Brokerage of Engineering Services
Case 161
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It was not ethical for Firm A or Firm B to offer its services as the prime professional under the stated circumstances. It was consistent with the Code of Ethics for the agency to contact Engineer X as the proposed prime professional directly rather than through Firms A or B. It would be ethical for Engineer X or his firm to accept the contract under the stated circumstances.
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We must first dispose of a technicality which often arises in ethics cases. The Code of Ethics applies only too individual engineers and not to organizations as such. This point has now been noted by action of the NSPE Board of Directors in its directive adopted in January 1971 to include the following note on each printing of the Code of Ethics:
"Note: In regard to the question of application of the code to corporations vis-a-vis real persons, business form or type should not negate nor influence conformance of individuals to the code. The code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. The code is clearly written to apply to the engineer, and it is incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of the code."
Although this note refers to corporations rather than government agencies or firms, its premise applies to all forms of organizations, including governmental agencies and consulting firms. We therefore treat the case before us as involving actions of engineers in the governmental agency and consulting firms in situations in which the engineer(s) had the power of decision or effective recommendation as to the procedure followed.
The first part of Section 6 of the code precludes an engineer from accepting an engineering engagement unless qualified to perform the services involved. On the basis of the stated facts, it appears that Firm A and Firm B were primarily offering to serve in the capacity of a "broker" and would furnish only the services involved in the negotiations and administration of the contract, looking to Engineer X as the sole technical contributor to the project.
The second clause of Section 6 recognizes the propriety and value of the prime professional or client retaining the services of experts and specialists in the interest of the project. We read this pr...
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A government agency contacts 15 engineering firms to solicit their interest in, and a statement of expertise and capability to provide services in a highly specialized area of technical knowledge. Eight firms responded affirmatively. Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X, a recognized expert in the technical subject matter and a principal in his own firm, to provide the highly specialized expertise and that they would themselves furnish all other services involved. In actuality, these other services would be nominal in nature. The firm of Engineer X was not on the original list of those contacted.The government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X, advising him that two firms had indicated their intention to use him as a special technical consultant if awarded the contract and asked him if he would be interested in taking the contract on his own firm's account. Engineer X responded by submitting his qualifications but not stating definitely if he would be willing to undertake the work as the prime professional. The work to be performed is entirely within Engineer X's field of expertise and does not require services from firms other than those of Engineer X.
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Was it ethical for Firm A or B to offer its services as the prime professional under the stated circumstances? Was it consistent with the Code of Ethics for the agency to contact Engineer X directly rather than through Firms A or B as the prime professional? Would it be ethical for Engineer X or his firm to accept the contract under the stated circumstances?
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Principles
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Substantive Contribution Threshold Applied to Hypothetical Compliant Path for Firms A and B
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Professional Competence Threshold Not Met by Firms A and B for Prime Role
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Substantive Contribution Contextual Calibration Principle
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Broker-Only Role Transparency Obligation of Firms A and B
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Specialist Non-Supplanting Direct Engagement Permissibility Applied to Engineer X
The Discussion finds no grounds in the code that would prevent Engineer X and his firm from accepting the contract...
