Antitrust-Constrained Ethics Code Scope Invoked by NSPE BER in Procurement Context
The Board acknowledges that antitrust and First Amendment rulings have prohibited NSPE from issuing ethical guidance on professional selection and compensation, but affirms that procurement laws remain operative and govern the analysis of Engineer C's and Engineer A's conduct
The Board frames its analysis not through ethics code provisions on selection (which are prohibited) but through the principle that procurement law remains in force, treating that law as the operative ethical floor for evaluating the pre-selection arrangement
Antitrust-Constrained Ethics Code Scope Principle
among 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
The Board resolves the tension by treating procurement law as the governing standard, allowing ethical analysis to proceed despite the antitrust-imposed prohibition on direct ethics code guidance on selection practices
The Board believes that this case should be viewed in light of that basic principle
over the past 40 years, as a result of a series of actions undertaken by the U.S. Justice Department, antitrust, and First Amendment rulings by the U.S. Supreme Court, NSPE and other engineering organizations (as well as medical, legal, dental, and accounting professional societies) have been required to remove or modify Code of Ethics provisions
these professional groups, including NSPE, are prohibited from issuing ethical or other policy guidance in these and other areas
Antitrust and First Amendment Reshaping → Verbal Promise Conveyed (undermined enforceability)
Appearance of Impropriety Avoidance — Engineer C Verbal Promise to Engineer A's Firm
Engineer C's verbal promise to Engineer A's firm, made in recognition of grant-securing services, creates an appearance of impropriety that undermines the integrity of City X's public procurement process.
Appearance of Impropriety Avoidance in Public Procurement Constraint
Engineer C was constrained from making any informal verbal promise of future contract award to Engineer A's firm, as such a promise — even if well-intentioned as recognition of prior service — creates an appearance of favoritism and preferential treatment that is ethically impermissible in public procurement regardless of benign subjective intent.
NSPE Code of Ethics; Public Official Conflict of Interest Standard
In recognition of Engineer A's work in securing the grant, Engineer C, the chief city engineer, verbally promises to select Engineer A's firm on a future engineering project for City X.
At the time the verbal promise was made and for the duration of any future procurement involving Engineer A's firm
BER Case Precedent - Public Procurement Promise
NSPE Board of Ethical Review Cases on Public Procurement and Verbal Commitments
Engineer C, the chief city engineer, verbally promises to select Engineer A's firm on a future engineering project for City X
Ethics reviewers analyzing Engineer A and Engineer C conduct
Prior BER decisions addressing the ethical propriety of verbal promises or informal commitments by public officials to award future engineering contracts, providing analogical reasoning for evaluating Engineer C's promise and Engineer A's response
CausalLink_Submit Federal Grant Applicati
CausalLink_Verbally Promise Future Select
City X Future Engineering Contract — Minimum Public Announcement and Open Opportunity Requirement
The BER establishes that regardless of the specific procurement method used in City X, the minimum irreducible requirement of public announcement and open competition was violated by Engineer C's pre-selection promise to Engineer A.
Engineer C; City X procurement authority
Public Procurement Minimum Public Announcement and Open Opportunity Constraint
Any method of selecting an engineering firm for the future City X project must, at minimum, include a public announcement of the opportunity and a free and open opportunity for all qualified and eligible engineers and engineering firms to be considered — a minimum floor that Engineer C's verbal pre-selection promise entirely bypassed.
City X procurement laws and regulations (assumed); BER interpretive principle on minimum procurement standards
Regardless of the method of professional selection utilized in City X, one must assume that the method would, at a minimum, involve public announcement along with free and open opportunity for all qualified and eligible engineers and engineering firms to be considered for the contract
Applicable to the future City X engineering project referenced in Engineer C's verbal promise
{'entity_type': 'Municipal government', 'project_type': 'Wastewater treatment equipment upgrades', 'funding_source': 'Federal grant'}
City X is the public municipal client that obtains a federal grant for wastewater treatment equipment upgrades and retains engineering services for the design of those upgrades, bearing obligations of lawful and impartial procurement of engineering services.
{'type': 'benefits_from', 'target': 'Engineer A Grant Procurement Consulting Engineer'}
{'type': 'retains', 'target': 'Engineer B Civil Engineer Grant-Coordinating Prime Consultant'}
assist City X in applying for a federal grant for certain wastewater treatment equipment upgrades for the city's wastewater treatment facility
Engineer B is retained to design the waste water equipment upgrades
City X Procurement Authority — Competitive Process Enforcement Obligation Constraint
The BER assumes City X procurement laws were in place and that Engineer C's verbal pre-selection promise violated those laws by bypassing the required competitive selection process.
Public Procurement Procedural Compliance Constraint
City X public engineering contracts must be awarded only through formally mandated competitive qualification-based selection processes that comply with applicable procurement laws and regulations — prohibiting sole-source or pre-committed awards that bypass statutory procurement procedures, regardless of the prior relationship between the public official and the firm.
City X public procurement laws and regulations (assumed in force); NSPE Code of Ethics
For purposes of this case, this Board is assuming that public procurement laws and regulations were in place that outlined the policies and the procedures for selecting an engineering firm
Throughout all City X engineering procurement activities, including the future project referenced by Engineer C's verbal promise
Engineer C's action in verbally agreeing to select Engineer A's firm on a future engineering project for City X would constitute a subversion or a misuse of the existing procurement policies and procedures in place in City X
City X Procurement Law Primacy — Full Force and Effect Despite Antitrust Code Modifications
The BER grounds its analysis in the principle that procurement law primacy is the fundamental outcome of antitrust actions — meaning Engineer C's verbal promise must be evaluated against applicable procurement law, not merely against the reduced scope of NSPE code guidance.
Engineer C; City X procurement authority; Engineer A
Procurement Law Primacy Over Antitrust-Modified Code Constraint
Federal, state, and local procurement laws governing the selection of engineering firms for City X projects remain in full force and effect and are not diminished by antitrust-driven modifications to the NSPE Code of Ethics.
Federal, state, and local procurement statutes; BER interpretive principle
Throughout all City X engineering procurement activities
the Board believes that this case should be viewed in light of that basic principle
City X Public Procurement Integrity Obligation
Ongoing — applies to all future City X engineering procurements
Free and Open Competition Legal Framework Active State
City X's obligation to conduct future engineering procurement through proper competitive or qualification-based selection processes
Not terminated — persistent regulatory context
City X's status as a public entity subject to procurement law and engineering ethics requirements
City X Public Procurement Laws and Regulations
City X / applicable governmental authority
City X Public Procurement Laws and Regulations for Engineering Services
Qualification-Based Selection Procurement Law
this Board is assuming that public procurement laws and regulations were in place that outlined the policies and the procedures for selecting an engineering firm
NSPE Board of Ethical Review in evaluating Engineer C's conduct
The Board assumes public procurement laws and regulations were in place in City X governing the policies and procedures for selecting an engineering firm; Engineer C's verbal promise is evaluated as a subversion of these laws
Competitive Procurement Fairness — Engineer C City X Future Contract Promise
Engineer C verbally promised to select Engineer A's firm on a future City X engineering project in recognition of the firm's speculative grant-securing work, bypassing competitive procurement requirements.
Competitive Procurement Fairness Constraint
Engineer C, as chief city engineer with procurement authority over City X engineering contracts, was constrained from making any verbal promise to select Engineer A's firm for a future project, as all qualified firms must have equal opportunity to compete through open, advertised qualification-based selection processes.
NSPE Code of Ethics; City X public procurement laws and regulations; Public Procurement Open Competition Requirement
At the time of and following the verbal promise made to Engineer A's firm
Competitive Procurement Public Interest Alignment — City X
Active at the time of Engineer C's verbal commitment to Engineer A; assumed to be in place per the Board's analysis
Competitive Procurement Public Interest Alignment State
City X's public procurement system for engineering services
Not terminated within the scope of this case
one must assume that the method would, at a minimum, involve public announcement along with free and open opportunity for all qualified and eligible engineers and engineering firms to be considered for the contract
Board's assumption that public procurement laws and regulations were in place outlining policies and procedures for selecting an engineering firm in City X
It was not ethical for Engineer C to promise to select Engineer A’s firm on a future engineering project for City X.
Beyond the Board's finding that Engineer C's verbal promise was unethical, Engineer A bore an independent ethical obligation to refuse or disavow the promise upon receiving it. The NSPE Code's requirement that engineers conduct themselves honorably and avoid improper competitive methods applies symmetrically to both the party making and the party accepting an improper pre-selection commitment. By acquiescing to or continuing to rely on Engineer C's verbal promise without objecting, disclosing the arrangement, or requesting that any future City X project be awarded through a proper competitive process, Engineer A participated in the same structural subversion of procurement integrity that the Board condemned in Engineer C. The speculative, at-risk nature of Engineer A's grant work — while genuinely meritorious — does not create an entitlement to preferential future consideration, and Engineer A's professional sophistication as a firm principal should have made the impropriety of the arrangement apparent. Honorable professional conduct required Engineer A to affirmatively reject the improper advantage, not merely to refrain from soliciting it.
The Board's conclusion that Engineer C's promise was unethical applies with equal force regardless of whether the promise was verbal or written, and regardless of Engineer C's benevolent intent. From a deontological standpoint, the ethical violation inheres in the act of pre-committing a public procurement outcome to a specific firm before any qualification assessment, competitive announcement, or deliberative selection process has occurred — not in the formality of the instrument used to convey that commitment. A verbal promise by a chief city engineer carries the same structural harm to procurement integrity as a written one: it forecloses fair competition, creates a conflict of interest in Engineer C's future procurement decisions, and signals to other qualified firms that the opportunity is effectively closed. Engineer C's gratitude toward Engineer A's speculative contribution, while understandable as a human impulse, cannot serve as an ethical justification for bypassing the competitive process. Good intent does not neutralize structural procurement harm, and the Board's reasoning implicitly recognizes that the spirit and intent of public procurement law — not merely its formal procedural requirements — govern the ethical analysis.
Even if Engineer C had subsequently disclosed the verbal promise to City X's governing body and recused himself from the future procurement decision, such remedial steps — while ethically preferable to silence — would not fully cure the ethical violation already committed. The promise itself, once made, created a structural distortion in the procurement environment: Engineer A's firm would enter any subsequent competitive process with knowledge of a prior commitment from the chief city engineer, other firms would compete without awareness of that advantage, and the integrity of the qualification-based selection process would be compromised at its foundation. Disclosure and recusal address the conflict of interest prospectively but cannot retroactively restore the competitive equality that the promise destroyed. The Board's conclusion therefore implies that the ethical obligation runs not only to avoiding the consequences of the promise but to never issuing the promise in the first instance — a categorical prohibition that no subsequent remediation can fully satisfy. This analysis also underscores that Engineer C's ethical duty was to sequence procurement correctly: qualification assessment and open competition must precede any selection commitment, not follow it.
Engineer A bore an independent ethical obligation to reject or at minimum not acquiesce to Engineer C's verbal pre-selection promise. The NSPE Code's requirement that engineers conduct themselves honorably and avoid improper competitive methods is not passive — it imposes an affirmative duty on the beneficiary of an improper arrangement, not merely on its architect. By accepting or silently relying on the promise, Engineer A effectively participated in the subversion of the same public procurement integrity that the Code is designed to protect. The fact that the advantage arose unsolicited does not extinguish Engineer A's obligation; honorable professional conduct requires rejecting improper competitive advantages regardless of their origin. Engineer A's speculative contribution to the grant application, while genuine, does not create a license to benefit from procurement irregularities, and Engineer A's failure to object or disclose the arrangement compounds rather than mitigates the ethical harm.
