Public Contracting Practices

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It was not only ethical for Engineer B to complain to Engineer A, it was ethically required that Engineer B report his belief that statutory obligations were not being followed.It was ethical for Engineer A to investigate City D’s contracting practices, both as a part of A’s own familiarization process and to follow up on Engineer B’s complaints.Since the City D Engineer indicated they have no plans to change the contract arrangement with Firm Z, Engineer A is obligated to take appropriate action.

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This case focuses on the engineer's ethical obligation to comply with local and state procurement laws, including state registration board rules of professional conduct, that require consultant selection through a competitive QBS process. This case also discusses how engineers must conduct themselves honorably, responsibly, and fairly so as to maintain the public’s trust in professional procurement matters. The Board of Ethical Review (BER) Case 08-8 provides helpful precedent. This case discussed actions by the US Justice Department, in 1977, that required NSPE and other engineering and professional organizations to remove NSPE Code of Ethics (Code) provisions related to professional selection, compensation, restrictions on competitive bidding, free engineering, supplanting, advertising, and other practices, and the U.S. Supreme Court’s ruling in National Soc'y of Prof. Engineers v. United States, 435 U.S. 679 (1978). BER Case 08-8 concluded that one of the most fundamental outcomes of these antitrust actions and rules was the basic principle that federal, state, and local laws governing procedures to procure engineering services are not affected and remain in full force and effect. Earlier BER opinions confirm that engineers may, and sometimes must, challenge procurement practices that could compromise the public interest. For example, BER Case 80-1 examined a state agency’s selection method that mixed qualifications screening with a post-scoping meeting price proposal. Firms B and C publicly protested the award to Firm A because they believed a low-cost bid ($70,000-$80,000 less than Firm B and C) was unsafe and could lead to an inadequate design. The BER held that lodging such a protest was not an unfair competitive act under the Code. BER Case 80-1 includes an “Additional Views” section that provides that while those authors agree with the BER conclusions, “we feel that Firms B and C are walking a very thin line of ethical practices when they make a public stat...

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Engineer A, a licensed professional engineer, joins City D’s engineering department as the Assistant City Engineer, responsible for overseeing department staff, managing capital improvement programs, and supervising private development projects. Shortly after starting, Engineer A is approached by Engineer B, also a licensed professional engineer, the owner of a local civil engineering firm, who raises concerns about City D’s contracting practices. Engineers A and B have no historical relationship. Engineer B alleges that City D is exclusively awarding traffic engineering contracts to Firm X and civil engineering contracts to Firm Z without utilizing the request for qualifications (RFQ) process. Engineer B expresses frustration that this practice excludes other qualified firms from competing for City D contracts. City D is in a jurisdiction with strong qualification-based selection (QBS) procurement laws at the state and local levels codified within the state’s professional engineering licensure laws.Engineer A acknowledges the value of the RFQ and QBS processes in securing engineering services for public entities and commits to investigating Engineer B’s concerns. Through the investigation, Engineer A discovers that over the past seven years, City D has awarded consultant contracts exclusively to two firms: Firm X and Firm Z.City D hired Firm X seven years ago through an RFQ process to maintain the citywide traffic model and review traffic studies submitted by private developers. The contract includes an option for annual extensions for up to 10 years. The work provided by Firm X aligns with the original scope of the RFQ and the resulting contract, with four optional extensions remaining.City D has entered into five separate contracts with Firm Z over the past six years, with no recorded issues. Records show the first three contracts were awarded through a competitive RFQ process that attracted, on average, four submissions per advertisement. However, the two most r...

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Was it ethical for Engineer B to complain to Engineer A?Were Engineer A’s actions in investigating City D’s contracting practices ethical?Because City D’s Engineer refuses to change the contract arrangement with Firm Z, what steps must Engineer A take?

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I.4. Act for each employer or client as faithful agents or trustees. Subject Reference Employer Faithful Agents and Trustees I.6. Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession. II.1.e. Engineers shall not aid or abet the unlawful practice of engineering by a person or firm. Subject Reference Unethical Practice by Others II.1.f. Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required. III.6. Engineers shall not attempt to obtain employment or advancement or professional engagements by untruthfully criticizing other engineers, or by other improper or questionable methods. Subject Reference Unfair Competition III.7. Engineers shall not attempt to injure, maliciously or falsely, directly or indirectly, the professional reputation, prospects, practice, or employment of other engineers. Engineers who believe others are guilty of unethical or illegal practice shall present such information to the proper authority for action. Subject Reference Public Statements and Criticism Unethical Practice by Others III.8.a. Engineers shall conform with state registration laws in the practice of engineering. Subject Reference Licensure Laws
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D-tuple Component Breakdown

