NSPE Board of Ethical Review (derived from agency law and professional ethics doctrine)
Faithful Agent and Trustee Duty of Loyalty Principle
Agent-Trustee Loyalty Obligation Standard
the general duty of loyalty and fair dealing denotes that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter, and not in such a way that he himself might be tempted, for the sake of his personal advantage, to neglect the interests of the other
the role of the engineer in serving the legitimate needs of the client and the role of the engineer as the employer or client's 'faithful agent and trustee'
NSPE Board of Ethical Review in BER Case No. 93-3 and the present case
Applied as an authoritative interpretive standard to define the scope of an engineer's loyalty obligation to a client, specifically the duty to carry out transactions in the manner most beneficial to the client rather than for personal advantage
Normative landscape of the present case is shaped by an existing ethical ruling; Engineer B's conduct is now evaluable against an established standard rather than in a vacuum
BER obligation to apply prior precedent consistently to analogous facts
Engineering community obligation to be aware of and guided by established BER rulings
Prior to present case; referenced in Discussion section as established precedent
A prior Board of Ethical Review case (No. 93-3) involving a franchiser's transition from Engineer A to Engineer B under ethically questionable circumstances was adjudicated and its findings recorded, creating a precedent that the current Discussion section applies to evaluate Engineer B's conduct in the present case. This prior ruling functions as an exogenous normative reference point that shapes the ethical analysis.
BER Case 93-3: Engineer B Discloses Relationship to Engineer A
design engineer retained by franchiser; BER Case No. 93-3
Direct violation of explicit client instruction to maintain confidentiality of the new relationship
Disruption to franchiser's planned timeline for transitioning engineering services
Potential harm to franchiser's interests by premature disclosure of the transition
Professional courtesy to Engineer A as the incumbent engineer
Transparency and honesty toward a professional colleague
Duty of loyalty does not extend to unethical acts but confidentiality instruction was not itself unethical
Faithful agent and trustee relationship to client
Honesty and transparency as professional values
Inform Engineer A of the transition and preliminary review findings, likely motivated by professional courtesy, transparency, or personal discomfort with the concealment rather than personal competitive advantage
Ability to navigate competing professional obligations
Judgment regarding confidentiality obligations in client transitions
Understanding of faithful agent and trustee duties
Following completion of design review, several weeks before Engineer A's contract expired
Duty of loyalty to client as faithful agent and trustee
Duty to protect client's legitimate business interests
Obligation not to neglect client interests for the benefit of third parties
Obligation to follow lawful client instructions regarding confidentiality
In BER Case No. 93-3, Engineer B voluntarily notifies Engineer A of his new relationship with the franchiser and shares preliminary results of his design review, in direct contravention of the franchiser's explicit instruction not to disclose the relationship. The Board determined this disclosure constituted a neglect of client interests.
BER Case 93-3: Engineer B Discloses Relationship to Engineer A → BER 93-3 Precedent Established
In BER Case No. 93-3, Engineer B voluntarily notifies Engineer A of his new relationship with the franchiser, establishing a contrasting ethical benchmark of transparency and disclosure against which the current case conduct is measured
Without the BER 93-3 precedent, the ethical analysis of the current case would lack a directly analogous professional standard; the precedent strengthens the case that Engineer B's current conduct falls below established ethical expectations
Engineer B's agreement to review Engineer A's design information under the new relationship
Engineer B's voluntary disclosure of the conflicting relationship in BER Case 93-3
The Board of Ethical Review's adjudication of that case creating formal precedent
The ethical contrast between proactive disclosure in 93-3 and strategic exploitation in the current case
Engineer B (BER 93-3 context); Board of Ethical Review (precedent establishment)
The precedent functions as a normative benchmark sufficient to evaluate Engineer B's conduct in the current case
Voluntary disclosure + BER adjudication = established ethical standard for engineer conduct in competitive/conflicted situations
BER Case 93-3: Engineer B Reviews Design Information
design engineer, newly retained by franchiser; BER Case No. 93-3
Access to Engineer A's proprietary design information without Engineer A's knowledge or consent
Review of Engineer A's design work while Engineer A remains under contract creates potential conflict
Risk of undermining Engineer A's professional interests and client relationship
Compliance with client instruction to maintain confidentiality of new relationship
Responsiveness to client's request for design review services
Fair dealing with professional colleagues
Fulfill client obligation by reviewing pending design concerns for the franchiser, supporting continuity of engineering services during the transition from Engineer A
Implicit obligation to consider whether accepting the engagement under these conditions was itself ethically appropriate
Ability to assess pending design concerns across multiple franchise facilities
Judgment regarding conflicts of interest in client transitions
Within the week following retention by franchiser, before Engineer A's contract expired
Duty to avoid conflicts of interest with another engineer's ongoing engagement
Fair dealing toward Engineer A as a professional colleague
Obligation not to review or exploit a colleague's work product without appropriate disclosure
In the referenced BER Case No. 93-3, Engineer B agrees to review Engineer A's design information on behalf of the franchiser client, despite being explicitly instructed by the franchiser not to disclose their new relationship to Engineer A. Engineer B proceeds with the review within a week of being retained.
NSPE Board of Ethical Review Case No. 93-3
In deciding that Engineer B's actions were not consistent with the NSPE Code of Ethics, the Board determined that Engineer B had an obligation as 'faithful agent and trustee' to not to tell Engineer A of his relationship with the client.
While the facts in BER Case No. 93-3 are somewhat different than the facts in the present case, Case No. 93-3 makes an important point which is relevant to the case at hand
NSPE Board of Ethical Review to ground reasoning about Engineer B's obligations in the present case
Cited as analogical precedent establishing the engineer's duty of loyalty as faithful agent and trustee to a client during competitive transitions, and the limits of disclosure to a prior engineer during a procurement transition
BER Case No. 93-3 events before present case events
CausalLink_BER Case 93-3: Engineer B Disc
CausalLink_BER Case 93-3: Engineer B Revi
CausalLink_Engineer A Submits RFQ Qualifi
CausalLink_Engineer B Files FOIA Request
CausalLink_Engineer B Submits Own Qualifi
Competitive Information Asymmetry Created
Procurement process is now operating under conditions of information asymmetry; competitive fairness is structurally compromised; Engineer B holds strategic advantage derived from a legal but ethically questionable maneuver
BER obligation to evaluate whether Engineer B's conduct constitutes an ethical violation of fair competition norms
Engineer B obligation to disclose use of FOIA-obtained information if it materially shapes submission
State agency obligation to assess whether procurement integrity has been compromised
Immediately following state's release of documents; during ongoing interview process
As a direct outcome of the FOIA disclosure, Engineer B possesses Engineer A's full qualifications while Engineer A has no equivalent knowledge of Engineer B's approach, creating an unequal competitive footing during an active procurement. This asymmetry persists through the remainder of the selection process.
Competitor Conduct in Procurement Standard - FOIA Use Context
Professional engineering community / NSPE
Professional Norms Governing Competitor Conduct in Engineering Procurement
Competitor Conduct in Procurement Standard
Engineer B, a competitor of Engineer A, whose firm also intends to respond to the same RFQ, submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state.
Thereafter, Engineer B submits his firm's engineering qualifications to the state agency for the same public project.
Governs whether Engineer B's use of a FOIA request to access Engineer A's submitted qualifications during an active procurement process constitutes an ethical or unethical competitive tactic, including whether it constitutes an attempt to gain unfair competitive advantage
It was ethical for Engineer B to make the FOIA request in connection with the state’s procurement of engineering services, pursuant to the State’s RFQ procedures.
While the Board concluded that Engineer B's FOIA request was ethically permissible, the Board's reasoning implicitly distinguishes between the legality of obtaining competitor qualifications and the ethics of using them. The FOIA request itself may be defensible as an exercise of a public right, but the Board's caution that Engineer B should have submitted his own qualifications first signals that the ethical weight of the conduct shifts materially once the information is actually received and potentially incorporated. If Engineer B reviewed Engineer A's submission and tailored his own qualifications in response—even without copying protected expression—this would constitute use of an improper competitive advantage that undermines the fairness principles embedded in qualification-based selection procurement law. The Board's conclusion of compliance therefore applies narrowly to the act of filing the FOIA request, not to any downstream exploitation of the information obtained.
The Board's conclusion that Engineer B's FOIA request was ethical rests in part on the existence of a legally open competitive framework, but this reasoning exposes an unaddressed systemic vulnerability: the state agency's disclosure of Engineer A's qualifications during an active procurement process itself implicates procurement integrity. The state agency, as the public procurement authority, bears a co-responsibility for the informational equity of the selection process. By releasing a competitor's qualifications before the submission deadline had closed for all parties, the agency created a structural asymmetry that no individual engineer's ethical conduct alone could have prevented or remedied. This suggests that the Board's ethical analysis, while correctly focused on Engineer B's conduct, is incomplete without acknowledging that procurement regulations should be revised to exempt submitted qualifications from FOIA disclosure until after the selection process concludes, in order to protect the public interest in fair and competitive procurement outcomes.
The Board's analogical invocation of the faithful agent principle from BER Case 93-3 introduces a tension that the Board does not fully resolve. In BER 93-3, the faithful agent duty ran from an engineer to a private client, constraining the engineer from acting in ways that prioritized personal or altruistic motives over the client's interests. In the present case, the Board applies this principle analogically to suggest that Engineer B owed a duty of honorable conduct to the integrity of the public procurement process itself—a duty that is not grounded in a bilateral client relationship but in a broader professional obligation to the public. This extension is conceptually significant: it implies that the faithful agent principle under NSPE Code Section II.4 is not limited to private client relationships but also constrains engineers from exploiting informational advantages within public procurement systems, even when those advantages are legally obtained. However, the Board stops short of declaring this duty violated, leaving open whether the timing of Engineer B's FOIA request—after Engineer A submitted but before Engineer B submitted—constitutes a breach of this extended faithful agent obligation or merely an appearance of impropriety that falls short of an ethical violation. A more complete analysis would require the Board to specify whether the appearance of impropriety standard, standing alone, is sufficient to constitute an ethical violation under the NSPE Code, or whether actual exploitation of the competitor's information is required.
Even if Engineer B's FOIA request was legally permissible, reviewing and incorporating insights from a competitor's qualifications submission before submitting his own raises serious concerns about improper competitive advantage that violate the spirit of fair procurement. The legality of the acquisition does not sanitize the competitive distortion it creates. Engineer A submitted qualifications in good faith within a procurement framework that implicitly assumes informational parity among competing firms at the time of submission. Engineer B's pre-submission FOIA request shattered that parity by allowing him to calibrate his own submission against a competitor's already-disclosed strategy. The NSPE Code's prohibition on improper competitive methods is not limited to illegal acts; it encompasses conduct that, while technically lawful, undermines the integrity of the competitive process. The Board's own recommendation that Engineer B should have submitted his qualifications before filing the FOIA request implicitly acknowledges that the sequence of actions matters ethically, not merely the legal permissibility of the individual act. Accordingly, the informational advantage gained through pre-submission FOIA review constitutes a form of competitive impropriety even if no explicit rule was violated.