Engineer A's speculative, at-risk contribution to securing the federal grant for City X does not create any legitimate basis for preferential consideration in future City X procurements. The public procurement context categorically extinguishes any such entitlement, regardless of the genuine merit or value of Engineer A's prior service. Public procurement law and engineering ethics both operate on the principle that past favorable performance — even performance rendered at personal financial risk — cannot be converted into a private claim on future public contracts outside of a competitive or qualification-based selection process. To hold otherwise would create a perverse incentive structure in which speculative contributions to public projects become informal currency for bypassing competitive procurement, directly undermining the public interest that procurement integrity is designed to serve. The merit of Engineer A's prior work is properly recognized through reputation, references, and qualifications submitted in an open competitive process — not through a private verbal promise from a public official.
Once Engineer C had made the verbal pre-selection promise to Engineer A's firm, he incurred an immediate and continuing obligation to disclose that promise to City X's procurement authority and to recuse himself from any future procurement decision involving Engineer A's firm. The conflict of interest created by the promise did not dissolve with time or inaction — it persisted and would have materially tainted any subsequent procurement decision in which Engineer C participated. Disclosure and recusal are the minimum remedial steps required by the principles of professional accountability and the avoidance of the appearance of impropriety. However, disclosure and recusal alone would not retroactively render the promise itself ethical; the promise remained an independent ethical violation regardless of subsequent remedial action. The Board's conclusion that the promise was unethical is therefore not contingent on whether Engineer C later disclosed or recused — the violation was complete at the moment the promise was made.
The informal, verbal nature of Engineer C's pre-selection promise does not mitigate its ethical severity relative to a written pre-award commitment. The NSPE Code's ethical standards are grounded in principles of honesty, integrity, and public welfare — none of which are contingent on the documentary form of a commitment. A verbal promise from a public official with procurement authority is ethically equivalent to a written one in its capacity to distort competitive procurement, create a conflict of interest, and undermine the public's confidence in the integrity of the selection process. Indeed, the informality of a verbal promise may aggravate rather than mitigate the ethical harm, because it is less visible to oversight mechanisms and more difficult for other stakeholders to detect and challenge. The Board's conclusion that the promise was unethical is therefore fully applicable regardless of whether the commitment was oral or written.
There is a genuine but ultimately resolvable tension between the principle that public welfare is paramount — which underlies procurement integrity — and the principle of honesty applied to Engineer A's situation. Engineer A's honest acknowledgment of a real, at-risk contribution to the grant process might superficially appear to justify some form of recognition. However, the resolution of this tension is clear: procurement integrity is itself an expression of the public welfare principle, not a competing value. Allowing informal pre-selection as a form of recognition for past speculative service would corrode the very system that protects the public from favoritism and inefficiency in public contracting. Honesty, properly understood, requires Engineer A to acknowledge both the legitimacy of the contribution and the illegitimacy of the mechanism chosen to recognize it. The two principles do not genuinely conflict — they converge on the conclusion that Engineer A's contribution deserved acknowledgment through proper channels, not through procurement bypass.
The antitrust-constrained scope of the NSPE Code creates a structural tension with the Board's competition-based ethical conclusions, but this tension does not undermine the Board's analysis. Following U.S. Department of Justice antitrust actions and Supreme Court First Amendment rulings, NSPE removed provisions that directly regulated competitive conduct such as competitive bidding prohibitions. However, the ethical obligation to preserve free and open competition in public procurement does not derive solely from NSPE Code provisions — it is independently grounded in public procurement law, public official conflict of interest standards, and the overarching Code principle that engineers must act in the public interest. The antitrust constraint limits NSPE's ability to regulate engineer-to-engineer competitive conduct, but it does not and cannot immunize a public official's abuse of procurement authority from ethical scrutiny. Engineer C's conduct is ethically impermissible not because it violates a competition-regulation provision of the Code, but because it violates the foundational duties of honesty, public welfare, and honorable conduct that remain fully intact after antitrust modifications.
Engineer C's benevolent intent — recognizing Engineer A's genuine contribution to the grant process — does not mitigate the ethical violation created by the pre-selection promise. From a professional accountability standpoint, the structural harm to procurement integrity is identical whether the pre-selection promise arises from corrupt self-dealing or from well-intentioned gratitude. Public procurement systems are designed to be objective and process-driven precisely because subjective judgments — even benevolent ones — by individual officials cannot be reliably distinguished from biased ones by outside observers or competing firms. The Board should weigh intent as contextually relevant to understanding the conduct but not as a factor that diminishes the ethical severity of the outcome. Good intent is a mitigating consideration in assessing Engineer C's character, but it is not a defense to the ethical violation itself. The principle that good intent does not justify procurement promises is a necessary bright-line rule to prevent the gradual erosion of procurement integrity through well-meaning exceptions.
The possibility that Engineer A's firm might genuinely be the most qualified firm for the future City X project does not render Engineer C's pre-selection promise ethically permissible. Strict procedural procurement integrity must override a substantively meritorious outcome in this context, for two reasons. First, the merit of Engineer A's firm for the future project cannot be assessed at the time the promise is made — it is speculative, and the promise is made without any qualification assessment of competing firms. Second, and more fundamentally, the value of competitive procurement lies not only in selecting the best firm but in demonstrating to the public, to competing firms, and to the broader profession that selection decisions are made impartially. A pre-selection promise, even one that happens to identify the most qualified firm, destroys this demonstrative value and creates a precedent that public officials may bypass process whenever they are confident in their preferred outcome. The ethical rule must therefore be categorical: procurement integrity is not subject to a merit-balancing exception.
From a deontological perspective, Engineer C violated a categorical duty to uphold impartial public procurement by issuing the verbal pre-selection promise, regardless of intent or outcome. The duty of a public official with procurement authority to conduct impartial selection processes is not a consequentialist rule that can be overridden when outcomes appear favorable — it is a deontological constraint grounded in the nature of the public trust Engineer C holds. Engineer C's role as chief city engineer creates a fiduciary-like obligation to City X and its citizens that is incompatible with private pre-commitments to any particular firm. The verbal promise constituted a unilateral appropriation of public procurement authority for a private purpose — recognition of a personal professional relationship — which is categorically impermissible regardless of the benevolence of the motive. The deontological analysis thus fully supports and deepens the Board's conclusion.
From a consequentialist perspective, Engineer C's verbal promise produced net harm to the public interest even if it was never formally acted upon. The harm is not limited to the direct distortion of a specific procurement outcome — it extends to the systemic effects of the promise itself. Other qualified engineering firms were effectively deterred from a fair opportunity to compete for the future City X project from the moment the promise was made. Engineer C's own decision-making capacity was compromised by the conflict of interest the promise created, reducing the quality of future procurement judgments. The promise, if known, would erode public confidence in City X's procurement system. And if unknown, it created an invisible structural bias that could not be corrected by other oversight mechanisms. Even under a consequentialist framework that is sensitive to outcomes, the aggregate harms of normalizing informal pre-selection promises in public procurement vastly outweigh any benefit derived from recognizing Engineer A's contribution through this mechanism.
From a virtue ethics perspective, Engineer C failed to demonstrate the professional integrity and impartiality expected of a chief city engineer. The virtues most relevant to Engineer C's role are fairness, impartiality, practical wisdom, and accountability — all of which are constitutive of what it means to be a trustworthy public official. Engineer C's decision to allow gratitude toward Engineer A's speculative grant work to override these virtues reflects a failure of practical wisdom: the inability to recognize that a benevolent impulse, when expressed through an abuse of procurement authority, becomes an ethical violation. A virtuous chief city engineer would have found appropriate ways to acknowledge Engineer A's contribution — public recognition, a letter of commendation, ensuring Engineer A's firm was aware of and invited to participate in future competitive processes — without compromising the impartiality of the procurement function. The virtue ethics analysis thus identifies not merely a rule violation but a character failure in Engineer C's exercise of professional judgment.
From a virtue ethics perspective, Engineer A's acquiescence to Engineer C's verbal pre-selection promise fell short of the professional honesty and integrity the NSPE Code demands. A virtuous engineer, upon receiving an unsolicited promise of future contract selection from a public official, would recognize the impropriety of the arrangement and decline it — not because declining is strategically advantageous, but because honorable professional conduct is intrinsically valued. Engineer A's failure to object or disclose reflects either an insufficient appreciation of the ethical dimensions of public procurement or a willingness to subordinate professional integrity to commercial self-interest. Either way, it represents a departure from the virtue of honesty as applied to competitive conduct. The virtue ethics framework thus supports the implicit conclusion that Engineer A bore independent ethical responsibility for the arrangement, complementing the Board's explicit focus on Engineer C's conduct.
Engineer C's conduct would have been ethical if, instead of issuing a verbal pre-selection promise, he had publicly acknowledged Engineer A's contribution and then ensured Engineer A's firm received fair consideration through a properly announced, open qualification-based selection process for the future City X project. This counterfactual identifies the precise ethical boundary: recognition of past service is not inherently impermissible, but the mechanism of recognition must be consistent with procurement integrity. Public acknowledgment, invitation to compete, and fair evaluation within a proper process would have honored Engineer A's contribution without distorting the competitive environment or creating a conflict of interest. This counterfactual also clarifies that the ethical violation in the actual case was not Engineer C's gratitude but his choice to express that gratitude through a procurement commitment rather than through legitimate means.
Had Engineer A explicitly refused Engineer C's verbal pre-selection promise and requested that any future City X project be awarded through a proper competitive or qualification-based selection process, Engineer A's ethical standing would have been fully preserved and the harm to procurement integrity would have been substantially mitigated. Engineer A's refusal would have constituted an affirmative act of professional integrity that not only protected Engineer A's own ethical position but also served the broader public interest by preventing the pre-selection arrangement from taking effect. While Engineer C's initial promise would remain an ethical violation regardless of Engineer A's response, Engineer A's refusal would have prevented the arrangement from persisting and would have signaled to Engineer C that the promise was inappropriate. This counterfactual reinforces the conclusion that Engineer A bore an independent ethical obligation to reject the promise, and that the failure to do so was itself ethically significant.
Even if Engineer A's firm had performed the speculative grant work under a formal written agreement directly with City X rather than through Engineer B, this would not have created a legitimate basis for preferential consideration in future procurements sufficient to justify Engineer C's pre-selection promise. A formal contractual relationship with City X would have established Engineer A's firm as a known and experienced contractor, which is relevant to qualifications — but qualifications are properly assessed within a competitive or qualification-based selection process, not converted into a private pre-commitment by a public official. The existence of a prior contract might legitimately inform City X's evaluation of Engineer A's firm in a future competitive process, but it cannot substitute for that process. The ethical analysis would therefore not change in any material respect: Engineer C's verbal pre-selection promise would remain impermissible regardless of the formal or informal nature of Engineer A's prior engagement with the city.
Even if Engineer C had disclosed the verbal promise to City X's governing body and recused himself from the future procurement decision, this disclosure and recusal would not have been sufficient to remedy the ethical violation — the promise itself would remain an irreparable ethical breach. Disclosure and recusal are necessary but not sufficient responses once a pre-selection promise has been made. The promise, once conveyed to Engineer A's firm, has already distorted the competitive environment: Engineer A's firm now possesses information about its preferred status that other competing firms do not have, creating an asymmetry that cannot be fully corrected by Engineer C's subsequent withdrawal from the process. Moreover, the promise may have influenced Engineer A's firm's decision to invest resources in pursuing the City X project, further entrenching the distortion. Disclosure and recusal are the minimum ethical obligations that arise after the promise is made, but they do not retroactively render the promise permissible or eliminate all of its harmful effects.
