Abnormally Low Fee Bid Public Safety Adequacy Self-Verification — Firm A $50,000 Proposal
Firm A submitted a $50,000 fee proposal for highway bridge design, $70,000 below Firm B's $120,000 and $150,000 below Firm C's $200,000; BER identified the public safety adequacy verification as a binding constraint
Abnormally Low Fee Bid Public Safety Adequacy Verification Constraint
Firm A was constrained, before submitting its $50,000 fee proposal — $70,000 below the next lowest bid — to verify that this fee was sufficient to fund competent, code-compliant, and safe highway bridge design, and was prohibited from submitting a proposal that it knew or should have known was inadequate to support proper engineering performance.
NSPE Code of Ethics Sections II.2 and I.6; BER discussion
It is fundamental to engineering ethics that the engineer may not offer or perform services which endanger public safety and health.
it would be unethical for an engineer to cut fees to such an extent as would lead to the rendition of incompetent and dangerous service
Adopt Price-Inclusive Selection Procedure
Departure from established professional norms and federal Brooks Act standards
Incentivizing firms to underbid to win contracts
Potential for inadequate engineering performance due to fee pressure
Agency's internal administrative authority to set procurement procedures
Transparency through public advertisement of the procedure
Achieve cost savings and introduce competitive pricing into engineering services procurement
Knowledge of applicable federal and state procurement law
Understanding of engineering services market
Alignment with Brooks Act federal standards for engineering selection
Prevailing professional and regulatory norms for engineering services selection
Protection of public safety by not structuring procurement to incentivize fee-cutting below competent service thresholds
The state agency deliberately adopted a new engineering selection procedure that included price as a factor in the award decision, departing from the standard qualification-based Brooks Act approach. This procedural choice created the conditions under which all subsequent ethical tensions arose.
Adopt Price-Inclusive Selection Procedure → Extreme Price Disparity Revealed
The state agency deliberately adopted a new engineering selection procedure that included price as a [factor], which upon submission and comparison of the three price proposals ($50,000, $120,000, $200,000), a striking [disparity was revealed]
Under the traditional qualifications-based selection (QBS) method, price would not have been submitted competitively; firms would negotiate fees after selection, making a public price disparity structurally impossible
Agency decision to include price as a selection criterion
Firms independently assessing project value differently
Public disclosure of competing bid amounts
Simultaneous sealed submission of price proposals
State Agency (procurement decision-makers)
Price-inclusive procedure + independent firm valuations + simultaneous disclosure = extreme disparity revelation
The combination of a low-bid framework with professional engineering scope estimation guaranteed divergent outcomes
Attendance created an implicit commitment to submit a professionally responsible proposal
Firms became 'intimately familiar with the engineering requirements' per the Discussion, raising the bar for their subsequent professional responsibility
Due diligence in understanding project scope before pricing
Procedural compliance with agency's selection process
Competent assessment of project requirements before committing to pricing
Obtain sufficient project information to prepare an informed price proposal and pursue the contract
Business development and proposal preparation capability
Engineering judgment to assess requirements
Mid-process, after shortlisting and before price proposals
Principals of Firms A, B, and C each independently decided to attend the scope of project meeting convened by the agency, thereby obtaining detailed project requirements and committing to pursue the engagement through the price proposal stage. This decision bound each firm to the subsequent obligation to submit an informed and professionally responsible price proposal.
Attend Scope of Project Meeting → Extreme Price Disparity Revealed
Principals of Firms A, B, and C each independently decided to attend the scope of project meeting [resulting in] all three shortlisted firms receiv[ing] identical, complete project requirements [yet submitting] proposals of $50,000, $120,000, and $200,000 [revealing] a striking [disparity]
If firms had not attended the scope meeting and received different information, the disparity could be explained by informational differences; the fact that all attended the same meeting makes the disparity more striking and ethically significant, suggesting the cause lies in firm-level factors rather than information asymmetry
All three firms receiving identical project scope information
Each firm applying different risk assessments, overhead structures, or strategic pricing motivations
Each firm independently interpreting scope requirements through its own professional judgment
Price-inclusive procedure requiring simultaneous sealed submission preventing price coordination
All three firm principals (shared); State Agency (structural)
Identical information + independent professional judgment + divergent firm economics + sealed simultaneous submission = price disparity revelation
The combination of common information and independent interpretation was sufficient to produce and reveal the disparity
BER Fee Disparity Inference Calibration in Technical Adequacy Non-Determination
Fee Disparity Inference Calibration Capability
The BER demonstrated the capability to correctly calibrate the ethical inference from the fee disparity — recognizing that the $70,000 and $80,000 gaps between bids, in the abstract, gave rise to no inference of unethical activity, while acknowledging that contextual knowledge of engineering requirements could support a different inference
The BER carefully distinguished between the abstract fact of fee disparity and the contextually-informed inference that a fee may be too low for competent performance
The BER's explicit statement that fee differences alone give rise to no inference of unethical activity, combined with its assumption that all firms were intimately familiar with engineering requirements
These facts, in and of themselves and in the abstract, give rise to no inference of unethical activity.
We assume for the purpose of this discussion that Firms A, B, and C, having made an analysis of the engagement, are intimately familiar with the engineering requirements for design of the facility.
BER Post-Award Competitor Selection Conflict Deferred Resolution
Post-Award Competitor Selection Conflict Deferred Resolution Capability
The BER demonstrated the capability to recognize that the question of whether Firms B and C could properly be selected for the same assignment if Firm A's award were cancelled was not yet ripe for resolution, and to appropriately defer that question to a future proceeding
The BER scoped its opinion to the facts presented — the protest and its permissibility — without prejudging the secondary question of whether the protesting firms could be selected as replacements
The BER's explicit statement that it would 'leave for another day and time' the question of Firms B and C's eligibility for the assignment if the award to Firm A were cancelled
We leave for another day and time the question whether in circumstances such as those presented Firms B and C could properly be selected for the same assignment if the award to Firm A was cancelled.
BER Post-Award Competitor Selection Conflict Deferred Resolution Obligation Instance
The BER explicitly reserved the re-award eligibility question for future consideration, separating it from its determination that Firms B and C's protest was ethically permissible.
Post-Award Competitor Selection Conflict Deferred Resolution Obligation
The BER was obligated to — and did — defer resolution of the question whether Firms B and C could properly be selected for the highway bridge assignment if the award to Firm A were cancelled, recognizing that this downstream procurement conflict question required separate analysis distinct from the protest permissibility question.
BER Professional Ethics Civic Duty Elevation Principle Articulation
Professional Ethics Civic Duty Elevation Principle Recognition Capability
The BER demonstrated the capability to recognize and articulate the foundational principle that professional ethics codes elevate to mandatory duty the conduct that public-spirited citizens would engage in voluntarily — applying this principle to affirm that Firms B and C's right to report deceptive practices was not merely a civic option but a professional obligation
The BER used this foundational principle to ground its conclusion that Firms B and C were permitted — or required — to bring Firm A's potentially deceptive fee proposal to the attention of the responsible government agency
The BER's explicit statement that 'the purpose of professional ethics is to elevate to a duty conduct of the type in which all public spirited and civic-minded citizens engage'
Indeed, in a fundamental sense, the purpose of professional ethics is to elevate to a duty conduct of the type in which all public spirited and civic-minded citizens engage.
In accordance with 12 of the code engineers have no less right to bring practices which they believe to be deceptive to the attention of appropriate instrumentalities than do others in our society who become aware of such practices.
Bait-and-Switch Fee Deception Prohibition — Firm A Highway Bridge Proposal
Firm A's $50,000 proposal was $70,000 below the next lowest bid; BER identified the bait-and-switch risk as a specific form of deceptive practice that the ethics code prohibits
Bait-and-Switch Fee Deception Prohibition Constraint
Firm A was prohibited from submitting a $50,000 fee proposal as a bait-and-switch mechanism — i.e., as an artificially low initial fee intended to displace competitors, followed by inadequate performance, renegotiation, or supplemental fee demands — and was required to ensure its proposal represented a genuine commitment to competent service delivery at that fee level.
NSPE Code of Ethics (former Section 12 on deceptive practices); BER discussion
the initial fee which is 'too good to be true' may in reality represent the bait-and-switch deception of an unethical practitioner
Bid Disparity Non-Automatic Unethical Inference — BER Epistemic Restraint
BER explicitly declined to infer unethical activity from the fee disparity alone, noting it had not been presented with technical analysis of the engineering requirements
BER and all parties evaluating Firm A's $50,000 proposal
Bid Disparity Inference Non-Automatic Unethical Activity Constraint
The BER was constrained from inferring unethical activity from the mere fact that Firm A's bid was $70,000 below Firm B's and $150,000 below Firm C's; the fee disparity alone, in the abstract, gave rise to no inference of unethical conduct without technical analysis of the engineering requirements and economic feasibility.
BER epistemic restraint principle; NSPE Code of Ethics
This board has not been presented with technical analysis of the engineering requirements for the facility at issue, and expresses no view as to whether any or all of the bids are consistent with professional standards.
Brooks Act - Qualification-Based Selection for Federal Projects
Brooks Architect-Engineers Act (40 U.S.C. § 1101 et seq.)
Qualification-Based Selection Procurement Law
most public agencies, local, state, and federal, which select engineering firms on the basis of professional qualification, followed by negotiation with the best qualified firm, in accordance with state and local laws, ordinances, and regulations, and in accordance with federal law under the Brooks Act
Board of Ethical Review in contextualizing the procurement method used by the public agency
Referenced as the federal law mandating qualification-based selection of engineering firms, contrasted with the fee-competitive bidding procedure at issue in the case
CausalLink_Adopt Price-Inclusive Selectio
CausalLink_Attend Scope of Project Meetin
CausalLink_Counter-Accuse Firm A of Uneth
CausalLink_File Protest and Request Publi
CausalLink_Publicly Accuse Firms B and C
CausalLink_Shortlist Three Qualified Firm
CausalLink_Submit $120,000 Price Proposal
CausalLink_Submit $200,000 Price Proposal
CausalLink_Submit $50,000 Price Proposal
Competitive Protest Public Safety Grounding — Firms B and C Protest Characterization
Firms B and C filed formal protest and demanded public hearing; BER assumed their motivation was sincere public safety concern but identified the constraint that protests must be grounded in legitimate public interest rather than competitive self-interest
Competitive Protest Public Safety Grounding Non-Pretextual Basis Constraint
Firms B and C were constrained to ground their formal protest against Firm A's award in objectively verifiable professional judgment about fee adequacy and public safety risk — prohibiting them from characterizing the protest in terms that exceeded what their actual knowledge supported, and requiring that the protest be framed in terms of the observable fee disparity and its foreseeable engineering consequences.
NSPE Code of Ethics Sections III.6 and III.7; BER discussion
We further assume for the same purpose that the conduct of Firms B and C in protesting Firm A's bid was motivated by a sincere and genuine desire to protect the public safety and health, and not for the purpose of self-aggrandizement.
At time of filing protest and public hearing demand
Section 12 of the code makes it clear that Firms B and C are not permitted to attempt to injure the interests of Firm A for the purpose of advancing the interests of Firms B and C.
NSPE and professional engineering community
Professional Norms on Competitor Conduct in Engineering Procurement
Competitor Conduct in Procurement Standard
Representatives of Firms B and C promptly filed protests with the agency and called for a public hearing on the ground that the proposal of Firm A was so out of line with realistic costs for proper engineering performance
A principal of Firm A charges that the engineer principals of Firms B and C have acted unethically.
Firms B and C; ethics review board evaluating their conduct
Governs whether Firms B and C acted ethically in filing protests and demanding a public hearing challenging Firm A's award, including whether this constitutes improper disparagement of a competitor or legitimate professional advocacy
Competitor Deceptive Procurement Practice Reporting Permissibility — Firms B and C Protest
Firms B and C filed formal protest and demanded public hearing after Firm A was awarded the highway bridge design contract at $50,000; BER confirmed their right to report while noting the competitive motivation constraint
Competitor Deceptive Procurement Practice Proper Authority Reporting Permissibility Constraint
Firms B and C were ethically permitted — and potentially required — to bring their belief that Firm A's $50,000 proposal constituted a deceptive practice to the attention of the responsible state agency, provided their protest was grounded in sincere public safety concern rather than self-aggrandizement; their competitive interest in the outcome did not extinguish this right.
NSPE Code of Ethics (former Section 12); BER discussion
Firms B and C are permitted, or required, to present information to the responsible government agency (i.e., 'the proper authority') if Firms B and C believe that Firm A's action endangers public health and safety.
Competitor Interest Injury Self-Advancement Prohibition — Firms B and C Protest Motivation
BER assumed for purposes of discussion that Firms B and C's protest was motivated by sincere public safety concern rather than self-aggrandizement, but identified the prohibition on self-interested competitor injury as a binding constraint
Competitor Reputation Injury Prohibition Constraint
Firms B and C were prohibited from filing their protest against Firm A's award for the purpose of advancing their own competitive interests — i.e., injuring Firm A's interests for self-aggrandizement — and were constrained to ensure their protest was motivated by sincere and genuine concern for public safety and health.
Beyond the Board's finding that Firms B and C were not unethical in filing their protest, the ethical permissibility of that protest does not rest solely on the sincerity of their public safety concern — it also depends on whether the protest was calibrated to what the firms actually knew at the time of filing. Firms B and C knew only that Firm A's fee was dramatically lower than their own proposals, not that Firm A lacked the technical capacity to perform competently at that price. The protest was therefore ethically grounded only insofar as it raised a credible inference of inadequacy based on fee disparity, not an affirmative finding of incompetence. Had Firms B and C characterized Firm A as definitively incapable or dishonest — rather than raising a good-faith concern warranting public scrutiny — their conduct would have crossed from permissible safety escalation into impermissible competitor disparagement. The Board's conclusion implicitly endorses the former but does not clearly prohibit the latter, leaving an important boundary unmarked.
The Board's conclusion that Firms B and C acted ethically in protesting the award does not resolve the deeper tension between their genuine public safety motivation and their undeniable competitive self-interest. A protest that is simultaneously ethically permissible on safety grounds and competitively advantageous to the protesting firms is not automatically suspect, but the dual motivation imposes a heightened transparency obligation on those firms. Specifically, Firms B and C were ethically obligated to disclose their competitive stake in the outcome when filing the protest, to avoid any appearance that the public safety framing was pretextual. The Board's analysis does not address whether this transparency obligation was met, and its silence on the point leaves open the possibility that a formally permissible protest could still reflect a character failure if the competitive motive was the dominant driver and the safety concern was instrumentalized rather than genuinely primary.
The Board's conclusion regarding Firms B and C implicitly validates the principle that a competing bidder's financial interest in the outcome does not disqualify its public safety protest from ethical legitimacy — but this validation carries an important systemic implication that the Board did not articulate. If competing bidders are recognized as ethically appropriate channels for surfacing public safety concerns in fee-based procurement, then the public agency bears a corresponding obligation to treat such protests as substantive technical inputs rather than mere competitive noise. The agency's failure to independently verify the technical and financial adequacy of Firm A's $50,000 proposal before announcing the award — particularly given the extreme fee disparity — represents an independent ethical and procedural failure that the Board's analysis leaves entirely unaddressed. Moral responsibility for any resulting public safety harm cannot rest solely with Firm A; it is shared by an agency that awarded a safety-critical infrastructure contract without discharging its own verification obligation.
The Board's conclusions, taken together, leave unresolved a critical asymmetry in the ethical analysis of Firm A's conduct. While the Board does not find Firm A unethical for submitting a $50,000 proposal, it also does not affirmatively find that the proposal was adequate for competent bridge design performance. This epistemic restraint is appropriate given the Board's limited factual record, but it creates a gap: Firm A's ethical obligations did not end at the moment of submission. If Firm A's principals knew, at the time of bidding, that $50,000 was insufficient to staff and execute a fully competent highway bridge design without cross-subsidization, scope reduction, or deferred cost recovery, then the submission carried an implicit misrepresentation about the firm's capacity to perform — regardless of whether the fee was legally permissible in a price-inclusive procurement. The Board's silence on Firm A's post-award obligations and its failure to require Firm A to explain the economic basis of its proposal means that the most consequential ethical question — whether the public will actually receive a competent bridge design — remains unanswered.
The Board's conclusion that Firms B and C were not unethical in calling for a public hearing — rather than pursuing a private channel of complaint — deserves explicit analytical support that the Board did not provide. The choice of a public forum over a confidential communication to the agency's chief engineer is ethically significant because it maximizes reputational exposure for Firm A while simultaneously maximizing public visibility for Firms B and C as safety-conscious competitors. A purely private protest would have served the public safety objective equally well while minimizing competitive self-promotion. The fact that Firms B and C chose the most public available mechanism does not render their conduct unethical, but it does mean that the ethical permissibility of their choice depends on whether the public nature of the protest was proportionate to the severity and credibility of the safety concern. For a safety-critical public infrastructure project like a highway bridge, a public hearing is a proportionate response to a credible concern about design adequacy — and on that basis the Board's conclusion is defensible — but the Board should have articulated this proportionality reasoning explicitly rather than leaving it implicit.
The engineering principals of Firms B and C were not unethical in filing a public protest and calling for a public hearing regarding the award.
In response to Q101: Firm A did bear an independent, proactive obligation to disclose how it intended to deliver competent bridge design services at $50,000 before the contract was executed, not merely after being challenged. The NSPE Code's requirement that engineers undertake only assignments for which they are qualified, combined with the obligation to act with professional honor, implies that a fee proposal is not merely a price signal but an implicit representation of technical and financial adequacy. Where the proposed fee is roughly 40–75% below the next lowest qualified competitor for a public safety-critical structure, the gap is large enough to raise a facially credible question about whether competent performance is economically feasible. Waiting passively for the agency or competitors to raise that question, rather than proactively explaining the economic basis of the proposal, is inconsistent with the spirit of honest competence representation. Firm A's silence on this point does not automatically establish unethical conduct, but it does represent a missed opportunity to discharge a professional transparency obligation that the Code's underlying values support.
In response to Q102: The public agency bears an independent ethical and procedural obligation to verify the technical and financial adequacy of Firm A's $50,000 proposal before executing the award, and its failure to do so meaningfully shares moral responsibility for any resulting public safety harm. The agency's own stated procedure acknowledges that price is a factor but not the sole determinant, which implies a retained duty to evaluate whether the proposed fee is consistent with competent performance. A fee disparity of the magnitude present here — with Firm A's proposal at less than half the next lowest bid from a similarly qualified firm — constitutes a facially material red flag that a reasonable procurement authority exercising due diligence should investigate before award. By proceeding to award without requiring Firm A to explain the economic basis of its proposal, the agency effectively transferred the risk of inadequate engineering performance to the public. This does not exonerate Firm A of its own obligations, but it does establish that moral responsibility for any downstream safety failure is shared between Firm A and the agency, not borne by Firm A alone.