The state agency bears a meaningful ethical and procedural responsibility for disclosing a competitor's qualifications submission during an active procurement process. While the state may have been legally obligated to comply with the FOIA request under existing statute, the disclosure created a structural inequity in the procurement that undermines the public interest the procurement system is designed to serve. Procurement regulations should be revised to include a procurement-integrity exception to FOIA disclosure, shielding submitted qualifications from release until after the selection process is complete. Such an exception would align FOIA law with the fairness norms embedded in qualification-based selection frameworks, which presuppose that competing firms are evaluated on equal informational footing. The absence of such a protection is a regulatory gap, not an ethical endorsement of mid-process disclosure. The state agency's compliance with the FOIA request, while legally defensible, contributed to the competitive information asymmetry that the Board itself found troubling, and this implicates the agency's own procurement integrity obligations.
Engineer A bears some affirmative responsibility to protect the confidentiality of qualifications submitted to public procurement processes, but the scope of that obligation is limited by the practical realities of public records law. Engineer A could have proactively requested that the state agency treat certain portions of the submission as proprietary or confidential, particularly trade-sensitive methodologies, staffing structures, or pricing frameworks, to the extent permitted by the applicable FOIA statute. Failure to take such steps does not eliminate Engineer A's standing to object to Engineer B's conduct, because the ethical wrong lies in Engineer B's exploitation of the timing asymmetry, not solely in Engineer A's failure to anticipate it. However, Engineer A's inaction does diminish the force of any claim that the procurement system failed him, since the self-protection obligation is a recognized caution in the NSPE framework. The ethical burden is shared: Engineer A should have been more proactive, but Engineer B should not have exploited the window of vulnerability that Engineer A's inaction created.
If Engineer B did in fact use the content of Engineer A's qualifications to tailor or strengthen his own submission, that use would constitute a deceptive act under the NSPE Code even if the information was lawfully obtained through FOIA. The Code's prohibition on deceptive acts is not limited to misrepresentations of fact; it encompasses conduct that creates a false impression about the independent merit of one's own professional work product. A qualifications submission that has been calibrated against a competitor's submission without disclosure presents the submitting engineer's work as independently conceived when it is in part derivative of a competitor's strategy. This is a form of professional misrepresentation that violates the spirit of II.5. Furthermore, the lawfulness of the acquisition channel does not transform the downstream use into an ethical act. The analogy to BER 93-3 is instructive: just as good intent did not excuse Engineer B in that case from the consequences of a procedurally improper act, the legal availability of FOIA does not excuse Engineer B in the present case from the ethical consequences of exploiting a competitor's submission to gain an undisclosed advantage.
The principle of Public Procurement Transparency as a Public Interest Protection Mechanism and the principle of Fairness in Professional Competition are in genuine tension in this case, and the Board's resolution of that tension in favor of transparency is defensible but not without cost. FOIA exists to ensure government accountability and public access to government records, values that serve the public interest broadly. However, when FOIA is used not to scrutinize government conduct but to gain a competitive edge over a private party in an ongoing procurement, the transparency rationale is instrumentalized in a way that undermines the fairness norm it is supposed to coexist with. The two principles can be reconciled only if FOIA access is temporally constrained in procurement contexts, releasing competitor submissions only after the selection process concludes. Until such a reconciliation is achieved through regulatory reform, the Board's conclusion that Engineer B's FOIA request was ethical must be understood as a narrow legal compliance finding rather than a broad endorsement of the practice as consistent with professional fairness norms.
The tension between the FOIA Procurement Timing Integrity principle and the Public Procurement Confidentiality Self-Protection Obligation does not resolve cleanly in favor of either party. The Board's recommendation that Engineer B should have submitted his own qualifications before filing the FOIA request implies that the timing of the request is Engineer B's ethical responsibility to manage. However, the self-protection obligation imposed on Engineer A suggests that the risk of FOIA exposure is partly Engineer A's to bear. These two positions are not mutually exclusive: Engineer B had an obligation to sequence his actions to avoid creating an informational asymmetry, and Engineer A had an obligation to take reasonable steps to protect sensitive submission content. The ethical failure in this case is distributed, not singular. The Board's framing, which focuses primarily on Engineer B's timing, understates Engineer A's share of the responsibility while also understating the structural inadequacy of a procurement system that permits mid-process FOIA disclosure without any protective mechanism.
From a deontological perspective, Engineer B's use of the FOIA mechanism to obtain a competitive advantage over Engineer A before submitting his own qualifications raises a serious question about categorical duty. The Kantian test asks whether the maxim underlying Engineer B's action could be universalized without contradiction. If every competing engineer routinely filed FOIA requests to obtain competitors' qualifications before submitting their own, the procurement system would collapse into a race to submit last, with each firm waiting to calibrate its submission against all others. This self-defeating universalization reveals that Engineer B's action, while individually rational, is categorically impermissible as a general rule of professional conduct. Engineer B's act treated Engineer A not as an equal participant in a fair process but as an unwitting source of competitive intelligence, instrumentalizing Engineer A's good-faith submission in a way that violates the duty of fair dealing that professional competition requires. The legal availability of FOIA does not discharge this categorical duty.
From a consequentialist perspective, normalizing pre-submission FOIA intelligence gathering in engineering procurement would produce long-term systemic harms that outweigh the short-term transparency benefits of any individual FOIA request. If the practice becomes routine, firms will respond by submitting qualifications that are strategically vague to minimize the intelligence value of early disclosure, degrading the quality of information available to public agencies for selection decisions. Alternatively, firms may delay submission to preserve informational advantage, distorting procurement timelines. Public trust in the fairness of qualification-based selection processes would erode, as engineers and firms perceive the system as rewarding strategic information exploitation rather than genuine professional merit. The consequentialist calculus therefore supports the Board's implicit discomfort with Engineer B's timing even while the Board found the act technically ethical, and it supports regulatory reform to close the FOIA disclosure window during active procurement periods.
From a virtue ethics perspective, Engineer B's strategic timing of the FOIA request to gain informational advantage over a competitor before submitting his own qualifications falls short of the professional integrity and honorable character expected of a licensed engineer. Virtue ethics asks not merely whether an act is permitted but whether it reflects the character of a person of good professional standing. An engineer of genuine integrity, confronted with the opportunity to review a competitor's qualifications before submitting his own, would recognize that the advantage gained is not earned through superior professional merit but through procedural exploitation. The virtuous engineer would either submit his own qualifications first or decline to use the competitor's submission as a calibration tool. The fact that no explicit rule prohibited Engineer B's sequence of actions does not resolve the virtue ethics question, because virtue ethics is precisely concerned with conduct in the spaces where rules are silent. Engineer B's conduct in this case reflects a disposition toward competitive advantage-seeking that is inconsistent with the honorable character the NSPE Code expects of its members.
The Board's analogical invocation of the faithful agent principle from BER Case 93-3 raises the question of whether that duty transfers to competitive relationships in public procurement. In BER 93-3, the faithful agent obligation ran from Engineer B to a private client, constraining Engineer B from acting in ways that prioritized personal interest over client welfare. In the present case, there is no private client relationship between Engineer B and Engineer A. However, the faithful agent principle can be extended analogically to the public procurement system itself: Engineer B, as a participant in a public procurement process, owes a duty of faithful dealing to the integrity of that process, which serves the public interest. This duty constrains Engineer B from exploiting procedural mechanisms in ways that undermine the fairness of the process, even in the absence of a direct client relationship with Engineer A. The Board's analogical transfer of the faithful agent principle is therefore defensible, but it should be understood as grounding a duty to the public procurement system rather than a duty to Engineer A as a competitor.
Even if Engineer B had submitted his own qualifications before filing the FOIA request, as the Board recommends, the competitive information asymmetry would not have been fully eliminated. Engineer B would still have had access to Engineer A's qualifications before the interview process concluded, and could have used that information to refine oral presentations, anticipate the agency's comparative questions, or identify weaknesses in Engineer A's submission to exploit during interviews. The Board's timing recommendation addresses the most visible form of the asymmetry, the pre-submission calibration problem, but does not address the downstream exploitation risk that persists throughout the selection process. A more complete ethical resolution would require Engineer B to refrain from using Engineer A's qualifications for any competitive purpose during the entire procurement process, not merely to submit his own qualifications first. This suggests that the Board's conclusion, while finding the FOIA request ethical, implicitly leaves open a residual ethical obligation of non-exploitation that extends beyond the timing question.
If Engineer A had proactively requested that the state agency treat his submitted qualifications as confidential or proprietary prior to Engineer B's FOIA request, the ethical calculus for both parties would have shifted significantly. Many FOIA statutes include exemptions for trade secrets or proprietary business information, and a timely confidentiality designation by Engineer A might have obligated the state to withhold the documents or at least to notify Engineer A before disclosure, allowing him to seek legal protection. Had the state withheld the documents on this basis, Engineer B's act of filing the FOIA request would not itself constitute an ethical violation, because the request would have been denied and no competitive harm would have resulted. The ethical weight of Engineer B's conduct depends in part on the actual acquisition and potential use of the information, not merely on the filing of the request. However, the act of filing a pre-submission FOIA request targeting a competitor's qualifications would still reflect a disposition toward competitive advantage-seeking that raises professional character concerns independent of whether the information was actually obtained.
If the state agency had declined to release Engineer A's qualifications under a procurement-integrity exception to the FOIA statute, Engineer B's act of filing the request would not constitute a clear ethical violation in isolation, but it would still warrant scrutiny. The ethical analysis of Engineer B's conduct cannot be reduced entirely to whether the information was actually obtained, because the intent behind the request, to gain competitive intelligence from a competitor's submission before submitting his own, reflects a disposition that is ethically problematic regardless of outcome. An engineer who attempts to exploit a procedural mechanism for competitive advantage but is thwarted by the system has not thereby demonstrated ethical compliance; he has merely been prevented from completing an ethically questionable act. The ethical weight of the conduct is diminished when no information is obtained, because no actual harm to the competitive process results, but the underlying intent and the appearance of impropriety it creates remain relevant to a full professional character assessment.
The Board's reasoning in the present case does not depend critically on the analogical transfer from BER Case 93-3, but the absence of that precedent would likely have produced a less nuanced conclusion. Without BER 93-3, the Board would have lacked a ready framework for articulating why good intent, or the legal availability of FOIA, does not automatically render Engineer B's conduct ethical. The faithful agent principle from BER 93-3 provided the Board with a conceptual bridge to the idea that procedural propriety matters independently of outcome or intent. Without that bridge, the Board might have resolved the case more simply on the basis of legal permissibility, concluding that because FOIA access is lawful, the request was ethical, without the important qualification about timing and appearance of impropriety. The BER 93-3 precedent therefore enriched the Board's analysis by introducing a principle that constrains conduct even within legally permissible boundaries, and its absence would have left the ethical reasoning thinner and potentially more permissive than the facts warrant.
The tension between Public Procurement Transparency as a Public Interest Protection Mechanism and Fairness in Professional Competition was resolved in this case by treating legal access as a necessary but insufficient condition for ethical conduct. The Board did not declare Engineer B's FOIA request unethical, but it declined to endorse the timing and sequence of his actions as fully honorable. This resolution reveals a layered principle hierarchy: transparency rights operate as a floor, not a ceiling, for ethical behavior. An engineer may lawfully invoke FOIA without that invocation automatically satisfying the higher standard of fair dealing expected in professional competition. The case teaches that when two legitimate principles collide — open records access and competitive equity — the ethical resolution does not simply defer to legality, but asks whether the actor's conduct would withstand scrutiny from the standpoint of a reasonable, honorable professional. The Board's implicit answer is that Engineer B's pre-submission timing failed that scrutiny even while his legal right to file the request was affirmed.