The tension between recognizing Engineer A's legitimate speculative contribution and maintaining categorical procurement integrity was resolved decisively in favor of procurement integrity, with no residual weight given to merit-based equities. The Board's reasoning implicitly establishes a hierarchy in which the principle that public welfare is paramount — as expressed through open, competitive procurement — overrides any principle of fairness or recognition owed to an engineer for prior at-risk service. This resolution teaches that in public procurement contexts, the mechanism of selection is not merely procedural but is itself a substantive public interest requirement: even a genuinely meritorious firm cannot receive preferential treatment through informal pre-selection, because the harm to the procurement system's integrity is independent of whether the selected firm would have won a fair competition. The case thus subordinates individual equitable claims to systemic procurement integrity as a categorical rule, not a balancing test.
The principle of professional accountability applied to Engineer C's abuse of procurement authority and the principle that good intent does not justify structural procurement harm were not in tension — they were mutually reinforcing. The Board's implicit reasoning treats Engineer C's benevolent motive as ethically irrelevant to the wrongfulness of the pre-selection promise. This synthesis teaches a critical lesson about the ethics of public office: the structural harm caused by bypassing competitive procurement is the same whether the bypassing official acts from corrupt self-interest or from genuine gratitude. Intent may be relevant to moral culpability in other contexts, but in public procurement ethics, the act of pre-committing a public contract outside proper process is itself the violation, regardless of the purity of the official's motivation. Engineer C's capability to resist procurement rationalization — the temptation to justify the promise as a reasonable reward — was the precise professional virtue the Code demanded, and its absence constitutes the ethical failure.
The antitrust-constrained scope of the NSPE Code creates a latent but significant tension with the principle of free and open competition that the Board otherwise treats as foundational to procurement ethics. Because antitrust rulings and First Amendment constraints have limited NSPE's ability to directly regulate competitive conduct — particularly around engineer selection and compensation — the Code's competition-based ethical obligations in the procurement context must be grounded in public welfare and honorable conduct provisions rather than explicit competitive practice rules. This means the enforceability of the anti-pre-selection norm depends on general provisions such as the duty to conduct oneself honorably and lawfully, rather than on specific competitive conduct prohibitions. The case teaches that where antitrust constraints erode the Code's direct regulatory reach over competition, the Board must rely on broader ethical principles — public welfare, honesty, and professional accountability — to carry the normative weight that more specific competition rules cannot. This structural gap does not weaken the ethical conclusion, but it does reveal that the Code's competition-protecting function in public procurement is sustained by principle synthesis rather than explicit rule application, making the Board's reasoning more dependent on the coherence of its underlying ethical framework than on textual specificity.
Convenience-Based Sole Source Prohibition — Engineer C City X Future Contract
The verbal promise to select Engineer A's firm effectively pre-commits a sole-source award based on prior relationship and appreciation rather than competitive merit, which is prohibited under public procurement norms.
Convenience-Based Sole Source Prohibition Constraint
Engineer C was constrained from justifying a non-competitive, sole-source award of a future City X engineering contract to Engineer A's firm on the basis of familiarity, prior relationship, or appreciation for speculative grant services, when statutory procurement procedures mandate competitive qualification-based selection.
City X public procurement laws; NSPE Code of Ethics procurement provisions
For any future City X engineering procurement following the verbal promise
Should Engineer C issue a verbal pre-selection promise to Engineer A's firm for a future City X project, or refrain from any pre-commitment and ensure selection proceeds through a formal competitive qualification-based process?
Engineer C, as chief city engineer of City X with procurement authority, faces the decision of whether to verbally promise Engineer A's firm future contract selection as recognition for Engineer A's speculative grant work, or to channel any recognition through proper procurement processes.
Verbally promise Engineer A's firm selection on the future City X project as recognition for the speculative grant contribution, treating the informal commitment as a reasonable reward outside formal procurement channels.
Publicly acknowledge Engineer A's contribution through commendation or public recognition, then ensure Engineer A's firm is invited to participate in a properly announced, open qualification-based selection process for the future project — without any pre-commitment to the outcome.
Make no promise or acknowledgment to Engineer A regarding future projects, and refer all future City X engineering contract decisions to a formal procurement process administered without Engineer C's personal involvement, given the prior relationship.
Should Engineer A accept or acquiesce to Engineer C's verbal pre-selection promise as recognition for prior speculative grant work, or affirmatively decline the promise and request that any future City X project be awarded through a proper competitive or qualification-based selection process?
Engineer A, upon receiving Engineer C's verbal pre-selection promise, must decide whether to accept or acquiesce to the promise as legitimate recognition for speculative grant work, or to affirmatively reject it and insist on participation in a proper competitive process.
Accept or silently acquiesce to Engineer C's verbal promise, treating it as reasonable recognition for genuine at-risk speculative service rendered to City X, and structure business expectations around the anticipated future award.
Affirmatively decline or repudiate Engineer C's verbal promise and explicitly request that any future City X project be awarded through a properly announced, open qualification-based selection process in which Engineer A's firm will compete on equal terms with other qualified firms.
Neither formally accept nor explicitly reject the promise, but refrain from actively relying upon it or structuring business decisions around it, treating the verbal commitment as non-binding while awaiting a formal procurement announcement before investing resources in pursuit of the project.
After making the verbal pre-selection promise, should Engineer C disclose the promise to City X's procurement authority and recuse himself from future procurement decisions involving Engineer A's firm, or allow the procurement to proceed without disclosure or recusal?
Engineer C, having already made the verbal pre-selection promise to Engineer A's firm, must decide whether to disclose the promise to City X's governing procurement authority and recuse himself from future procurement decisions involving Engineer A's firm, or to allow the procurement to proceed without disclosure.
Immediately disclose the verbal pre-selection promise to City X's governing body and procurement authority, recuse himself from all future procurement decisions involving Engineer A's firm, and ensure the future project proceeds through an open competitive qualification-based process administered by a different official.
Allow the future procurement to proceed under Engineer C's authority without disclosing the prior verbal promise, treating the informal commitment as a private matter that does not rise to the level of a formal conflict of interest requiring disclosure under City X's procurement regulations.
Quietly withdraw from the future procurement decision by delegating it to another official without formally disclosing the prior verbal promise to City X's governing body, treating recusal alone as sufficient to cure the conflict of interest without creating a public record of the improper promise.
Should Engineer A treat the speculative grant contribution as creating a legitimate basis for preferential consideration in future City X procurements, or acknowledge that public procurement integrity categorically forecloses any such entitlement regardless of the genuine merit of the prior service?
The board must determine whether Engineer A's speculative, at-risk contribution to securing the federal grant for City X creates any legitimate basis for preferential consideration in future City X procurements, or whether the public procurement context categorically extinguishes any such entitlement regardless of the merit of the prior service.
Treat the speculative grant contribution as creating a legitimate basis for preferential consideration in future City X procurements, accepting Engineer C's promise as a reasonable recognition of genuine at-risk service and structuring expectations around that entitlement.
Acknowledge that the speculative contribution creates no entitlement to preferential selection, decline any informal pre-selection arrangement, and compete for the future City X project through a properly announced open qualification-based process — leveraging the prior grant work only as a qualification reference within that process.
Request that City X formally evaluate whether its procurement regulations permit a continuity-of-service or demonstrated-familiarity preference that could legitimately weight Engineer A's prior grant work within a formal qualification assessment process, rather than relying on an informal verbal promise.
Should the board ground its condemnation of Engineer C's pre-selection promise in the NSPE Code's antitrust-constrained competition provisions, or rely instead on the foundational Code principles of public welfare, honesty, and honorable conduct — together with independent procurement law — to sustain the ethical prohibition against pre-selection?
The board must address whether the antitrust-constrained scope of the NSPE Code — which removed explicit competitive conduct provisions following DOJ antitrust actions and First Amendment rulings — weakens the ethical enforceability of competition-based obligations against Engineer C's pre-selection promise, or whether foundational Code principles of public welfare, honesty, and honorable conduct independently sustain the anti-pre-selection norm.
Base the ethical condemnation of Engineer C's promise primarily on whatever competition-related Code provisions survived antitrust modification, accepting that the Board's authority to regulate competitive procurement conduct is correspondingly limited in scope and enforceability.
Ground the ethical condemnation of Engineer C's promise in the foundational Code principles of public welfare, honesty, and honorable conduct — which remain fully intact after antitrust modifications — together with the independent authority of applicable federal, state, and local procurement laws, without relying on removed competition-specific provisions.
Explicitly acknowledge that the antitrust-constrained Code creates a structural gap in direct competition regulation, decline to extend Code analysis into that gap, and defer entirely to applicable procurement law as the operative ethical standard — treating the Code's role as supplementary rather than primary in this procurement context.
Should the board treat Engineer C's benevolent intent as a mitigating factor that reduces the ethical severity of the pre-selection promise, or apply a categorical bright-line rule under which good intent provides no defense to structural procurement harm regardless of the purity of the official's motivation?
The board must determine how to weigh Engineer C's benevolent intent — genuine gratitude for Engineer A's speculative contribution — against the structural harm to procurement integrity caused by the pre-selection promise, and whether good intent constitutes any mitigation of the ethical violation or whether procurement ethics demands a categorical bright-line rule independent of intent.
Recognize Engineer C's benevolent intent as a meaningful mitigating factor that reduces the ethical severity of the pre-selection promise, distinguishing gratitude-driven pre-selection from corrupt self-dealing and applying a less categorical condemnation that acknowledges the human reasonableness of the gesture.
Apply a categorical bright-line rule under which good intent provides no defense to structural procurement harm — condemning Engineer C's promise as a full ethical violation regardless of the purity of the motivation, because the structural harm to competitive procurement integrity is identical whether the promise arises from gratitude or corruption.
Treat the pre-selection promise as a full ethical rule violation while distinguishing the character assessment — acknowledging that Engineer C's benevolent motive is relevant to evaluating professional character and culpability even though it does not eliminate the procurement integrity violation itself.
Engineer A Firm Client Relationship with Engineer B
From initial retention through grant application completion
Engineer A's firm is retained on a speculative basis by Engineer B, a local civil engineer, to assist City X in applying for a federal grant
Professional relationship between Engineer A's firm and Engineer B (acting on behalf of City X)
Completion of grant application work; Engineer B retained separately for design
Engineer B retains Engineer A's firm to assist with grant application
Engineer A Firm Speculative Grant Engagement
From initial retention through successful grant award
Engineer A's firm is retained on a speculative basis by Engineer B, a local civil engineer, to assist City X in applying for a federal grant for certain wastewater treatment equipment upgrades
Engineer A's firm retained by Engineer B to assist City X with federal grant application
Successful grant award and Engineer B's retention for design work
Engineer B retains Engineer A's firm on speculative basis to assist with federal grant application
Engineer A Grant Procurement Consulting Engineer
{'license': 'Professional Engineer (implied as firm principal)', 'specialty': 'Mechanical and electrical engineering', 'firm_size': 'Medium-sized', 'engagement_basis': 'Speculative'}
Principal of a medium-sized mechanical/electrical engineering firm retained on a speculative basis by Engineer B to assist City X in applying for a federal grant for wastewater treatment equipment upgrades; later verbally promised a future city project by Engineer C as recognition for the grant work.