In response to Q103: If Firm A's $50,000 proposal was made possible by cross-subsidizing this project from other firm revenues, the ethics analysis does not automatically change in a direction adverse to Firm A, provided that cross-subsidization does not compromise the quality or completeness of the engineering services delivered. The NSPE Code prohibits accepting work at a fee level that cannot sustain competent performance, but it does not prohibit a firm from strategically pricing a project below its standalone cost if the firm's overall financial structure permits full competent delivery. However, if the $50,000 fee was made possible only by significantly reducing the scope of services — omitting analyses, inspections, or design iterations that a competent bridge design requires — then the proposal would cross the ethical threshold into fee-cutting-to-incompetence, regardless of the firm's intent. The Board's failure to require Firm A to explain the economic basis of its proposal before rendering a conclusion represents a genuine analytical gap: the Board's finding that Firm A was not unethical is necessarily conditional on assumptions about Firm A's delivery model that were never verified on the record.
In response to Q104: Firms B and C were not required to present independent technical cost estimates or staffing analyses as a precondition for their protest to be considered ethically grounded rather than competitively motivated. The NSPE Code's civic duty elevation principle holds that engineers have an affirmative obligation to raise credible public safety concerns even when they lack complete information. The fee disparity here — with Firm A's proposal at less than half the next lowest qualified bid — is itself a form of prima facie evidence that a reasonable engineer could interpret as a credible safety concern, without needing to conduct a full independent cost analysis. Requiring Firms B and C to produce a detailed staffing and cost model before filing a protest would impose an evidentiary burden that effectively silences good-faith safety reporting whenever the protesting party lacks the resources or access to perform such an analysis. That said, Firms B and C's protest would have been on stronger ethical footing had they accompanied it with even a general explanation of the minimum staffing and analytical requirements for a competent highway bridge design, to distinguish their concern from mere competitive grievance.
In response to Q201: The tension between Free and Open Competition and the Fee-Cutting-to-Incompetence Threshold Prohibition is real and not fully resolved by the Board's analysis. The correct resolution is that these principles operate at different levels: free and open competition governs the permissibility of price-based procurement as a procurement method, while the fee-cutting prohibition governs the ethical floor below which an individual engineer may not descend regardless of the procurement method. They are not in direct conflict because the fee-cutting prohibition does not restrict competition — it restricts incompetent competition. An engineer resolves the tension by asking not whether they are permitted to bid low, but whether they can deliver competent services at the price they are bidding. If the answer is yes, the low bid is both legally permissible and ethically sound. If the answer is no, the bid is ethically impermissible regardless of competitive freedom. The genuine difficulty arises when fee adequacy is uncertain, as it is here: in that case, the engineer's obligation is to resolve the uncertainty internally before submitting the proposal, not to submit and hope the question is never raised.
In response to Q202 and Q203: The tension between Public Welfare Paramount and the Prohibition on Reputation Injury Through Competitive Critique does not resolve into a clean binary. A protest can be simultaneously ethically permissible on safety grounds and ethically suspect on competitive motivation grounds, and the presence of mixed motive does not automatically invalidate the safety concern or transform the protest into an impermissible reputational attack. The critical ethical variable is whether the safety concern is facially credible and proportionate to the evidence available, not whether the protesting party is entirely free of competitive interest. Engineers are not required to be disinterested bystanders to raise safety concerns — indeed, competitors are often the most technically informed observers of whether a rival's fee is adequate. The ethical boundary is crossed when the protest is fabricated, exaggerated beyond what the evidence supports, or pursued through channels designed to maximize reputational damage rather than prompt regulatory review. Firms B and C's use of a public hearing request, while potentially amplifying reputational exposure for Firm A, is consistent with the transparency norms of public procurement and does not by itself establish that the protest was motivated by competitive self-interest rather than genuine safety concern.
In response to Q204: The tension between Incomplete Situational Knowledge Restraint and Civic Duty Elevation to Professional Ethical Duty is the deepest epistemic challenge in this case. The resolution lies in recognizing that these principles govern different thresholds of action. Incomplete Situational Knowledge Restraint cautions against making definitive factual claims — such as asserting that Firm A's design will be unsafe — without sufficient evidence. Civic Duty Elevation permits and requires raising a concern for investigation when the available evidence creates a credible, facially reasonable basis for a safety worry, even without conclusive proof. Firms B and C were ethically calibrated correctly when they framed their protest as a concern that the fee level 'most likely' would result in inadequate design, rather than asserting as fact that Firm A was incompetent. Engineers operating under genuine epistemic uncertainty about a competitor's technical adequacy should act by escalating the concern to the appropriate authority for investigation, while carefully limiting their public characterizations to what the evidence actually supports, and should avoid making categorical claims of incompetence that go beyond what fee disparity alone can establish.
In response to Q301: From a deontological perspective, Firm A's engineer principals did not fully discharge their duty of honest competence representation by submitting a $50,000 proposal without any accompanying disclosure of how competent bridge design services could be delivered at that price. The Kantian formulation of this duty asks whether the maxim of Firm A's conduct — 'submit a price proposal without explaining how competent performance is economically feasible when the fee is dramatically below market' — could be universalized without undermining the integrity of engineering procurement. It cannot: if all firms routinely submitted proposals without any obligation to demonstrate economic feasibility, the procurement system would lose its capacity to distinguish competent from incompetent bids, and public safety would be systematically undermined. The duty of professional honor embedded in the NSPE Code is not satisfied merely by the absence of proven incompetence; it requires affirmative conduct consistent with the representation that the proposed fee is adequate for the work. Firm A's silence on this point is not a deontological violation in itself, but it is an incomplete discharge of the full duty of honest competence representation.
In response to Q302: From a consequentialist perspective, the anticipated long-term harm calculus strongly favors requiring the agency to verify Firm A's fee adequacy before executing the award, and that calculus should have been determinative in the agency's decision-making process. A highway bridge is a long-lived public safety infrastructure asset whose design errors compound over decades through elevated construction costs, accelerated maintenance expenditures, and potential structural failure. The short-term fiscal saving of $70,000 relative to Firm B's proposal, or $150,000 relative to Firm C's, is trivially small compared to the lifecycle cost differential of an inadequately designed bridge. A consequentialist analysis that properly discounts future harms at a socially appropriate rate — accounting for the probability of design inadequacy, the severity of potential structural failure, and the breadth of public exposure — would almost certainly conclude that the expected harm of awarding to an inadequately funded firm exceeds the expected benefit of the fee saving. This does not mean Firm A's proposal was necessarily inadequate, but it does mean the agency's failure to verify adequacy before award was consequentially unjustifiable.
In response to Q303: From a virtue ethics perspective, Firms B and C demonstrated the professional virtues of civic courage and integrity when they filed a public protest and called for a public hearing, even accounting for the presence of competitive self-interest as a concurrent motivation. Virtue ethics does not require that virtuous action be free of all self-interested motivation; it requires that the action be consistent with the character of a person of practical wisdom acting in accordance with professional excellence. A practically wise engineer, observing a fee disparity of this magnitude for a public safety-critical structure, would recognize both the competitive advantage of a successful protest and the genuine public safety obligation to raise the concern — and would act on the safety concern regardless of the competitive benefit. The mixed motive does not transform the action from virtuous to vicious; it merely means that Firms B and C's character assessment must account for whether the safety concern was genuine and proportionate, which the available facts suggest it was. The virtuous deficiency would have been silence in the face of a credible safety concern, motivated by a desire to avoid the appearance of competitive self-interest.
In response to Q304: From a deontological perspective, Firm A's engineer principals did risk violating a duty to competitors by counter-charging that Firms B and C acted unethically, without a sufficient factual basis to establish that their protest was made in bad faith rather than genuine public safety concern. The NSPE Code's prohibition on injuring the professional reputation of a competitor through false or malicious statements applies with equal force to counter-charges as to initial charges. Firm A's counter-charge implicitly asserts that Firms B and C's protest was motivated by competitive self-interest rather than genuine safety concern — a factual claim about their internal motivations that Firm A had no evidentiary basis to make. The mere fact that Firms B and C are competitors who would benefit from a successful protest does not establish that their safety concern was pretextual. Firm A's counter-charge, if made without evidence of bad faith, is itself a potential violation of the competitor reputation injury prohibition — an irony that the Board's analysis does not fully explore.
In response to Q401: If Firm A had voluntarily disclosed a detailed technical and financial explanation of how it could deliver a fully competent highway bridge design at $50,000 — identifying cross-subsidization, proprietary efficiencies, or reduced overhead — the Board's analysis of Firm A's ethical obligations would have been substantially strengthened in Firm A's favor, and Firms B and C's protest would have lost much of its ethical legitimacy. Proactive disclosure of the economic basis of a dramatically low proposal would have discharged Firm A's honest competence representation obligation, shifted the burden of proof to Firms B and C to identify specific technical deficiencies rather than relying on fee disparity alone, and given the agency a factual basis for its award decision. In that scenario, Firms B and C's protest — absent independent technical evidence of inadequacy — would have been more difficult to characterize as a good-faith safety concern and more susceptible to characterization as competitive self-interest. The counterfactual thus reveals that proactive transparency by Firm A was not merely strategically advantageous but was the conduct most consistent with the Code's underlying values of professional honor and public welfare.
In response to Q402: If the state agency had required all shortlisted firms to submit a written technical scope and staffing plan alongside their price proposals, such a procedural safeguard would have substantially reduced — though not entirely eliminated — the ethical dispute between the firms. The agency would have had a factual basis to evaluate whether Firm A's $50,000 fee was economically feasible for competent performance, discharging its own safety verification obligation. Firms B and C's protest, if filed after such a review, would have needed to identify specific deficiencies in Firm A's disclosed scope rather than relying on fee disparity alone, raising the evidentiary threshold for a credible safety concern. However, the ethical dispute would not have been rendered entirely moot: even with a disclosed scope, reasonable engineers might disagree about whether the proposed staffing and analytical approach was adequate for a highway bridge, and the protest right would remain available. The counterfactual reveals that the agency's failure to require scope disclosure was itself a procedural gap that created the conditions for the ethical dispute — a finding that points toward systemic procurement reform rather than individual firm culpability.
In response to Q403: If Firms B and C had filed their protest through a private channel — a confidential communication directly to the agency's chief engineer — rather than seeking a public hearing, their conduct would have been more clearly free of any appearance of competitive self-promotion, but it would not necessarily have been more ethical in substance. The public hearing demand is consistent with the transparency norms of public procurement: a state agency's award of a public infrastructure contract is a matter of public record and public interest, and the mechanism of a public hearing is a standard accountability tool in public procurement. Routing the protest through a private channel might have reduced the reputational exposure for Firm A, but it would also have reduced the accountability pressure on the agency to take the safety concern seriously. The Board's analysis of Firms B and C's motivations would likely have been more favorable in the private channel scenario, but the ethical substance of the protest — a good-faith safety concern about a dramatically low fee for a public safety structure — would have been the same. The choice of public versus private channel affects the optics of competitive motivation more than the underlying ethical character of the protest.
In response to Q404: If Firm A's $50,000 proposal had been the result of a deliberate bait-and-switch strategy — intending to win the contract at a low fee and then seek scope changes or supplemental agreements to recover full costs — that intent, if proven, would clearly change the Board's conclusion and would constitute a serious ethical violation independent of whether the final delivered services were competent. The bait-and-switch scenario involves deliberate deception of the procuring agency, a violation of the duty of honest dealing that is categorical rather than contextual. The evidentiary standard for distinguishing a good-faith low bid from a bait-and-switch should require affirmative evidence of deceptive intent — such as internal communications, a pattern of similar conduct in prior procurements, or post-award scope change requests that systematically recover the fee differential — rather than mere inference from fee disparity alone. Fee disparity is consistent with both good-faith low bidding and bait-and-switch, and the two scenarios cannot be distinguished on price evidence alone. This evidentiary standard protects genuinely efficient low bidders from bad-faith accusations while maintaining accountability for deliberate procurement deception.
The most fundamental tension in this case — between Free and Open Competition, which permits Firm A to submit a low-fee proposal in a price-inclusive procurement, and the Fee-Cutting-to-Incompetence Threshold Prohibition, which forbids accepting work at a fee level that cannot sustain competent performance — was resolved by the Board through epistemic restraint rather than substantive adjudication. Because the Board lacked technical evidence establishing that $50,000 was objectively insufficient for competent highway bridge design, it declined to infer incompetence from fee disparity alone. This resolution teaches a critical principle prioritization lesson: when two principles conflict and the factual predicate for one of them (here, the incompetence threshold) is genuinely uncertain, the ethics code does not automatically elevate the safety-protective principle over the competition-protective one. Instead, the burden of proof falls on the party asserting the safety violation. Free and Open Competition thus functions as a default presumption that can be overridden only by affirmative evidence of fee inadequacy, not by fee disparity alone. The practical implication is that Firm A's submission was treated as presumptively ethical unless and until concrete evidence of incapacity emerged — a resolution that protects competitive markets but leaves a residual public safety gap when such evidence is difficult to obtain before contract execution.
The tension between Public Welfare Paramount — invoked by Firms B and C to justify their protest — and the Prohibition on Reputation Injury Through Competitive Critique — alleged by Firm A against the protesting firms — was resolved by the Board in favor of the protesting firms, but only conditionally. The Board's conclusion that Firms B and C acted ethically rests on the premise that their protest was grounded in a good-faith safety concern rather than purely competitive self-interest. This resolution establishes a critical principle: when a competing engineer raises a public safety objection through legitimate procedural channels (a formal agency protest and public hearing request), the mere presence of competitive self-interest does not transform an otherwise permissible safety escalation into an impermissible reputational attack. The Prohibition on Reputation Injury Through Competitive Critique is therefore subordinated to the Civic Duty Elevation to Professional Ethical Duty principle when (a) the safety concern is credible on its face, (b) the protest is directed to an appropriate authority rather than the general public, and (c) the protesting party does not make affirmative false statements about the competitor's capabilities. This case teaches that mixed motives — simultaneous genuine safety concern and competitive advantage — do not automatically disqualify a protest, but they do impose a heightened obligation of factual restraint: Firms B and C were ethically required to confine their protest to what the fee disparity objectively suggested, rather than asserting as fact that Firm A's design would be unsafe or incompetent.
A third and underappreciated principle tension runs through this case without explicit resolution by the Board: the conflict between the Incomplete Situational Knowledge Restraint — which cautions against inferring incompetence solely from fee disparity — and the Civic Duty Elevation to Professional Ethical Duty — which demands that engineers act on credible safety concerns even without complete information. The Board navigated this tension by permitting Firms B and C to protest while simultaneously declining to find Firm A unethical, effectively bifurcating the analysis: the protest was ethically permissible as a procedural escalation, but the underlying factual claim (that Firm A's fee was inadequate) remained unproven and therefore could not support a finding of unethical conduct against Firm A. This bifurcation reveals an important structural insight about how the NSPE Code operates under epistemic uncertainty: the ethics code permits — and may even require — engineers to raise safety concerns through appropriate channels before they have conclusive proof of wrongdoing, because the cost of silence in a public safety context is potentially catastrophic and irreversible, while the cost of a good-faith but ultimately unfounded protest is comparatively modest. At the same time, the code prohibits engineers from treating an unverified inference as an established fact when making public accusations. The resolution thus creates a two-track standard: a lower evidentiary threshold for triggering the duty to escalate through proper channels, and a higher evidentiary threshold for making affirmative public claims of incompetence or unethical conduct against a named competitor. This calibration — act early, assert carefully — is the case's most durable contribution to principle prioritization under uncertainty.
Counter-Accuse Firm A of Unethical Conduct
Escalation could result in findings against Firms B and C if their protest was found to be self-interested
Ethics proceeding would create public record of the dispute
Formal ethics review would scrutinize all parties' conduct, including Firms B and C's own motivations for protesting
Code Section 12 permission to report practices believed to endanger public safety to proper authority
Professional duty to address conduct that may endanger public safety through appropriate channels
Right to bring perceived unethical conduct to proper ethics authority
Good faith requirement in ethics complaints
Obligation to protect public safety through appropriate professional mechanisms
Professional accountability through ethics review
Establish through formal ethics review that Firm A's pricing was professionally unethical, thereby reinforcing the legitimacy of their protest and potentially resulting in findings against Firm A
Potential violation of Code Section 12 prohibition on injuring competitor's interests for self-advancement, if counter-accusation was motivated by competitive self-interest rather than genuine ethics concern
Engineering judgment to substantiate claims about fee inadequacy
Knowledge of professional ethics codes and formal complaint procedures
Understanding of ethics board jurisdiction and process
Post-protest, in response to Firm A's accusation
Firms B and C's principals decided to formally counter-accuse Firm A's principal of unethical conduct in making the $50,000 price proposal, escalating the dispute to the ethics review board. This decision transformed the protest from an agency procurement matter into a formal professional ethics proceeding.
Should Firms B and C file a formal public protest and request a public hearing challenging Firm A's $50,000 fee proposal, or limit their response to a private communication to the agency, or refrain from protesting altogether given their competing financial interest in the outcome?
Firms B and C, as competing shortlisted bidders with a direct financial stake in displacing Firm A, must decide whether to file a formal public protest and request a public hearing when their professional judgment — grounded in attendance at the same scope-of-project meeting and their own cost analysis — indicates that Firm A's $50,000 fee is so far below realistic project costs as to create a credible risk of inadequate and unsafe bridge design.
File a formal protest with the agency and call for a public hearing, grounding the protest in the professional judgment — based on the firms' own cost analysis from the same scope-of-project meeting — that the $50,000 fee is so far below realistic costs as to create a credible risk of inadequate and unsafe bridge design, while carefully limiting characterizations to what the fee disparity objectively supports rather than asserting definitive incompetence.
Communicate the safety concern confidentially and directly to the agency's chief engineer without demanding a public hearing, thereby raising the professional concern through appropriate authority while minimizing reputational exposure for Firm A and reducing the appearance of competitive self-promotion.
Decline to file any protest on the grounds that Firms B and C's direct financial interest in displacing Firm A makes any protest inherently suspect as competitive self-interest, and that without independent technical evidence of fee inadequacy beyond disparity alone, the protest cannot be distinguished from an attempt to injure a competitor's professional standing for competitive gain.
Public Safety Fee Protest Engineering Firm
Should Firm A's engineer principals publicly counter-accuse Firms B and C of unethical conduct, or should they instead respond by disclosing the economic and technical basis of their $50,000 proposal to the agency without characterizing the protest as bad-faith?
Engineer principals of Firm A face a decision about whether to counter-accuse Firms B and C of unethical conduct after those firms filed a public protest and requested a public hearing challenging the award of the bridge design contract to Firm A at its $50,000 price proposal. The core tension is between Firm A's right to defend its professional reputation and its NSPE Code obligation not to injure a competitor's reputation through false or malicious statements — particularly when Firm A lacks evidentiary basis to establish that Firms B and C acted in bad faith rather than genuine public safety concern.
Publicly characterize Firms B and C's protest as unethical conduct motivated by competitive self-interest rather than genuine public safety concern, seeking to discredit the protest before the agency and at the public hearing.
Respond to the protest by proactively providing the agency with a detailed technical and financial explanation of how Firm A can deliver competent bridge design services at $50,000 — identifying staffing, cross-subsidization, or efficiency rationale — without making any public characterization of Firms B and C's motivations.