The analogical transfer of the Faithful Agent Obligation from BER Case 93-3 to the present case reveals a significant principle extension: the duty to subordinate personal advantage to the integrity of a process is not confined to client relationships but extends, by analogy, to the integrity of public procurement systems in which engineers participate as competitors. In BER 93-3, the faithful agent principle constrained Engineer B from disclosing a new client relationship even with benevolent intent, because good intent does not cure procedural impropriety. Applied here, the same logic constrains Engineer B from exploiting a legal information-gathering mechanism to gain asymmetric competitive advantage, even if his intent was merely to be better informed. The principle synthesis that emerges is that the Benevolent Motive Non-Excuse principle and the Good Intent Does Not Cure Procedural Impropriety principle together form a meta-principle: the ethical evaluation of competitive conduct in engineering procurement is objective, not subjective. The actor's intent is irrelevant to whether the conduct created an unfair structural advantage. This case thus teaches that the faithful agent duty, while textually directed at client relationships under Code Section II.4, carries an analogical shadow obligation toward the fairness architecture of public procurement itself.
The principle of Public Procurement Confidentiality Self-Protection Obligation — which places a burden on Engineer A to safeguard sensitive submission content — interacts with the FOIA Procurement Timing Integrity principle in a way that distributes ethical responsibility across multiple actors rather than concentrating it solely on Engineer B. The Board's implicit recognition that Engineer A bears some responsibility for protecting his own submission acknowledges that public procurement is a shared ethical ecosystem: the state agency, the submitting engineer, and the requesting competitor each carry distinct obligations. However, this distribution of responsibility does not dissolve Engineer B's independent obligation to conduct himself honorably. The principle synthesis here is one of concurrent rather than exclusive duty: Engineer A's failure to seek confidentiality protections does not license Engineer B to exploit the resulting vulnerability. Instead, both obligations coexist, and Engineer B's ethical standing is evaluated independently of whether Engineer A took adequate self-protective measures. This teaches that in engineering ethics, the availability of an opportunity to act improperly does not become an ethical permission simply because another party failed to foreclose that opportunity.
Should Engineer B file the FOIA request to obtain Engineer A's qualifications before submitting his own firm's qualifications to the state agency, or should he submit his own qualifications first and only then file the FOIA request?
Engineer B, a competitor of Engineer A in the same public RFQ, files a FOIA request to obtain Engineer A's already-submitted qualifications before Engineer B has submitted his own firm's qualifications. The core question is whether Engineer B should have sequenced his FOIA request after submitting his own qualifications, or whether filing before his own submission — while legally permissible — creates an appearance of impropriety that violates the spirit of fair procurement and the NSPE Code's honorable conduct standard.
Engineer B submits his firm's qualifications to the state agency before filing any FOIA request for Engineer A's submission, ensuring that the competitor intelligence obtained cannot have influenced the content of his own qualifications and thereby avoiding any appearance of impropriety in the procurement process.
Engineer B files the FOIA request before submitting his own qualifications, treating the legal availability of FOIA access as sufficient ethical authorization for the request regardless of timing, on the grounds that public procurement submissions are public records and no regulation prohibits this sequence.
Engineer B refrains from filing any FOIA request for a competitor's qualifications during the active procurement window — before the selection process concludes — recognizing that any pre-selection access to a competitor's submission creates an informational asymmetry incompatible with fair competition, regardless of whether the request is filed before or after his own submission.
Should Engineer B file the FOIA request to obtain Engineer A's qualifications before submitting his own firm's qualifications, or should he first submit his own qualifications and then file the FOIA request?
Engineer B's FOIA Timing and Appearance of Impropriety: Whether Engineer B should have submitted his own qualifications before filing the FOIA request targeting a competitor's submission during an active public procurement process.
Engineer B submits his firm's own qualifications to the state agency before filing any FOIA request, ensuring that no competitive information asymmetry is created by the sequence of actions and that the appearance of impropriety is avoided.
Engineer B files the FOIA request and reviews Engineer A's qualifications before submitting his own, relying on the legal permissibility of FOIA access as sufficient justification and treating the public records framework as an open competitive resource available to all participants.
Engineer B files the FOIA request for general procurement transparency purposes but refrains from reviewing the substantive content of Engineer A's qualifications submission, thereby preserving the legal exercise of public records access while avoiding exploitation of the competitive information asymmetry.
Should Engineer B refrain from using the content of Engineer A's FOIA-obtained qualifications to calibrate or strengthen his own submission, or may he treat the lawfully obtained information as legitimate competitive intelligence to inform his own qualifications?
Engineer B's Use of Competitor Qualifications Content: Whether Engineer B, having obtained Engineer A's qualifications through FOIA, may review and incorporate insights from that submission to tailor or strengthen his own qualifications, or whether good intent and legal acquisition are insufficient to justify such downstream use.
Engineer B refrains from using any substantive content from Engineer A's qualifications to calibrate, tailor, or strengthen his own submission or interview preparation, treating the obtained documents as off-limits for competitive purposes throughout the entire procurement process.
Engineer B reviews Engineer A's qualifications and uses the insights gained to inform and strengthen his own submission, treating the lawfully obtained public records as legitimate competitive intelligence available within the open procurement framework, consistent with the legal permissibility of the FOIA request.
Engineer B discloses to the state agency that he obtained and reviewed Engineer A's qualifications through a FOIA request before submitting his own, allowing the agency to assess whether the informational asymmetry warrants any remedial action in the procurement process, and thereby preserving transparency while acknowledging the potential competitive distortion.
Should Engineer B use the substantive content of Engineer A's qualifications — obtained through the FOIA request — to calibrate or strengthen his own submission, or should he refrain from exploiting that content for any competitive purpose in the same procurement?
Having lawfully obtained Engineer A's qualifications through the FOIA request, Engineer B faces a second and distinct ethical decision: whether to use the substantive content of Engineer A's submission — including project descriptions, personnel credentials, methodologies, and competitive differentiators — to tailor, improve, or strategically position his own qualifications submission for the same procurement. The Board's clearance of the FOIA request as ethical applies narrowly to the act of filing; the downstream use of the information obtained raises independent ethical concerns about improper competitive advantage and potential deception under the NSPE Code.
Engineer B reviews Engineer A's qualifications only to understand the general competitive landscape and refrains from using any substantive content — project descriptions, personnel credentials, methodologies, or competitive differentiators — to tailor, improve, or strategically reposition his own qualifications submission for the same procurement.
Engineer B treats Engineer A's FOIA-disclosed qualifications as lawfully available competitive intelligence and uses insights from that submission to strengthen his own qualifications, on the grounds that public disclosure under FOIA renders the information freely usable and that competitive awareness is a legitimate professional purpose.
Engineer B refrains from using Engineer A's qualifications to alter his written submission but uses the disclosed information to prepare for the interview stage — anticipating comparative questions and identifying competitive differentiators — on the grounds that the written submission is already finalized and the interview is a distinct evaluative phase.
Should Engineer A proactively request that the state agency treat sensitive portions of his qualifications submission as confidential or proprietary before the submission window closes, or should he submit without seeking such protections and accept the FOIA disclosure risk as an inherent feature of public procurement?
Engineer A submitted qualifications to a public agency in response to an RFQ without taking affirmative steps to seek confidential or proprietary treatment for sensitive submission content — such as project methodologies, staffing structures, or competitive differentiators — that could be subject to FOIA disclosure. The question is whether Engineer A bore an obligation to proactively seek confidentiality protections for his submission, and whether failure to do so diminishes his standing to object to Engineer B's FOIA request or shifts a portion of the ethical responsibility for the resulting competitive information asymmetry to Engineer A himself.
Engineer A proactively requests that the state agency designate sensitive portions of his qualifications — including proprietary methodologies, staffing structures, and competitive differentiators — as confidential or proprietary prior to submission, invoking any available FOIA exemption for trade secrets or proprietary business information to reduce the risk of mid-process competitor disclosure.
Engineer A submits his qualifications without seeking any confidentiality designation, treating public procurement submissions as inherently public records and relying on the procurement system's fairness norms — rather than individual protective action — to prevent competitors from exploiting FOIA access during the active selection process.
Engineer A omits proprietary methodologies, sensitive staffing details, and competitively differentiating content from his qualifications submission entirely, including only information he is prepared to have publicly disclosed, and reserves sensitive content for the interview stage where it is not subject to FOIA disclosure as a submitted document.
Should Engineer B file the FOIA request to obtain Engineer A's submitted qualifications before submitting his own firm's qualifications, or should he submit his own qualifications first and only then exercise his FOIA rights?
Engineer B's FOIA Timing and Competitive Conduct Obligation: Whether Engineer B should have submitted his own qualifications before filing the FOIA request, or whether filing first was ethically permissible within the legally open procurement framework.
Engineer B submits his firm's own qualifications to the state agency first, then exercises his FOIA rights to obtain Engineer A's submission, ensuring that his own submission was independently conceived and that no pre-submission informational asymmetry was created.
Engineer B exercises his legally available FOIA rights before submitting his own qualifications, treating the public records framework as an open competitive resource available to all participants and relying on the state's disclosure decision as the relevant ethical boundary.
Engineer B refrains entirely from filing any FOIA request targeting competitor qualifications while the procurement selection process remains active, deferring any public records inquiry until after the agency has made its selection decision.
Should Engineer A proactively request that the state agency treat his submitted qualifications as confidential or proprietary before the submission deadline, or is it sufficient to rely on the procurement system's general framework without seeking specific confidentiality protections?
Engineer A's Affirmative Self-Protection Obligation: Whether Engineer A was obligated to take proactive steps to seek confidential treatment of his submitted qualifications before the FOIA request was filed, and whether failure to do so shifts ethical responsibility toward Engineer A and away from Engineer B.
Engineer A proactively designates sensitive portions of his qualifications submission — including methodologies, staffing structures, and strategic frameworks — as proprietary or confidential before or at the time of submission, invoking any available FOIA exemption to reduce the risk of mid-process competitor disclosure.
Engineer A submits his qualifications without requesting confidential treatment, relying on the procurement system's general framework and the implicit assumption that competing firms will not exploit FOIA mechanisms to access submissions before the deadline has closed for all parties.
Engineer A submits a version of his qualifications that omits or generalizes the most competitively sensitive content — such as proprietary methodologies or staffing strategies — so that even if the submission is disclosed under FOIA, the information available to competitors is limited in its strategic value.
Should the state agency disclose Engineer A's submitted qualifications in response to Engineer B's FOIA request during the active procurement process, or should it withhold the documents under a procurement-integrity rationale and advocate for regulatory reform to close the disclosure window?
State Agency Procurement Integrity and Regulatory Reform Obligation: Whether the state agency bears an independent ethical and procedural responsibility for disclosing a competitor's qualifications during an active procurement, and whether procurement regulations should be revised to exempt submitted qualifications from FOIA disclosure until after the selection process concludes.
The state agency declines to release Engineer A's qualifications during the active procurement period, invoking a procurement-integrity rationale or seeking legal guidance on whether an implied exemption applies, and simultaneously advocates for legislative or regulatory reform to create an explicit FOIA exemption protecting submitted qualifications until after the selection process concludes.
The state agency complies with the FOIA request as legally required but notifies Engineer A of the pending disclosure before releasing the documents, providing Engineer A an opportunity to seek legal protection or request confidential treatment of proprietary content, thereby partially mitigating the competitive harm while fulfilling the statutory obligation.