{'type': 'receives_promise_from', 'target': 'Engineer C Chief City Engineer Procurement Authority'}
{'type': 'retained_by', 'target': 'Engineer B Civil Engineer Grant-Coordinating Prime Consultant'}
{'type': 'serves', 'target': 'City X Municipal Infrastructure Client'}
Engineer A is a principal in a medium-sized engineering firm with expertise in mechanical and electrical engineering
Engineer A's firm is retained on a speculative basis by Engineer B
In recognition of Engineer A's work in securing the grant, Engineer C, the chief city engineer, verbally promises to select Engineer A's firm on a future engineering project
Engineer A Honorable Procurement Conduct Pre-Selection Arrangement
Honorable Procurement Conduct Self-Regulation Capability
Engineer A required the capability to conduct the firm honorably and fairly in all procurement-related matters, including by declining Engineer C's verbal pre-selection promise and insisting that any future City X contract be awarded through proper competitive procurement processes.
Engineer A received an informal pre-selection promise from Engineer C and was obligated to decline it to maintain honorable procurement conduct.
Failure to exercise this capability: Engineer A's firm accepted the verbal pre-selection promise rather than declining it on honorable procurement conduct grounds.
Engineer A is a principal in a medium-sized engineering firm
Engineer A Honorable Procurement Conduct Self-Regulation Acceptance City X
Engineer A was required to conduct the firm honorably and fairly in all procurement-related matters, including declining or repudiating Engineer C's verbal pre-selection promise rather than acquiescing to or relying upon it.
Engineer A's acceptance of the verbal pre-selection promise was inconsistent with honorable procurement conduct and the spirit of the NSPE Code of Ethics.
Failure to exercise this capability: Engineer A's firm accepted or acquiesced to the improper verbal pre-selection promise.
By promising Engineer A in advance that Engineer A would be selected for a future contract without considering the qualifications, experience, and other factors is not consistent with either the spirit or the intent of the NSPE Code of Ethics.
Engineer A Honorable Professional Conduct Procurement Acceptance City X
Engineer A's firm received or acquiesced to Engineer C's verbal promise of future contract selection, making the firm a participant in the procurement integrity violation identified by the Board.
Honorable Professional Conduct in Procurement Obligation
Engineer A was obligated to conduct himself honorably, responsibly, and fairly in all procurement-related matters — including declining or repudiating Engineer C's verbal pre-selection promise — so as to maintain the public's trust in professional procurement processes and to avoid complicity in a procurement integrity violation.
At the time Engineer A's firm received or acquiesced to Engineer C's verbal pre-selection promise.
free and open opportunity for all qualified and eligible engineers and engineering firms to be considered for the contract.
Engineer A Honorable Professional Conduct Procurement Pre-Selection Arrangement
Engineer A's firm received a verbal pre-selection promise from Engineer C outside any formal competitive process, creating an informal arrangement that undermined procurement integrity.
Engineer A was obligated to conduct the firm honorably and fairly in all procurement-related matters, including by declining Engineer C's verbal pre-selection promise and insisting on participation in a formal competitive process, so as to maintain the public's trust in professional procurement processes.
Upon receipt of Engineer C's verbal promise and throughout any subsequent procurement process
Engineer A Improper Competitive Advantage Recognition Pre-Selection Promise
Improper Competitive Advantage Recognition Capability
Engineer A required the capability to recognize that the verbal pre-selection promise from Engineer C created an improper competitive advantage for the firm over other qualified engineering firms that would compete for the future City X project through proper procurement channels.
Engineer A's firm received a verbal pre-selection promise that would give it an improper competitive advantage over other firms in the future City X procurement.
Failure to exercise this capability: Engineer A did not recognize or act upon the improper competitive advantage conferred by Engineer C's verbal promise.
{'license': 'Professional Engineer (implied)', 'specialty': 'Mechanical and electrical engineering', 'firm_role': 'Principal'}
Serves as principal of the medium-sized mechanical and electrical engineering firm, bearing institutional authority over the firm's engagement decisions and ethical acceptability of the speculative grant-assistance arrangement and the subsequent verbal promise of future work.
{'type': 'leads', 'target': "Engineer A's engineering firm"}
Engineer A Procurement-Bypassing Engineering Firm
{'entity_type': 'Engineering firm', 'procurement_context': 'Public municipal engineering services', 'improper_commitment': 'Verbal advance promise of future contract selection'}
Engineer A's firm received a verbal advance promise from Engineer C (Chief City Engineer) that it would be selected for a future City X engineering contract, outside of open and competitive procurement procedures, in violation of the spirit and intent of the NSPE Code of Ethics and applicable public procurement laws.
{'type': 'improper_promise_recipient_from', 'target': 'Chief City Engineer Procurement Authority (Engineer C)'}
{'type': 'prospective_service_provider_to', 'target': 'City X Municipal Client'}
verbally agreeing to select Engineer A's firm on a future engineering project for City X
By promising Engineer A in advance that Engineer A would be selected for a future contract without considering the qualifications, experience, and other factors
Engineer A Public Procurement Integrity Articulation Pre-Selection Context
Public Procurement Integrity Public Interest Articulation Capability
Engineer A required the capability to understand and articulate the public interest rationale underlying strict public procurement rules — including that free and open competitive processes protect the public and the profession — and to apply this understanding when evaluating whether to accept or decline Engineer C's verbal pre-selection promise.
Engineer A received a verbal pre-selection promise and required understanding of public procurement integrity principles to recognize the obligation to decline it.
Failure to exercise this capability: Engineer A did not apply public procurement integrity rationale when receiving and responding to Engineer C's verbal pre-selection promise.
Engineer A Speculative At-Risk Service Entitlement Non-Inference Grant Work
Speculative At-Risk Service Entitlement Non-Inference Capability
Engineer A required the capability to recognize that the firm's successful speculative contribution to City X's federal grant application — undertaken without guarantee of compensation or future work — did not create a legitimate entitlement to future contract awards, and that any informal promise of preferential selection based on this contribution must be declined.
Engineer A's firm provided speculative grant assistance and received a verbal pre-selection promise as recognition, which it was obligated to decline as an improper entitlement.
Failure to exercise this capability: Engineer A's firm accepted the verbal pre-selection promise as appropriate recognition of its speculative grant contribution rather than recognizing it as an improper entitlement inference.
In recognition of Engineer A's work in securing the grant, Engineer C, the chief city engineer, verbally promises to select Engineer A's firm
The application is successful, City X obtains the grant
Engineer A Speculative Contribution Non-Entitlement Acknowledgment Grant Work
Engineer A's firm was retained on a speculative basis to assist with a federal grant application. After the grant was secured, Engineer C offered a future contract as recognition for this speculative work.
Speculative Contribution Non-Entitlement Acknowledgment Obligation
Engineer A was obligated to recognize that the firm's speculative contribution to City X's federal grant application — undertaken without guaranteed compensation — did not create an entitlement to subsequent contract awards, and to refrain from treating, representing, or accepting Engineer C's promise as a legitimate basis for preferential selection on future City X projects.
In recognition of Engineer A's work in securing the grant, Engineer C, the chief city engineer, verbally promises to select Engineer A's firm on a future engineering project for City X
Engineer A Speculative Grant Services Non-Entitlement — City X Future Contract
Engineer A's firm assisted City X in securing a federal grant without guaranteed compensation, and Engineer C subsequently promised future work as recognition — but the speculative nature of the prior services does not create a procurement entitlement that bypasses competitive selection.
Speculative Contribution Non-Entitlement to Preferential Award Constraint
Engineer A's speculative contribution to City X's federal grant application — undertaken without guaranteed compensation — created no ethical entitlement to preferential or non-competitive award of the subsequent City X engineering contract, and any expectation of future award based on that prior speculative contribution is ethically impermissible.
NSPE Code of Ethics; public procurement fairness norms; BER interpretive principle
By promising Engineer A in advance that Engineer A would be selected for a future contract without considering the qualifications, experience, and other factors is not consistent with either the spirit or the intent of the NSPE Code of Ethics
From the completion of the speculative grant-securing services through any subsequent procurement process for the referenced City X project
Engineer A Verbal Pre-Selection Promise Non-Acceptance City X
Verbal Pre-Selection Promise Non-Acceptance Capability
Engineer A, as principal of the engineering firm that received Engineer C's verbal pre-selection promise, required the capability to recognize the promise as an improper pre-selection arrangement and to decline or actively repudiate it rather than acquiesce to or rely upon it.
Engineer A received a verbal promise from Engineer C that the firm would be selected for a future City X engineering project as recognition for grant work.
Failure to exercise this capability: Engineer A's firm received and apparently accepted Engineer C's verbal pre-selection promise without repudiating it as an improper procurement commitment.
Engineer A Verbal Pre-Selection Promise Non-Acceptance City X Future Project
Engineer C verbally promised to select Engineer A's firm on a future City X engineering project as recognition for Engineer A's speculative grant work. Engineer A's firm received this promise without documented declination.
Verbal Pre-Selection Promise Non-Acceptance Obligation
Engineer A, as principal of the engineering firm that received Engineer C's verbal pre-selection promise, was obligated to decline or actively repudiate that promise and to refrain from acquiescing to or acting upon it, recognizing that acceptance or acquiescence made the firm complicit in a procurement integrity violation and conferred an unfair competitive advantage over other qualified firms.
Upon receipt of Engineer C's verbal promise
Engineer A Verbal Pre-Selection Promise Non-Acceptance Procurement Sequencing
Qualification-Prior-to-Commitment Procurement Sequencing Capability
Engineer A, as principal of the receiving firm, was required to recognize that accepting an advance verbal promise of selection — made before any qualification review — was inconsistent with proper procurement sequencing and professional ethics obligations.
Engineer A received a verbal promise of future selection from Engineer C without the promise being grounded in any qualification review process.
Failure to exercise this capability: Engineer A's firm accepted or acquiesced to Engineer C's verbal pre-selection promise.
Engineer A Verbal Procurement Promise Non-Reliance — City X Future Contract
Engineer A received a verbal pre-selection promise from Engineer C as recognition for the firm's speculative grant-securing services, but was ethically prohibited from treating that promise as a legitimate basis for expecting or claiming the future contract.
Verbal Procurement Promise Non-Reliance Constraint
Engineer A was prohibited from relying upon or structuring business expectations around Engineer C's informal verbal promise of future City X contract award, and was required to compete for any subsequent public contract through proper competitive or qualification-based selection processes regardless of the prior verbal commitment received.
NSPE Code of Ethics; City X procurement laws and regulations
From the time Engineer A received Engineer C's verbal promise through any subsequent procurement process for the referenced City X project
Engineer A's firm retained on speculative basis for grant application before grant application success and City X obtaining the grant
Engineer A's grant assistance work before Engineer C's verbal promise
Engineer B Civil Engineer Grant-Coordinating Prime Consultant
{'license': 'Professional Engineer — Civil', 'specialty': 'Civil engineering', 'locality': 'Local'}
Local civil engineer who retains Engineer A's firm on a speculative basis to assist City X with a federal grant application, and who is subsequently retained as the design engineer for the wastewater treatment equipment upgrades after the grant is awarded.
{'type': 'designs_for', 'target': 'City X Municipal Infrastructure Client'}
{'type': 'retains', 'target': 'Engineer A Grant Procurement Consulting Engineer'}
Civil Engineer Grant-Coordinating Prime Consultant
Engineer B retained to design wastewater upgrades meets Engineer C's verbal promise to select Engineer A's firm on a future project
Engineer C Antitrust-Constrained Ethics Code Scope Recognition City X Procurement
Engineer C, as chief city engineer with procurement authority over City X engineering contracts, made a verbal pre-selection promise to Engineer A's firm. The Board frames its analysis by first establishing that procurement laws remain in full force notwithstanding antitrust constraints on NSPE ethics code guidance.