If Firm A possesses affirmative evidence — beyond mere competitive benefit — that Firms B and C's protest was fabricated or made in demonstrable bad faith, report that specific evidence to the appropriate professional ethics authority through proper channels rather than making a public counter-accusation without evidentiary support.
Should Firms B and C file a public protest and demand a public hearing to challenge the award to Firm A on public safety grounds, or should they raise their fee-adequacy concern through a private confidential communication to the agency without seeking public exposure of Firm A's bid?
Engineer principals of Firms B and C face a decision about how to respond to the announced award of a highway bridge design contract to Firm A at a price ($50,000) that is 40–75% below their own qualified proposals ($120,000 and $200,000 respectively). The core tension is between their civic duty to raise a credible public safety concern about fee adequacy for a safety-critical structure and the NSPE Code's prohibition on injuring a competitor's reputation through competitive critique — compounded by the fact that the protesting firms have an undeniable financial interest in displacing Firm A as the awardee.
Formally protest the award to Firm A and request a public hearing before the agency, framing the concern as a credible public safety question raised by the extreme fee disparity — while carefully limiting characterizations to what the disparity objectively suggests rather than asserting Firm A's incompetence as established fact.
Raise the fee-adequacy concern through a private, confidential written communication directly to the agency's chief engineer or procurement officer, requesting that the agency require Firm A to explain the economic basis of its proposal before executing the award — without seeking public exposure of Firm A's bid or triggering a public hearing.
File a public protest accompanied by a general technical explanation of the minimum staffing, analytical requirements, and cost floor for competent highway bridge design — providing the agency with an independent evidentiary basis for evaluating Firm A's fee adequacy rather than relying on fee disparity alone — to distinguish the safety concern from mere competitive grievance.
Should Firm A proactively disclose to the agency the economic and technical basis of its $50,000 proposal before contract award, or rely on the competitive legitimacy of its low bid without further explanation, or wait to provide such explanation only if directly challenged?
Firm A, having submitted a $50,000 fee proposal that is 58–75% below the next lowest qualified bid for a public safety-critical highway bridge design, must decide whether to proactively disclose to the agency the technical and financial basis by which it intends to deliver competent engineering services at that price — or to rely on the competitive legitimacy of its low bid in a price-inclusive procurement without further explanation.
Voluntarily provide the agency with a written explanation of how Firm A intends to deliver competent highway bridge design services at $50,000 — identifying cross-subsidization from other projects, proprietary efficiencies, subcontracting arrangements, or reduced overhead — thereby discharging the honest competence representation obligation and giving the agency a factual basis for its award decision before the contract is executed.
Submit the $50,000 proposal without accompanying disclosure, relying on the competitive legitimacy of price-inclusive procurement and the principle that engineers are not required to explain their pricing methodology to competitors or the agency in a fee-based selection process, and respond to any specific technical questions only if directly raised by the agency.
Submit the $50,000 proposal without proactive disclosure, but prepare a detailed technical and financial explanation of the delivery model to be provided promptly if the agency requests clarification or if a formal protest is filed — treating the disclosure obligation as triggered by challenge rather than as a proactive pre-award duty.
Should the state agency independently verify the technical and financial adequacy of Firm A's $50,000 proposal before executing the contract award — including by requiring Firm A to disclose its delivery model — or proceed with the award to the lowest-fee qualified bidder as its price-inclusive procedure contemplates, or suspend the award pending a public hearing on the safety concerns raised by Firms B and C?
The state agency, operating under a new price-inclusive selection procedure and having received formal protests from Firms B and C asserting that Firm A's $50,000 fee creates a credible public safety risk for a highway bridge design, must decide whether to independently verify the technical and financial adequacy of Firm A's proposal before executing the award, or to proceed with the award to the lowest-fee qualified bidder as its stated procedure contemplates.
Suspend the award announcement and require Firm A to submit a written technical scope, staffing plan, and financial explanation demonstrating how competent highway bridge design services can be delivered at $50,000, thereby independently verifying fee adequacy before executing the contract and discharging the agency's own public safety verification obligation.
Execute the award to Firm A as the lowest-fee qualified bidder consistent with the agency's stated price-inclusive selection procedure, treating the fee disparity as a legitimate competitive outcome and relying on Firm A's professional licensure and the shortlisting process as sufficient assurance of competent performance without additional pre-award verification.
Suspend the award and convene the public hearing requested by Firms B and C, allowing all parties — including Firm A — to present technical and financial evidence regarding fee adequacy before the agency makes a final award determination, thereby treating the formal protest as a substantive technical input rather than mere competitive noise.
Should Firms B and C file a public protest and demand a public hearing to challenge the award to Firm A, or pursue a less public channel of complaint, given that their safety concern is genuine but their competitive self-interest is undeniable?
Firms B and C: Whether to File Public Protest Against Firm A's Low-Fee Award Given Mixed Safety and Competitive Motivations
File a formal protest with the agency and request a public hearing, raising the fee disparity as a credible public safety concern warranting agency investigation, while limiting characterizations of Firm A to what the fee disparity objectively suggests rather than asserting definitive incompetence.
Route the concern through a private written communication directly to the agency's chief engineer, identifying the fee disparity as a potential safety issue and requesting internal review before award, without triggering a public hearing that would maximize reputational exposure for Firm A.
File a public protest accompanied by a general technical analysis identifying the minimum staffing and analytical requirements for competent highway bridge design, providing an evidentiary basis for the safety concern beyond fee disparity alone and distinguishing the protest from mere competitive grievance.
Should Firm A proactively disclose to the agency how it intends to deliver competent highway bridge design services at $50,000 — before being challenged — or rely on the legitimacy of price-inclusive competitive procurement and remain silent unless directly questioned?
Firm A: Whether to Proactively Disclose the Economic Basis of Its $50,000 Proposal Before Contract Award
Voluntarily provide the agency with a written explanation of how Firm A intends to deliver fully competent highway bridge design services at $50,000 — identifying cross-subsidization, proprietary efficiencies, reduced overhead, or scope assumptions — before the contract is executed, without waiting to be challenged.
Submit the $50,000 proposal without accompanying disclosure, treating the price-inclusive procurement as a legally and ethically sufficient framework that does not impose affirmative transparency obligations on low bidders beyond the proposal itself, and respond to any agency or competitor inquiries if and when they arise.
Submit the $50,000 proposal and prepare a detailed internal technical and financial justification, offering to provide it to the agency upon request during any pre-award review or in response to the protest, rather than volunteering it unsolicited in a competitive procurement context where disclosure could compromise proprietary cost information.
Should the public agency independently verify the technical and financial adequacy of Firm A's $50,000 proposal before executing the contract award, or proceed with the award based on the price-inclusive procurement procedure already adopted?
Public Agency: Whether to Verify Technical and Financial Adequacy of Firm A's $50,000 Proposal Before Executing the Award
Before executing the contract award, require Firm A to submit a written explanation of how it intends to deliver competent highway bridge design services at $50,000 — including staffing, scope assumptions, and economic basis — and evaluate that explanation against minimum competency standards before proceeding.
Execute the award to Firm A as the low bidder consistent with the price-inclusive selection procedure already adopted, treating the agency's pre-qualification of all three firms as sufficient verification of technical competence and relying on contract terms and post-award oversight to ensure adequate performance.
Pause the award pending the public hearing already triggered by Firms B and C's protest, and commission an independent technical panel to evaluate whether $50,000 is economically feasible for competent highway bridge design given the project scope, using the panel's findings as the basis for the final award decision.
Should Firm A's engineer principals submit the $50,000 price proposal without any accompanying disclosure of how competent bridge design services can be delivered at that price, or should they proactively disclose the economic basis of their proposal before contract award?
Engineer (Firm A): Fee-Cutting Economic Infeasibility Competence Threshold and Honest Competence Representation in Highway Bridge Procurement
Submit the $50,000 proposal accompanied by a written explanation of the economic basis — identifying cross-subsidization, proprietary efficiencies, reduced overhead, or staffing assumptions — that demonstrates how competent bridge design services can be delivered at that price, thereby discharging the honest competence representation obligation before any challenge arises.
Submit the $50,000 price proposal without accompanying explanation, relying on the Free and Open Competition principle that price-inclusive procurements do not impose affirmative disclosure duties on low bidders, and await any agency or competitor inquiry before providing further information.
If internal analysis cannot confirm that $50,000 is sufficient to staff and execute a fully competent highway bridge design without compromising scope or quality, withdraw the proposal or revise it upward to a fee level that can be internally verified as adequate, treating the fee-cutting-to-incompetence prohibition as a hard constraint that overrides competitive pricing strategy.
Should Firms B and C file a public protest and call for a public hearing regarding the award of the contract to Firm A based on the extreme fee disparity, or should they limit their response to a private confidential communication to the agency, or refrain from protesting altogether?
Firms B and C: Competing Bidder Good Faith Public Safety Protest Permissibility — Whether to File a Public Protest and Demand a Public Hearing Regarding Award to Firm A
File a formal public protest with the agency and demand a public hearing, framing the concern as a credible inference of potential design inadequacy based on the extreme fee disparity for a safety-critical public infrastructure project, while carefully limiting characterizations to what the fee disparity objectively supports rather than asserting Firm A's definitive incompetence.
Route the safety concern through a confidential written communication directly to the agency's chief engineer, identifying the fee disparity as a potential red flag warranting pre-award verification, without seeking a public hearing — thereby reducing reputational exposure for Firm A and minimizing the appearance of competitive self-promotion while still discharging the civic duty to escalate.
Decline to file any protest on the grounds that fee disparity alone — without an independent technical cost analysis demonstrating that $50,000 is objectively insufficient for competent bridge design — does not provide an adequate evidentiary basis to distinguish a good-faith safety concern from competitive self-interest, and that filing without such evidence risks violating the prohibition on competitor reputation injury.
Should the public agency require Firm A to submit a written technical scope and staffing plan demonstrating economic feasibility before executing the award, or proceed to award based on price alone without independent verification of Firm A's capacity to deliver competent bridge design services at $50,000?
Fee-Based Public Engineering Procurement Authority: Safety Verification Obligation Before Award of Contract to Dramatically Low-Fee Bidder
Before executing the award to Firm A, require all shortlisted firms — or at minimum the apparent low bidder — to submit a written technical scope and staffing plan demonstrating how competent bridge design services will be delivered at the proposed fee, enabling the agency to independently verify economic feasibility and discharge its safety verification obligation before contract execution.
Proceed to award the contract to Firm A as the low bidder, relying on the agency's prior pre-qualification of all three shortlisted firms as evidence of baseline competence and treating fee adequacy as the professional responsibility of the submitting firm rather than an independent agency verification burden, consistent with the price-inclusive selection procedure the agency adopted.
Before executing the award, convene a targeted pre-award clarification meeting with Firm A to request an oral or written explanation of the economic basis of its $50,000 proposal — without imposing a formal scope-and-staffing submission requirement on all bidders — thereby conducting a proportionate, focused verification of the material red flag created by the extreme fee disparity while minimizing disruption to the procurement timeline.
Fee-Based Public Engineering Procurement Authority
Professional Norms on Engineer Duty to Escalate Public Safety Concerns
Engineer Public Safety Escalation Standard
the possibility that the design could be unsafe and jeopardize the public health
called for a public hearing on the ground that the proposal of Firm A was so out of line with realistic costs for proper engineering performance
Supports the argument by Firms B and C that raising public safety concerns about an inadequate design — potentially jeopardizing public health — through a formal protest and public hearing is a professional duty, not unethical conduct
Professional Norms on Engineer Solicitation and Competition Ethics
Engineer Solicitation and Competition Ethics Standard
the engineer principals of Firms B and C counter that the engineer principals of Firm A have acted unethically in making their proposal under these circumstances
Governs the ethical boundaries of competitive conduct for all three firms — whether Firm A's aggressive low-ball pricing and Firms B/C's protest actions fall within or outside ethical competitive behavior
Professional Norms on Adequate Engineering Fee Proposals
the proposal of Firm A was so out of line with realistic costs for proper engineering performance for the project that the result would most likely be an inadequate design, with higher construction and maintenance costs over the life of the facility, and the possibility that the design could be unsafe and jeopardize the public health
Firms B and C (protest); ethics review board
Implicitly invoked by Firms B and C in arguing that Firm A's $50,000 proposal is so far below realistic costs as to foreseeably produce inadequate design and public safety risk; also relevant to evaluating whether Firm A acted ethically in submitting such a proposal
Competitive landscape transformed from routine procurement to contested award; price disparity becomes the central fact around which all subsequent ethical disputes revolve; agency faces pressure to either justify or re-examine its lowest-price methodology
Upon agency receipt and comparison of all three submitted proposals
Upon submission and comparison of the three price proposals ($50,000, $120,000, $200,000), a striking fourfold difference between the lowest and second-lowest bids becomes apparent, raising immediate questions about the adequacy of Firm A's proposed fee.
Fee-Based Procurement Safety Adequacy Agency Pre-Award Verification — State Agency Highway Bridge Award
State agency awarded highway bridge design contract to Firm A at $50,000 despite formal protest by Firms B and C; BER identified the agency's pre-award verification obligation as a binding constraint
State agency conducting fee-competitive procurement
Fee-Based Procurement Safety Adequacy Agency Pre-Award Verification Constraint
The state agency was constrained, before awarding the highway bridge design contract to Firm A at $50,000, to verify that this fee was sufficient to fund competent, code-compliant, and safe engineering performance, and was required to take seriously the formal protest by Firms B and C raising fee-adequacy and public safety concerns before finalizing the award.
NSPE Code of Ethics; public procurement law; BER discussion
Before award of contract to Firm A; during protest proceedings
Fee-Loss Subsidization Permissibility With Competence Floor — Firm A $50,000 Proposal
Firm A's $50,000 proposal was $70,000 below Firm B's next lowest bid of $120,000; BER acknowledged loss-taking is not per se unethical but identified the competence floor as the binding constraint
Fee-Loss Subsidization Ethical Permissibility With Competence Floor Constraint
Firm A was not necessarily acting unethically by proposing a fee ($50,000) below cost or by cross-subsidizing the engagement from other profits, but was absolutely constrained from cutting its fee to a level at which it became economically infeasible to render competent and safe highway bridge design services.
It is not necessarily unethical for an engineer to lose money on an engagement or to subsidize an engagement by applying to its profits made on other work.
At time of fee proposal submission and throughout contract performance
However, it would be unethical for an engineer to cut fees to such an extent as would lead to the rendition of incompetent and dangerous service.
there comes a point in cutting fees at which it is economically infeasible to render competent service
Action creates appearance of self-interested competitive behavior regardless of genuine safety motivation
If motivated by self-interest rather than genuine safety concern, protest would itself be unethical under Code Section 12
Protest could benefit Firms B and C commercially if award to Firm A is cancelled
Public hearing could expose Firm A to reputational harm
Civic duty to report potentially deceptive or dangerous professional practices
Code Section 12 duty to bring practices believed to endanger public safety to the attention of proper authorities
Professional obligation to protect public health and safety (Code Sections 2 and 2(a))
Engineers may report practices they believe endanger public safety to proper authorities
Engineers must not use ethical reporting mechanisms as a pretext for competitive injury
Engineers must protect public safety and health above competitive interests
Prevent award of contract to Firm A on grounds of public safety risk; trigger agency reconsideration of the award decision
Code Section 12 prohibition on attempting to injure the professional interests of another engineer for purposes of self-advancement, if protest was motivated by competitive self-interest rather than genuine safety concern
Engineering judgment to assess whether Firm A's fee is consistent with competent performance
Knowledge of professional ethical obligations and reporting procedures
Understanding of project requirements sufficient to evaluate fee adequacy
Immediately post-announcement of award to Firm A
Representatives of Firms B and C decided to promptly file formal protests with the agency and call for a public hearing after the agency announced its intent to award the contract to Firm A, arguing that Firm A's proposal was so unrealistically low as to risk inadequate design, higher lifecycle costs, and potential public safety hazards. This is the action most directly scrutinized for dual motivation in the Discussion.
File Protest and Request Public Hearing → Public Hearing Triggered
Representatives of Firms B and C decided to promptly file formal protests with the agency and call for [a public hearing], and as a direct result of Firms B and C filing protests and requesting a public hearing, a formal public [hearing was triggered]
Without the protest filing by Firms B and C, the agency would have proceeded directly to contract award with Firm A; no public hearing would have occurred absent this volitional action
Existence of a formal protest mechanism within the agency's procurement rules
Explicit request for public hearing as part of the protest
Firms B and C having legal standing to protest (as shortlisted competitors)
Timely filing of protest within any applicable deadline
Firms B and C Principals (joint decision)
The combination of legal standing, timely action, and procedural entitlement was sufficient to compel the agency to hold a hearing
Valid protest filing by aggrieved parties + procedural right to hearing = mandatory public hearing convening
Firm A Abnormally Low Fee Bid Safety Adequacy Verification — Highway Bridge
Firm A submitted a $50,000 fee proposal for a highway bridge design contract against competing proposals of $120,000 (Firm B) and $200,000 (Firm C), a disparity so large that Firms B and C formally protested on public safety grounds.
Firm A was constrained, before submitting its $50,000 fee proposal, to verify that this fee was sufficient to fund competent, code-compliant, and safe highway bridge design — and was prohibited from submitting a fee it knew or should have known was inadequate to support proper engineering performance on a public safety-critical project.
NSPE Code of Ethics Section II.2 (competence), Section I.6 (professional honor), Section II.2(a) (services only in areas of competence)
At the time of fee proposal submission and throughout the project engagement
the proposal of Firm A was so out of line with realistic costs for proper engineering performance for the project that the result would most likely be an inadequate design
Firm A Competitor Reputation Injury Prohibition — Counter-Charge Against Firms B and C
Firm A's principal charged that Firms B and C acted unethically in filing their protest, without acknowledging that their public safety concern — however contaminated by competitive self-interest — may have had a legitimate professional basis.
Firm A's principal was constrained from making statements that maliciously or falsely injured the professional reputation of Firms B and C's principals when counter-charging that they acted unethically, and was prohibited from characterizing their protest as definitively unethical without full knowledge of their motivations and the factual basis for their concerns.