The state agency releases Engineer A's qualifications in full compliance with the applicable FOIA statute, treating the open records obligation as controlling and deferring any policy concerns about competitive equity to the legislative process, without taking independent action to notify Engineer A or delay disclosure.
Should Engineer B file the FOIA request to obtain Engineer A's qualifications before submitting his own firm's qualifications, or should he submit his own qualifications first and then file the FOIA request?
Engineer B: FOIA Request Timing Relative to Own Submission in Active Procurement
Submit the firm's own qualifications to the state agency first, then file the FOIA request to obtain Engineer A's qualifications, eliminating the pre-submission informational asymmetry and satisfying the Board's appearance-of-impropriety standard.
File the FOIA request before submitting the firm's own qualifications, treating FOIA access as a legally open public right that imposes no sequencing obligation on the requesting engineer, and relying on the state's legal duty to disclose as the operative ethical boundary.
Decline to file any FOIA request targeting competitor qualifications until after the selection process is complete, treating the procurement period as a domain where competitive equity overrides general public disclosure rights regardless of the legal availability of FOIA.
After receiving Engineer A's qualifications through the FOIA request, should Engineer B refrain from using that content to calibrate or strengthen his own submission, or may he incorporate insights from the disclosed qualifications into his competitive strategy?
Engineer B: Use of Competitor's Qualifications Content After FOIA Disclosure
Decline to use any insights, structural elements, or strategic content from Engineer A's disclosed qualifications when finalizing or presenting Engineer B's own submission, treating the FOIA-obtained documents as off-limits for competitive calibration throughout the entire procurement process including interviews.
Treat Engineer A's lawfully obtained qualifications as legitimately available competitive intelligence within the open procurement framework, incorporating relevant insights to strengthen Engineer B's submission on the grounds that FOIA access is a public right that carries no downstream use restriction.
Voluntarily disclose to the state agency that Engineer B obtained and reviewed Engineer A's qualifications through a FOIA request before submitting his own, allowing the agency to determine whether the informational asymmetry warrants remedial action such as requiring Engineer B to resubmit or recuse, thereby subordinating personal competitive advantage to the integrity of the procurement process.
Should the state agency revise procurement regulations to exempt submitted qualifications from FOIA disclosure until after the selection process is complete, or should it continue to treat submitted qualifications as immediately disclosable public records under existing FOIA statute?
State Agency and Engineer A: Systemic Procurement Integrity — Whether Submitted Qualifications Should Be Shielded from FOIA During Active Procurement
Revise procurement regulations to include an exemption shielding submitted qualifications from FOIA disclosure until after the selection process is complete, aligning FOIA law with the fairness norms embedded in qualification-based selection frameworks and eliminating the structural asymmetry that mid-process disclosure creates.
Continue treating submitted qualifications as immediately disclosable public records under existing FOIA statute, on the grounds that government transparency obligations are categorical and that competitive equity concerns are the responsibility of individual engineers and procurement participants to manage through self-protective measures.
Without awaiting statutory reform, adopt an administrative protocol requiring the agency to notify submitting engineers of pending FOIA requests targeting their qualifications and to impose a brief hold period allowing submitting engineers to seek legal protection or confidentiality designation before disclosure, balancing transparency obligations with procurement fairness.
Engineer A BER 93-3 Incumbent Design Engineer
{'license': 'Professional Engineer', 'specialty': 'Franchise facility design', 'contract_status': 'Active then expired'}
Retained by franchiser for multi-year engineering design services for a chain of stores; contract terminated with notice of non-renewal; subject to replacement by Engineer B during the transition period
{'type': 'client', 'target': 'Franchiser Client BER 93-3'}
{'type': 'peer', 'target': 'Engineer B BER 93-3 Replacement Design Engineer'}
Incumbent Consulting Engineer Under Contract
Engineer A was retained by a major franchiser to provide engineering design services for a chain of stores throughout the United States
Engineer A's agreement with the franchiser expired
the franchiser decided to terminate its relationship with Engineer A and provided a notice of its intent not to renew its contract with Engineer A's firm
Engineer A Confidential Submission Self-Protection
Confidential Submission Self-Protection in Public Procurement Capability
Engineer A required the capability to recognize that qualifications submitted to a public agency under public procurement procedures are subject to FOIA disclosure, and to calibrate the proprietary content of his submission accordingly to protect his firm's confidential interests.
Engineer A submitted qualifications to the state agency, which the state then provided to Engineer B in response to a FOIA request, exposing Engineer A's proprietary qualification content to a direct competitor
Engineer A's submission of qualifications to the state agency, which were subsequently disclosed to Engineer B via FOIA — indicating the need for this self-protection capability
Engineer A submits his firm's engineering qualifications to a state agency for a public project using the state's public procurement procedures.
The state provides the information to Engineer B.
Engineer A Present Case Confidential Submission Self-Protection Capability Instance
Engineer A in the present case was required to possess the capability to recognize that qualifications submitted to a public agency under public procurement procedures are subject to FOIA disclosure, and to exercise appropriate judgment about what confidential or proprietary information to include in such submissions.
Present case — Engineer A submitted qualifications to a state agency in response to a public RFQ; those qualifications were subsequently obtained by Engineer B through a FOIA request.
The Board cautioned that engineers in Engineer A's position should avoid including confidential or proprietary information in public agency submissions, implying Engineer A may not have fully exercised this capability.
the Board would caution engineers that in situations such as the one represented by the facts of this case, an engineer may wish to avoid including any confidential or proprietary information in this type of submission to a public agency since such information could be subject to public disclosure under applicable laws and regulations.
Engineer A Public Procurement Qualifications Confidentiality Self-Protection BER 10-8
The Board cautioned that engineers should avoid including confidential or proprietary information in public procurement submissions because such information could be subject to public disclosure under applicable laws and regulations.
Public Procurement Confidential Information Self-Exclusion Constraint
Engineer A was constrained to refrain from including confidential or proprietary information in his qualifications submission to the public agency, recognizing that such submissions are subject to public disclosure under applicable FOIA laws and regulations, and that the engineer — not the public agency — bears responsibility for ensuring submissions do not contain information the engineer would not wish publicly disclosed.
NSPE BER Case 10-8; applicable state FOIA statutes; public procurement regulatory framework
the Board would caution engineers that in situations such as the one represented by the facts of this case, an engineer may wish to avoid including any confidential or proprietary information in this type of submission to a public agency since such information could be subject to public disclosure under applicable laws and regulations
At the time of preparing and submitting qualifications to the public agency
Engineer A Public Procurement Submission FOIA Exposure Self-Protection Constraint Instance
Engineer A submitted qualifications to a state agency under public procurement procedures, and those qualifications were subsequently obtained by competitor Engineer B through a FOIA request. Engineer A bore responsibility for ensuring that the submission did not contain information the firm would not wish publicly disclosed, as public procurement submissions are inherently subject to FOIA disclosure.
Engineer A was constrained to recognize that submitting qualifications to a state agency under public procurement procedures subjects those materials to disclosure under the state FOIA statute, and accordingly was required to refrain from including confidential or proprietary information in the submission that Engineer A would not wish to be disclosed to competitors or the public.
State FOIA Statute; NSPE Code of Ethics; BER Case 10-8; Public procurement law
At the time of preparing and submitting qualifications to the state agency in response to the RFQ
competing engineering firm principal/representative
Proprietary or strategic information included in submission may become accessible to competitors
Submitted qualifications become part of a public agency record potentially subject to FOIA disclosure
Compliance with state public procurement procedures
Honest and accurate representation of firm qualifications to a public agency
Participation in open and competitive public procurement process
Honest representation to clients and public bodies
Public interest in obtaining most qualified engineering services
Secure selection for the public engineering project by demonstrating firm qualifications through the established procurement process
Ability to document and present firm qualifications
Knowledge of public procurement procedures
Understanding of FOIA implications for public agency submissions
Initial submission phase, prior to interview process
Engineer A voluntarily responds to a public Request for Qualifications by submitting his firm's engineering qualifications to a state agency through the public procurement process. This initiates his firm's participation in the competitive selection process.
Engineer A Submits RFQ Qualifications → Engineer A's Qualifications Exposed to Competitor
As a consequence of the FOIA disclosure, Engineer A's proprietary competitive qualifications, including strategic and technical details submitted in good faith, are exposed to a direct competitor
Had Engineer A not submitted qualifications, there would be nothing to disclose; however, non-submission would have excluded Engineer A from the procurement entirely: the harm arises from the system's failure to protect good-faith submissions, not from Engineer A's act of submitting
Engineer A's Qualifications Exposed to Competitor
Absence of a confidentiality exemption protecting procurement submissions
Engineer A's voluntary submission of qualifications to the state agency
Engineer B's subsequent FOIA filing targeting those specific records
State agency's retention of submitted documents as public records subject to FOIA
Engineer B (primary); State Agency (secondary)
Engineer A's submission was a necessary precondition but not independently sufficient without Engineer B's FOIA action
Submission to public agency + FOIA-accessible record status + competitor's deliberate request = exposure of proprietary information
Engineer A's competitive position is materially and irreversibly weakened; Engineer B holds an informational advantage that shapes the competitive landscape for the remainder of the procurement; the harm to Engineer A is ongoing and cannot be undone
BER obligation to determine whether Engineer B's conduct constitutes an actionable ethical violation
Engineer B obligation to refrain from directly incorporating Engineer A's strategies or approaches into competing submission
State agency obligation to assess whether procurement should be restructured or restarted to restore fairness
Upon state's release of documents to Engineer B; persists through remainder of procurement
As a consequence of the FOIA disclosure, Engineer A's proprietary competitive qualifications, including methodologies, experience claims, key personnel, and strategic positioning, are now in the hands of a direct competitor during an active procurement. This exposure is irreversible and cannot be remedied after the fact.
Engineer A's contract expiration with franchiser meets franchiser's formal retention of Engineer B as design engineer
Several weeks later, Engineer A's agreement with the franchiser expired and the franchiser retained Engineer B as its design engineer.
Engineer A's contract expiration with franchiser
franchiser's formal retention of Engineer B as design engineer
Entity1 ends exactly when Entity2 begins
Engineer A's multi-year service to franchiser before franchiser's termination notice to Engineer A
Engineer A was retained by a major franchiser to provide engineering design services... After several years, the franchiser decided to terminate its relationship with Engineer A and provided a notice of its intent not to renew its contract with Engineer A's firm.
Engineer A's multi-year service to franchiser
franchiser's termination notice to Engineer A
Engineer A's qualifications submission to state agency before Engineer B's FOIA request
In response to a public request for qualifications (RFQ), Engineer A submits his firm's engineering qualifications to a state agency... Prior to the interview process, Engineer B... submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state.
Engineer A's qualifications submission to state agency
Engineer B Appearance of Impropriety Avoidance in Public Procurement Constraint Instance
Engineer B's FOIA request, submitted before Engineer B's own qualifications were filed, created an appearance of impropriety in the public procurement process by suggesting Engineer B sought to review and potentially tailor its submission based on advance knowledge of a competitor's qualifications, even if Engineer B's actual intent was merely competitive awareness.
Appearance of Impropriety Avoidance in Public Procurement Constraint
Engineer B was constrained to avoid not only actual unfair competitive advantage but also the appearance of impropriety in the public procurement process — the pre-submission FOIA request created a reasonable appearance that Engineer B sought to gain an unfair informational advantage over Engineer A, which is ethically impermissible regardless of Engineer B's subjective intent.