Engineer C (Chief City Engineer, City X)
Antitrust-Constrained Ethics Code Scope Recognition Obligation
Engineer C was obligated to recognize that while NSPE ethics code guidance on professional selection practices is constrained by antitrust rulings, applicable federal, state, and local procurement laws governing engineering service selection remain in full force and must be complied with — and that the absence of direct ethics code guidance on selection does not create a permissive space for procurement violations.
federal, state, and local laws governing procedures to procure engineering services are not affected and remain in full force and effect.
At the time Engineer C exercised procurement authority and made the verbal pre-selection promise to Engineer A's firm.
Engineer C's action in verbally agreeing to select Engineer A's firm on a future engineering project for City X would constitute a subversion or a misuse of the existing procurement policies and procedures in place in City X.
The Board believes that this case should be viewed in light of that basic principle.
Engineer C Antitrust Procurement Law Contextual Awareness City X
Antitrust and Procurement Law Contextual Awareness Capability
Engineer C was required to understand the historical and legal context of engineering procurement law — including that antitrust actions constrained NSPE ethics code guidance but left federal, state, and local procurement laws fully operative — and to apply this understanding when evaluating the legality and ethics of his verbal pre-selection promise.
Engineer C's conduct must be evaluated against the backdrop of antitrust rulings that constrained NSPE guidance but preserved the full force of procurement law.
The Board's analysis situating Engineer C's conduct within the antitrust-constrained but procurement-law-operative framework.
Over the past 40 years, as a result of a series of actions undertaken by the U.S. Justice Department, antitrust, and First Amendment rulings by the U.S. Supreme Court, NSPE and other engineering organizations have been required to remove or modify Code of Ethics provisions.
Among 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.
Engineer C Appearance of Impropriety — Verbal Pre-Selection Promise to Engineer A
The BER's analysis implicitly invokes the appearance-of-impropriety standard by characterizing Engineer C's promise as inconsistent with the spirit and intent of the NSPE Code, even where the motivation was appreciative rather than corrupt.
Engineer C's verbal promise to award a future City X contract to Engineer A's firm — even if motivated by genuine appreciation for prior grant-securing services — created an appearance of favoritism and impropriety in public procurement that is ethically impermissible regardless of benign intent.
NSPE Code of Ethics; public procurement fairness norms
At the time of Engineer C's verbal promise and throughout any subsequent procurement process for the referenced City X project
Engineer C Benevolent Motive Non-Justification Procurement Promise
Benevolent Motive Non-Justification Recognition Capability
Engineer C required the capability to recognize that the benevolent and appreciative motivation behind the verbal pre-selection promise — recognition of Engineer A's speculative grant contribution — did not render the promise ethically permissible, and that good intentions cannot justify procedurally improper procurement conduct.
Engineer C's verbal promise was motivated by recognition of Engineer A's grant work, but this benevolent motive did not excuse the procurement impropriety.
Failure to exercise this capability: Engineer C issued the verbal promise motivated by genuine appreciation, without recognizing that benevolent intent does not justify bypassing competitive procurement.
Engineer C Chief City Engineer Procurement Authority
{'license': 'Professional Engineer (implied as chief city engineer)', 'title': 'Chief City Engineer', 'authority': 'Engineering contract selection for City X'}
Chief city engineer of City X who verbally promises to select Engineer A's firm on a future engineering project as recognition for Engineer A's role in securing the federal grant — raising serious ethical concerns about improper procurement promises and quid pro quo arrangements.
{'type': 'employs', 'target': 'City X Municipal Infrastructure Client'}
{'type': 'promises_future_work_to', 'target': 'Engineer A Grant Procurement Consulting Engineer'}
Chief City Engineer Procurement Authority
Engineer C Competitive Procurement Fairness Assessment City X Future Contract
Competitive Procurement Fairness Assessment Capability
Engineer C was required to assess whether his conduct — verbally promising future selection to Engineer A's firm — provided fair and open competitive opportunity to all qualified firms, and to recognize that it did not.
As chief city engineer with procurement authority, Engineer C was obligated to ensure that the future City X project was awarded through open, competitive, qualification-based selection.
Failure to exercise this capability: Engineer C's verbal promise foreclosed competitive opportunity for other qualified firms.
Regardless of the method of professional selection utilized in City X, one must assume that the method would, at a minimum, involve public announcement along with free and open opportunity for all qualified and eligible engineers and engineering firms to be considered for the contract.
Engineer C Competitive Procurement Fairness City X Future Contract
Engineer C's verbal promise to select Engineer A's firm on a future City X project, made outside any competitive selection process, denied all other qualified engineering firms fair and equal competitive access to that project.
Competitive Procurement Fairness Obligation
Engineer C, serving as chief city engineer with procurement authority, was obligated to ensure that the future City X engineering project referenced in the verbal promise was awarded through an open, competitive, qualification-based process providing all qualified firms a fair opportunity to compete, rather than through an informal pre-selection arrangement.
At the time of making the verbal promise and in administering the future contract award process
In recognition of Engineer A's work in securing the grant
Engineer C Competitive Procurement Fairness City X Future Project
Engineer C's verbal promise to Engineer A's firm constituted an exclusive pre-selection arrangement that denied all other qualified engineering firms fair and equal competitive access to the future City X contract.
Engineer C was obligated to ensure that the future City X engineering contract was awarded through an open, competitive, and qualification-based process providing all qualified firms a fair opportunity to compete, and to refrain from establishing an exclusive pre-selection arrangement with Engineer A's firm that circumvented competitive procurement requirements.
At the time Engineer C exercised procurement authority over the future City X engineering project.
Engineer C Conflict of Interest from Promise
From the moment of the verbal promise through any future procurement decision involving Engineer A's firm
Engineer C's personal commitment to Engineer A's firm conflicting with official duty to conduct impartial procurement
Formal recusal from future procurement, or rescission of promise and proper process
Engineer C makes a personal verbal promise to select Engineer A's firm, creating a personal obligation that conflicts with official impartiality duties
Engineer C Engineering Profession Free Competition Legal Framework Recognition City X
Engineering Profession Free Competition Legal Framework Recognition Capability
Engineer C was required to recognize that engineering procurement operates within a legal framework of free and open competition — including that NSPE code provisions formerly restricting competition were removed following antitrust action — and that his verbal pre-selection promise violated this framework.
Engineer C's verbal promise to Engineer A's firm was inconsistent with the free and open competition framework that governs engineering procurement.
The Board's framing of the case within the free competition legal framework established by antitrust rulings.
Engineer C Good Intent Non-Justification Procurement Promise City X
Engineer C's verbal promise was made 'in recognition' of Engineer A's work, suggesting a constructive and appreciative motivation rather than corrupt intent, but the promise nonetheless circumvented competitive procurement requirements.
Good Intent Non-Justification for Procedural Impropriety Obligation
Engineer C was obligated to recognize that the benign and appreciative motivation behind the verbal pre-selection promise — recognition of Engineer A's genuine contribution to securing the grant — did not render the promise ethically permissible, and that good intent cannot justify bypassing formal competitive procurement processes.
At the time Engineer C made the verbal promise
Engineer C Good Intent Non-Justification — Verbal Pre-Selection Promise City X
The BER's analysis establishes that even well-intentioned recognition of prior meritorious service cannot justify a procurement promise that subverts competitive fairness — the structural impropriety is the operative ethical violation, not the subjective motivation.
Public Official Good Intent Non-Justification for Procurement Promise Constraint
Engineer C's benign and appreciative motivation — recognizing Engineer A's firm for its meritorious grant-securing services — does not justify the verbal pre-selection promise, as the propriety of procurement conduct is assessed by its structural effect on competitive fairness rather than by the subjective intent of the official making the promise.
NSPE Code of Ethics (spirit and intent); BER interpretive principle
At the time Engineer C made the verbal promise to Engineer A
Engineer C Honorable Procurement Conduct Self-Regulation City X
Engineer C was required to conduct himself honorably, responsibly, and fairly in all procurement-related matters — including refraining from making informal verbal pre-selection promises that disadvantage other qualified competitors through non-merit means.
Engineer C's verbal promise to Engineer A's firm was inconsistent with the spirit and intent of the NSPE Code of Ethics governing honorable procurement conduct.
Failure to exercise this capability: Engineer C made a verbal pre-selection promise inconsistent with honorable procurement conduct.
Engineer C Honorable Professional Conduct Procurement City X
Engineer C's verbal promise to Engineer A's firm, even if motivated by genuine appreciation for prior speculative contributions, was found by the Board to be inconsistent with the spirit and intent of the NSPE Code of Ethics.
Engineer C was obligated to conduct himself honorably, responsibly, and fairly in all procurement-related matters — consistent with the spirit as well as the letter of the NSPE Code of Ethics — and to refrain from making a verbal pre-selection promise that, while perhaps motivated by gratitude, violated the spirit and intent of the ethics code and the public's trust in professional procurement processes.
Throughout Engineer C's exercise of procurement authority as chief city engineer.
Engineer C Pre-Award Promise Without Qualification Assessment — City X Future Project
Engineer C, as chief city engineer with procurement authority, verbally promised Engineer A's firm future work as recognition for grant-securing services, bypassing any qualification review or competitive process — a direct violation of procurement integrity.
Pre-Award Qualification Assessment Non-Bypass Procurement Constraint
Engineer C was prohibited from verbally promising Engineer A's firm the future City X engineering contract without first conducting any assessment of qualifications, experience, and other relevant selection factors, as such a promise constitutes a subversion of procurement policies and is inconsistent with the spirit and intent of the NSPE Code of Ethics.
NSPE Code of Ethics (spirit and intent); City X procurement policies and procedures
Engineer C Pre-Selection Qualification Consideration Non-Bypass City X Future Contract
Engineer C promised Engineer A's firm future contract selection as recognition for prior speculative grant work, without evaluating qualifications, experience, or other factors, and without providing other qualified firms the opportunity to compete.
Pre-Selection Qualification Consideration Non-Bypass Obligation
Engineer C was obligated to refrain from committing to select Engineer A's firm for a future City X engineering contract before conducting a proper evaluation of qualifications, experience, and other relevant factors for all competing firms, and was prohibited from substituting a gratitude-based advance promise for the substantive merit evaluation that procurement processes require.
At the time Engineer C made the verbal pre-selection promise to Engineer A's firm.
Engineer C Procurement Fairness Appearance Management City X
Procurement Fairness Appearance Management Capability
Engineer C required the capability to recognize that verbally promising future contract selection to Engineer A's firm — even when well-intentioned as recognition of prior grant contributions — created an appearance of favoritism and improper competitive advantage that would not withstand public scrutiny.
Engineer C, as chief city engineer with procurement authority, made a verbal pre-selection promise that created an appearance of procurement impropriety.
Failure to exercise this capability: Engineer C's verbal promise created an appearance of improper favoritism in City X's future procurement process.
Engineer C Procurement Fairness Appearance Management City X Verbal Promise
Engineer C was required to recognize that his verbal pre-selection promise to Engineer A's firm created an appearance of favoritism and impropriety in the City X procurement process, regardless of his appreciative motivation.
Engineer C's verbal promise, even if well-intentioned, created an appearance of improper favoritism inconsistent with public procurement integrity.
Failure to exercise this capability: Engineer C made an informal verbal commitment that created an appearance of procurement favoritism.
Engineer C Procurement Law Compliance City X Verbal Promise
The Board assumes public procurement laws and regulations were in place in City X outlining policies and procedures for selecting engineering firms; Engineer C's verbal promise subverted those laws.