NSPE Code of Ethics Section III.7; prohibition on maliciously or falsely injuring the professional reputation of other engineers
A principal of Firm A charges that the engineer principals of Firms B and C have acted unethically
At the time of making the counter-charge of unethical conduct against Firms B and C
Firm A Competitor Reputation Non-Impairment in Counter-Charge
Predictive Competitor Incapacity Disparagement Recognition and Avoidance Capability
Firm A's principal, in charging that Firms B and C acted unethically, needed the capability to recognize that making predictive or speculative characterizations about Firms B and C's motivations or professional conduct — beyond what the facts actually supported — constituted impermissible disparagement of competitor professional reputation
Firm A's principal charged that Firms B and C acted unethically in filing the protest; the BER evaluated this counter-charge under the code provisions governing competitor relations
The BER's evaluation of whether Firms B and C's protest was motivated by self-interest or public safety, and the code provision prohibiting attempts to injure competitor interests for self-advancement
Firm A (Low-Fee Award Winning Engineering Firm)
Firm A Fee-Cutting Competence Threshold Self-Recognition
Fee-Cutting Competence Threshold Non-Breach Self-Recognition Capability
Firm A was required to possess the capability to recognize whether its $50,000 fee proposal crossed the threshold at which economically infeasible, incompetent, or dangerous service would result — and to refrain from submitting a fee that crossed that threshold
Firm A submitted the lowest fee in a competitive fee-based procurement for highway bridge design; the BER noted that fees cut to the point of economic infeasibility constitute an ethical violation
Submission of a $50,000 fee proposal — $70,000 below the next lowest bid — raising the question of whether this fee could support competent highway bridge design
It requires no special insight or acumen to note the obvious fact that in engineering, as in other endeavors, there comes a point in cutting fees at which it is economically infeasible to render competent service.
In that context, the initial fee which is 'too good to be true' may in reality represent the bait-and-switch deception of an unethical practitioner.
Firm A Fee-Loss Cross-Subsidy Permissibility Self-Assessment
Fee-Loss Cross-Subsidy Permissibility Boundary Recognition Capability
Firm A needed the capability to assess whether its $50,000 fee — if below cost — was permissibly cross-subsidized from other project profits, or whether it crossed into impermissible fee-cutting that would lead to incompetent service
The BER explicitly distinguished permissible loss-leader/cross-subsidy pricing from impermissible fee-cutting in evaluating Firm A's $50,000 proposal
The BER's recognition that losing money on an engagement is not necessarily unethical, but cutting fees to the point of incompetent service is
Firm A Fee Adequacy Public Safety Threshold Self-Assessment
Fee Adequacy Public Safety Threshold Self-Assessment Capability
Firm A was required to assess whether its $50,000 fee proposal was sufficient to fund competent, safe highway bridge design before submitting it — a capability it apparently failed to exercise adequately given the dramatic disparity with competitors' proposals.
Firm A submitted the lowest fee proposal by $70,000 below the next competitor; the BER found this raised ethical concerns about whether the fee was sufficient for competent, safe performance.
Submission of a $50,000 fee proposal for highway bridge design against competitors' proposals of $120,000 and $200,000, raising questions about whether the fee could fund adequate engineering performance.
the proposal of Firm A was so out of line with realistic costs for proper engineering performance for the project
Firm A Free and Open Competition Regulatory Deference — Highway Bridge Procurement
The state agency operated under a new fee-competitive procedure that is legally permissible under state law, even though it differs from QBS; Firm A's participation in this process was legally authorized.
Free and Open Competition Regulatory Deference Constraint
Firm A was constrained to act in conformance with applicable laws and regulations governing free and open competition in the state agency's fee-competitive procurement, and the BER was constrained from second-guessing Firm A's competitive conduct insofar as it was consistent with those laws and regulations.
NSPE Code of Ethics Section III.6; applicable state procurement law; BER Case 10-8
A state agency, operating under a new procedure for selection of engineering services
The agency procedure states that it is not required to accept the lowest price, but that price will be a factor in the selection decision
Firm A Honorable Procurement Conduct Highway Bridge Bid
Honorable Procurement Conduct Self-Regulation Capability
Firm A was required to conduct itself honorably in the procurement by ensuring its fee proposal honestly reflected the cost of competent, safe performance rather than submitting a fee that could not fund adequate engineering work.
The BER found that Firm A's fee proposal raised ethical concerns about whether it could perform competently and safely at that fee level.
Submission of a $50,000 fee proposal that was $70,000 below the next competitor and $150,000 below the highest bidder for the same scope of highway bridge design work.
Firm A Improper Competitive Method Prohibition — Low-Ball Fee Proposal
Firm A's $50,000 proposal was dramatically below the $120,000 and $200,000 proposals of Firms B and C, raising the question of whether the low fee was a bait-and-switch tactic or reflected a genuine ability to perform competently at that price.
Improper Competitive Method Prohibition Constraint
Firm A was constrained from obtaining the highway bridge design contract through a fee proposal that constituted an improper or questionable competitive method — specifically, a fee so far below realistic costs as to foreseeably produce inadequate engineering performance, which if used as a bait-and-switch mechanism would constitute an improper solicitation method.
NSPE Code of Ethics Section III.6 (improper solicitation); Section II.2 (competence)
At the time of fee proposal submission and contract award
the proposal of Firm A was so out of line with realistic costs for proper engineering performance
Firm A Improper Method Procurement Non-Engagement Self-Monitoring
Firm A needed the capability to recognize that submitting a fee proposal so far below competing bids as to constitute an improper or questionable method of obtaining a professional engagement violated the code's prohibition on improper procurement methods
The BER applied the improper methods prohibition to Firm A's $50,000 fee proposal, which was $70,000 below the next lowest bid
The BER's application of the code provision prohibiting engineers from attempting to obtain professional engagements by improper or questionable methods to all three firms including Firm A
Section 11 of the code also states a principle which applies to Firms A, B, and C, namely that engineers shall not attempt to obtain professional engagements by 'improper or questionable methods.'
Firm A Pre-Acceptance Competence Self-Assessment Highway Bridge
Pre-Acceptance Competence Self-Assessment Capability
Firm A was required to honestly assess whether it could deliver competent highway bridge design at the proposed $50,000 fee level before submitting its proposal.
Firm A was shortlisted as qualified but submitted a fee far below market norms, raising questions about whether it honestly assessed its capacity to perform competently at that fee.
Submission of a fee proposal that competitors and the BER found to be insufficient for competent engineering performance, suggesting inadequate pre-acceptance self-assessment.
After a review of the competency of all the firms by the agency engineering staff, Firms A, B, and C were placed on the 'short list'
Firm A Predictive Incapacity Counter-Charge Avoidance
Firm A's principal, in charging that Firms B and C acted unethically, was required to refrain from making predictive or speculative characterizations about Firms B and C's motivations or conduct that went beyond what the facts supported.
The BER found that Firm A's counter-charge raised ethical concerns about whether it constituted impermissible disparagement of Firms B and C.
Firm A's principal charged that Firms B and C acted unethically — a characterization the BER found required careful calibration to avoid impermissible disparagement of competitors' professional reputations.
Firm A Professional Honor Non-Degradation Through Inadequate Fee Bidding — Highway Bridge
Firm A's $50,000 proposal was 58% below Firm B's $120,000 proposal and 75% below Firm C's $200,000 proposal, raising the question of whether the fee could support competent highway bridge design.
Professional Honor Non-Degradation Through Incompetent Bidding Constraint
Firm A was constrained from bidding on the highway bridge design contract at a fee level ($50,000) that it knew or should have known was insufficient to support competent engineering performance, as such conduct degrades the honor, reputation, and usefulness of the engineering profession.
NSPE Code of Ethics Section I.6 (professional honor and usefulness of the profession)
Firm A Public Safety Paramount — Fee Adequacy for Highway Bridge Design
A highway bridge is a public safety-critical infrastructure project; a fee inadequate to support competent design foreseeably endangers the bridge-using public.
Firm A was constrained by the paramount obligation to hold public safety above competitive and commercial interests, prohibiting it from submitting a fee proposal that foreseeably endangered public safety through inadequate engineering performance on a highway bridge.
NSPE Code of Ethics Section I (fundamental canons), Section II.2
Throughout the procurement and project execution phases
higher construction and maintenance costs over the life of the facility
Firm A's principal charging Firms B and C with unethical conduct before Firms B and C counter-charging Firm A with unethical conduct
A principal of Firm A charges that the engineer principals of Firms B and C have acted unethically. In return, the engineer principals of Firms B and C counter that the engineer principals of Firm A have acted unethically
Firm A's principal charging Firms B and C with unethical conduct
Firms B and C counter-charging Firm A with unethical conduct
Firms B and C Antitrust-Constrained Ethics Code Scope Recognition
Antitrust and Procurement Law Contextual Awareness Capability
Firms B and C needed the capability to understand the antitrust constraints on NSPE's ability to prescribe fee-based selection procedures, while recognizing that applicable state and federal procurement laws — including the Brooks Act — remained in full force and provided the legal framework within which their protest was grounded
The BER noted that while competitive bidding was not at issue, the fee-based procurement procedure was contrary to the Brooks Act and most public agency practice — context that Firms B and C needed to understand to properly ground their protest
The BER's preliminary note that the fee-based procedure was contrary to the Brooks Act and most public agency practice, providing the legal and ethical context for evaluating the protest
Firms B and C (Public Safety Fee Protest Engineering Firms)
We note preliminarily that competitive bidding is not at issue in this case.
We also note preliminarily that the procedure described in the facts is contrary to the practice of most public agencies, local, state, and federal, which select engineering firms on the basis of professional qualification, followed by negotiation with the best qualified firm, in accordance with state and local laws, ordinances, and regulations, and in accordance with federal law under the Brooks Act.
Firms B and C Competitive Motivation Disclosure — Highway Bridge Protest
Firms B and C are direct competitors for the same highway bridge design contract, creating an inherent conflict between their competitive self-interest and their claimed public safety motivation for the protest.
Competitive Motivation Disclosure in Peer Misconduct Reporting Constraint
Firms B and C were constrained to disclose their direct competitive interest in the contract award when filing their formal protest, prohibiting them from presenting the protest as a purely altruistic public safety concern while concealing that they were direct competitors who stood to benefit financially from Firm A's disqualification.
NSPE Code of Ethics provisions on honest professional conduct; principle that self-policing obligations must not be weaponized for competitive advantage
Representatives of Firms B and C promptly filed protests with the agency
At the time of filing the formal protest with the agency
Firms B and C Competitive Motivation Transparency in Protest Filing
Competitive Peer Misconduct Reporting Motivation Transparency Self-Application Capability
Firms B and C needed the capability to recognize that their competitive financial interest in the contract award created an appearance of improper motivation, and to ensure their protest was grounded in professional duty and public safety rather than self-interest
Firms B and C were competing bidders who filed a protest against the award to Firm A; the BER evaluated whether their protest was motivated by public safety or competitive self-interest
The BER's assumption that Firms B and C acted from sincere public safety motivation rather than self-aggrandizement, and the code provision requiring that engineers not attempt to injure competitor interests for self-advancement
Firms B and C Competitive Motivation Transparency in Safety Protest
Competitive Motivation Transparency in Public Safety Protest Capability
Firms B and C were required to recognize that their competitive financial interest in the contract award created an appearance of improper motivation in their protest, and to ensure their protest was grounded in objective professional judgment about fee adequacy and public safety.
The BER recognized that Firms B and C had a competitive interest but found their protest was ethically permissible because it was grounded in legitimate public safety concerns.
Filing a protest that cited public safety grounds (inadequate design, higher lifecycle costs, potential safety jeopardy) rather than purely competitive grounds, though the dual motivation was acknowledged by the BER.
Firms B and C Competitive Peer Misconduct Reporting Motivation Transparency
Firms B and C were required to ensure their protest was grounded in professional duty and public safety rather than competitive self-interest, and to recognize that their competitive interest did not extinguish their professional obligation to raise a good-faith public safety concern.
The BER found that competitive motivation did not render the protest unethical, provided it was grounded in genuine public safety concern.
Filing a protest citing public safety grounds while being competing bidders, with the BER finding the protest ethically permissible because it was grounded in legitimate professional judgment.
Representatives of Firms B and C promptly filed protests with the agency and called for a public hearing on the ground that the proposal of Firm A was so out of line with realistic costs
Firms B and C Competitive Procurement Fairness Assessment
Competitive Procurement Fairness Assessment Capability
Firms B and C demonstrated the capability to evaluate whether the agency's fee-based selection procedure provided fair and safe competitive opportunity, and to formally protest a procedure they found inconsistent with QBS norms and public safety obligations.
Firms B and C protested both the specific award and the fee-based procedure that produced it.
Filing a formal protest and calling for a public hearing on the grounds that the fee-based procedure resulted in a selection that could not fund safe engineering performance.
Representatives of Firms B and C promptly filed protests with the agency and called for a public hearing
Firms B and C Competitive Self-Interest Critique Prohibition — Firm A Fee Characterization
Firms B and C are direct competitors for the same contract, creating a structural conflict between their competitive self-interest and their claimed public safety motivation for critiquing Firm A's fee proposal.
Competitive Self-Interest Critique Prohibition Constraint
Firms B and C were constrained from providing critical evaluative opinions about Firm A's fee proposal to the agency procurement authority in a manner that served as a pretext for competitive advantage — requiring that any protest be grounded in objectively verifiable professional judgment rather than competitive self-interest, and prohibiting substantive critical characterization of Firm A's competence beyond what the observable fee disparity itself supports.
NSPE Code of Ethics Sections III.6, III.7; BER case precedent on competitor disparagement in procurement contexts
At the time of filing the protest and making public statements about Firm A's proposal
In return, the engineer principals of Firms B and C counter that the engineer principals of Firm A have acted unethically
Firms B and C Competitor Misconduct Reporting Competitive Interest Neutrality — Highway Bridge
Firms B and C's protest raises a genuine public safety concern (fee adequacy for highway bridge design) but is contaminated by their direct competitive interest in the outcome.
Competitor Misconduct Reporting Competitive Interest Neutrality Constraint
Firms B and C were constrained to ensure their protest decision was grounded in genuine public interest and professional ethics — not competitive self-interest — and were prohibited from using the protest mechanism as a vehicle for competitive harassment while simultaneously being prohibited from allowing competitive self-interest to deter them from raising a genuine public safety concern.
NSPE Code of Ethics Sections III.6, III.7; principle that reporting obligations must not be weaponized for competitive advantage
Throughout the protest filing and public hearing process
Firms B and C Fee Disparity Inference Calibration in Protest
Firms B and C needed the capability to correctly calibrate the ethical inference from the fee disparity — recognizing that the $70,000 gap between their bids and Firm A's, combined with their intimate knowledge of the project's engineering requirements, supported a reasonable professional inference that Firm A could not deliver safe service at that fee
The BER noted that fee differences alone give rise to no inference of unethical activity, but assumed Firms B and C were intimately familiar with engineering requirements — suggesting that contextual knowledge is required to properly calibrate the inference
Filing a formal protest grounded in professional judgment about fee adequacy and public safety, not merely on the abstract fact of a fee difference
We further assume for the same purpose that the conduct of Firms B and C in protesting Firm A's bid was motivated by a sincere and genuine desire to protect the public safety and health.
Firms B and C Fee Disparity Public Safety Risk Inference
Fee Disparity Public Safety Risk Inference Capability
Firms B and C demonstrated the capability to infer from the dramatic fee disparity — $70,000 below Firm B, $150,000 below Firm C — that Firm A's proposal was insufficient to fund safe, competent highway bridge design, and to act on that inference by filing a formal protest.
Firms B and C identified the fee disparity as a public safety concern and formally protested before contract execution.
Filing a formal protest with the agency and calling for a public hearing on the ground that Firm A's fee was so out of line with realistic costs as to likely result in inadequate and potentially unsafe design.
the result would most likely be an inadequate design, with higher construction and maintenance costs over the life of the facility, and the possibility that the design could be unsafe and jeopardize the public health
Firms B and C Fee Protest Scope Calibration to Known Facts
Fee Protest Scope Calibration to Known Facts Capability
Firms B and C were required to calibrate their protest claims to what they actually knew — that the fee level appeared insufficient for safe performance — while refraining from asserting specific conclusions about Firm A's internal cost structure, staffing, or intent that they could not verify.
The BER found that Firms B and C were obligated to restrain their characterization to what their actual knowledge supported.
Framing the protest in terms of the fee being 'so out of line with realistic costs for proper engineering performance' rather than making specific assertions about Firm A's internal decisions or intent.
Firms B and C Good Faith Safety Concern Escalation Boundary — Highway Bridge Fee
Firms B and C had no confirmed evidence that Firm A's design would be unsafe — only the inference from the fee disparity that adequate engineering performance was unlikely at the proposed price.
Good Faith Safety Concern Without Demonstrable Violation Escalation Boundary Constraint
Firms B and C were constrained in the scope and form of their escalation, as their concern about Firm A's fee adequacy constituted a good-faith professional concern without a confirmed technical violation — permitting but not mandating the formal protest and public hearing request, and prohibiting overstating the certainty or severity of the unconfirmed safety risk.
NSPE Code of Ethics Section II.1 (public safety paramount); BER precedent on escalation calibration to confirmed vs. speculative violations
At the time of filing the protest and calling for a public hearing
the result would most likely be an inadequate design
Firms B and C Incomplete Knowledge Critique Prohibition — Firm A Fee Adequacy
Firms B and C characterized Firm A's proposal as 'so out of line with realistic costs' and likely to produce 'inadequate design' and potential public safety endangerment, without having access to Firm A's internal cost analysis or scope assumptions.
Incomplete Circumstantial Knowledge Critique Prohibition Constraint
Firms B and C were constrained from characterizing Firm A's $50,000 proposal as definitively inadequate or certain to produce unsafe design, given that they lacked full knowledge of Firm A's internal cost structure, staffing efficiencies, scope assumptions, or other factors that might explain the fee differential.
NSPE Code of Ethics Section III.7; principle that criticism without complete contextual knowledge is inherently unreliable
Firms B and C Incomplete Knowledge Restraint in Fee Protest
Incomplete Knowledge Restraint in Competitor Critique Capability
Firms B and C were required to recognize the limits of their knowledge about Firm A's internal cost structure and to restrain their protest characterizations accordingly, avoiding specific assertions about Firm A's competence or intent that they could not verify.
The BER found that Firms B and C's incomplete knowledge of Firm A's circumstances required restraint in how they characterized the protest.
Filing a protest based on observable fee disparity rather than specific knowledge of Firm A's internal operations, staffing, or design approach.
Firms B and C were obligated to restrain their characterization of Firm A's proposal to what their actual knowledge supported
Firms B and C Incomplete Knowledge Restraint in Fee Protest Scope
Firms B and C needed the capability to restrain their protest characterization to what their actual knowledge supported — the fee level appeared insufficient for safe performance — without asserting specific conclusions about Firm A's internal cost structure, staffing plans, or intent that they could not verify
The BER explicitly declined to assess technical adequacy of any fee proposal, modeling the epistemic restraint that Firms B and C were also required to exercise in their protest
The BER's refusal to make a technical determination about whether any bid was consistent with professional standards, and the code's limitation on competitor critique to what is actually known
Firms B and C Non-Safety Public Expenditure Welfare Scope — Highway Bridge Lifecycle Costs
Firms B and C's protest raised both a safety concern (possible unsafe design) and a public expenditure concern (higher construction and maintenance costs over the life of the facility), the latter of which is a welfare concern even if the safety threshold for mandatory escalation is not met.
Non-Safety Public Expenditure Welfare Scope Non-Dismissal Constraint
The BER was constrained from dismissing Firms B and C's protest solely on the ground that no confirmed public safety danger was alleged, given that the protest also raised concerns about higher construction and maintenance costs over the life of the facility — a substantial public expenditure concern that falls within the Code's welfare provisions even absent a direct safety endangerment allegation.