NSPE Code of Ethics; BER Cases 82-2, 15-7, 16-3, 10-8; Public procurement ethics principles
From the time Engineer B decided to participate in the RFQ process through submission of Engineer B's own qualifications
Engineer B BER 93-3 Altruistic Motive Faithful Agent Duty Non-Override
In BER Case 93-3, Engineer B was not motivated by personal advantage but by altruistic or collegial concern; the Board nonetheless found that this motivation did not justify the breach of faithful agent duty because the benefits of disclosure did not outweigh the detriments to the client.
Altruistic Motive Faithful Agent Duty Non-Override Constraint
Engineer B was constrained from treating his altruistic or collegial motivation — the desire to inform Engineer A of the new engagement — as a sufficient justification for breaching his faithful agent duty to the franchiser client, because the balance of benefits and detriments must be assessed from the client's perspective and the benefits of disclosure did not outweigh the detriments to the client.
NSPE BER Case 93-3; NSPE Code of Ethics faithful agent and trustee provisions
Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client
At the time Engineer B decided to disclose his relationship with the franchiser to Engineer A
Engineer B's disclosure of his relationship with client constituted a neglect of the interests of his client
the benefits to be derived by Engineer B's disclosure, for all parties involved, did not outweigh detriments that may be suffered by the client
Engineer B BER 93-3 Faithful Agent Client Benefit Primacy Capability Instance
Faithful Agent Client Benefit Primacy Over Personal Advantage Recognition Capability
Engineer B in BER 93-3 was required to possess the capability to recognize that his duty as faithful agent and trustee to the franchiser client required him to carry out the engagement in the manner most beneficial to the client — including refraining from disclosing his relationship with the client to Engineer A even when motivated by benevolent collegial impulse rather than personal advantage.
BER Case No. 93-3 — Engineer B retained by franchiser to replace Engineer A; instructed to keep engagement confidential; disclosed relationship to Engineer A the following week after reviewing design information.
Failure to exercise this capability: Engineer B disclosed his relationship with the franchiser client to Engineer A despite explicit client instruction to maintain confidentiality, constituting a neglect of client interests that the Board found inconsistent with the NSPE Code of Ethics.
the general duty of loyalty and fair dealing denotes that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter, and not in such a way that he himself might be tempted, for the sake of his personal advantage, to neglect the interests of the other.
Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client.
The Board determined that Engineer B's disclosure of his relationship with client constituted a neglect of the interests of his client and that on balance the benefits to be derived by Engineer B's disclosure, for all parties involved, did not outweigh detriments that may be suffered by the client.
Engineer B BER 93-3 Faithful Agent Client Non-Disclosure Instruction Compliance
In BER Case 93-3, the franchiser explicitly instructed Engineer B not to disclose his new engagement to Engineer A; Engineer B nonetheless disclosed the relationship, which the Board found inconsistent with the NSPE Code of Ethics as a breach of faithful agent duty.
Faithful Agent Client Instruction Non-Disclosure Constraint
Engineer B was constrained by his duty as faithful agent and trustee to the franchiser client to comply with the client's explicit instruction not to disclose the new engagement relationship to Engineer A, prohibiting disclosure even when Engineer B's motivation was altruistic or collegial rather than self-serving.
franchiser specifically told Engineer B not to disclose to their relationship to Engineer A
From the time of the client's non-disclosure instruction through the conclusion of the transition period
Engineer B had an obligation as 'faithful agent and trustee' to not to tell Engineer A of his relationship with the client
Engineer B BER 93-3 Good Intent Non-Justification Recognition Capability Instance
Benevolent Motive Non-Justification Recognition Capability
Engineer B in BER 93-3 was required to possess the capability to recognize that his benevolent, non-self-interested motivation for disclosing his relationship with the franchiser client to Engineer A did not render that disclosure ethically permissible under his faithful agent obligations.
BER Case No. 93-3 — Engineer B disclosed his relationship with the franchiser client to Engineer A despite explicit instructions to maintain confidentiality, apparently motivated by collegial concern rather than personal advantage.
Failure to exercise this capability: Engineer B disclosed his relationship with the client despite explicit confidentiality instructions, apparently believing that his benevolent motivation (informing Engineer A of the new engagement) justified the disclosure. The Board found this reasoning insufficient.
Here, Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client.
Engineer B Competitive Procurement Fairness Constraint Instance
Engineer B's pre-submission FOIA request created an asymmetric competitive situation in which Engineer B had reviewed Engineer A's qualifications before submitting its own, while Engineer A had no corresponding access to Engineer B's qualifications, undermining the equal competitive opportunity that public procurement processes are designed to ensure.
Competitive Procurement Fairness Constraint
Engineer B was constrained to ensure that his participation in the public procurement process preserved equal competitive opportunity for all competing firms, including Engineer A — the pre-submission FOIA request undermined this fairness constraint by creating an informational asymmetry in which Engineer B had access to Engineer A's qualifications while Engineer A had no corresponding access to Engineer B's qualifications.
NSPE Code of Ethics Sections II.5, III.6; Public procurement law; Free and open competition regulatory framework
Throughout Engineer B's participation in the public RFQ procurement process
Engineer B Competitive Procurement Honorable Conduct Constraint Instance
Engineer B's pre-submission FOIA request to obtain Engineer A's qualifications, while legally permissible under state FOIA law, raised ethical concerns about whether Engineer B was competing honorably and fairly in the public procurement process, as the timing created an appearance of using an improper or questionable method to gain competitive advantage.
Procurement Competition Honorable Conduct Constraint
Engineer B was constrained to conduct all competitive activities in the public RFQ process honorably, responsibly, and fairly — prohibiting the use of FOIA-based intelligence gathering that, by virtue of its pre-submission timing, constituted an improper or questionable method of obtaining competitive advantage beyond demonstrated merit and qualifications.
NSPE Code of Ethics Sections II.5, III.6, III.7; BER Case 10-8
Engineer B Competitor Qualifications Content Non-Exploitation
Competitor Qualifications Content Non-Exploitation Capability
Engineer B required the capability to recognize the ethical boundaries on using Engineer A's qualifications content once lawfully obtained through FOIA — specifically, to refrain from exploiting Engineer A's proprietary qualification strategies or content to gain competitive advantage in the same procurement.
After obtaining Engineer A's qualifications through FOIA, Engineer B submitted his own qualifications to the same agency for the same project, creating the risk that Engineer A's proprietary content was exploited in preparing Engineer B's submission
Engineer B's receipt of Engineer A's qualifications and subsequent submission of his own qualifications — raising the question of whether the content was exploited in preparing his own submission
Engineer B FOIA-Acquired Competitor Intelligence Ethical Use BER 10-8
Engineer B obtained Engineer A's qualifications via FOIA during an active public procurement; the Board evaluated whether this use was consistent with ethical obligations governing competitive intelligence in public procurement.
FOIA-Acquired Competitor Intelligence Ethical Use Constraint
Engineer B was constrained to use Engineer A's qualifications submission obtained through FOIA only for legitimate competitive awareness purposes and not to tailor or misrepresent his own qualifications in a manner that creates a misleading impression or undermines the integrity of the qualification-based selection process.
NSPE BER Case 10-8; NSPE Code of Ethics Sections II.5, III.6
a review of a party's representations provides the public with some degree of protection that misleading or deceptive representations are not made that could undermine the public interest
Following acquisition of Engineer A's qualifications via FOIA through conclusion of the procurement process
Engineer B appears to have been acting in a manner consistent with those laws and regulations
Engineer B FOIA-Acquired Competitor Intelligence Ethical Use Constraint Instance
Engineer B obtained Engineer A's submitted qualifications via FOIA before submitting his own firm's qualifications, creating a risk that the acquired intelligence could be used to improperly tailor Engineer B's submission to gain competitive advantage over Engineer A in the same RFQ process.
Engineer B was constrained from using Engineer A's qualifications submission — obtained through FOIA — to tailor, misrepresent, or strategically adjust Engineer B's own qualifications submission in a manner that would create a misleading impression of superiority or gain an unfair competitive advantage over Engineer A in the same public procurement process.
NSPE Code of Ethics Sections II.5, III.6, III.7; BER Case 10-8; Public procurement integrity standards
From the time Engineer B received Engineer A's qualifications through FOIA until the conclusion of the procurement process
Engineer B FOIA Competitive Ethics Assessment
FOIA Request Competitive Ethics Assessment Capability
Engineer B required the capability to assess whether submitting a FOIA request to obtain Engineer A's qualifications before submitting his own constituted an attempt to gain improper competitive advantage, and to recognize this as ethically impermissible even if legally available.
Engineer B submitted a FOIA request to obtain Engineer A's qualifications before Engineer B's own firm had submitted its qualifications to the same state agency for the same RFQ
Engineer B's submission of a FOIA request prior to submitting his own qualifications — demonstrating absence or failure of this capability in practice
Engineer B FOIA Pre-Submission Timing Appearance of Impropriety BER 10-8
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission before Engineer B's own firm had submitted its qualifications, raising concerns about the timing and appearance of impropriety in the public procurement process.
FOIA Pre-Submission Competitor Intelligence Appearance of Impropriety Constraint
Engineer B was constrained to submit any FOIA request for competitor qualifications only after — not before — his own firm had submitted its qualifications to the procuring agency, because pre-submission FOIA requests create an appearance of impropriety by suggesting the requesting firm sought to tailor its submission based on advance knowledge of a competitor's qualifications.
NSPE BER Case 10-8; NSPE Code of Ethics Sections II.5, III.6, III.7
overlooking the timing of Engineer B's request, which is of concern to the Board
Prior to submission of Engineer B's own qualifications to the public agency
Engineer B FOIA Pre-Submission Timing Constraint Instance
Engineer B submitted a FOIA request and obtained Engineer A's qualifications before Engineer B's own firm submitted its qualifications to the state agency for the same public project RFQ, creating an asymmetric informational advantage and an appearance of impropriety in the public procurement process.
Engineer B was constrained from submitting a FOIA request to obtain Engineer A's qualifications prior to Engineer B's own firm having submitted its qualifications to the state agency for the same RFQ, because doing so created an appearance of impropriety by suggesting Engineer B sought to tailor its own submission based on advance knowledge of a competitor's qualifications.
NSPE Code of Ethics Sections II.5, III.6, III.7; BER Case 10-8; Public procurement ethics principles
From the time Engineer B's firm decided to respond to the RFQ until Engineer B's own qualifications were submitted to the state agency
Engineer B FOIA Timing Ethics Compliance
FOIA Request Competitive Timing Ethics Compliance Capability
Engineer B required the capability to recognize that a FOIA request for a competitor's qualifications must be submitted only after his own firm has submitted its qualifications, and to comply with this timing requirement to avoid the appearance of impropriety.