Engineer C was obligated to ensure that the future City X engineering contract was awarded in compliance with applicable procurement laws — including required public announcement and open competition procedures — and to refrain from approving or ratifying a pre-selection arrangement that circumvented those legal requirements.
this Board is assuming that public procurement laws and regulations were in place that outlined the policies and the procedures for selecting an engineering firm.
At the time Engineer C made the verbal pre-selection promise and at the time of any subsequent contract award.
Engineer C Procurement Law Knowledge City X
Engineer C, as chief city engineer with procurement authority, required knowledge of public procurement laws and QBS statutes governing municipal engineering contract awards, including the requirement that all awards be made through competitive processes rather than informal verbal pre-selection.
Engineer C held procurement authority over City X engineering contracts and was required to apply procurement law in all contracting decisions.
Failure to exercise this capability: Engineer C's verbal promise demonstrated insufficient application of procurement law requirements to informal pre-selection commitments.
Engineer C Procurement Policy Subversion Recognition City X Verbal Promise
Procurement Policy Subversion Recognition Capability
Engineer C, as chief city engineer of City X, was required to recognize that verbally agreeing to select Engineer A's firm for a future project constituted a subversion or misuse of City X's existing procurement policies and procedures.
Engineer C verbally promised Engineer A's firm future contract selection as recognition for speculative grant assistance, bypassing City X's procurement process.
Failure to exercise this capability: Engineer C made a verbal pre-selection promise to Engineer A's firm, which the Board characterized as a subversion of procurement policies.
Engineer C Procurement Rationalization Resistance City X Promise
Procurement Rationalization Resistance Capability
Engineer C required the capability to recognize and resist the rationalization that a verbal pre-selection promise was harmless or justified because it expressed appreciation for Engineer A's prior speculative grant contributions, and to maintain ethical procurement standards in the face of this sympathetic rationale.
Engineer C's verbal promise was rationalized as recognition of Engineer A's grant work, but this rationalization did not excuse the procurement violation.
Failure to exercise this capability: Engineer C rationalized the verbal promise as appropriate recognition of prior contributions rather than recognizing it as an improper procurement commitment.
Engineer C Procurement Subversion — City X Future Contract
From the moment Engineer C verbally agreed to select Engineer A's firm, persisting until the commitment is rescinded or formal open procurement is initiated
All other qualified engineering firms excluded from fair consideration
Public Official Procurement Subversion State
Engineer C's verbal pre-commitment to select Engineer A's firm for a future City X engineering contract
Not resolved within the scope of this case discussion
Engineer C verbally agreeing to select Engineer A's firm on a future engineering project for City X outside any formal procurement process
Engineer C Procurement Subversion — Verbal Pre-Selection as Misuse of Procurement Authority
Engineer C used his position as chief city engineer to make an informal pre-selection commitment to Engineer A's firm, structurally excluding all other qualified firms from fair consideration before any competitive process was initiated.
Engineer C's verbal agreement to select Engineer A's firm for a future City X engineering project constituted a subversion and misuse of existing procurement policies and procedures, violating the constraint that public agency engineers must ensure all qualified firms have equal opportunity to compete through open, advertised qualification-based selection processes.
City X procurement policies and procedures; NSPE Code of Ethics
At the time of and following Engineer C's verbal promise to Engineer A
Engineer C Public Announcement Open Competition Minimum Standard City X
Engineer C verbally promised Engineer A's firm future contract selection as recognition for speculative grant work, without any public announcement or open competition, thereby bypassing the minimum procurement floor the Board identifies as applicable regardless of the specific procurement method used.
Public Announcement and Open Competition Procurement Minimum Standard Obligation
Engineer C was obligated to ensure that any selection of an engineering firm for a future City X project included at minimum a public announcement of the opportunity and a free and open opportunity for all qualified and eligible engineers and engineering firms to be considered — and was prohibited from making any advance commitment to Engineer A's firm that foreclosed this minimum competitive process.
Prior to and at the time of making the verbal pre-selection promise to Engineer A's firm.
Engineer C Public Contracting Authority Integrity City X
Public Contracting Authority Integrity Maintenance Capability
Engineer C, as chief city engineer bearing procurement authority over City X engineering contracts, required the capability to maintain the integrity of that authority by ensuring all contract awards were made on the basis of qualifications and merit through competitive processes, free from preferential commitments to specific firms.
Engineer C held procurement authority as chief city engineer and was obligated to enforce competitive procurement processes for all City X engineering contracts.
Failure to exercise this capability: Engineer C made a verbal pre-selection commitment to Engineer A's firm, compromising the integrity of City X's future procurement process.
Engineer C Public Contracting Authority Integrity Maintenance City X
Engineer C was required to maintain the integrity of his public contracting authority as chief city engineer — ensuring that all contract awards were made on the basis of qualifications and merit, free from informal pre-selection commitments that compromise the integrity of the process.
As chief city engineer with procurement authority over City X engineering contracts, Engineer C bore a heightened obligation to maintain the integrity of his contracting authority.
Failure to exercise this capability: Engineer C's verbal promise compromised the integrity of his public contracting authority.
Engineer C Public Procurement Authority Competitive Process Enforcement City X
Engineer C holds the role of chief city engineer with procurement authority over City X engineering contracts and made a verbal pre-selection promise outside any formal competitive process.
Public Procurement Authority Competitive Process Enforcement Obligation
Engineer C, as chief city engineer bearing procurement authority over City X engineering contracts, was obligated to affirmatively enforce competitive qualification-based selection processes for all future engineering contracts, including the project for which Engineer A's firm was verbally promised selection, and to ensure that gratitude-based or recognition-based informal arrangements were not substituted for formal competitive processes.
Continuously, as an ongoing duty of the chief city engineer role, and specifically at the time of making the verbal promise and in administering any subsequent contract award
Engineer C Public Procurement Integrity Public Interest Articulation City X
Engineer C was required to understand and internalize the public interest rationale underlying strict public procurement rules — including that free and open procurement processes protect the public and the profession — and to apply this understanding when evaluating whether his verbal pre-selection promise was permissible.
The Board's analysis emphasized that procurement integrity serves the public interest, which Engineer C's verbal promise undermined.
Failure to exercise this capability: Engineer C's verbal promise undermined the public interest rationale of open procurement.
Engineer C Qualification-Prior-to-Commitment Procurement Sequencing City X
Engineer C was required to recognize that committing to select Engineer A's firm before reviewing qualifications, experience, and other relevant factors violated the correct procurement sequence and was inconsistent with the spirit and intent of the NSPE Code of Ethics.
Engineer C's verbal promise to Engineer A preceded any formal qualification consideration, bypassing the required sequence of public announcement, open competition, and qualification-based selection.
Failure to exercise this capability: Engineer C promised selection in advance without conducting any qualification review.
Engineer C Verbal Pre-Award Promise to Engineer A's Firm
From the moment Engineer C makes the verbal promise onward, persisting until future procurement occurs or promise is rescinded
Informal Pre-Award Selection Commitment State
Engineer C's verbal promise to select Engineer A's firm on a future City X project
Future procurement process conducted properly without reliance on promise, or formal rescission of promise
Engineer C verbally promises to select Engineer A's firm on a future engineering project as recognition for grant work
Engineer C Verbal Pre-Selection Promise Non-Issuance City X
Verbal Pre-Selection Promise Non-Issuance Capability
Engineer C, as chief city engineer of City X with procurement authority, required the capability to recognize that verbally promising future contract selection to Engineer A's firm — even as appreciation for grant work — constituted an improper pre-selection commitment bypassing competitive procurement, and to refrain from making such a promise.
Engineer C held procurement authority as chief city engineer and verbally promised Engineer A's firm future selection on a City X engineering project as recognition for speculative grant work.
Failure to exercise this capability: Engineer C issued a verbal pre-selection promise to Engineer A's firm in recognition of grant assistance, bypassing competitive procurement requirements.
Engineer C Verbal Pre-Selection Promise Non-Issuance City X Future Project
Engineer C verbally promised to select Engineer A's firm on a future City X engineering project as recognition for Engineer A's role in securing the federal grant for wastewater treatment equipment upgrades.
Verbal Pre-Selection Promise Non-Issuance Obligation
Engineer C, as chief city engineer of City X with procurement authority over engineering contracts, was obligated to refrain from making any verbal promise to select Engineer A's firm on a future City X engineering project, regardless of Engineer A's prior contributions to the grant application, and to ensure that any future contract award would proceed through a formal competitive qualification-based selection process.
At the time Engineer C made the verbal promise to Engineer A's firm, and continuing through any future contract award process
Engineer C's verbal promise to select Engineer A before future City X engineering project procurement
Engineer Solicitation and Competition Ethics Standard - Grant Work Context
NSPE Board of Ethical Review; professional engineering ethics bodies
Engineer Solicitation and Competition Ethics Standard
Governs Engineer A's ethical obligations regarding the propriety of accepting or relying upon a verbal promise of future work as recognition for prior grant-securing services, and whether such an arrangement constitutes improper solicitation or competition conduct
Fairness in Professional Competition Violated by Advance Promise to Engineer A
All qualified engineering firms excluded from consideration for City X future contract
Recognition of speculative service contributions
By promising Engineer A's firm the future contract in advance, Engineer C denied all other qualified engineering firms the fair and equal competitive access to which they were entitled, violating the relational fairness norm that governs public procurement
Fairness in professional competition requires that no firm receive advance assurance of selection that forecloses equal opportunity for others; the promise to Engineer A structurally excluded all competitors before the process began
Fairness to all competitors prevails over loyalty or gratitude to a specific prior contributor
promising Engineer A in advance that Engineer A would be selected for a future contract without considering the qualifications, experience, and other factors is not consistent with either the spirit or the intent of the NSPE Code of Ethics
Fairness in Professional Competition Violated by Pre-Selection Arrangement
Future City X engineering project procurement
Procurement Integrity in Public Engineering
The verbal pre-selection promise from Engineer C to Engineer A's firm denies all other qualified engineering firms fair and equal competitive access to the future City X engineering project, constituting an exclusionary practice that favors one firm without lawful justification
Fairness in professional competition requires that public engineering contracts be open to all qualified firms on equal terms; informal pre-selection arrangements — even those motivated by genuine appreciation for prior contributions — are structurally exclusionary and violate this principle
Competitive fairness admits no exception for gratitude-based pre-selection; the principle requires equal access regardless of the prior relationship between the official and the favored firm
Free and Open Competition Framework — City X Procurement Context
Ongoing — established through federal antitrust actions and Supreme Court rulings over the past 40 years, in full force at the time of Engineer C's commitment to Engineer A
All qualified engineering firms eligible to compete for City X contracts
federal, state, and local laws governing procedures to procure engineering services are not affected and remain in full force and effect
City X public engineering procurement environment
Not terminated — persists as the governing legal framework
NSPE and other engineering organizations have been required to remove or modify Code of Ethics provisions
free and open opportunity for all qualified and eligible engineers and engineering firms to be considered for the contract
Series of U.S. Justice Department antitrust actions and U.S. Supreme Court First Amendment rulings requiring removal of restrictive professional code provisions and affirming that public procurement laws remain in full force
Free and Open Competition Invoked Against Engineer C Pre-Selection Promise
Verbal pre-selection promise for future City X engineering project
Faithful Agent Obligation Within Ethical Limits
Engineer C's verbal promise to select Engineer A's firm on a future City X project — made outside any competitive selection process — directly violates the principle that engineering contracts must be awarded through free and open competition, not through informal pre-selection arrangements made in recognition of prior services
Free and open competition requires that all qualified firms have equal access to public engineering contracts; Engineer C's verbal promise forecloses that access by pre-committing the contract to Engineer A's firm before any competitive process has occurred
Free and Open Competition as Engineering Ethics Boundary Condition
Competition integrity is not subject to balancing against gratitude or recognition obligations; the principle operates as a near-absolute constraint on public procurement conduct
Free and Open Competition Regulatory Deference — City X Future Engineering Procurement
City X's public procurement environment is governed by laws and regulations requiring free and open competition. Engineer C's verbal promise to pre-select Engineer A's firm directly conflicts with this legal framework.