NSPE Code of Ethics welfare provisions; BER precedent on public expenditure welfare scope
Firms B and C Predictive Incapacity Disparagement Avoidance
Firms B and C were required to avoid making predictive representations about Firm A's future inability to perform that went beyond what the fee disparity data supported, refraining from speculative disparagement of Firm A's professional reputation.
The BER found that Firm A's principal's counter-charge that Firms B and C acted unethically raised the question of whether their protest crossed into impermissible disparagement.
Framing the protest in terms of the fee being insufficient for proper performance rather than making specific assertions about Firm A's professional incompetence or intent to perform inadequately.
Firm A Competitor Reputation Injury Avoidance in Counter-Charge
Firms B and C Procurement Protest Ethical Boundary — Highway Bridge Award
Firms B and C filed protests and called for a public hearing, characterizing Firm A's proposal as likely to produce inadequate design and possible public safety endangerment — while being direct competitors for the same contract.
Procurement Protest Ethical Boundary Constraint
Firms B and C were constrained to ground their formal protest of Firm A's award in legitimate public interest concerns — specifically the observable fee disparity and its foreseeable engineering consequences — and were prohibited from overstating the certainty of design failure or framing the protest in terms that exceeded what their actual knowledge of Firm A's circumstances supported.
NSPE Code of Ethics Sections III.6, III.7; BER precedent on competitor disparagement in procurement
At the time of filing the formal protest and calling for a public hearing
Improper Procurement Method Prohibition — All Three Firms
BER applied former Section 11's prohibition on improper procurement methods to all three firms' conduct in the fee-competitive procurement
All three firms were constrained from attempting to obtain the highway bridge design engagement through improper or questionable methods — including Firm A's potentially deceptive low-ball fee proposal and Firms B and C's protest if motivated by competitive self-interest rather than public safety.
NSPE Code of Ethics (former Section 11); BER discussion
Procurement moves from evaluation to award-intent phase; protest window formally opens; Firms B and C now have standing and incentive to challenge; public record of award decision created
After proposal comparison, before contract execution
The agency formally announces its intent to award the contract to Firm A based solely on its lowest submitted price of $50,000, triggering the protest rights of competing firms.
Dispute transformed from procedural procurement contest to public professional ethics conflict; reputations of all three firms now at stake; professional ethics codes activated as relevant standards; possibility of professional disciplinary proceedings created
During or following the protest and public hearing process
The dispute escalates beyond the procedural protest into a public exchange of ethical accusations, with Firm A accusing Firms B and C of unethical conduct and Firms B and C counter-accusing Firm A, creating a three-way public ethical conflict within the engineering profession.
National Society of Professional Engineers
All engineer principals (Firms A, B, and C); ethics review board
Primary normative authority for evaluating the ethical conduct of all three firms — Firm A's low-ball proposal, and Firms B and C's protest and public hearing demand
NSPE Code of Ethics - Section 11 (Improper Solicitation)
NSPE Code of Ethics for Engineers, Section 11 (now removed)
Board of Ethical Review in evaluating solicitation conduct of all three firms
Cited to establish that engineers shall not attempt to obtain professional engagements by improper or questionable methods, applied to Firms A, B, and C
Historical version; Section 11 no longer exists
NSPE Code of Ethics - Section 12 (Injury to Competitors / Reporting Obligation)
NSPE Code of Ethics for Engineers, Section 12 (now removed)
In accordance with 12 of the code engineers have no less right to bring practices which they believe to be deceptive to the attention of appropriate instrumentalities than do others in our society
Section 12 also dictates, however, that Firms B and C are permitted, or required, to present information to the responsible government agency (i.e., 'the proper authority') if Firms B and C believe that Firm A's action endangers public health and safety.
Board of Ethical Review in evaluating the protests by Firms B and C against Firm A's low bid
Cited to establish both the prohibition on injuring competitor interests for self-advancement and the affirmative permission/duty to report practices believed to endanger public health and safety to the proper authority
Historical version; Section 12 no longer exists
NSPE Code of Ethics - Section 2 and 2(a)
NSPE Code of Ethics for Engineers, Sections 2 and 2(a)
It is fundamental to engineering ethics that the engineer may not offer or perform services which endanger public safety and health. This principle is articulated in 2 and 2(a) of the code, cited above.
Board of Ethical Review in evaluating the conduct of Firms A, B, and C
Cited as the primary articulation of the fundamental principle that engineers may not offer or perform services that endanger public safety and health
Version in effect at time of case (Sections 11 and 12 subsequently removed)
Non-QBS Fee-Based Procurement Full Ethics Code Application — All Three Firms
State agency used fee-competitive bidding for highway bridge design rather than QBS; BER noted this was contrary to prevailing practice but provided ethical guidance applicable to such contexts
Firms A, B, and C competing in state agency fee-based procurement
Fee-Competitive Procurement QBS Non-Equivalence Acknowledgment Constraint
All three firms were constrained to apply the full NSPE Code of Ethics to their conduct in the fee-competitive procurement, notwithstanding that the procurement method was contrary to prevailing QBS practice and the Brooks Act; the non-standard procurement method did not suspend or relax any ethical obligation.
NSPE Code of Ethics; BER recognition that 'the profession is in need of ethical guidance with respect to compliance with those procedures'
the procedure described in the facts is contrary to the practice of most public agencies, local, state, and federal
because a few public bodies have adopted the method described in the facts above, the profession is in need of ethical guidance with respect to compliance with those procedures
Post-Award Competitor Selection Conflict Deferred Resolution — Firms B and C Eligibility
BER explicitly deferred the question of whether protesting firms B and C could be selected for the same assignment if Firm A's award was cancelled, recognizing this as a distinct conflict-of-interest question requiring separate analysis
Post-Award Competitor Selection Conflict Deferred Resolution Constraint
The BER was constrained from resolving — in the context of the protest proceeding — whether Firms B and C could properly be selected for the highway bridge design assignment if the award to Firm A was cancelled; this conflict-of-interest question was explicitly deferred to a separate proceeding with full factual development.
BER procedural restraint; NSPE Code of Ethics conflict-of-interest provisions
At time of BER review; applicable to any future post-cancellation selection process
Prior BER Opinions on Competitive Bidding
Prior NSPE Board of Ethical Review Opinions on Competitive Bidding
previous opinions of the Board of Ethical Review based on provisions relating to bidding are not pertinent in this case
Board of Ethical Review in delimiting the applicable precedential framework
Explicitly distinguished and set aside by the Board as not pertinent to this case, since competitive bidding is not at issue; referenced to clarify the scope of applicable precedent
Procurement process formally opened; all qualified engineering firms now eligible to compete; public record of project requirements created
Project initiation phase, before any firm submissions
The state agency's call for engineering firm qualifications becomes publicly available, initiating the formal competitive selection process for the highway bridge design project.
Professional Ethics Civic Duty Elevation — Firms B and C Reporting Obligation
BER articulated the foundational principle that professional ethics elevates civic duty to mandatory professional obligation in the context of Firms B and C's right and duty to report Firm A's potentially deceptive procurement conduct
Professional Ethics Civic Duty Elevation Principle Constraint
Firms B and C were constrained by the foundational principle that professional ethics elevates civic duty to mandatory professional obligation: where a public-spirited citizen would report a deceptive or dangerous practice, professional ethics made this a binding duty for Firms B and C as licensed engineers, not merely a permissible option.
NSPE Code of Ethics (former Section 12); BER foundational principle articulation
in a fundamental sense, the purpose of professional ethics is to elevate to a duty conduct of the type in which all public spirited and civic-minded citizens engage
Upon discovery of Firm A's potentially deceptive fee proposal
All three firms now possess identical project information; information asymmetry eliminated; firms are now positioned to prepare informed price proposals; any subsequent price divergence cannot be attributed to differential information access
During/immediately after the scope of project meeting
As a result of the scope of project meeting, all three shortlisted firms receive identical, complete information about the project's technical requirements, constraints, and deliverables.
Professional engineering community and procurement law
Professional Norms on Public Engineering Procurement Fairness
The agency procedure states that it is not required to accept the lowest price, but that price will be a factor in the selection decision.
The agency announced its intention to award the contract to Firm A.
State agency; Firms B and C in their protest
Provides the framework for evaluating whether the agency's selection process — including the short-list, scope meeting, and price proposal procedure — was conducted fairly and whether the award to the lowest bidder is consistent with the stated procedure
Public Agency Antitrust-Constrained Ethics Code Scope Recognition
The public agency was required to recognize that while antitrust constraints limit NSPE's ability to prescribe fee-based selection procedures, applicable ethics codes still require honorable and responsible conduct in procurement — including taking seriously formal protests about fee adequacy and public safety.
The BER found that antitrust constraints did not excuse the agency from its obligation to conduct procurement honorably and responsibly.
The agency's adoption of a fee-based procedure that the BER found was inconsistent with QBS norms, requiring the agency to understand the legal and ethical context of its procurement choices.
Public Agency (Fee-Based Public Engineering Procurement Authority)
Public Agency Antitrust-Constrained Ethics Code Scope Recognition — Fee-Based Selection
The state agency's fee-competitive procurement procedure differs from QBS, but antitrust law constrains NSPE from prescribing selection methodology, limiting the BER's ability to condemn the procedure itself.
Antitrust-Constrained Professional Code Guidance Prohibition Constraint
The state agency and the BER were constrained to recognize that antitrust law prohibits NSPE from issuing ethical guidance prescribing fee-based selection procedures or minimum fee levels, limiting the scope of ethical analysis to the conduct of individual engineers rather than the procurement methodology itself.
U.S. Department of Justice antitrust actions; U.S. Supreme Court rulings on professional society codes; NSPE Code scope limitations
Throughout the procurement process and BER ethical review
Public Agency Fee-Based Award Pre-Execution Safety Verification
Fee-Based Award Pre-Execution Safety Verification Capability
The public agency was required to verify, before executing the contract with Firm A at $50,000, that this fee was sufficient to fund competent, code-compliant, and safe highway bridge design — including taking seriously the formal protests filed by Firms B and C.
The BER found the agency was obligated to verify fee adequacy before award, particularly in light of the dramatic fee disparity and formal protests.
The agency announced its intention to award the contract to Firm A without apparent verification that the $50,000 fee was sufficient for safe performance, prompting formal protests from Firms B and C.
The agency announced its intention to award the contract to Firm A
Public Agency Fee-Based Procurement Safety Adequacy Pre-Award Verification — Highway Bridge
The state agency announced its intention to award the contract to Firm A at $50,000 despite formal protests from Firms B and C that the fee was inadequate to support safe and competent highway bridge design.
The state agency was constrained, before awarding the highway bridge design contract to Firm A at $50,000, to verify that this fee was sufficient to fund competent, code-compliant, and safe engineering performance — and was required to take seriously the formal protests filed by Firms B and C raising fee-adequacy and public safety concerns before finalizing the award.
NSPE Code of Ethics (applicable to agency engineers); public procurement law; public safety paramount principle
Before finalizing the contract award to Firm A
Public Agency Fee-Based Procurement Safety Adequacy Verification
Fee-Based vs QBS Procurement Ethics Distinction Capability
The public agency needed the capability to recognize the ethical and legal distinction between QBS procurement and fee-based competitive bidding, and to understand that its fee-based approach created structural incentives for under-resourcing contrary to the Brooks Act and QBS norms
The state agency used fee-based competitive bidding rather than QBS for a highway bridge design contract, contrary to federal Brooks Act norms and most state/local practice
The BER's observation that the agency's fee-based procedure was contrary to the practice of most public agencies and inconsistent with the Brooks Act, while acknowledging that some public bodies have adopted this method
However, because a few public bodies have adopted the method described in the facts above, the profession is in need of ethical guidance with respect to compliance with those procedures.
Public Agency Fee-Based vs QBS Procurement Ethics Distinction
The public agency was required to recognize the ethical and legal distinction between its fee-based selection procedure and QBS norms, and to understand that fee-based procurement for safety-critical highway bridge design creates structural incentives for under-resourcing that QBS was designed to prevent.
The BER found that the agency's fee-based procedure was inconsistent with QBS norms and created public safety risks.
The agency adopted a 'new procedure' for engineering services selection that made price a factor, departing from QBS norms — a procedure the BER found raised ethical concerns about public safety.
Public Agency Honorable Procurement Conduct in Fee-Based Selection
The public agency needed the capability to conduct the highway bridge design procurement honorably and responsibly — including taking seriously the formal protest from Firms B and C about fee adequacy and public safety before executing the contract with Firm A
The agency was obligated to take seriously the public safety protest before awarding the contract to the lowest fee bidder
The BER's invocation of the code provision requiring honorable, responsible, and ethical conduct in all professional relations as applicable to the agency's procurement conduct
Public Agency Procurement Competition Honorable Conduct — Highway Bridge Selection
The agency's fee-competitive procedure and its announced intention to award to the lowest-fee firm despite formal safety protests raises questions about whether the procurement was conducted with appropriate regard for public safety and professional standards.
Procurement Competition Honorable Conduct Constraint
The state agency was constrained to conduct the highway bridge design procurement honorably and responsibly — including taking seriously the formal protests filed by Firms B and C, conducting a genuine fee-adequacy review, and not dismissing public safety concerns solely on the basis of price competitiveness.
NSPE Code of Ethics Section II.5; public procurement fairness principles
Throughout the procurement process, including post-protest review
Public Agency Procurement Integrity Balance Judgment Highway Bridge
Procurement Integrity Balance Judgment Capability
The public agency was required to balance the competitive fee-based selection procedure against its obligation to ensure competent, safe engineering performance — recognizing that awarding to the lowest bidder without verifying fee adequacy compromised procurement integrity and public safety.
The BER found the agency was obligated to conduct the procurement honorably and responsibly, including taking seriously the formal protests.
The agency announced its intention to award to Firm A at $50,000 without apparent investigation of whether that fee was sufficient for safe performance, despite the dramatic disparity with competitors' proposals.
Award suspended pending public hearing; dispute moves from private procurement to public forum; all parties' conduct and reasoning now subject to public scrutiny; ethical accusations become part of official record
Immediately upon filing of protests by Firms B and C
As a direct result of Firms B and C filing protests and requesting a public hearing, a formal public review process is automatically initiated, suspending or delaying the award and creating a public forum for examination of the procurement decision.
Public Safety Paramount — Firm A Fee Adequacy for Highway Bridge Design
Firm A's $50,000 proposal for highway bridge design — $70,000 below the next lowest bid — raised public safety concerns about whether the fee was adequate to fund competent engineering
Firm A was absolutely constrained by the paramount duty to public safety from offering or performing highway bridge design services at a fee level that would endanger public safety and health through inadequate engineering performance.
NSPE Code of Ethics Sections II.2 and II.2.a; BER discussion
At time of fee proposal and throughout contract performance
This principle is articulated in 2 and 2(a) of the code, cited above.
Publicly Accuse Firms B and C of Unethical Conduct
Drawing additional scrutiny to Firm A's own pricing decision
Escalation of the dispute to formal ethics review
Risk that the ethics review would find Firm A's conduct, not Firms B and C's, to be the primary ethical concern
Right to bring perceived unethical conduct of others to appropriate attention
Right to defend against accusations of unethical conduct
Prohibition on using ethics mechanisms as competitive weapons
Defend Firm A's contract award by delegitimizing the protests of Firms B and C as self-interested and unethical competitive interference
Code Section 12: if Firm A's accusation was itself an attempt to injure competitors' interests rather than a good-faith ethics concern
Potential violation of professional norms of good faith if the accusation was made to deflect scrutiny from Firm A's own pricing rather than from genuine belief in Firms B and C's misconduct
Knowledge of professional ethics codes and complaint procedures
Legal and ethical judgment regarding propriety of counter-accusations
Understanding of Code Section 12 dual obligations
Post-protest, in response to Firms B and C's protest filing
Firm A's principal decided to publicly charge that the engineer principals of Firms B and C acted unethically by filing the protest and calling for a public hearing, framing their competitors' actions as improper competitive interference. This counter-accusation escalated the dispute and brought it to the ethics review board.
Publicly Accuse Firms B and C of Unethical Conduct → Mutual Ethical Accusations Escalate
Firm A's principal decided to publicly charge that the engineer principals of Firms B and C acted unethically, [and] the dispute escalates beyond the procedural protest into a public exchange of ethical accusations, with [counter-accusations following]
If Firm A had limited its response to procedural arguments without making public ethical accusations, Firms B and C would have had no basis for counter-accusations of unethical conduct; the dispute would have remained procedural rather than personal and ethical
Existence of a public hearing or media forum amplifying the exchange
Firm A's principal making a public (not merely private) ethical accusation
Firms B and C having both the standing and motivation to respond
The accusation being directed at identifiable professional peers in a public forum
Firm A's Principal (initiating cause); Firms B and C Principals (escalating response)
Once Firm A made a public ethical charge, professional self-defense by Firms B and C became nearly inevitable, creating a sufficient condition for escalation
Public accusation by Firm A + public forum (hearing) + motivated adversaries = escalation to mutual accusations
State Agency Procedure for Selection of Engineering Services
A state agency, operating under a new procedure for selection of engineering services, advertised its intention to retain an engineering firm for the design of a highway bridge.
State agency selection board; Firms A, B, and C
Governs the procurement process under which all three firms submitted qualifications and price proposals; establishes that price is a factor but not the sole criterion, and that the agency is not required to accept the lowest price
Were the engineer principals for Firm A unethical in submitting their price proposal as stated?
Did Firm A have an independent obligation to proactively disclose to the agency how it intended to staff, scope, or otherwise deliver competent bridge design services at $50,000 before the contract was awarded, rather than waiting to be challenged?
Does the public agency bear an independent ethical or procedural obligation to verify the technical and financial adequacy of Firm A's $50,000 proposal before executing the award, and if it fails to do so, does that failure shift or share moral responsibility for any resulting public safety harm?
If Firm A's $50,000 proposal was made possible by cross-subsidizing this project from other firm revenues or by significantly reducing scope, does the ethics analysis change, and should the Board have required Firm A to explain the economic basis of its proposal before rendering a conclusion?
Should Firms B and C have been required to present independent technical evidence — such as a cost estimate or staffing analysis — demonstrating that $50,000 is objectively insufficient for competent bridge design before their protest could be considered ethically grounded rather than competitively motivated?
Were the engineer principals of Firms B and C unethical in filing a public protest and calling for a public hearing regarding the award of the contract to Firm A?
Does the principle of Free and Open Competition, which permits Firm A to submit a low-fee proposal in a price-inclusive procurement, conflict with the Fee-Cutting-to-Incompetence Threshold Prohibition, which forbids accepting work at a fee level that cannot sustain competent performance — and how should an engineer resolve that conflict when the fee adequacy threshold is genuinely uncertain?
Does the principle of Public Welfare Paramount, invoked by Firms B and C to justify their protest, conflict with the Prohibition on Reputation Injury Through Competitive Critique when the protesting firms cannot conclusively prove that Firm A's fee is technically inadequate — and at what evidentiary threshold does a good-faith safety concern become an impermissible reputational attack?