Engineer B submitted the FOIA request prior to the interview process and before submitting his own firm's qualifications, reversing the ethically required sequence
Engineer B's pre-submission FOIA request — demonstrating failure of this timing compliance capability, as the FOIA was submitted before Engineer B's own qualifications were filed
Prior to the interview process, Engineer B, a competitor of Engineer A, whose firm also intends to respond to the same RFQ, submits a state Freedom of Information Act (FOIA) request
Action may be perceived as ethically questionable despite legal permissibility
Could undermine trust and fair dealing norms within the engineering profession
May disadvantage Engineer A by exposing strategic positioning before the competitive process concludes
Compliance with the letter of state FOIA law
Participation within the legal framework of public procurement
Public interest in procurement transparency
Obtain competitor Engineer A's qualifications submission to inform and potentially strengthen Engineer B's own forthcoming submission for the same project
Strategic assessment of competitive positioning
Understanding of public procurement processes
Pre-interview phase, after Engineer A's submission but before interviews commence
Duty to avoid actions that undermine colleagues' legitimate competitive interests
Fair dealing with a professional competitor
Implicit professional norms against using legal mechanisms opportunistically to disadvantage competitors in a shared procurement process
Spirit of open and honest competition without exploitation of procedural mechanisms for strategic gain
Prior to the interview phase of the procurement process, Engineer B deliberately files a state Freedom of Information Act request to obtain a copy of competitor Engineer A's submitted qualifications. This action is legally permissible but strategically timed to gain competitive advantage before submitting his own qualifications.
Engineer B Files FOIA Request → Competitive Information Asymmetry Created
As a direct outcome of the FOIA disclosure, Engineer B possesses Engineer A's full qualifications while Engineer A remains unaware of this competitive disadvantage
Without Engineer B's deliberate FOIA filing, no disclosure would have occurred during the active procurement phase; Engineer A's qualifications would have remained confidential until process conclusion
Engineer A's qualifications being on file with the state agency
Engineer B's deliberate decision to file FOIA request during active procurement
Interview process remaining incomplete at time of disclosure
State agency's legal obligation to comply with FOIA disclosure
Filing of FOIA request during active procurement + state compliance + Engineer A's submission on record = information asymmetry
No additional factors required once FOIA was filed and state complied
Engineer B Files FOIA Request → Engineer B Submits Own Qualifications
After receiving Engineer A's qualifications through the FOIA disclosure, Engineer B proceeds to submit his own qualifications, using the disclosed information as a competitive advantage
Without the FOIA filing and resulting disclosure, Engineer B would have submitted qualifications without knowledge of Engineer A's approach; the submission itself might still have occurred, but without the informational advantage that constitutes the ethical violation
Engineer B's decision to remain in the procurement rather than recuse
Engineer B's deliberate FOIA filing to obtain competitor's qualifications
Engineer B's intent to leverage disclosed information competitively
Successful receipt of Engineer A's disclosed qualifications
Receipt of competitor's qualifications + decision to continue in procurement + submission of own tailored qualifications = ethically compromised competitive submission
The FOIA filing was the initiating volitional act that made all subsequent steps possible
Engineer B Free and Open Competition Regulatory Deference BER 10-8
Engineer B submitted a FOIA request to obtain Engineer A's qualifications during an active public procurement process; the Board evaluated whether this conduct was consistent with applicable laws and regulations governing free and open competition.
Free and Open Competition Regulatory Deference Constraint
Engineer B was constrained to act within the legal framework governing free and open competition at local, state, and federal levels; the Board found that Engineer B appeared to have acted consistently with applicable laws and regulations and declined to second-guess those rules, establishing that regulatory compliance sets the floor for permissible competitive conduct.
NSPE BER Case 10-8; applicable state FOIA and public procurement statutes
Engineers and engineering companies compete within the legal framework that exists at the local, state, and federal levels.
Throughout the public procurement process
Engineer B appears to have been acting in a manner consistent with those laws and regulations, and the Board is not in a position to second guess or otherwise determine the appropriateness of those rules and regulations
free and open competition is a basic rule that generally exists under local, state, and federal laws and regulations
Engineer B Good Intent Non-Justification Recognition
Good Intent Non-Justification for Procedural Impropriety Recognition Capability
Engineer B required the capability to recognize that any legitimate competitive curiosity or strategic awareness motivation for submitting the pre-submission FOIA request did not render the conduct ethically permissible, and that good intentions must be channeled through proper procurement processes.
Engineer B's FOIA request, while potentially motivated by legitimate competitive awareness, was submitted at a timing that created an appearance of impropriety regardless of intent
Engineer B's reliance on the legal availability of the FOIA mechanism without recognizing that good intent does not cure the appearance of impropriety created by pre-submission timing
Engineer B Honorable Procurement Self-Regulation
Honorable Procurement Conduct Self-Regulation Capability
Engineer B required the capability to self-regulate his competitive conduct to meet the standard of honorable, responsible, and fair participation in the public procurement process, including refraining from exploiting the FOIA mechanism to gain non-merit competitive advantage.
Engineer B's conduct in obtaining Engineer A's qualifications before submitting his own fell short of the honorable procurement conduct standard required by professional ethics codes
Engineer B's decision to submit a pre-submission FOIA request — demonstrating a gap in this self-regulatory capability
Engineer B Improper Competitive Advantage Recognition
Improper Competitive Advantage Recognition Capability
Engineer B required the capability to recognize that using a FOIA request to access Engineer A's qualifications before submitting his own created an improper competitive advantage, and that exploiting this opportunity was ethically impermissible even though legally available.
Engineer B obtained Engineer A's qualifications through FOIA before submitting his own, creating an information asymmetry that gave Engineer B a non-merit competitive advantage in the same procurement
Engineer B's submission of a pre-submission FOIA request and subsequent use of Engineer A's qualifications information — demonstrating failure to recognize or act on this capability
Engineer B Improper Competitive Method Prohibition Constraint Instance
Engineer B's use of a pre-submission FOIA request to obtain competitor qualifications, while legally permissible under state FOIA law, raised ethical concerns about whether this constituted an improper or questionable competitive method under NSPE Code Section III.6, which prohibits engineers from attempting to obtain employment through improper or questionable methods.
Improper Competitive Method Prohibition Constraint
Engineer B was constrained from attempting to obtain the public procurement engagement through improper or questionable methods — the pre-submission FOIA request, by creating an informational advantage over Engineer A before Engineer B's own submission was filed, constituted a questionable competitive method that violates professional ethics regardless of whether Engineer B's subjective intent was malicious.
NSPE Code of Ethics Section III.6; BER Case 10-8; Professional procurement ethics standards
Engineer B Present Case Appearance of Impropriety Avoidance Public Procurement
The Board expressed concern about the timing of Engineer B's FOIA request, noting that pre-submission requests create an appearance of impropriety even if the engineer's actual conduct was consistent with applicable laws and regulations.
Engineer B was constrained to avoid not only actual impropriety but also the appearance of impropriety in the public procurement process — specifically, the appearance that his pre-submission FOIA request was designed to allow him to tailor his own qualifications submission based on advance knowledge of Engineer A's submission.
Prior to and during submission of qualifications to the public agency
the public procurement process is intended to be free and open in order to, among other considerations, avoid misrepresentations by parties including consultants
Engineer B Present Case Competitor Qualifications Content Non-Exploitation Capability Instance
Engineer B in the present case was required to possess the capability to recognize the ethical boundaries on using Engineer A's qualifications submission obtained through FOIA — specifically, to refrain from exploiting the competitor's proprietary qualification content to gain competitive advantage in the same procurement.
Present case — Engineer B obtained Engineer A's qualifications through FOIA and reviewed them prior to the interview process in the same public procurement competition.
The Board's analysis of Engineer B's conduct in reviewing Engineer A's qualifications and the ethical constraints on using that information in the same procurement competition.
overlooking the timing of Engineer B's request, which is of concern to the Board, Engineer B appears to have been acting in a manner consistent with those laws and regulations
Engineer B Present Case Engineering Profession Free Competition Legal Framework Recognition
Engineering Profession Free Competition Legal Framework Recognition Capability
Engineer B in the present case was required to possess the capability to recognize that his competitive conduct — including submitting a FOIA request for Engineer A's qualifications — occurs within a legal framework of free and open competition, and that this framework governs the baseline permissibility of competitive actions while ethics obligations operate as additional constraints within that framework.
Present case — Engineer B submitted FOIA request for Engineer A's qualifications prior to the interview process in a public procurement competition.
Engineer B's FOIA request was found to be generally consistent with applicable laws and regulations, indicating awareness of the legal competitive framework, though the timing raised ethical concerns.
Engineer B appears to have been acting in a manner consistent with those laws and regulations, and the Board is not in a position to second guess or otherwise determine the appropriateness of those rules and regulations.
Engineer B Present Case FOIA Timing Appearance of Impropriety Avoidance Capability Instance
Engineer B in the present case was required to possess the capability to recognize that submitting a FOIA request for a competitor's qualifications prior to submitting his own firm's qualifications creates an appearance of impropriety, and to structure the timing of any such request to avoid that appearance.
Present case — Engineer B submitted FOIA request prior to the interview process to obtain Engineer A's qualifications submission.
The Board noted that 'the timing of Engineer B's request...is of concern to the Board,' indicating Engineer B failed to fully exercise this capability by submitting the FOIA request prior to the interview process without ensuring his own submission had been made first.
Engineer B Present Case Honorable Procurement Conduct Self-Regulation Capability Instance
Engineer B in the present case was required to possess the capability to conduct himself honorably and fairly in the public procurement process — including ensuring that his use of the FOIA mechanism was consistent with the spirit as well as the letter of professional ethics codes governing procurement and collegial relations.
Present case — Engineer B's overall competitive conduct in the public procurement process, including the FOIA request and subsequent review of Engineer A's qualifications.
The Board's overall assessment that Engineer B's conduct, while largely consistent with applicable laws and regulations, raised concerns about the timing of the FOIA request and the appearance of impropriety it created.
the timing of Engineer B's request, which is of concern to the Board
Engineer B Present Case Procurement Honorable Conduct Constraint Instance
Engineer B submitted a FOIA request to obtain Engineer A's qualifications during an active public procurement; the Board evaluated whether this conduct met the standard of honorable, responsible, and fair competitive conduct required by the NSPE Code.
Engineer B was constrained to conduct all competitive activities in the public procurement process honorably, responsibly, and fairly — including ensuring that the timing and use of any FOIA request did not create an appearance of impropriety or undermine the integrity of the qualification-based selection process.
NSPE Code of Ethics Sections II.5, III.6, III.7; NSPE BER Case 10-8
the Board must assume that the referenced public procurement system was designed to advance the public interest in obtaining the most qualified engineering services
Throughout Engineer B's participation in the public procurement process
Engineer B Present Case Public Procurement Integrity Public Interest Articulation Capability Instance
Public Procurement Integrity Public Interest Articulation Capability
Engineer B in the present case was required to possess the capability to understand and internalize the public interest rationale underlying public procurement rules — including that the procurement system was designed to advance the public interest in obtaining the most qualified engineering services and that the laws and regulations pertaining to that system were put in place to achieve that result.
Present case — Engineer B's participation in a public procurement process governed by state FOIA and procurement laws designed to advance the public interest.
The Board's articulation of the public interest rationale for the procurement system as the normative framework within which Engineer B's conduct must be evaluated.
the Board must assume that the referenced public procurement system was designed to advance the public interest in obtaining the most qualified engineering services and that the laws and regulations pertaining to that system were put into place to achieve that result.
Engineer B Present Case Public Procurement Open Process Misrepresentation Protection Recognition
Public Procurement Open Process Misrepresentation Protection Recognition Capability
Engineer B in the present case was required to possess the capability to recognize that the openness of the public procurement process — including FOIA availability of submitted qualifications — serves a public interest function of enabling review of representations to prevent misleading or deceptive submissions, and to apply this understanding when evaluating the permissibility of his FOIA request.