Substantive Contribution Threshold Failure by Firms A and B
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Solicitation Deception Avoidance Obligation Violated by Firms A and B
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Definite Steps Threshold for Engineer Supplanting Prohibition Activation
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Free and Open Competition Boundary Condition in Specialized Procurement
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30 entities
Obligations
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384D
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Specialist-Retention Provision Prime-Substantive-Contribution Contextual Reading Obligation
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Firm B Substantive Prime Contribution Threshold Failure
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Engineer X Agency-Initiated Direct Engagement Non-Supplanting Permissibility
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Engineer X Prior Sub-Consultant Arrangement Disclosure in Direct Solicitation Response
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Firms A and B Hypothetical Compliant Path Substantive Contribution Geographic Calibration
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Government Agency Expression-of-Interest Non-Bindingness Recognition in Direct Contact with Engineer X
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36 entities
States
S
w=0.1
384D
Engineer X Ambiguous Prime Role Response
Engineer X's response to the government agency's direct solicitation
Expert Prior Informal Commitment Conflicting with Direct Agency Solicitation State
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Firms A and B Nominal Contribution Misrepresentation
Firms A and B's qualification submissions to the government agency
Agency Direct Solicitation of Engineer X Outside Original List
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Engineer X's prior arrangements with Firms A and B versus direct agency solicitation
Engineer X Fully Qualified for Specialized Work
Engineer X's competence relative to the specialized technical work
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The government agency's solicitation process for specialized engineering services
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Code Individual-Not-Organization Applicability Clarification Active State
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Firm B's proposed prime role with Engineer X as sole technical contributor
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Government agency's direct contact with Engineer X after determining responding firms would not contribute substantially
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Engineer X's eligibility to accept direct agency engagement without violating anti-supplanting prohibition
Engineer X Ambiguous Prime Role Acceptance
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Nominal Subconsultant Arrangement - Firm A
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Nominal Subconsultant Arrangement - Firm B
Firm B's qualification submission representing prime capability while planning to rely entirely on Engineer X
Nominal Subconsultant Arrangement Misrepresenting Prime Capability State
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Agency-Initiated Direct Expert Solicitation Outside Original List State
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Expert Ambiguous Prime Role Acceptance State
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Prime Engineer Substantiality Threshold Determination State
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21 entities
Resources
Rs
w=0.1
384D
Prime Professional Responsibility Standard
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Qualification-Based Selection Procurement Law - Government Agency Solicitation Process
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NSPE Code of Ethics - Engineer Solicitation and Competition Ethics
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NSPE-Code-of-Ethics-Section-6
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NSPE-Code-of-Ethics-Section-11a
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NSPE-BER-Case-62-10
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NSPE-Board-Directors-Directive-January-1971
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NSPE-Code-of-Ethics-Primary
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Engineer Supplanting Prohibition Standard
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Code of Ethics Organizational Application Directive
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Government Procurement Contact List Integrity Standard
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Government Procurement Contact List Integrity Standard - Engineer X Solicitation
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NSPE Code of Ethics - Engineer Competence Scope
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Public Procurement Fairness Standard - Out-of-List Contact
The government agency's decision to contact Engineer X - a firm not on the original solicitation list - raises...
Prime Professional Responsibility Standard - Nominal Contribution Prohibition
The government agency concluded that Firms A and B would not make a substantial contribution to the work, as their...
NSPE-BER-Case-62-18
Cited as precedent establishing that the Section 11(a) supplanting prohibition requires that 'the client...
NSPE Code of Ethics - Qualification Representation Obligations
Firms A and B represented to the government agency that they had arranged for Engineer X's specialized expertise,...