54

Total Entities

9/9

Components Populated

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Combined Embedding
Roles R
w=0.12 384D
Firm Z Civil Consultant
Civil engineering consultant holding five City D contracts over six years; the first three were awarded through...
Engineer A Assistant City Engineer
Newly hired Assistant City Engineer who investigates Engineer B's allegations about City D's contracting practices,...
Engineer B Civil Engineering Firm Owner
Owner of a local civil engineering firm who alleges that City D exclusively awards traffic and civil engineering...
City D Engineer City Engineer
City D's Engineer approved the two most recent Firm Z contracts without an RFQ process despite dollar amounts...
City D Contracting Client
Public-entity client that has awarded consultant contracts exclusively to Firm X and Firm Z over the past seven...
Firm X Traffic Consultant
Traffic engineering consultant hired by City D through an RFQ process seven years ago to maintain the citywide...
Private Developers Participants
Private developers submit traffic studies that Firm X reviews on behalf of City D.
Engineer A Faithful Agent
The discussion holds that Engineer A, having been made aware of potential unlawful practices, has an obligation not...
State Licensure Board Regulator
Identified by the Board as an avenue for Engineer B to raise concerns and as a body to which Engineer A, Engineer B,...
City Manager Stakeholder
Named by the Board as a stakeholder from whom it may be prudent for Engineer A to solicit input while proceeding...
City D Employer
Municipal government that employs Engineer A as Assistant City Engineer and City D's Engineer, operating in a...
Firm Z Employed Engineers
The Board holds that the engineers employed by Firm Z, along with the City D Engineer, are in violation of the...
City Attorney Stakeholder
Named by the Board as one of the other avenues Engineer B could use to raise concerns and as a stakeholder from whom...
13 entities
Principles P
w=0.2 384D
Integrity in Procurement Conduct
The Board's statement that engineers must conduct themselves honorably, responsibly, and fairly so as to maintain...
Registration Law Compliance in City D Procurement
The Board holds that the two recent Firm Z contract awards violated the procurement law, placing the City D Engineer...
Loyalty as Faithful Agent to City D
Engineer A's obligation to the City to act as a faithful agent or trustee, fulfilled by reviewing contracting...
QBS Compliance in City D Contracting
Engineer B raises the concern that City D exclusively awards contracts to Firm X and Firm Z without the RFQ process,...
4 entities
Obligations O
w=0.15 384D
Engineer B Code Violation Reporting Duty
Engineer B must report any alleged violation of the Code, per Code section II.1.f.
City Engineer QBS Compliance Duty
City D's Engineer must comply with the QBS procurement requirements by conducting an RFQ process and obtaining City...
Engineer A Faithful Agent Duty
Engineer A must act as a faithful agent or trustee of City D, including reviewing contracting procedures and...
Engineer A Appropriate Action Duty
Given the City D Engineer's refusal to address the Firm Z contract arrangement, Engineer A must take appropriate...
Engineer A Licensure Board Reporting Consideration
Engineer A must consider any obligations he may have to report the procurement law violations to the state licensure board.
City D Engineer Registration Law Duty
The City D Engineer must conform with state registration laws in the practice of engineering, including the...
Firm Z Engineers Registration Law Duty
The engineers employed by Firm Z must conform with state registration laws in the practice of engineering, including...
7 entities
States S
w=0.1 384D
Firm Z Contracts RFQ Noncompliance
City D's two most recent contracts with Firm Z
City Engineer Refusal Firm Z Contracts
City D Engineer
QBS Procurement Laws In Force
City D's contracting practices
Engineer A Noncompliance Knowledge
Engineer A
Firm Z Relationship Favoritism
City D's Engineer
Engineer B Report Made
Engineer B's report of the alleged Code violation to Engineer A
Firm X Contract Compliance
City D's contract with Firm X
City Engineer Acknowledged Noncompliance
City D's Engineer
8 entities
Resources Rs
w=0.1 384D
NSPE Code of Ethics
1 entity
Actions A
w=0.1 384D
Compliant RFQ Contract Award
Compliant Contract Awards
Non-Compliant Contract Award
Violation Reporting
Compliance Investigation
Findings Reporting
Corrective Action Refusal
7 entities
Events E
w=0.08 384D
Procurement Law Violation
Threshold Exceedance
Competitive Exclusion
Violation Discovery
Compliance Verification
Noncompliance Persistence
6 entities
Capabilities Ca
w=0.07 384D
Engineer A Fact Gathering Diligence
Engineer A Normative Framework Assessment
Engineer A Compliance Findings Disclosure
Engineer B Exclusionary Practice Recognition
City D Engineer Noncompliance Recognition
Engineer A Stakeholder Consultation
6 entities
Constraints Cs
w=0.08 384D
Engineer A Aid Abet Prohibition
Engineer A must not aid or abet the unlawful practice of engineering, including assisting or acquiescing in City D's...
City Engineer Contract Award Boundary
City D's Engineer must not award consultant contracts whose dollar amounts exceed the threshold solely on the City...
2 entities
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