Does the Competing Bidder Public Safety Protest Permissibility principle, which allows Firms B and C to raise safety concerns, conflict with the Competitor Interest Injury Self-Advancement Prohibition, which bars using ethics mechanisms to harm a competitor for personal gain — and can a protest ever be simultaneously ethically permissible on safety grounds and ethically suspect on competitive motivation grounds?
Does the Incomplete Situational Knowledge Restraint — which cautions both Firms B and C and the Board itself against inferring incompetence solely from fee disparity — conflict with the Civic Duty Elevation to Professional Ethical Duty principle, which demands that engineers act on credible safety concerns even without complete information, and how should engineers calibrate action under genuine epistemic uncertainty about a competitor's technical adequacy?
From a deontological perspective, did the engineer principals of Firm A fulfill their duty of honest competence representation by submitting a $50,000 proposal without publicly disclosing how they intended to deliver adequate engineering services at a price roughly 40–75% below their competitors, given that the NSPE Code obligates engineers to undertake only assignments for which they are qualified and to act with professional honor?
From a consequentialist perspective, does the anticipated long-term harm to the public — including potentially inadequate bridge design, elevated construction and maintenance costs over the facility's lifecycle, and possible safety failures — outweigh the short-term fiscal benefit to the state agency of accepting Firm A's $50,000 proposal, and should that calculus have been determinative in the agency's award decision?
From a virtue ethics perspective, did the engineer principals of Firms B and C demonstrate the professional virtues of civic courage and integrity — rather than mere competitive self-interest — when they filed a public protest and called for a public hearing, and how should the presence of a mixed motive (genuine safety concern combined with competitive advantage) affect our assessment of their character as ethical professionals?
From a deontological perspective, did Firm A's engineer principals violate a duty to competitors by counter-charging that Firms B and C acted unethically — without sufficient factual basis to establish that their protest was made in bad faith rather than genuine public safety concern — thereby potentially injuring the professional reputations of Firms B and C in violation of the NSPE Code's prohibition on competitor reputation harm?
If Firm A had voluntarily disclosed, at the time of submitting its $50,000 proposal, a detailed technical and financial explanation of how it could deliver a fully competent highway bridge design at that price — for example, by identifying cross-subsidization from other projects, proprietary efficiencies, or reduced overhead — would the Board's analysis of Firm A's ethical obligations have changed, and would Firms B and C's protest have retained the same ethical legitimacy?
What if the state agency had required all shortlisted firms to submit a written technical scope and staffing plan alongside their price proposals, enabling the agency to verify whether Firm A's $50,000 fee was economically feasible for competent performance before making an award — would such a procedural safeguard have rendered the ethical dispute between the firms moot, and would it have discharged the agency's own safety verification obligation?
If Firms B and C had filed their protest through a private channel — such as a confidential communication directly to the agency's chief engineer rather than a public hearing demand — rather than seeking public exposure of Firm A's bid, would their conduct have been more clearly ethical by avoiding any appearance of competitive self-promotion, and would the Board's analysis of their motivations have differed?
What if Firm A's $50,000 proposal had been the result of a deliberate bait-and-switch strategy — intending to win the contract at a low fee and then seek scope changes or supplemental agreements to recover full costs — rather than a good-faith low bid: would that intent, if proven, have changed the Board's conclusion that Firm A's submission was not unethical, and what evidentiary standard should apply to distinguish the two scenarios?
All shortlisted firms would be deemed equally competent, making price the primary differentiator
Firms with different cost structures would compete on price despite potentially equivalent qualifications
Procedural obligation to produce a short list per the agency's announced process
Professional duty to assess technical competency of candidate firms
Objective technical assessment of qualifications
Identify the three most qualified firms to advance to the price proposal stage
Ability to evaluate firm experience and capacity
Engineering judgment to assess firm qualifications
Early process, after qualification submissions received
Agency engineering staff reviewed all submitted qualification statements and made a professional judgment to place Firms A, B, and C on the short list as the three best qualified firms. This decision certified all three as competent to perform the work prior to price proposals being solicited.
Higher price relative to Firm A reduces probability of contract award
Price level implicitly signals Firm B's assessment of minimum adequate fee for the project
Duty not to offer services at a fee level that would endanger public safety
Procedural compliance with agency's price proposal requirement
Professional obligation to propose a fee consistent with competent service delivery
Fee proposals should reflect genuine cost of competent service
Professional competence requires adequate resources
Submit a price that reflects the actual cost of competent engineering performance while remaining competitive
Accurate cost estimation for bridge design
Business judgment on competitive pricing
Engineering judgment on resource requirements
Mid-process, after scope meeting and before agency award decision
Firm B's principal decided to submit a price proposal of $120,000, a figure reflecting their assessment of the resources required for competent engineering performance on the project. This proposal was $70,000 above Firm A's and $80,000 below Firm C's.
Highest price significantly reduces probability of contract award under the agency's price-inclusive procedure
Price level further highlights the disparity with Firm A's proposal
Submit a price that fully covers the cost of competent engineering performance, without compromising on quality or scope
Engineering judgment on full resource requirements
Firm C's principal decided to submit a price proposal of $200,000, the highest of the three firms, reflecting their assessment of the full cost of competent engineering performance including potentially more comprehensive scope coverage or higher overhead structure. This proposal was $80,000 above Firm B's and $150,000 above Firm A's.
Inviting scrutiny and protest from competitor firms
Potential public safety risk if the fee is insufficient for adequate bridge design
Risk of being unable to render competent engineering service within the proposed fee
Risk that the low fee would require cutting scope, quality, or staffing to unacceptable levels
Obligation to protect public safety and health
Prohibition on obtaining engagements through deceptive or improper means
Right to compete for professional engagements
Win the contract by offering the most competitive price, potentially accepting reduced or no profit margin
Potential violation of Code Section 11 prohibition on obtaining engagements through improper or questionable methods if the fee constitutes a bait-and-switch strategy
Potential violation of duty not to offer or perform services that endanger public safety and health (Code Sections 2 and 2(a)) if the fee is insufficient for competent performance
Professional obligation to render competent service, which requires adequate resources
Business judgment regarding fee strategy
Engineering judgment to assess minimum resource requirements for competent performance
Firm A's principal decided to submit a price proposal of $50,000 for the highway bridge design, a figure $70,000 below Firm B's proposal and $150,000 below Firm C's, after attending the scope meeting and becoming familiar with the engineering requirements. This decision is the central act under ethical scrutiny in the case.
Submit $50,000 Price Proposal → Low-Bid Award Intent Announced
Firm A's principal decided to submit a price proposal of $50,000 for the highway bridge design, a figure [that led to] the agency formally announces its intent to award the contract to Firm A based solely on its lowest [bid]
If Firm A had submitted a price comparable to Firms B or C, or if the agency weighted qualitative factors more heavily, the award would not necessarily have gone to Firm A; if Firm A had been disqualified on qualifications, the low bid alone would be insufficient
Agency procedure mandating or heavily weighting lowest price in award decision
Firm A meeting minimum qualification threshold to remain eligible
Firm A submitting the lowest price among all competitors
Higher competing bids from Firms B and C
Firm A's Principal (primary); State Agency (structural enabler)
Lowest compliant bid + price-determinative selection rule = automatic award intent to Firm A
The agency's procedural framework made Firm A's low bid both necessary and sufficient for award announcement
Competition narrowed to three qualified firms; non-shortlisted firms excluded; next phase (scope meeting and price proposals) formally triggered
After qualification submissions reviewed, before scope meeting
Following review of qualification submissions, Firms A, B, and C are identified as meeting minimum qualifications and are formally shortlisted, excluding all other applicants from further competition.
agency announcement of intent to award contract to Firm A before filing of protests by Firms B and C
The agency announced its intention to award the contract to Firm A. Representatives of Firms B and C promptly filed protests with the agency
agency announcement of intent to award contract to Firm A
construction of highway bridge before maintenance costs over life of facility
the result would most likely be an inadequate design, with higher construction and maintenance costs over the life of the facility
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.88
The BER resolves the tension by assuming good faith on the part of Firms B and C while declining to make a technical determination about bid adequacy — separating the ethical question (is the protest permissible?) from the technical question (is the fee actually inadequate?).
source_field=tensionresolution; confidence=0.83
The prohibition on competitive reputation injury does not bar good-faith safety protests directed to the responsible authority; the key question is whether Firms B and C's concern is genuinely held based on professional cost analysis
Competition is permitted and encouraged, but the ethical floor of competent performance sets a lower bound on fee reduction that cannot be crossed even in competitive markets; the BER declines to determine whether Firm A crossed this floor without technical analysis.
source_field=tensionresolution; confidence=0.9
Public welfare paramount overrides competitive fee-cutting freedom when the fee level makes competent performance economically infeasible; competition is permitted but not at the cost of public safety.
source_field=tensionresolution; confidence=0.85
The fee adequacy verification obligation does not prohibit competitive fee reduction but requires that any substantially lower fee be grounded in a legitimate basis (e.g., efficiency, different scope interpretation, cross-subsidization) that still supports competent performance.
Free competition permits low bids, but the competence obligation requires that any bid — however low — be sufficient for competent performance; the magnitude of the disparity shifts the burden to Firm A to demonstrate adequacy
Free competition is a legitimate defense against per se condemnation of a low bid, but does not shield Firm A from the obligation to demonstrate that its fee is sufficient for competent, safe performance
The verification obligation does not prohibit low bids but requires that they be grounded in genuine cost analysis; Firm A's ethical position depends on whether it can demonstrate that $50,000 reflects a defensible scope interpretation and cost structure, not merely a desire to win the contract
source_field=tensionresolution; confidence=0.95
The competitive interest of Firms B and C does not render their protest unethical provided it is genuinely grounded in professional safety concern and directed through appropriate channels; the ethics analysis should find the protest permissible while noting the obligation to frame concerns as warranting investigation rather than as definitive conclusions
source_field=tensionresolution; confidence=0.93
Public welfare obligation justifies formal protest and public hearing demand even though Firms B and C are direct competitors who stand to benefit; the key is that the concern is genuinely held and directed to the responsible authority
source_field=tensionresolution; confidence=0.87
Good faith professional judgment about fee inadequacy, grounded in the firms' own cost experience and the magnitude of the disparity, satisfies the threshold for formal protest; the competitive interest of Firms B and C does not negate the good faith of the concern
The prohibition on reputation injury yields to the public safety disclosure obligation when the protest is genuinely motivated by safety concern rather than competitive self-interest; the BER assumes good faith on the part of Firms B and C for purposes of its analysis.
Good-faith safety-motivated protest directed to the proper authority is permissible even by competing firms; the prohibition on reputation injury bars only protests motivated by competitive self-interest or conducted through improper channels.
Good faith safety concern, when genuinely held and directed to the proper authority rather than expressed as a public attack, overrides the general prohibition on competitive critique that injures a competitor's interests.
The incomplete knowledge constraint does not bar the protest but requires that it be framed as a professional concern warranting review rather than a definitive conclusion about Firm A's competence or intentions
The procurement integrity concern is systemic and directed at the agency's procedure rather than any individual firm; the ethics analysis should note the procedure's departure from QBS norms while acknowledging that individual firms must operate within the legal procurement framework as established
The antitrust constraint limits the ethics board's ability to condemn fee-based procurement per se, but does not prevent it from addressing the competence and public safety obligations that arise within that procurement framework
The BER acknowledges the legal permissibility of fee-based selection while identifying its ethical risks and providing guidance for engineers navigating such systems — the procurement integrity principle sets the ethical floor even when the legal framework permits fee-based selection.
filing of protests by Firms B and C before Firm A's principal charging Firms B and C with unethical conduct
Representatives of Firms B and C promptly filed protests...A principal of Firm A charges that the engineer principals of Firms B and C have acted unethically
highway bridge design before construction of highway bridge
placement on short list before principals attending scope of project meeting
Firms A, B, and C were placed on the 'short list' and principals of those firms attended the 'scope of project' meeting
principals attending scope of project meeting
preparation of short list before scope of project meeting
the agency selection board would prepare a 'short list' of the three best qualified firms. Thereafter each of those firms would be requested to attend a 'scope of project' meeting
principals attending scope of project meeting before submission of price proposals by Firms A, B, and C
principals of those firms attended the 'scope of project' meeting. The firms then subsequently submitted the following price proposals
submission of price proposals by Firms A, B, and C
review of competency of firms by agency engineering staff before placement of Firms A, B, and C on short list
review of competency of firms by agency engineering staff
placement of Firms A, B, and C on short list
The $150,000 spread between Firm A ($50,000) and Firm C ($200,000) on the same highway bridge project — with all three firms having attended the same scope-of-project meeting — may reflect legitimate differences in scope interpretation, ove
Firm A implicitly invokes the principle of free and open competition in defense of its $50,000 bid, asserting through its principal's counter-charge that competitive fee bidding is legally permissible and that Firms B and C's protest consti
Firm A charges that Firms B and C acted unethically by filing a protest that characterizes Firm A's fee as likely to produce inadequate and unsafe design — a characterization that, if motivated by competitive self-interest rather than genui
Firms B and C assert that Firm A's $50,000 fee will 'most likely' produce inadequate design and 'could be unsafe' without knowing Firm A's actual scope interpretation, staffing plan, overhead structure, or cost basis — raising the question
Firms B and C invoke public welfare as the primary justification for their formal protest and public hearing demand, asserting that Firm A's $50,000 fee is so inadequate as to risk unsafe bridge design that could jeopardize public health
Firm A's obligation to verify that its $50,000 fee is sufficient for competent, safe highway bridge design — given that it is $70,000 below the next lowest bid and $150,000 below the highest bid from firms that attended the same scope meeti
Firms B and C's counter-charge against Firm A is that its $50,000 bid — 58% below the next lowest bid — reflects a commercially motivated underbid that cannot support competent highway bridge design, violating the principle that commercial
Firms B and C's decision to file a formal protest with the agency and request a public hearing — rather than making public accusations or attacking Firm A directly — represents the ethically appropriate channel for raising a good-faith safe
Firms B and C, as experienced engineering firms that attended the same scope-of-project meeting and submitted their own cost-based proposals, have a professional basis for forming a good-faith belief that $50,000 is insufficient for safe hi
The state agency's adoption of a fee-based selection procedure contrary to QBS norms and the Brooks Act raises systemic procurement integrity concerns; the procedure creates structural incentives for underbidding that may compromise the qua
The ethics analysis of this case must acknowledge that the state agency's fee-based selection procedure is legally permissible in the post-antitrust-consent-decree environment, and that the ethics code cannot condemn competitive fee bidding
The BER affirmed that it is fundamental to engineering ethics that engineers may not offer or perform services that endanger public safety and health, establishing this as the overriding principle governing the fee-based procurement dispute
The BER implicitly invoked the obligation of Firm A to have a defensible basis for its substantially lower fee — noting that while the fee difference alone gives rise to no inference of unethical activity, it would be unethical to cut fees
The BER articulated the ethical threshold below which fee-cutting becomes unethical — not the mere fact of losing money on an engagement, but cutting fees to the point where competent and safe service becomes economically infeasible — and a
The BER identified the 'too good to be true' fee as a potential marker of bait-and-switch deception in engineering procurement — an improper method of obtaining professional engagements — and affirmed that competitors have the right and obl
The BER applied the prohibition on reputation injury to constrain Firms B and C's protest activity, holding that they are not permitted to attempt to injure the interests of Firm A for the purpose of advancing their own competitive interest
The BER held that Firms B and C, as competing shortlisted firms, may ethically file a formal protest with the responsible government agency when they have a good-faith professional belief that Firm A's fee is so low as to create a genuine r
The BER held that Firms B and C are permitted — or required — to present information to the responsible government agency if they believe that Firm A's action endangers public health and safety, grounding the permissibility of the protest i
Firms B and C were ethically permitted — and arguably obligated by their paramount duty to public safety — to file a formal protest with the agency and request a public hearing when their professional judgment, grounded in attendance at the
The BER articulated the meta-ethical rationale for Firms B and C's reporting obligation by stating that the purpose of professional ethics is to elevate to a duty the conduct that all public-spirited and civic-minded citizens engage in — gr
The BER explicitly acknowledged that it had not been presented with technical analysis of the engineering requirements for the facility and therefore expressed no view as to whether any or all of the bids are consistent with professional st
The BER noted that the fee-based competitive bidding process used by the public agency is contrary to the practice of most public agencies and contrary to the Brooks Act's qualification-based selection framework — flagging a procurement int
Firm A was obligated to verify, before submitting its $50,000 fee proposal, that this fee was sufficient to fund competent, code-compliant, and safe highway bridge design — given that it was $70,000 below the next lowest bid and $150,000 be
Firm A was obligated to verify, before submitting its $50,000 fee proposal — $70,000 below the next lowest bid — that the proposed fee was sufficient to fund competent, code-compliant, and safe highway bridge design, and to refrain from sub
Firms B and C were ethically permitted — and consistent with their professional obligations — to file a formal protest of the state agency's fee-based procurement procedure, which was contrary to QBS norms and the Brooks Act, on the grounds
Firms B and C's competitive financial interest in the contract award did not extinguish their professional obligation to raise a good-faith public safety concern about Firm A's fee adequacy, provided the protest was factually grounded in th
Firms B and C were obligated to ensure their protest was grounded in objectively verifiable professional judgment rather than competitive self-interest, and to be transparent about their competitive interest as shortlisted bidders so that t
Firms B and C were obligated to ensure their formal protest was grounded in objectively verifiable professional judgment about fee adequacy and public safety — not merely competitive self-interest — and to refrain from characterizing Firm A
Firms B and C were obligated to restrain their characterization of Firm A's proposal to what their actual knowledge supported — namely, that the fee appeared insufficient based on their own cost analysis — rather than asserting that Firm A'
Firms B and C were obligated to ensure their protest of Firm A's contract award was not motivated by — and did not function as — an attempt to injure Firm A's interests for the purpose of advancing their own competitive interests, and the B
All three firms — A, B, and C — were obligated to refrain from attempting to obtain the public engineering engagement through improper or questionable methods, with the BER applying this obligation to all parties in the fee-based procuremen
Firms B and C, as shortlisted competing bidders with direct knowledge of the project scope and cost requirements, were ethically permitted — and potentially required — to file a formal, good-faith protest with the responsible government age
Firms B and C were permitted — and potentially required — to bring information about Firm A's potentially deceptive fee proposal to the attention of the responsible government agency, exercising their right (elevated to professional duty) t
Firm A was obligated to honestly represent its capacity to deliver competent highway bridge design at the proposed $50,000 fee, refraining from submitting a fee proposal that implied adequate performance capacity if the firm knew or should
The public agency was obligated to verify, before awarding the highway bridge design contract to Firm A on the basis of its lowest fee, that Firm A's $50,000 proposal was sufficient to fund competent and safe engineering performance, and to
The state agency was obligated to verify, before awarding the highway bridge design contract to Firm A at $50,000, that this fee was sufficient to fund competent and safe engineering performance — particularly after Firms B and C filed form
The state agency was obligated to conduct the highway bridge design procurement honorably and responsibly — including taking seriously the formal protests filed by Firms B and C, convening the requested public hearing, and ensuring that the
Firm A was obligated to ensure that its $50,000 fee proposal did not cross the threshold at which it becomes economically infeasible to render competent engineering service for the highway bridge design project, and to refrain from performi
The state agency was obligated to recognize that while antitrust constraints limit NSPE's ability to prescribe fee-based selection procedures, applicable federal and state procurement laws — including QBS norms and the Brooks Act — still go
Firm A was obligated to refrain from submitting a fee proposal ($50,000) that was so far below the next lowest bid ($120,000) as to constitute an improper or questionable method of obtaining the public engineering engagement, particularly i
Firm A's principal, in charging that Firms B and C acted unethically, was obligated to refrain from making predictive or speculative characterizations of Firms B and C's motives that were designed to injure their professional reputations, a
scope of project meeting before submission of price proposals
each of those firms would be requested to attend a 'scope of project' meeting for more information about the requirements, following which those firms would be asked to submit a price proposal
submission of price proposals before agency announcement of intent to award contract to Firm A
The firms then subsequently submitted the following price proposals: Firm A: $50,000; Firm B: $120,000; and Firm C: $200,000. The agency announced its intention to award the contract to Firm A.
submission of qualifications by interested firms before preparation of short list by agency selection board
advertised its intention to retain an engineering firm...called for all interested firms to submit a statement of qualification, following which the agency selection board would prepare a 'short list' of the three best qualified firms
submission of qualifications by interested firms
preparation of short list by agency selection board
BER Civic Duty Professional Ethics Elevation Recognition Obligation Instance
The BER articulated the meta-ethical rationale for Firms B and C's reporting obligation, explaining that the purpose of professional ethics is to elevate civic duty to professional duty.