17 entities
Actions
A
w=0.1
384D
Agency Direct Contact of Engineer X
Broker Arrangement With Engineer X
Disclosure of Engineer X Reliance
Agency Initial Solicitation Exclusion
Engineer X Prime Contract Acceptance Decision
Engineer X Qualifications Submission Without Commitment
Firms A and B Affirmative Response
7 entities
Events
E
w=0.08
384D
Solicitation Pool Formed
Eight Affirmative Responses Received
Broker Arrangement Exposed to Agency
Engineer X Identified as True Expert
Qualifications Submission Received
Competitive Field Disrupted
6 entities
Capabilities
Ca
w=0.07
384D
Government Agency Specialized Technical Services Solicitor Expression-of-Interest Non-Bindingness Recognition
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Prime Contractor Specialist-Retention Provision Substantive-Contribution Contextual Reading Capability
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Substantive Prime Contribution Geographic and Local Factor Calibration Capability
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Agency Expression-of-Interest Response Non-Bindingness Recognition and Direct Specialist Contact Authority Capability
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Firms A and B Solicitation Misrepresentation in Specialized Procurement
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Firm B Technically True Misleading Statement in Procurement
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Firm A Pre-Acceptance Competence Self-Assessment Deficiency
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Firms A and B Ethics Code Individual Applicability Recognition Failure
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Government Agency Engineers Ethics Code Individual Applicability Recognition
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Firms A and B Specialist-Retention Provision Contextual Reading Failure
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Firms A and B Pre-Acceptance Competence Self-Assessment Failure in Specialized Procurement
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Engineer X Specialist Direct Engagement Non-Supplanting Permissibility Recognition
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Engineer X Prior Sub-Consultant Arrangement Conflict Review Before Independent Acceptance
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Firms A and B Nominal Prime Contribution Self-Assessment Failure
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Engineer X Sub-Consultant Prior Arrangement Disclosure Upon Direct Agency Solicitation
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Firms A and B Nominal Prime Interposition Public Procurement Harm Recognition Failure
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Firms A and B Substantive Contribution Geographic Factor Calibration Failure
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Nominal Prime Contribution Self-Assessment and Broker-Role Transparency Capability
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Sub-Consultant Prior Arrangement Disclosure Upon Direct Agency Solicitation Capability
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Nominal Prime Interposition Public Procurement Harm Recognition Capability
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Specialist Direct Engagement Agency-Initiated Non-Supplanting Permissibility Recognition Capability
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Firm A Artfully Misleading Solicitation Statement
Firm A required the capability to recognize that its statement - technically true in that it had arranged Engineer X...
Firm B Artfully Misleading Solicitation Statement
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Engineer X Agency-Initiated Direct Solicitation Non-Supplanting Recognition
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Government Agency Procurement Information Asymmetry Recognition and Correction
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Firms A and B Competence Gap Subconsultant Engagement Planning Misuse
Firms A and B required the capability to recognize that engaging Engineer X as a sub-consultant to fill a competence...
Firms A and B Procurement Rationalization Resistance Failure
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BER Dual-Precedent Supplanting Prohibition Threshold Triangulation Capability
Capability of a licensed professional engineer or ethics adjudicator to retrieve and synthesize two or more prior...
Supplanting Prohibition Definite-Steps Threshold Verification Capability
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Engineer X Supplanting Prohibition Definite-Steps Threshold Verification
Engineer X was obligated to verify whether the supplanting prohibition was triggered before accepting the direct...
44 entities
Constraints
Cs
w=0.08
384D
Firm A Nominal Prime Broker Interposition Prohibition
Firm A was prohibited from representing itself as a capable prime contractor to the government agency when its...
Firm B Specialist-Retention Clause Contextual Reading Violation
Firm B was constrained from invoking the specialist-retention clause of Section 6 to justify its prime role when its...
Firms A and B Nominal Prime Role - Section 6 Competence Acceptance Prohibition
Firms A and B were prohibited by Section 6 from accepting the prime contract when their only substantive service...
Firms A and B Ethical Referral Obligation - Recommend Direct Specialist Engagement
Firms A and B were constrained, upon recognizing that their only substantive service would be brokerage, to...
Firm B Nominal Prime Broker Interposition Prohibition
Firm B was prohibited from representing itself as a capable prime contractor to the government agency when its...
Firm A Nominal Prime Contribution Substantiality Threshold Failure
Firm A was constrained by the prime professional responsibility standard to make a substantive technical...
Nominal Prime Contribution Substantiality Threshold Constraint
Ethical constraint establishing a minimum substantiality threshold for a licensed professional engineering firm's...
Firm B Nominal Prime Contribution Substantiality Threshold Failure
Firm B was constrained by the prime professional responsibility standard to make a substantive technical...
Firms A and B Honorable Competitive Conduct in Specialized Procurement
Firms A and B were required to conduct themselves honorably and fairly in the government procurement process, which...