Present case — Engineer B obtained and reviewed Engineer A's qualifications submission through FOIA in a public procurement process.
The Board's analysis recognized that Engineer B's review of Engineer A's qualifications, while raising timing concerns, was consistent with the public interest rationale of open procurement as a check on misrepresentations.
in view of the fact that the public procurement process is intended to be free and open in order to, among other considerations, avoid misrepresentations by parties including consultants, a review of a party's representations provides the public with some degree of protection that misleading or deceptive representations are not made that could undermine the public interest.
Engineer B Public Procurement Integrity Articulation
Engineer B required the capability to understand and internalize the public interest rationale underlying strict public procurement rules — including that free and open procurement processes protect the public's interest in obtaining high-quality engineering services at fair cost — and to apply this understanding to his own competitive conduct.
The public procurement system using state RFQ procedures was designed to advance the public interest; Engineer B's conduct undermined this system by creating an information asymmetry inconsistent with fair competition
Engineer B's failure to recognize that his pre-submission FOIA request undermined the public interest in fair and open procurement competition
In response to a public request for qualifications (RFQ), Engineer A submits his firm's engineering qualifications to a state agency for a public project using the state's public procurement procedures.
Engineer B Public Procurement Misrepresentation Check Transparency Recognition BER 10-8
The Board noted that the openness of the public procurement process, including FOIA availability of submissions, provides public protection against misleading representations by competing consultants.
Public Procurement Misrepresentation Check Transparency Constraint
Engineer B was constrained to recognize that the openness of the public procurement process — including FOIA availability of submitted qualifications — serves a legitimate public interest function in detecting misrepresentations, and that this transparency function is a legitimate feature of the procurement system rather than an improper intrusion.
NSPE BER Case 10-8; applicable FOIA statutes; public procurement regulatory framework
in view of the fact that the public procurement process is intended to be free and open in order to, among other considerations, avoid misrepresentations by parties including consultants, a review of a party's representations provides the public with some degree of protection that misleading or deceptive representations are not made that could undermine the public interest
Throughout participation in the public procurement process
Could raise questions about integrity of the competitive process
May disadvantage Engineer A if Engineer B's submission directly addresses or counters Engineer A's stated qualifications
Submission may be perceived as benefiting unfairly from prior access to competitor's materials
Compliance with state public procurement submission requirements
Honest representation of own firm's qualifications
Participation in legally sanctioned competitive process
Honest representation to public agencies
Public interest in obtaining most qualified engineering firm
Secure selection for the public engineering project, with submission potentially tailored or strengthened based on knowledge of Engineer A's qualifications
Ability to prepare and present firm qualifications
Knowledge of public procurement submission requirements
Strategic use of available competitive information
After receiving FOIA disclosure of Engineer A's qualifications, prior to or during the interview process
Avoiding use of improperly or opportunistically obtained competitive intelligence to gain advantage
Fair dealing with professional competitor
Spirit of equitable competition in public procurement
After receiving Engineer A's qualifications through the FOIA disclosure, Engineer B proceeds to submit his own firm's engineering qualifications to the state agency for the same public project. This submission is informed by prior access to a competitor's submission.
Engineer B's FOIA request before Engineer B's own qualifications submission
Engineer B... submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted... Thereafter, Engineer B submits his firm's engineering qualifications to the state agency for the same public project.
Engineer B's own qualifications submission
Engineer B's FOIA request before interview process conclusion
Prior to the interview process, Engineer B... submits a state Freedom of Information Act (FOIA) request
Engineer B's design review before Engineer B's notification to Engineer A
Engineer B reviewed the design information the following week and following his review, notified Engineer A of his relationship with franchiser and the preliminary results of his review.
Engineer B's notification to Engineer A before Engineer A's contract expiration with franchiser
following his review, notified Engineer A of his relationship with franchiser... Several weeks later, Engineer A's agreement with the franchiser expired
Engineer Solicitation and Competition Ethics Standard - Competitive Advantage Limits
Professional Norms Governing Engineer Solicitation and Competitive Conduct
Engineer Solicitation and Competition Ethics Standard
Provides the ethical framework for evaluating whether Engineer B's FOIA-based intelligence gathering crosses the line from permissible competitive conduct into an ethically impermissible attempt to gain unfair advantage over a competitor in an active procurement process
{'entity_type': 'Commercial franchiser', 'geographic_scope': 'National (United States)'}
Major franchiser who retained Engineer A for multi-year design services, then terminated the relationship and retained Engineer B as replacement, explicitly directing Engineer B to maintain confidentiality; the party whose interests were at stake in the faithful agent analysis
{'type': 'employer_of', 'target': 'Engineer A BER 93-3 Incumbent Design Engineer'}
{'type': 'employer_of', 'target': 'Engineer B BER 93-3 Replacement Design Engineer'}
the franchiser retained Engineer B as its design engineer
Interview Process Ongoing During Disclosure
Active procurement window creates a period of heightened ethical sensitivity; any competitive interference during this window carries greater ethical weight than interference before or after the process
All competing engineers obligation to refrain from conduct that undermines active procurement integrity
State agency obligation to ensure procedural fairness throughout active selection
Concurrent with FOIA filing and disclosure; prior to Engineer B's submission
The state agency's interview process for the RFQ remains active and incomplete at the time Engineer B obtains Engineer A's qualifications, meaning the competitive selection has not yet concluded and Engineer A retains a live stake in the outcome. This temporal overlap is a critical contextual fact that heightens the ethical stakes of the FOIA disclosure.
NSPE BER Board BER 93-3 to Present Case Faithful Agent Principle Cross-Context Application
BER Precedent Faithful Agent Principle Cross-Context Application Capability
The NSPE Board of Ethical Review demonstrated the capability to recognize that BER Case No. 93-3 — involving a replacement design engineer's confidentiality obligation to a private client — articulates a faithful agent and trustee principle that is relevant to the present public procurement case, and to extract and apply that principle while acknowledging the factual differences between the two cases.
Board's discussion section — analogical transfer of faithful agent principle from BER 93-3 (private client replacement engineer) to present case (public procurement FOIA competitor review).
The Board explicitly noted that 'while the facts in BER Case No. 93-3 are somewhat different than the facts in the present case, Case No. 93-3 makes an important point which is relevant to the case at hand' and proceeded to apply the faithful agent principle to the public procurement context.
While the facts in BER Case No. 93-3 are somewhat different than the facts in the present case, Case No. 93-3 makes an important point which is relevant to the case at hand—the role of the engineer in serving the legitimate needs of the client and the role of the engineer as the employer or client's 'faithful agent and trustee.'
National Society of Professional Engineers
the NSPE Code of Ethics contained provisions (e.g., prohibiting advertising, prohibiting competitive bidding) that were deemed to conflict with the notion of free and open competition by government regulators and those provisions were eventually removed by NSPE
In deciding that Engineer B's actions were not consistent with the NSPE Code of Ethics, the Board determined that Engineer B had an obligation as 'faithful agent and trustee'
NSPE Board of Ethical Review in analyzing Engineer B's conduct
Referenced as the primary normative authority governing engineer conduct in competitive procurement situations, including the faithful agent and trustee obligation and the removal of prior anti-competitive provisions
Current (post-removal of advertising/competitive bidding prohibitions)
{'entity_type': 'Public agency', 'procurement_authority': 'Administers qualifications-based selection'}
The public entity administering the procurement process; the referenced public procurement system designed to advance the public interest in obtaining the most qualified engineering services
{'type': 'client_of', 'target': 'Engineer A Present Case Incumbent Engineer'}
{'type': 'client_of', 'target': 'Engineer B Present Case Public Procurement Competitor'}
the referenced public procurement system was designed to advance the public interest in obtaining the most qualified engineering services
the laws and regulations pertaining to that system were put into place to achieve that result
Public Procurement Fairness Standard - RFQ Informational Equity
Professional Norms for Equitable Treatment of Bidders in Public Engineering Procurement
Engineer B submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state.
State agency; Engineer A; Engineer B; ethics reviewers
Addresses whether the asymmetric access to competitor qualification information — obtained via FOIA by Engineer B but not available to Engineer A — undermines the equitable informational basis required for fair public procurement competition
Public Procurement Regulatory Framework (Free and Open Competition)
Local, state, and federal legislative and regulatory bodies
Local, State, and Federal Public Procurement Laws and Regulations
the Board must assume that the referenced public procurement system was designed to advance the public interest in obtaining the most qualified engineering services and that the laws and regulations pertaining to that system were put into place to achieve that result
NSPE Board of Ethical Review in assessing Engineer B's conduct within the procurement system
Referenced as the governing legal and regulatory framework within which engineering firms compete, establishing that free and open competition is a basic rule and that public procurement systems are designed to advance the public interest in obtaining the most qualified engineering services
Public Welfare Paramount Invoked as Rationale for Public Procurement System Design
State Agency Public Procurement Authority
Procurement Integrity in Public Engineering
The Board grounds its analysis of the public procurement system in the premise that the system was designed to advance the public interest in obtaining the most qualified engineering services — establishing that public welfare is the ultimate rationale for procurement rules and regulations, which in turn constrains how engineers must conduct themselves within that system
The public interest in obtaining the most qualified engineering services through fair and open procurement is a public welfare obligation that engineers must respect by complying with procurement rules, even when those rules permit conduct that individual engineers find disadvantageous
The Board defers to the public procurement system's design as advancing public welfare, declining to second-guess applicable laws and regulations while noting timing concerns about Engineer B's conduct
Qualification-Based Selection Procurement Law - State RFQ Procedures
State legislature / procurement authority
State Qualification-Based Selection and RFQ Procurement Procedures
Qualification-Based Selection Procurement Law
Establishes the public RFQ process through which both Engineer A and Engineer B are submitting qualifications to the state agency for the public project, defining the competitive procurement framework within which the ethical issue arises
Was it ethical for Engineer B to make the FOIA request in connection with the state’s procurement of engineering services?
Even if Engineer B's FOIA request was legally permissible, does the act of reviewing and incorporating insights from a competitor's qualifications submission before submitting his own constitute use of an improper competitive advantage that violates the spirit of fair procurement, regardless of the legality of the acquisition?
Does the state agency bear any ethical or procedural responsibility for disclosing a competitor's qualifications submission during an active procurement process, and should procurement regulations be revised to protect submitted qualifications from FOIA disclosure until after the selection process is complete?
What affirmative steps, if any, is Engineer A obligated to take to protect the confidentiality of qualifications submitted to public procurement processes, and does failure to take such steps diminish Engineer A's standing to object to Engineer B's FOIA request?
If Engineer B did in fact use the content of Engineer A's qualifications to tailor or strengthen his own submission, does that use constitute a deceptive act under the NSPE Code, even if the information was lawfully obtained through FOIA?
Does the principle of Public Procurement Transparency as a Public Interest Protection Mechanism — which justifies FOIA access to government records — conflict with the principle of Fairness in Professional Competition, which demands that competitors not gain informational advantages unavailable to all parties during an active procurement?
Does the principle that Good Intent Does Not Cure Procedural Impropriety — applied analogically from BER 93-3 — conflict with the principle of Free and Open Competition as a Boundary Condition in engineering practice, given that the Board ultimately found Engineer B's FOIA request ethical precisely because it occurred within a legally open competitive framework?