Civic Duty Professional Ethics Elevation Recognition Obligation
The BER recognized and articulated the foundational principle that professional ethics elevates to a mandatory duty the conduct that public-spirited citizens engage in voluntarily, thereby grounding Firms B and C's reporting right as a professional obligation rather than a mere civic option.
In the BER's ethical analysis and opinion
Throughout the procurement and protest process
competitive bidding is not at issue in this case
Free and Open Competition Legal Framework Active State
Legal and regulatory environment governing engineering firm competition
engineers have no less right to bring practices which they believe to be deceptive to the attention of appropriate instrumentalities than do others in our society
Applicable antitrust and procurement law framework governing engineering services competition
Honest Disagreement Among Qualified Engineers Applied to Fee Disparity
Fee disparity between Firm A, Firm B, and Firm C on highway bridge design
Commercial Profit Motive Non-Override of Competence Obligation
Good Faith Safety Concern Threshold for External Reporting
The $150,000 spread between Firm A ($50,000) and Firm C ($200,000) on the same highway bridge project — with all three firms having attended the same scope-of-project meeting — may reflect legitimate differences in scope interpretation, overhead structure, or staffing assumptions rather than incompetence or bad faith on any firm's part
The fee disparity alone does not establish that any firm acted unethically; qualified engineers can reach substantially different cost conclusions from the same project scope, and the ethics analysis must look beyond the numbers to the underlying professional judgment and good faith
Firm A Low-Fee Award Winning Engineering Firm
Honest Disagreement Among Qualified Engineers Permissibility Principle
The firms then subsequently submitted the following price proposals: Firm A: $50,000; Firm: $120,000; and Firm C: $200,000.
Honest disagreement on cost estimation is permissible, but the magnitude of the disparity (3:1 ratio between Firm C and Firm A) is sufficiently large to warrant professional scrutiny of whether Firm A's fee reflects a genuine cost assessment
The firms then subsequently submitted the following price proposals: Firm A: $50,000; Firm: $120,000; and Firm C: $200,000
BER Epistemic Restraint Technical Adequacy Non-Determination Obligation Instance
The BER explicitly stated it had not been presented with technical analysis of the engineering requirements and expressed no view on whether any bid was consistent with professional standards, despite the $150,000 spread between highest and lowest bids.
BER Epistemic Restraint Technical Adequacy Non-Determination Obligation
The BER was obligated to — and did — refrain from making a technical determination about whether any of the three fee proposals was or was not consistent with professional standards for the highway bridge design project, acknowledging that it had not been presented with the necessary technical analysis.
Throughout the BER's ethical review and opinion drafting
Free and Open Competition Invoked By Firm A in Defense of Low Bid
Fee-based competitive procurement for highway bridge design
Firm A implicitly invokes the principle of free and open competition in defense of its $50,000 bid, asserting through its principal's counter-charge that competitive fee bidding is legally permissible and that Firms B and C's protest constitutes an unethical attempt to suppress competition
In the post-antitrust-consent-decree environment, Firm A has the legal right to submit a low bid; the ethics analysis cannot condemn the bid per se but must assess whether the fee is sufficient for competent performance
Free and Open Competition as Engineering Ethics Boundary Condition
Low-Fee Proposal Adequacy Verification Obligation Applied to Firm A
Firm A's $50,000 fee proposal for highway bridge design
Firm A's obligation to verify that its $50,000 fee is sufficient for competent, safe highway bridge design — given that it is $70,000 below the next lowest bid and $150,000 below the highest bid from firms that attended the same scope meeting — requires a documented, defensible cost basis demonstrating that the fee can support adequate engineering performance
The magnitude of the fee disparity — not the mere fact of competitive bidding — creates a specific obligation for Firm A to be able to demonstrate that its fee reflects a genuine, competent cost assessment; absent such demonstration, the low fee raises legitimate ethical questions about whether Firm A can perform adequately
Firm B Public Safety Fee Protest Engineering Firm
Firm C Public Safety Fee Protest Engineering Firm
Low-Fee Proposal Adequacy Verification Obligation
The firms then subsequently submitted the following price proposals: Firm A: $50,000; Firm: $120,000; and Firm C: $200,000. The agency announced its intention to award the contract to Firm A.
Public Agency Honorable Conduct in Fee-Based Highway Bridge Procurement
State agency received formal protests and a public hearing request from two shortlisted firms asserting that the lowest bidder's fee was inadequate for safe bridge design
Honorable Professional Conduct in Procurement Obligation
The state agency was obligated to conduct the highway bridge design procurement honorably and responsibly — including taking seriously the formal protests filed by Firms B and C, convening the requested public hearing, and ensuring that the award decision reflected genuine consideration of public safety alongside price.
Upon receipt of formal protests and throughout the procurement resolution process
Civic Duty Elevation to Professional Ethical Duty Invoked as Foundational Rationale
Firms B and C's right and obligation to report suspected deceptive fee practices to the proper authority
The nature and purpose of the engineering ethics code
Antitrust-Constrained Ethics Code Scope Principle
Prohibition on Reputation Injury Through Competitive Critique
The BER articulated the meta-ethical rationale for Firms B and C's reporting obligation by stating that the purpose of professional ethics is to elevate to a duty the conduct that all public-spirited and civic-minded citizens engage in — grounding the professional obligation to report suspected deceptive practices in the broader social contract between the engineering profession and the public.
The BER uses this meta-principle to explain why engineers are not merely permitted but obligated to report suspected deceptive practices — because professional ethics elevates civic conscience to professional duty, transforming what a public-spirited citizen might do voluntarily into what an engineer must do professionally.
Civic Duty Elevation to Professional Ethical Duty Principle
The civic duty elevation principle resolves the apparent tension between the prohibition on competitive critique and the obligation to report deceptive practices by establishing that the reporting obligation is not merely a competitive right but a professional duty grounded in the social contract of the profession.
engineers have no less right to bring practices which they believe to be deceptive to the attention of appropriate instrumentalities than do others in our society who become aware of such practices
Firm A's principal charged that Firms B and C acted unethically in filing the protest, without demonstrating that the protest was malicious or false
Competitor Reputation Injury Through Predictive Disparagement Prohibition Obligation
Firm A's principal, in charging that Firms B and C acted unethically, was obligated to refrain from making predictive or speculative characterizations of Firms B and C's motives that were designed to injure their professional reputations, and to limit the counter-charge to factually grounded assertions about the propriety of the protest.
At the time of making the counter-charge against Firms B and C
Good Faith Safety Concern — Firms B and C vs. Firm A
From protest submission through independent technical review
This board has not been presented with technical analysis of the engineering requirements for the facility at issue, and expresses no view as to whether any or all of the bids are consistent with professional standards
Good Faith Safety Concern Without Demonstrable Violation State
Firms B and C's sincere belief that Firm A's fee level endangers public safety, absent confirmed technical analysis
Technical analysis confirming or refuting the safety concern
These facts, in and of themselves and in the abstract, give rise to no inference of unethical activity
We assume for the same purpose that the conduct of Firms B and C in protesting Firm A's bid was motivated by a sincere and genuine desire to protect the public safety and health
Firms B and C's professional judgment that Firm A's bid is too low to permit competent service delivery
Potential Public Safety Risk from Under-Priced Engineering
From submission of Firm A's bid through independent technical review or project completion
It is fundamental to engineering ethics that the engineer may not offer or perform services which endanger public safety and health
Potential Safety Risk Without Confirmed Imminent Harm State
Public safety implications of potentially under-funded engineering design for the facility
Technical analysis confirming bid is consistent with professional standards; or confirmed finding of incompetence
Firms B and C believe that Firm A's action endangers public health and safety
This board has not been presented with technical analysis of the engineering requirements for the facility at issue
Firms B and C's belief that Firm A's fee level endangers public health and safety
Prohibition on Reputation Injury Through Competitive Critique Alleged Against Firms B and C
Firms B and C's formal protest and public hearing demand
Firm A charges that Firms B and C acted unethically by filing a protest that characterizes Firm A's fee as likely to produce inadequate and unsafe design — a characterization that, if motivated by competitive self-interest rather than genuine professional concern, would constitute an attempt to injure Firm A's professional reputation and prospects
The ethical permissibility of Firms B and C's protest turns on whether it is grounded in genuine professional judgment or is primarily a competitive tactic; if the latter, it violates the prohibition on reputation injury through competitive critique
Public Agency Fee-Based Public Engineering Procurement Authority Safety Verification Obligation Instance
The public agency adopted a fee-based competitive bidding process contrary to QBS norms and the Brooks Act, awarded the contract to Firm A as the lowest bidder, and received a formal protest from Firms B and C requesting a public hearing.
Fee-Based Procurement Safety Adequacy Agency Verification Obligation
The public agency was obligated to verify, before awarding the highway bridge design contract to Firm A on the basis of its lowest fee, that Firm A's $50,000 proposal was sufficient to fund competent and safe engineering performance, and to take seriously the formal protest filed by Firms B and C raising public safety concerns about the fee adequacy.
We also note preliminarily that the procedure described in the facts is contrary to the practice of most public agencies, local, state, and federal, which select engineering firms on the basis of professional qualification, followed by negotiation with the best qualified firm.
Before contract award and in response to the formal protest
Regulatory Violation Competitive Motivation Risk — Firms B and C
From Firms B and C's decision to protest through agency determination
engineers shall not attempt to obtain professional engagements by 'improper or questionable methods'
Regulatory Violation Competitive Motivation Contamination Risk State
Firms B and C's reporting of Firm A's potentially unsafe bid, evaluated against their competitive self-interest
Agency determination; independent confirmation of safety concern or its absence
Firms B and C are not permitted to attempt to injure the interests of Firm A for the purpose of advancing the interests of Firms B and C
the conduct of Firms B and C in protesting Firm A's bid was motivated by a sincere and genuine desire to protect the public safety and health, and not for the purpose of self-aggrandizement
Firms B and C's simultaneous role as safety reporters and direct financial beneficiaries of protest success
Commercial Profit Motive Non-Override of Competence Obligation Applied to Firm A
Firms B and C's counter-charge against Firm A is that its $50,000 bid — 58% below the next lowest bid — reflects a commercially motivated underbid that cannot support competent highway bridge design, violating the principle that commercial motives cannot override the obligation to propose only fees sufficient for competent performance
If Firm A's $50,000 fee was set to win the contract rather than to reflect genuine cost of competent performance, it violates the principle that commercial advantage cannot override the competence obligation; Firm A must demonstrate the fee is sufficient for safe, adequate performance
In return, the engineer principals of Firms B and C counter that the engineer principals of Firm A have acted unethically in making their proposal under these circumstances.
Fee-Cutting-to-Incompetence Threshold Prohibition Invoked Against Firm A
Assessment of the ethical limits of competitive fee reduction
Firm A's fee proposal ($70,000 below Firm B)
The BER articulated the ethical threshold below which fee-cutting becomes unethical — not the mere fact of losing money on an engagement, but cutting fees to the point where competent and safe service becomes economically infeasible — and applied this threshold to the analysis of Firm A's $70,000 lower bid.
The ethical floor for fee proposals is not zero or cost-minus, but the minimum fee level consistent with competent and safe performance of the specific engineering scope; below that floor, fee reduction is an independent ethical violation regardless of competitive market pressures.
Fee-Cutting-to-Incompetence Threshold Prohibition
Procurement Integrity in Public Engineering Invoked Regarding Fee-Based Selection Process
Public agency's fee-based competitive bidding process for engineering services
The BER noted that the fee-based competitive bidding process used by the public agency is contrary to the practice of most public agencies and contrary to the Brooks Act's qualification-based selection framework — flagging a procurement integrity concern while acknowledging that some public bodies have adopted this method and that ethical guidance is therefore needed.
The use of fee-based rather than qualification-based selection for engineering services raises procurement integrity concerns because it creates incentives for fee-cutting that may compromise public safety; the BER identifies this as a systemic concern while providing ethical guidance for engineers operating within such systems.
Procurement Integrity in Public Engineering
because a few public bodies have adopted the method described in the facts above, the profession is in need of ethical guidance with respect to compliance with those procedures.
the procedure described in the facts is contrary to the practice of most public agencies, local, state, and federal, which select engineering firms on the basis of professional qualification, followed by negotiation with the best qualified firm, in accordance with state and local laws, ordinances, and regulations, and in accordance with federal law under the Brooks Act.
Competing Bidder Public Safety Protest Permissibility Invoked for Firms B and C
Firm B's formal protest to the public agency
Firm C's formal protest to the public agency
The BER held that Firms B and C, as competing shortlisted firms, may ethically file a formal protest with the responsible government agency when they have a good-faith professional belief that Firm A's fee is so low as to create a genuine risk of unsafe or incompetent engineering performance — provided the protest is grounded in honest professional judgment rather than competitive self-interest.
The permissibility of the protest depends on the motive (genuine safety concern, not self-aggrandizement) and the method (directed to the proper authority, not a public attack on Firm A's reputation); both conditions are assumed to be satisfied for purposes of the BER's analysis.
Competing Bidder Public Safety Protest Permissibility Principle
From submission of Firm A's bid through resolution of protest and award determination
Firm A's bid was $70,000 less than the bid of Firm B, and that Firm B's was $80,000 less than the bid of Firm C
Fee-Cutting Competence Threshold Breach Risk State
Firm A's bid price relative to Firms B and C and the economic feasibility of competent service delivery
Independent technical review confirming or refuting competence feasibility; award cancellation or completion of services
Firm A's bid submitted at $70,000 below Firm B and $150,000 below Firm C
Firm A Honest Competence Representation in Highway Bridge Procurement
Public highway bridge design procurement; Firm A's $50,000 proposal was 58% below the next lowest bid from firms with equivalent scope knowledge
Honest Competence Representation in Procurement Obligation
Firm A was obligated to honestly represent its capacity to deliver competent highway bridge design at the proposed $50,000 fee, refraining from submitting a fee proposal that implied adequate performance capacity if the firm knew or should have known the fee was insufficient for the required scope.
Firms B and C Bid Protest with Competitive Self-Interest
From Firms B and C's decision to protest through resolution of the protest by the responsible government agency
Competitor Bid Safety Protest with Self-Interest Contamination Risk State
Firms B and C's formal protest of Firm A's award on public safety grounds while being direct competitors for the same engagement
Responsible government agency determination on protest; award finalization or cancellation
Firms B and C are permitted, or required, to present information to the responsible government agency if Firms B and C believe that Firm A's action endangers public health and safety
We leave for another day and time the question whether Firms B and C could properly be selected for the same assignment if the award to Firm A was cancelled
Firms B and C's belief that Firm A's fee level endangers public safety, combined with their status as competing bidders who would benefit from award cancellation
Firms B and C Competing Bidder Protest Competitive Motivation Transparency Obligation Instance
Firms B and C were themselves competing bidders with a direct financial interest in the outcome of the protest; the BER assumed their motivation was genuine public safety concern rather than self-aggrandizement.
Competing Bidder Protest Competitive Motivation Transparency Obligation
Firms B and C were obligated to ensure their protest was grounded in objectively verifiable professional judgment rather than competitive self-interest, and to be transparent about their competitive interest as shortlisted bidders so that the responsible agency could assess the protest's context.
Firms B and C Protest of Non-Compliant Fee-Based Procurement
State agency adopted a fee-based selection procedure contrary to QBS norms; Firms B and C filed formal protests grounded in both safety and procurement integrity concerns
Protest of Non-Compliant Procurement Obligation
Firms B and C were ethically permitted — and consistent with their professional obligations — to file a formal protest of the state agency's fee-based procurement procedure, which was contrary to QBS norms and the Brooks Act, on the grounds that the procedure created a public safety risk by incentivizing inadequate low-fee bids for safety-critical infrastructure.
Promptly after the agency announced its intention to award the contract to Firm A
Good Faith Safety Concern Threshold Invoked for Firms B and C Protest Permissibility
Assessment of whether Firm A's fee level endangers public safety
Firm B and Firm C's formal protest to the public agency
Incomplete Situational Knowledge Restraint in Competitor Critique
The BER held that Firms B and C are permitted — or required — to present information to the responsible government agency if they believe that Firm A's action endangers public health and safety, grounding the permissibility of the protest in the good-faith belief that the low fee creates a genuine public safety risk.
A good-faith professional belief that a competitor's fee is so low as to make competent performance economically infeasible constitutes a sufficient threshold to trigger the obligation to report to the proper authority — even without confirmed evidence of actual incompetent performance.
Incomplete Situational Knowledge Restraint Applied to Firms B and C's Protest
Firms B and C's characterization of Firm A's fee as inadequate for safe performance
Firms B and C assert that Firm A's $50,000 fee will 'most likely' produce inadequate design and 'could be unsafe' without knowing Firm A's actual scope interpretation, staffing plan, overhead structure, or cost basis — raising the question of whether their critique exceeds what their knowledge supports
Firms B and C may legitimately note the fee disparity and request review; their assertion that the design will 'most likely' be inadequate goes beyond what they can know without full knowledge of Firm A's approach, and should be framed as a concern warranting investigation rather than a factual conclusion
Representatives of Firms B and C promptly filed protests with the agency and called for a public hearing on the ground that the proposal of Firm A was so out of line with realistic costs for proper engineering performance for the project that the result would most likely be an inadequate design, with higher construction and maintenance costs over the life of the facility, and the possibility that the design could be unsafe and jeopardize the public health.