Free and Open Competition Regulatory Deference Constraint
Engineer C was constrained to conduct any future City X engineering procurement in conformance with applicable local, state, and federal laws and regulations governing free and open competition, and could not treat the verbal promise as a permissible substitute for the legally mandated competitive process.
City X public procurement laws and regulations; Qualification-Based Selection Procurement Law; NSPE Code of Ethics
Engineer C, the chief city engineer, verbally promises to select Engineer A's firm on a future engineering project for City X.
Free and Open Competition Violated by Engineer C Pre-Selection Promise
Engineer C's verbal pre-selection promise to Engineer A
Engineer C's verbal promise to select Engineer A's firm for a future City X contract — without public announcement or consideration of other qualified firms — directly violated the free and open competition norm that governs public engineering procurement
Free and open competition requires, at minimum, public announcement and equal opportunity for all qualified engineers to be considered; a pre-selection promise forecloses this process entirely
The Board holds that no degree of prior contribution or good faith appreciation justifies bypassing the competitive selection process; free and open competition is a non-negotiable boundary condition
Grant Application Succeeds → Retain Engineer B for Design
Honesty Applied to Engineer A Participation in Pre-Selection Arrangement
Engineer A's participation in pre-selection arrangement
Engineer A's participation in — or acquiescence to — an informal pre-selection arrangement creates a representation to City X and to competing firms that Engineer A's future selection (if it occurs) was the result of a lawful competitive process, when in fact it was predetermined by an informal promise; this implicit misrepresentation implicates the honesty principle
Honesty requires not only accurate affirmative representations but also avoidance of arrangements that create false impressions about the legitimacy of professional engagements; accepting a pre-selection promise creates the false impression of competitive legitimacy
The honesty obligation requires Engineer A to decline the pre-selection promise and insist on a transparent competitive process, thereby ensuring that any future engagement accurately reflects merit-based selection
Improper Competitive Method Prohibition — Engineer A Reliance on Pre-Selection Promise
The verbal promise from Engineer C creates a potential improper competitive advantage for Engineer A's firm if relied upon, constituting an improper method of obtaining professional engagement.
Improper Competitive Method Prohibition Constraint
Engineer A was constrained from relying upon or exploiting Engineer C's verbal pre-selection promise as a method of obtaining future City X engineering work, as using informal pre-selection arrangements constitutes an improper or questionable method of obtaining employment regardless of whether Engineer A's intent was to exploit the arrangement.
NSPE Code Section III.6; Engineer Solicitation and Competition Ethics Standard
From receipt of the verbal promise through any future City X procurement
Informal Pre-Award Selection Commitment — Engineer C to Engineer A
From Engineer C's verbal commitment through the Board's ethical analysis; unresolved within the case
Engineer C's action in verbally agreeing to select Engineer A's firm on a future engineering project for City X
Engineer C's verbal promise to Engineer A regarding future City X contract selection
Engineer C verbally agreeing to select Engineer A's firm for a future City X engineering project
NSPE Antitrust-Constrained Code Guidance Prohibition — Selection and Compensation Provisions
The BER must evaluate Engineer C's conduct without relying on NSPE code provisions that have been removed or modified due to antitrust constraints, limiting the normative tools available for ethical analysis of selection and compensation practices.
NSPE and professional engineering societies
Antitrust-Constrained Professional Code Guidance Prohibition Constraint
NSPE is prohibited from issuing ethical or policy guidance on professional selection, compensation, competitive bidding, free engineering, supplanting, and advertising as a result of DOJ antitrust actions and U.S. Supreme Court First Amendment rulings.
U.S. Department of Justice antitrust actions; U.S. Supreme Court First Amendment rulings
as a result of a series of actions undertaken by the U.S. Justice Department, antitrust, and First Amendment rulings by the U.S. Supreme Court, NSPE and other engineering organizations...have been required to remove or modify Code of Ethics provisions
Ongoing — constraint has been in effect for approximately 40 years as of the case date
NSPE Board of Ethical Review Prior Opinions on Engineer Selection and Compensation
NSPE Board of Ethical Review Opinions on Engineer Selection and Compensation
The manner in which engineers and engineering firms are selected and compensated has, in the past, been the subject of various provisions of the NSPE Code of Ethics as well as NSPE Board of Ethical Review opinions
NSPE Board of Ethical Review in framing the discussion
Cited as a body of prior BER opinions that previously addressed engineer selection and compensation practices, providing precedential context for the current case
National Society of Professional Engineers
Primary normative authority governing Engineer A's obligations when offered a verbal promise of future public work, Engineer C's obligations as a public official making such a promise, and Engineer B's role in the procurement chain
NSPE Code of Ethics - Procurement and Competition Provisions
the manner in which engineers and engineering firms are selected and compensated has, in the past, been the subject of various provisions of the NSPE Code of Ethics
NSPE Board of Ethical Review in deliberating Engineer C's conduct
Referenced as the primary normative authority for evaluating Engineer C's verbal promise to award a future contract to Engineer A, specifically regarding the spirit and intent of ethical procurement conduct
Prior Favorable Relationship Procurement Recusal or Disclosure — Engineer C Conflict from Promise
Engineer C's verbal promise to Engineer A's firm creates a documented prior favorable commitment that constitutes a conflict of interest requiring recusal or disclosure in any subsequent procurement involving that firm.
Prior Favorable Relationship Procurement Recusal or Disclosure Constraint
Engineer C, having made a verbal promise to Engineer A's firm and thereby establishing a prior favorable commitment relationship, was constrained to either recuse from any procurement evaluation decisions affecting Engineer A's firm or make full disclosure of the relationship and promise to procurement supervisors or governing authorities.
For any future City X procurement in which Engineer A's firm participates
Procurement Competition Honorable Conduct — Engineer A Verbal Promise Receipt
Engineer A received a verbal promise from Engineer C to be selected for a future City X project. Honorable competitive conduct constrains Engineer A from treating this promise as a legitimate basis for future contract expectation.
Procurement Competition Honorable Conduct Constraint
Engineer A was constrained from accepting, relying upon, or acting in furtherance of Engineer C's verbal promise of future contract award, as honorable competitive conduct requires that Engineer A's firm compete for any future City X contracts through merit-based, legitimate competitive processes rather than through informal pre-selection arrangements.
NSPE Code of Ethics Sections II.5, III.6, III.7; Engineer Solicitation and Competition Ethics Standard
From the moment the verbal promise was received through any future City X procurement process
Engineer A is a principal in a medium-sized engineering firm with expertise in mechanical and electrical engineering.
Procurement Integrity Over Merit Balancing Applied to Pre-Selection Arrangement
Engineer A's prior speculative grant procurement contribution
Recognition of prior service contributions
Speculative Work Non-Entitlement to Subsequent Contract Award
Even if Engineer A's firm was genuinely the most qualified for the future City X contract, the pre-selection promise was ethically impermissible because procedural integrity cannot be sacrificed in the name of rewarding merit or prior contribution
The Board's reasoning implicitly holds that qualifications and prior merit cannot justify bypassing competitive procedures — both substantive qualification and procedural integrity must be pursued simultaneously
Procurement Integrity Over Qualification Merit Balancing Principle
Procedural integrity prevails; the fact that Engineer A may have been deserving does not cure the ethical defect of the pre-selection arrangement
Procurement Integrity Subverted by Engineer C Verbal Promise
City X future engineering contract award
Engineer C's role as Chief City Engineer
Recognition of prior speculative contributions
Engineer C, as chief city engineer with procurement authority, subverted City X's procurement policies by verbally promising Engineer A's firm a future contract without following lawful competitive selection procedures
A public engineer with procurement authority who makes advance selection promises outside the lawful competitive process violates the fundamental obligation to ensure contracts are awarded through fair, qualification-based procedures
The Board finds that procurement integrity is not subordinate to gratitude for prior contributions; the obligation to follow lawful procedures is absolute regardless of the merit of the firm's past work
it is the Board's view that Engineer C's action in verbally agreeing to select Engineer A's firm on a future engineering project for City X would constitute a subversion or a misuse of the existing procurement policies and procedures in place in City X
Procurement Integrity in Public Engineering Violated by Engineer C
Future City X engineering project contract award
Engineer C, as chief city engineer with procurement authority over City X engineering contracts, violates procurement integrity by making an informal verbal promise to award a future contract to Engineer A's firm as recognition for prior speculative grant work, bypassing the qualification-based competitive selection process required by statute and regulation
A chief city engineer's procurement authority is a public trust that must be exercised through lawful competitive processes; informal pre-selection promises — however well-intentioned — constitute a breach of that trust and a violation of procurement integrity
Procurement integrity as a domain-specific principle governing public engineering roles admits no exception for gratitude-based pre-selection; the principle requires strict adherence to competitive selection procedures regardless of the official's motivations
Procurement Process Spirit and Intent Compliance Applied to Pre-Selection Arrangement
Engineer A's acceptance of the pre-selection arrangement
Engineer C's verbal pre-selection promise
Gratitude and recognition of prior contributions
Literal compliance with written procurement rules
The Board evaluates Engineer C's and Engineer A's conduct not merely against the literal text of specific procurement rules but against the spirit and intent of the NSPE Code of Ethics and procurement law, finding that advance verbal promises of selection violate that spirit even if no single written provision is explicitly transgressed
The spirit and intent standard requires that all procurement conduct support the underlying values of public announcement, equal competitive access, and qualifications-based review — not merely avoid explicit rule violations
Procurement Process Spirit and Intent Compliance Obligation
The Board holds that spirit-and-intent compliance is the operative standard; literal non-violation of specific written rules is insufficient to discharge the ethical obligation
Professional Accountability Applied to Engineer C Procurement Authority Abuse
Exercise of chief city engineer procurement authority
Engineer C, as chief city engineer, bears professional accountability for the exercise of procurement authority in a manner consistent with applicable statutes, regulations, and ethical standards; the informal verbal promise of future contract selection constitutes an accountable breach of that authority that cannot be excused by the benevolent motive of recognizing prior contributions
Professional accountability for public engineers in procurement roles requires that all exercises of contracting authority be defensible under applicable law and ethical standards; informal pre-selection promises fail this standard regardless of the official's intent
Accountability to the public and to professional standards overrides personal loyalty obligations; Engineer C's accountability as a public official is not diminished by genuine appreciation for Engineer A's prior contributions
Public Official Conflict of Interest Standard - City Engineer Promise
Professional engineering ethics bodies; NSPE Board of Ethical Review
Public Official Conflict of Interest Standard
Governs Engineer C's conduct as chief city engineer in making a verbal promise to award future work to Engineer A's firm, raising conflict of interest and impartiality concerns in public contract award decisions
Public Official Good Intent Non-Justification — Engineer C Procurement Promise City X
Engineer C made the verbal promise in recognition of Engineer A's firm's contribution to securing the federal grant, but good intent does not cure the structural impropriety of a pre-selection commitment in public procurement.
