confidential information that would be revealed to the AHJ [who likely will not keep the information confidential] so I don't think there need be a concern.
 
 
 
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com