Incomplete Situational Knowledge Restraint Invoked Regarding BER's Own Epistemic Limits
BER's assessment of whether Firm A's fee level is professionally adequate
BER's refusal to render a specific opinion on bid adequacy
The BER explicitly acknowledged that it had not been presented with technical analysis of the engineering requirements for the facility and therefore expressed no view as to whether any or all of the bids are consistent with professional standards — applying the restraint principle to its own deliberative process.
The principle of restraint in the absence of complete situational knowledge applies not only to competing engineers critiquing each other's work, but also to the ethics board itself — which must acknowledge the limits of its technical knowledge before rendering opinions on technical adequacy.
Low-Fee Proposal Adequacy Verification Obligation Invoked Regarding Firm A
Firm A's fee proposal ($70,000 below Firm B; $150,000 below Firm C)
The BER implicitly invoked the obligation of Firm A to have a defensible basis for its substantially lower fee — noting that while the fee difference alone gives rise to no inference of unethical activity, it would be unethical to cut fees to the point of making competent service economically infeasible, implying that Firm A must be able to demonstrate that its fee supports competent performance.
The substantial fee differential creates a professional obligation for Firm A to have a documented, defensible basis demonstrating that its proposed fee is sufficient to support competent, safe, and complete engineering performance — the BER declines to make this determination without technical analysis but identifies the obligation.
We observe that Firm A's bid was $70,000 less than the bid of Firm B, and that Firm B's was $80,000 less than the bid of Firm C. These facts, in and of themselves and in the abstract, give rise to no inference of unethical activity.
We observe that Firm A's bid was $70,000 less than the bid of Firm B, and that Firm B's was $80,000 less than the bid of Firm C.
From issuance of fee-based solicitation through award decision and protest resolution
a few public bodies have adopted the method described in the facts above
Non-QBS Fee-Based Competitive Procurement Active State
Public body's procurement process for engineering facility design
Award finalization or cancellation; or adoption of QBS method
contrary to the practice of most public agencies, local, state, and federal, which select engineering firms on the basis of professional qualification
the profession is in need of ethical guidance with respect to compliance with those procedures
Public body's adoption and use of fee-based competitive bidding method rather than QBS
Public Agency Fee-Based Public Engineering Procurement Authority
{'procurement_method': 'Fee-based competitive bidding (non-QBS)', 'regulatory_context': 'Contrary to Brooks Act and most public agency practice', 'role_in_protest': 'Recipient of public safety protests from Firms B and C'}
The responsible government agency that adopted a fee-based competitive bidding process (contrary to QBS norms and the Brooks Act) for selecting engineering firms, awarded the contract to Firm A, and received formal protests from Firms B and C regarding public safety implications of Firm A's low fee.
{'type': 'client', 'target': 'Firm A Low-Fee Award Winning Engineering Firm'}
{'type': 'receives_protest_from', 'target': 'Firm B Public Safety Fee Protest Engineering Firm'}
{'type': 'receives_protest_from', 'target': 'Firm C Public Safety Fee Protest Engineering Firm'}
Firms B and C are permitted, or required, to present information to the responsible government agency (i.e., 'the proper authority')
the procedure described in the facts is contrary to the practice of most public agencies
Antitrust-Constrained Ethics Code Scope Applied to Fee-Based Procurement Analysis
State agency's fee-based engineering selection procedure
The ethics analysis of this case must acknowledge that the state agency's fee-based selection procedure is legally permissible in the post-antitrust-consent-decree environment, and that the ethics code cannot condemn competitive fee bidding per se — the analysis must focus on competence, good faith, and public safety rather than the competitive bidding structure itself
The ethics board's analysis is constrained by antitrust law from condemning the procurement procedure or Firm A's participation in it; the ethical questions must be framed around competence and public safety, not around the permissibility of competitive bidding
Firms A B C Improper Method Procurement Non-Engagement Obligation General Application Instance
The BER noted that Section 11 of the code (prohibition on improper methods) applied to all three firms in the fee-based procurement scenario, not just to the protesting firms.
Improper Method Procurement Non-Engagement Obligation
All three firms — A, B, and C — were obligated to refrain from attempting to obtain the public engineering engagement through improper or questionable methods, with the BER applying this obligation to all parties in the fee-based procurement context.
Procurement Integrity in Public Engineering Applied to Fee-Based Selection Procedure
State agency's fee-based engineering procurement procedure for highway bridge design
The state agency's adoption of a fee-based selection procedure contrary to QBS norms and the Brooks Act raises systemic procurement integrity concerns; the procedure creates structural incentives for underbidding that may compromise the quality and safety of engineering services delivered to the public
While the fee-based procedure may be legally permissible under antitrust law, it departs from QBS norms that exist precisely to protect public safety by ensuring engineering services are selected on the basis of qualifications rather than price
A state agency, operating under a new procedure for selection of engineering services, advertised its intention to retain an engineering firm for the design of a highway bridge. The announcement called for all interested firms to submit a statement of qualification, following which the agency selection board would prepare a 'short list' of the three best qualified firms.
Public Agency Antitrust-Constrained Ethics Code Scope Recognition in Fee-Based Selection
State agency adopted a fee-based selection procedure contrary to QBS norms and the Brooks Act for a public highway bridge design contract
Antitrust-Constrained Ethics Code Scope Recognition Obligation
The state agency was obligated to recognize that while antitrust constraints limit NSPE's ability to prescribe fee-based selection procedures, applicable federal and state procurement laws — including QBS norms and the Brooks Act — still govern the agency's selection process, and that adopting a fee-based procedure contrary to those norms does not exempt the agency from its legal and ethical obligations to ensure competent and safe engineering performance.
At the time of adopting and implementing the fee-based selection procedure
Competing Bidder Public Safety Protest Permissibility Applied to Firms B and C
Formal protest and public hearing request filed with the state agency
Firms B and C's decision to file a formal protest with the agency and request a public hearing — rather than making public accusations or attacking Firm A directly — represents the ethically appropriate channel for raising a good-faith safety concern about a competitor's fee adequacy, even though Firms B and C stand to benefit competitively from the protest's success
The protest is directed to the responsible authority (the agency), requests formal review (public hearing), and is grounded in professional cost analysis — satisfying the procedural and substantive conditions for ethical permissibility of a competing bidder's safety protest
Representatives of Firms B and C promptly filed protests with the agency and called for a public hearing on the ground that the proposal of Firm A was so out of line with realistic costs for proper engineering performance for the project
Firm A Low-Fee Bid Public Safety Adequacy Self-Verification
Highway bridge design procurement where Firm A submitted a $50,000 proposal against Firm B's $120,000 and Firm C's $200,000 after all three attended the same scope-of-project meeting
Low-Fee Competitive Bid Public Safety Adequacy Self-Verification Obligation
Firm A was obligated to verify, before submitting its $50,000 fee proposal, that this fee was sufficient to fund competent, code-compliant, and safe highway bridge design — given that it was $70,000 below the next lowest bid and $150,000 below the highest bid from firms that attended the same scope-of-project meeting.
Before submission of the price proposal following the scope-of-project meeting
Firm A Low-Fee Competitive Bid Public Safety Adequacy Self-Verification Obligation Instance
Firm A submitted a $50,000 bid for a public highway bridge design project, 58% below the next lowest bid; the BER noted the obligation to verify fee adequacy before submission.
Firm A was obligated to verify, before submitting its $50,000 fee proposal — $70,000 below the next lowest bid — that the proposed fee was sufficient to fund competent, code-compliant, and safe highway bridge design, and to refrain from submitting a fee it knew or should have known was inadequate for safe project execution.
Good Faith Safety Concern Threshold Satisfied by Firms B and C
Formal protest filed with the public agency regarding Firm A's contract award
Firms B and C, as experienced engineering firms that attended the same scope-of-project meeting and submitted their own cost-based proposals, have a professional basis for forming a good-faith belief that $50,000 is insufficient for safe highway bridge design — satisfying the threshold for formal protest and public hearing demand
The $70,000–$150,000 fee disparity between Firm A and the other shortlisted firms, combined with Firms B and C's professional knowledge of bridge design costs, provides a sufficient professional basis for good-faith safety concern — even without confirmed evidence of inadequate performance
Firms A, B, and C were placed on the 'short list' and principals of those firms attended the 'scope of project' meeting. The firms then subsequently submitted the following price proposals: Firm A: $50,000; Firm: $120,000; and Firm C: $200,000.
Low-Fee Bait-and-Switch Deception Prohibition Invoked Regarding Firm A's Proposal
Firm A's fee proposal characterized as potentially 'too good to be true'
Firms B and C's right to report suspected deceptive practices
The BER identified the 'too good to be true' fee as a potential marker of bait-and-switch deception in engineering procurement — an improper method of obtaining professional engagements — and affirmed that competitors have the right and obligation to bring such suspected deceptive practices to the attention of appropriate authorities.
A fee proposal that appears too low to support competent performance may constitute a form of bait-and-switch deception — an improper method of obtaining engagements — triggering both the prohibition on such methods and the right of competitors to report the suspected deception to the proper authority.
Low-Fee Bait-and-Switch Deception Prohibition in Engineering Procurement
The bait-and-switch deception prohibition provides an independent ethical basis for the protest by Firms B and C — separate from the public safety rationale — grounding the protest in the honesty and procurement integrity obligations of the ethics code.
Public Agency Fee-Based Procurement Safety Adequacy Verification Before Award
State agency announced intention to award contract to Firm A at $50,000 — 58% below the next lowest bid — before addressing formal protests filed by Firms B and C on public safety grounds
The state agency was obligated to verify, before awarding the highway bridge design contract to Firm A at $50,000, that this fee was sufficient to fund competent and safe engineering performance — particularly after Firms B and C filed formal protests asserting that the fee was so far below realistic costs as to create a credible public safety risk.
Before finalizing the contract award to Firm A; upon receipt of formal protests from Firms B and C
Public Welfare Paramount Invoked By Firms B and C in Fee Protest
Highway bridge design contract award to Firm A
In this context, public welfare requires that competing engineers who have professional grounds to believe a winning fee is inadequate for safe performance must escalate through formal channels to the responsible authority
Firms B and C Competing Bidder Good Faith Public Safety Protest Permissibility Obligation Instance
Firms B and C formally protested Firm A's contract award and requested a public hearing; the BER found this conduct ethically permissible when motivated by genuine public safety concern.
Competing Bidder Good Faith Public Safety Protest Permissibility Obligation
Firms B and C, as shortlisted competing bidders with direct knowledge of the project scope and cost requirements, were ethically permitted — and potentially required — to file a formal, good-faith protest with the responsible government agency when Firm A's $50,000 fee was so far below realistic project costs as to create a credible risk of inadequate and unsafe highway bridge design.
Upon learning of Firm A's award and the fee disparity
Firms B and C Competitive Interest Non-Subordination of Safety Reporting
Firms B and C are competing bidders with a direct financial interest in the outcome of their protest, yet their safety concern is grounded in professional cost analysis from the same scope-of-project meeting
Competitive Interest Non-Subordination of Licensure Reporting Duty Obligation
Firms B and C's competitive financial interest in the contract award did not extinguish their professional obligation to raise a good-faith public safety concern about Firm A's fee adequacy, provided the protest was factually grounded in their professional cost analysis and not merely a competitive tactic.
Throughout the protest and public hearing process
the firms then subsequently submitted the following price proposals: Firm A: $50,000; Firm B: $120,000; and Firm C: $200,000
Firms B and C Competitor Deceptive Practice Appropriate Authority Reporting Right Obligation Instance
Firms B and C formally protested Firm A's contract award to the responsible government agency and requested a public hearing, asserting that Firm A's $50,000 fee was too low to produce safe and adequate highway bridge design.
Competitor Deceptive Practice Appropriate Authority Reporting Right Obligation
Firms B and C were permitted — and potentially required — to bring information about Firm A's potentially deceptive fee proposal to the attention of the responsible government agency, exercising their right (elevated to professional duty) to report deceptive practices to appropriate instrumentalities when public safety is implicated.
Upon discovery of the fee disparity and award to Firm A
Firms B and C Incomplete Knowledge Restraint in Fee Protest Characterization
Firms B and C characterized Firm A's proposal as likely to produce inadequate and potentially unsafe design without knowledge of Firm A's actual project execution approach
Incomplete Knowledge Restraint in Competitor Critique Obligation
Firms B and C were obligated to restrain their characterization of Firm A's proposal to what their actual knowledge supported — namely, that the fee appeared insufficient based on their own cost analysis — rather than asserting that Firm A's design 'would most likely' be inadequate or 'could be unsafe,' given that they lacked knowledge of Firm A's actual staffing plan, subcontracting arrangements, or project execution methodology.
At the time of filing the formal protest
Firm A Fee-Cutting Economic Infeasibility Competence Threshold Non-Breach Obligation Instance
Firm A's $50,000 bid was $70,000 below Firm B and $150,000 below Firm C for the same highway bridge project; the BER noted that fee-cutting to the point of economic infeasibility for competent service is unethical.
Fee-Cutting Economic Infeasibility Competence Threshold Non-Breach Obligation
Firm A was obligated to ensure that its $50,000 fee proposal did not cross the threshold at which it becomes economically infeasible to render competent engineering service for the highway bridge design project, and to refrain from performing the engagement if the fee would lead to incompetent and dangerous service.
At fee proposal submission and throughout project performance
{'bid_position': 'Lowest bidder — contract awardee', 'fee_differential': '$70,000 below Firm B; $150,000 below Firm C', 'assumed_familiarity': 'Intimately familiar with engineering requirements for the facility'}
Submitted the lowest bid ($70,000 below Firm B) and was awarded the public engineering contract; its fee level was protested by Firms B and C as potentially too low to render competent and safe engineering service.
{'type': 'client', 'target': 'Fee-Based Public Engineering Procurement Authority'}
{'type': 'competitor', 'target': 'Firm B Public Safety Fee Protest Engineering Firm'}
{'type': 'competitor', 'target': 'Firm C Public Safety Fee Protest Engineering Firm'}
Firm A's bid was $70,000 less than the bid of Firm B
Firms B and C Competitive Motivation Transparency in Protest
Firms B and C filed a protest characterizing Firm A's proposal as 'most likely' producing inadequate design and 'possibly' unsafe, without knowledge of Firm A's actual project execution plan
Firms B and C were obligated to ensure their formal protest was grounded in objectively verifiable professional judgment about fee adequacy and public safety — not merely competitive self-interest — and to refrain from characterizing Firm A's design as definitively unsafe or inadequate beyond what their knowledge of Firm A's actual staffing, methods, and capabilities supported.
At the time of filing the formal protest and public hearing request
Prohibition on Reputation Injury Invoked Against Firms B and C Protest
Firm B's protest of Firm A's contract award
Firm C's protest of Firm A's contract award
The BER applied the prohibition on reputation injury to constrain Firms B and C's protest activity, holding that they are not permitted to attempt to injure the interests of Firm A for the purpose of advancing their own competitive interests — but simultaneously recognizing that a good-faith safety-motivated protest directed to the proper authority is permissible.
The prohibition on reputation injury does not bar all competitive protest activity; it bars protests motivated by self-aggrandizement or competitive advantage. Protests grounded in genuine good-faith safety concern and directed to the proper authority fall within the permissible exception carved out by the public safety disclosure obligation.
Public Welfare Paramount Invoked in Fee-Based Procurement Safety Context
Fee-based public engineering procurement process
The BER affirmed that it is fundamental to engineering ethics that engineers may not offer or perform services that endanger public safety and health, establishing this as the overriding principle governing the fee-based procurement dispute between Firms A, B, and C.
In the context of fee-based competitive procurement, the public welfare paramount principle operates as the ethical ceiling that constrains how low fees may be cut — any fee level that makes competent and safe service economically infeasible violates this principle regardless of competitive market pressures.
Firm A Improper Method Procurement Non-Engagement Obligation Instance
Firm A submitted the lowest bid at $50,000 for a public highway bridge design project, $70,000 below Firm B's bid and $150,000 below Firm C's bid, and was awarded the contract; Firms B and C protested on public safety grounds.
Firm A was obligated to refrain from submitting a fee proposal ($50,000) that was so far below the next lowest bid ($120,000) as to constitute an improper or questionable method of obtaining the public engineering engagement, particularly if the fee was insufficient to fund competent and safe highway bridge design.
At the time of fee proposal submission and throughout contract performance
{'bid_position': 'Highest bidder — $80,000 above Firm B; $150,000 above Firm A', 'protest_basis': 'Public safety concern about fee adequacy for competent service', 'assumed_motivation': 'Sincere desire to protect public safety and health'}
Highest bidder ($80,000 above Firm B; $150,000 above Firm A) that joined Firm B in formally protesting Firm A's contract award on public safety grounds related to fee adequacy; assumed to be acting from sincere public safety motivation.
{'type': 'competitor', 'target': 'Firm A Low-Fee Award Winning Engineering Firm'}
{'type': 'peer', 'target': 'Firm B Public Safety Fee Protest Engineering Firm'}
{'type': 'reports_to', 'target': 'Fee-Based Public Engineering Procurement Authority'}
Firm B's was $80,000 less than the bid of Firm C
Firms B and C are permitted, or required, to present information to the responsible government agency
the conduct of Firms B and C in protesting Firm A's bid was motivated by a sincere and genuine desire to protect the public safety and health
Firms B and C Good Faith Public Safety Protest Filing
Highway bridge design procurement; Firms B and C filed formal protests and called for a public hearing after Firm A was awarded the contract at a fee 58-75% below competing proposals
Firms B and C were ethically permitted — and arguably obligated by their paramount duty to public safety — to file a formal protest with the agency and request a public hearing when their professional judgment, grounded in attendance at the same scope-of-project meeting, indicated that Firm A's $50,000 fee was so far below realistic project costs as to create a credible risk of inadequate and unsafe bridge design.
on the ground that the proposal of Firm A was so out of line with realistic costs for proper engineering performance for the project
{'bid_position': 'Second lowest — $70,000 above Firm A; $80,000 below Firm C', 'protest_basis': 'Public safety concern about fee adequacy for competent service', 'assumed_motivation': 'Sincere desire to protect public safety and health'}
Second-lowest bidder that formally protested Firm A's contract award to the responsible government agency on the grounds that Firm A's fee was too low to render competent and safe engineering service; assumed to be acting from sincere public safety motivation.
{'type': 'peer', 'target': 'Firm C Public Safety Fee Protest Engineering Firm'}
Firms B and C Competitor Interest Injury Self-Advancement Prohibition Obligation Instance
Firm A charged that Firms B and C acted unethically by filing a protest; the BER applied the prohibition on injuring competitor interests for self-advancement while finding the protest permissible on public safety grounds.
Competitor Interest Injury Self-Advancement Prohibition Obligation
Firms B and C were obligated to ensure their protest of Firm A's contract award was not motivated by — and did not function as — an attempt to injure Firm A's interests for the purpose of advancing their own competitive interests, and the BER assumed (favorably) that their conduct was motivated by genuine public safety concern rather than self-aggrandizement.
At the time of filing the protest and throughout the protest proceedings