Engineer C was constrained from treating the benign, appreciative motivation behind the verbal promise — recognition of Engineer A's firm's successful grant-securing work — as justification for making the promise, as the propriety of procurement conduct is assessed by its structural effect on competitive fairness, not by the official's subjective intent.
NSPE Code of Ethics; Public Official Conflict of Interest Standard; BER Case Precedent on Public Procurement Promise
Public Official Pre-Selection Promise Prohibition Violated by Engineer C
Verbal promise of future City X engineering contract to Engineer A's firm
Engineer C makes a verbal pre-selection promise to Engineer A's firm as a form of recognition for the firm's speculative grant work, constituting an abuse of public procurement authority that bypasses competitive selection requirements and creates an improper informal entitlement to a public contract
A sitting public official's gratitude for prior services does not justify informal pre-selection promises; even benevolent motivations do not cure the ethical violation of bypassing competitive procurement
Public Official Pre-Selection Promise Prohibition
The prohibition on pre-selection promises is not subject to override by gratitude or recognition; Engineer C's obligation was to channel appreciation through lawful means such as positive evaluation in a future competitive process
Public Procurement Fairness Standard - Verbal Promise Application
Engineer A (as promisee), Engineer C (as public official making promise)
Governs whether Engineer C's verbal promise to award future work to Engineer A's firm as recognition for grant-securing services is ethically permissible; establishes that public engineering contracts must be awarded through equitable, competitive processes rather than informal pre-commitments
Public Procurement Open Competition Requirement
Public Procurement Open Competition and Equal Opportunity Standard
NSPE Board of Ethical Review in evaluating the ethical propriety of Engineer C's verbal promise
The Board invokes the principle that any legitimate procurement method must at minimum involve public announcement and free and open opportunity for all qualified engineers to compete, against which Engineer C's pre-commitment is measured
Public Procurement Procedural Compliance — Engineer C City X Future Project Award
The verbal promise to select Engineer A's firm on a future project constitutes a pre-commitment that bypasses the statutory procurement procedures assumed to be in place in City X.
Engineer C was constrained from pre-committing any future City X engineering contract to Engineer A's firm outside of formally mandated competitive qualification-based selection processes, including RFQ advertisement and governing body authorization.
City X public procurement laws and regulations; Qualification-Based Selection Procurement Law
Throughout Engineer C's tenure as chief city engineer with procurement authority
Public Welfare Paramount Applied to Procurement Integrity Context
City X public engineering procurement integrity
The public welfare interest in transparent, competitive, and merit-based public engineering procurement — including the protection of taxpayer resources and public trust in government contracting — is undermined by Engineer C's informal pre-selection promise, which prioritizes a private professional relationship over the public's interest in fair and open competition for engineering services
Public welfare in the procurement context encompasses not only physical safety but also the integrity of public institutions and the fair use of public resources; informal pre-selection arrangements harm the public by bypassing the competitive processes designed to secure the most qualified engineering services at fair cost
Public welfare obligations of a chief city engineer extend to procurement integrity; the official's duty to the public overrides any personal obligation of gratitude to a private engineering firm
Public Welfare Paramount Underlying Procurement Integrity Requirement
Wastewater treatment engineering contract
The Board's insistence that procurement laws remain in full force and that competitive selection must be preserved reflects the foundational public welfare interest in obtaining the best-qualified engineering services through fair processes that protect taxpayer resources and public trust
Public welfare is served not only by technically sound engineering but by procurement processes that ensure the public receives the most qualified engineering services through transparent, competitive selection — a pre-selection arrangement undermines this welfare interest
Public welfare in obtaining qualified engineering services through fair processes overrides private relational obligations between engineers
QBS Procurement Balance Public Interest vs. Strict Rule Adherence — City X Engineer C Promise
Even if Engineer A's firm is highly qualified, Engineer C's verbal promise to pre-select the firm cannot be justified as a QBS shortcut, as procurement integrity requires strict adherence to competitive processes.
QBS Procurement Balance Public Interest vs. Strict Rule Adherence Constraint
Engineer C was constrained to balance the goal of selecting qualified engineering firms with strict adherence to City X's procurement rules and policies, and could not treat the verbal promise as a permissible shortcut to securing a qualified firm — as procurement integrity is itself a public interest value that overrides administrative convenience.
NSPE Code of Ethics; Qualification-Based Selection Procurement Law; BER Case Precedent on Public Procurement Promise
For any future City X engineering procurement
The application is successful, City X obtains the grant, and Engineer B is retained to design the waste water equipment upgrades.
Qualification-Based Selection Procurement Law - City X Application
Establishes the legal framework requiring that public engineering contracts for City X be awarded through merit-based, competitive qualification processes rather than through verbal pre-commitments or recognition-based awards
Was it ethical for Engineer C to offer to select Engineer A’s firm on a future engineering project for City X?
Was it ethical for Engineer A to continue relying on or accepting Engineer C's verbal promise of future selection without objecting to or disclosing the arrangement, given Engineer A's own obligations under the NSPE Code to conduct themselves honorably and avoid improper competitive methods?
Does Engineer A's speculative, at-risk contribution to securing the federal grant create any legitimate basis for preferential consideration in future City X procurements, or does the public procurement context categorically extinguish any such entitlement regardless of the merit of Engineer A's prior service?
Should Engineer C have recused himself from future procurement decisions involving Engineer A's firm, or at minimum disclosed his prior verbal promise to City X's procurement authority, once the promise had been made?
Does the informal, verbal nature of Engineer C's promise mitigate its ethical severity compared to a written pre-selection commitment, or does the NSPE Code treat verbal and written pre-award procurement promises as equally impermissible?
Does the principle that public welfare is paramount and underlies procurement integrity conflict with the principle of honesty applied to Engineer A's participation, in the sense that Engineer A's honest acknowledgment of a legitimate speculative contribution might be seen as justifying some form of recognition — yet procurement integrity categorically forecloses any such recognition through informal pre-selection?
Where the antitrust-constrained ethics code scope limits NSPE's ability to regulate competitive conduct directly, does this create a tension with the principle of free and open competition violated by Engineer C's pre-selection promise — specifically, does the antitrust constraint inadvertently weaken the enforceability of competition-based ethical obligations that the Board otherwise wishes to uphold?
Does the principle of professional accountability applied to Engineer C's abuse of procurement authority conflict with the principle that procurement process spirit and intent compliance governs pre-selection arrangements, in cases where Engineer C's intent was benevolent recognition of Engineer A's contribution rather than corrupt self-dealing — and if so, how should the Board weigh intent against structural procurement harm?
Does the principle of fairness in professional competition violated by the pre-selection arrangement conflict with the principle of procurement integrity over merit balancing, when Engineer A's firm may genuinely be the most qualified firm for the future project — raising the question of whether strict procedural procurement integrity can override a substantively meritorious outcome?
From a deontological perspective, did Engineer C violate a categorical duty to uphold impartial public procurement by issuing a verbal pre-selection promise to Engineer A's firm, regardless of the benevolent intent behind the gesture?
From a consequentialist perspective, did Engineer C's verbal promise to select Engineer A's firm produce net harm to the public interest by undermining competitive procurement outcomes for City X, even if the promise was never formally acted upon?
From a virtue ethics perspective, did Engineer C demonstrate the professional integrity and impartiality expected of a chief city engineer by allowing gratitude toward Engineer A's speculative grant work to override the virtues of fairness and accountability in public procurement?
From a virtue ethics perspective, did Engineer A act with professional honesty and integrity by accepting or acquiescing to Engineer C's verbal pre-selection promise, given that honorable conduct requires rejecting improper competitive advantages even when they arise unsolicited?
Would Engineer C's conduct have been ethical if, instead of issuing a verbal pre-selection promise, he had publicly acknowledged Engineer A's contribution and then ensured Engineer A's firm received fair consideration through a properly announced, open qualification-based selection process for the future City X project?
What if Engineer A had explicitly refused Engineer C's verbal pre-selection promise and instead requested that any future City X project be awarded through a proper competitive or qualification-based selection process — would Engineer A's ethical standing have been preserved, and would this refusal have mitigated the harm to procurement integrity?
Would the ethical analysis change if Engineer A's firm had performed the speculative grant work under a formal written agreement with City X rather than through Engineer B, thereby establishing a direct contractual relationship with the city — and could such a relationship have created a legitimate basis for preferential consideration without subverting competitive procurement?
What if Engineer C had disclosed the verbal promise to City X's governing body and recused himself from the future procurement decision — would this disclosure and recusal have been sufficient to remedy the conflict of interest created by the pre-selection promise, or would the promise itself remain an irreparable ethical violation?
Retain Firm Speculatively → Grant Application Succeeds
Speculative Service Non-Entitlement to Preferential Award — Engineer A Grant Work City X
Engineer A's firm performed speculative grant-securing services for City X without guaranteed compensation. The successful outcome of those services does not create a legitimate basis for preferential future contract award.
Speculative Service Non-Entitlement to Preferential Award Constraint
Engineer A was constrained from treating the firm's speculative grant-securing services for City X as creating any entitlement to preferential, non-competitive award of a future City X engineering contract, as speculative prior services do not override public procurement fairness requirements.
NSPE Code of Ethics; Public Procurement Open Competition Requirement; BER Case Precedent on Public Procurement Promise
From completion of the grant application work through any future City X procurement
U.S. DOJ Antitrust Actions and U.S. Supreme Court First Amendment Rulings on Professional Codes
U.S. Department of Justice and U.S. Supreme Court
U.S. Department of Justice Antitrust Actions and U.S. Supreme Court First Amendment Rulings Affecting Professional Society Codes
NSPE Board of Ethical Review in framing the permissible scope of ethical guidance
Cited as the legal basis requiring NSPE and other professional societies to remove or modify code provisions on competitive bidding, advertising, solicitation, and related practices; establishes the legal boundary within which the Board's analysis must operate
Verbal Pre-Selection Acceptance Prohibition Applied to Engineer A
Acceptance of Engineer C's verbal pre-selection promise
Competitive Employment Freedom With Confidentiality Constraint
Engineer A's firm accepts — or at minimum fails to decline — Engineer C's verbal promise of future contract selection, thereby participating in an arrangement that bypasses competitive procurement and confers an improper advantage on Engineer A's firm relative to other qualified engineering firms that will never have the opportunity to compete for the promised project
Even as the passive recipient of an unsolicited pre-selection promise, Engineer A bears an ethical obligation to decline the arrangement and insist on participation in a lawful competitive process; silence or acquiescence constitutes participation in the ethical violation
Verbal Pre-Selection Acceptance Prohibition
The obligation to decline improper pre-selection promises is not overridden by the engineer's prior speculative contributions or by the gratitude of the public official; the competitive integrity of public procurement takes precedence
Verbal Procurement Promise Non-Reliance — Engineer A City X Future Project
Engineer C verbally promised to select Engineer A's firm for a future City X project. Engineer A was constrained from treating this promise as a legitimate basis for future contract expectation or from declining to compete through proper channels.
Engineer A was constrained from relying upon, acting in furtherance of, or structuring business expectations around Engineer C's verbal promise of future City X contract award, and was required to compete for any subsequent City X contract through proper competitive or qualification-based selection processes.
NSPE Code of Ethics; Public Procurement Fairness Standard; Engineer Solicitation and Competition Ethics Standard
From receipt of the verbal promise through any future City X procurement process
Verbally Promise Future Selection → Verbal Promise Conveyed
antitrust and First Amendment rulings (40-year period) before present case evaluation by NSPE Board
grant application success before Engineer B retained to design wastewater equipment upgrades