Engineer X Prior Sub-Arrangement Disclosure Upon Direct Agency Solicitation
Engineer X was constrained to disclose to the government agency, when submitting his qualifications for direct prime...
Firms A and B Competitive Procurement Fairness Violation
Firms A and B were constrained by competitive procurement fairness requirements to not undermine the government...
Engineer X Competence Scope Confirmation for Direct Prime Engagement
Engineer X's acceptance of the prime role was constrained to work entirely within his field of expertise; the case...
Firms A and B Pertinent Fact Misrepresentation in Qualification Submission
Firms A and B were prohibited from misrepresenting pertinent facts in their qualification submissions -...
Prime Substantiality Geographic and Local Factor Calibration Constraint
Ethical constraint establishing that when assessing whether a prime professional engineering firm's proposed...
Agency Non-Bindingness to Original Solicitation List Upon Nominal-Contribution Determination Constraint
Ethical and procedural constraint establishing that a government procurement agency is not bound to select from...
Firm A Specialist-Retention Clause Contextual Reading Violation
Firm A was constrained from invoking the specialist-retention clause of Section 6 to justify its prime role when its...
Nominal Prime Broker Interposition Prohibition Constraint
Ethical constraint prohibiting a licensed professional engineering firm from interposing itself as a prime...
Specialist Prior Arrangement Personal Conscience Review Before Independent Acceptance Constraint
Ethical constraint requiring a licensed professional engineering specialist who was informally arranged as a...
Government Agency Non-Bindingness to Original Solicitation List - Engineer X Direct Contact
The government agency was not bound by the original solicitation list of 15 firms and was ethically and procedurally...
NSPE Board January 1971 Directive Individual Engineer Code Applicability - Firms A and B Engineers
Engineers within Firms A and B who had the power of decision or effective recommendation regarding the procurement...
NSPE Board January 1971 Directive Individual Engineer Code Applicability - Government Agency Engineers
Engineers within the government agency who had the power of decision or effective recommendation regarding the...
Firms A and B Geographic Factor Substantiality Calibration Failure
Firms A and B were constrained to assess whether their proposed contributions - including any geographic,...
Engineer X Personal Conscience Review of Prior Arrangements Before Independent Acceptance
Engineer X was constrained to carefully consider, before accepting the direct prime contract from the government...
Specialist Prior Sub-Arrangement Competing-Firm Disclosure Constraint
Ethical constraint requiring a licensed professional engineering specialist who has made prior informal arrangements...
Out-of-List Direct Agency Solicitation Procurement Integrity Constraint
Ethical and procedural constraint governing the permissibility of a government agency's direct solicitation of an...
Supplanting Prohibition Non-Activation Absent Client Definite Selection Constraint
Ethical constraint establishing that the anti-supplanting prohibition applicable to licensed professional engineers...
Firms A and B Artfully Misleading Procurement Statement Prohibition
Firms A and B were prohibited from making technically true but artfully misleading statements in their solicitation...
Government Agency Out-of-List Direct Solicitation of Engineer X
The government agency's direct solicitation of Engineer X - who was not on the original list of 15 firms - was...
Business-Form Non-Influence on Individual Ethics Code Conformance Constraint
Inviolable ethical constraint establishing that the organizational or business form through which engineering...
Prime Professional Specialist-Retention Clause Contextual Substantiality Reading Constraint
Ethical constraint requiring that the specialist-retention clause of NSPE Code Section 6 (former) - which recognizes...
Engineer X Supplanting Prohibition Non-Activation - No Definite Steps by Client
Engineer X was not constrained by the Section 11(a) supplanting prohibition from accepting the direct agency...
NSPE Code Individual Applicability - Firms A and B Engineer Conduct
The NSPE Code of Ethics applies to the individual engineers within Firms A and B who made the decision to submit...
Engineer X Supplanting Prohibition Non-Activation - No Definite Client Selection
The anti-supplanting prohibition did not constrain Engineer X from accepting the government agency's direct...
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