Does the FOIA Procurement Timing Integrity principle — which holds that Engineer B should have submitted his own qualifications before making the FOIA request — conflict with the principle of Public Procurement Confidentiality Self-Protection Obligation, which places the burden on Engineer A to safeguard sensitive submission content, thereby implying that the timing of Engineer B's request is Engineer A's risk to manage rather than Engineer B's obligation to defer?
Does the principle of Faithful Agent Obligation — invoked as an analogical bridge from BER 93-3 to constrain engineers from exploiting informational advantages against client or competitor interests — conflict with the principle of FOIA-Based Competitor Intelligence Ethical Use, which the Board implicitly endorses as permissible within public procurement, raising the question of whether the faithful agent duty extends to competitive relationships or only to client relationships?
From a deontological perspective, did Engineer B violate a categorical duty of fair dealing toward Engineer A by using a legal mechanism—the FOIA request—to obtain a competitive advantage that Engineer A had no opportunity to anticipate or consent to, regardless of whether the act was technically lawful?
From a consequentialist perspective, does the long-term harm to public trust in engineering procurement processes—caused by normalizing pre-submission FOIA intelligence gathering—outweigh the short-term benefit of transparency and open records access that Engineer B's FOIA request ostensibly served?
From a virtue ethics perspective, did Engineer B demonstrate the professional integrity and honorable character expected of a licensed engineer by strategically timing a FOIA request to gain informational advantage over a competitor before submitting their own qualifications, even if no explicit rule prohibited this sequence?
From a deontological perspective, does the Board's analogical invocation of the faithful agent principle from BER Case 93-3 impose a transferable duty on Engineer B in the present case—specifically, a duty to subordinate personal competitive advantage to the integrity of the procurement process—even though Engineer B's relationship is to the public procurement system rather than to a private client?
If Engineer B had submitted his firm's own qualifications to the state agency before filing the FOIA request—as the Board recommends—would the competitive information asymmetry have been eliminated, or would Engineer B still have gained an unfair advantage by using Engineer A's disclosed qualifications to refine or supplement his submission during the interview process?
What if Engineer A had proactively requested that the state agency treat his submitted qualifications as confidential or proprietary prior to Engineer B's FOIA request—would the state have been obligated to withhold the documents, and would this have changed the ethical calculus for both Engineer B and the state agency?
If the state agency had declined to release Engineer A's qualifications under a procurement-integrity exception to the FOIA statute, would Engineer B's act of filing the request itself still constitute an ethical violation, or does the ethical weight of the conduct depend entirely on whether the information was actually obtained and used?
Had the BER Case 93-3 precedent not existed, would the Board have reached the same conclusion that Engineer B's pre-submission FOIA timing created an appearance of impropriety, or does the ethical reasoning in this case depend critically on the analogical transfer of the faithful agent principle from that prior case?
{'entity_type': 'State government agency', 'authority': 'Public procurement and FOIA disclosure', 'procurement_method': 'Qualifications-based selection (QBS)'}
The state agency issues the public RFQ, receives qualifications submissions from competing engineering firms, discloses Engineer A's submission to Engineer B pursuant to the FOIA request, and conducts the interview and selection process.
{'type': 'client', 'target': 'Engineer A Public RFQ Submitting Engineer'}
{'type': 'client', 'target': 'Engineer B FOIA-Requesting Competing Engineer'}
a state agency for a public project using the state's public procurement procedures
The state provides the information to Engineer B
State Agency Public Procurement Authority Procurement Integrity
Procurement Process Integrity Preservation Capability
The state agency required the capability to recognize when FOIA disclosures of competitor qualifications during an active procurement process create fairness and integrity concerns, and to structure procurement procedures to protect against competitive information asymmetries.
The state agency provided Engineer A's qualifications to Engineer B via FOIA while the procurement was still active and before Engineer B had submitted his own qualifications
The state agency's disclosure of Engineer A's qualifications to Engineer B in response to a FOIA request during an active procurement — raising questions about whether the agency's procedures adequately protected procurement integrity
Freedom of Information Act Legal Framework
Legal mechanism invoked by Engineer B to obtain Engineer A's submitted qualifications from the state agency prior to submitting his own firm's qualifications for the same RFQ
Engineer A's qualifications are now in Engineer B's possession; competitive information asymmetry created; Engineer B has actionable intelligence about Engineer A's submission prior to interview conclusion
BER obligation to evaluate whether legal compliance equals ethical compliance
Engineer B obligation to refrain from exploiting disclosed information unfairly
State agency obligation to notify Engineer A of disclosure (if applicable under state law)
After Engineer B files FOIA request; before interview process concludes
The state agency releases Engineer A's submitted qualifications to Engineer B in response to the FOIA request, making confidential competitive information publicly disclosed. This is an automatic legal outcome triggered by the FOIA filing and applicable public records law.
State Provides FOIA Documents → Interview Process Ongoing During Disclosure
The state agency's interview process for the RFQ remains active and incomplete at the time Engineer B receives the disclosed qualifications, compounding the competitive harm by ensuring the information can be immediately exploited
Had the state agency deferred FOIA compliance until after the interview process concluded, Engineer B could not have used the disclosed information to influence his own submission or interview preparation; the competitive harm would have been substantially reduced or eliminated
Absence of procurement-suspension mechanisms triggered by FOIA requests
Engineer B's strategic timing of FOIA filing to coincide with active procurement phase
Interview phase not yet concluded at time of disclosure
State agency's compliance with FOIA request during active procurement
State Agency (primary); Engineer B (secondary for timing exploitation)
FOIA compliance during active interviews + Engineer B's continued participation = maximum competitive exploitation window
The timing of disclosure during active interviews amplifies the harm beyond what post-process disclosure would cause
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.86
The Board resolves the tension between individual firm confidentiality interests and public transparency by affirming the public interest rationale for open procurement while cautioning engineers to protect themselves by limiting what they include in submissions
source_field=tensionresolution; confidence=0.85
source_field=tensionresolution; confidence=0.87
The Board resolves the tension between competitive sensitivity and procurement transparency by placing the burden of confidentiality protection on the submitting engineer rather than restricting FOIA access
The principle does not eliminate Engineer B's ethical obligations regarding use of the obtained information, but it establishes that Engineer A bears independent responsibility for the confidentiality risks of his own submission choices
source_field=tensionresolution; confidence=0.75
The Board applied a client-interest balancing test rather than a motivation test, finding that the absence of personal advantage was noted but did not change the ethical conclusion
source_field=tensionresolution; confidence=0.88
Loyalty to client prevailed over any obligation to inform the incumbent engineer of the transition; the Board found the disclosure violated client loyalty regardless of Engineer B's benign intent
source_field=tensionresolution; confidence=0.9
The Board determined that the benefits of disclosure to all parties did not outweigh the detriments to the client, and that Engineer B's good intentions did not cure the ethical violation of the faithful agent duty
source_field=tensionresolution; confidence=0.89
The fairness principle is not satisfied merely by the lawfulness of the FOIA request; it requires assessment of whether the competitive process as a whole remains fair to all participants
The Board finds the use of FOIA-obtained information for accuracy verification is consistent with the public interest rationale of open procurement, while the timing of the request remains a separate concern
source_field=tensionresolution; confidence=0.83
source_field=tensionresolution; confidence=0.92
The Board notes the timing concern but ultimately finds Engineer B acted consistently with applicable laws and regulations, declining to second-guess those rules while flagging the timing issue as a caution
source_field=tensionresolution; confidence=0.84
Lawfulness of the FOIA request does not resolve the ethical question of how the obtained information may be used; the constraint operates independently of legal permissibility
The Board finds that Engineer B acted consistently with applicable laws and regulations, while cautioning about timing — suggesting that free competition operates within procedural integrity constraints
Procedural propriety in public procurement is an objective standard; subjective good intent does not satisfy it
source_field=tensionresolution; confidence=0.82
source_field=tensionresolution; confidence=0.91
franchiser's discussions with Engineer B during Engineer A's active contract period
In order to maintain continuity and before the contract expired, the franchiser began discussions with Engineer B and retained Engineer B to provide immediate review of design concerns
franchiser's discussions with Engineer B
Entity1 occurs entirely within the duration of Entity2
franchiser's instruction to Engineer B not to disclose their relationship before Engineer B's design review
Prior to the review, franchiser specifically told Engineer B not to disclose to their relationship to Engineer A. Nevertheless, Engineer B reviewed the design information the following week
franchiser's instruction to Engineer B not to disclose their relationship
franchiser's retention of Engineer B for preliminary review before Engineer A's contract expiration
before the contract expired, the franchiser began discussions with Engineer B and retained Engineer B to provide immediate review of design concerns that were pending
franchiser's retention of Engineer B for preliminary review
In BER Case No. 93-3, Engineer B disclosed his relationship with the franchiser client to incumbent Engineer A despite the client's explicit instruction of confidentiality; the Board found this violated the faithful agent duty even though E
Engineer B's disclosure of his relationship with the franchiser to incumbent Engineer A, in violation of the client's explicit confidentiality instruction, was found to violate the duty of loyalty to the client — establishing that loyalty r
The Board's analysis of BER 93-3 reinforces that Engineer B's disclosure to Engineer A — though not motivated by personal advantage — still constituted an ethical violation because the procedural obligation of faithful agency requires adher
The Board's finding in BER 93-3 that Engineer B's disclosure was ethically impermissible despite the absence of personal advantage motivation establishes that good intentions do not cure a violation of the faithful agent duty — the ethical
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission prior to submitting his own firm's qualifications to the same RFQ, creating the precise timing impropriety the principle prohibits — using competitor intel
Engineer B obtained Engineer A's qualifications submission through a lawful FOIA request and subsequently submitted his own qualifications for the same project, raising the question of whether the obtained information was used only for legi
The state agency's disclosure of Engineer A's qualifications submission to Engineer B under FOIA, while legally required, raises questions about whether the public procurement system adequately protects the integrity of the competitive qual
Engineer B's use of a FOIA request to obtain Engineer A's qualifications before submitting his own creates an information asymmetry that potentially undermines the fairness of the competitive procurement process, even though the FOIA reques
Engineer B's FOIA request may have been motivated by legitimate competitive curiosity or strategic awareness, but the timing of the request — before submitting his own qualifications — creates a procedural impropriety that cannot be cured b
The Board expresses concern about the timing of Engineer B's FOIA request relative to the procurement process, suggesting that submitting a FOIA request before the interview process to obtain a competitor's qualifications raises timing-base
The Board invokes BER 93-3's faithful agent analysis as a relevant precedent for the present case, establishing that the role of the engineer as the employer or client's faithful agent and trustee is a foundational principle that contextual
The Board contextualizes the FOIA-based competitor intelligence dispute within the broader framework that engineering is both a business and a profession, that free and open competition is a basic legal rule, and that formerly anti-competit
The Board cautions engineers that they should avoid including confidential or proprietary information in public procurement submissions because such information may be subject to mandatory public disclosure under applicable FOIA laws — plac
Engineer B's use of a FOIA request to obtain Engineer A's qualifications submission is evaluated against the constraint that lawfully obtained competitor information must be used for legitimate purposes — here, the Board characterizes the r
The Board characterizes the openness of the public procurement process — including the availability of submitted qualifications through FOIA — as serving the public interest by enabling verification that competing firms have not made mislea
Engineer A submitted his firm's qualifications to a public agency under public procurement procedures, thereby subjecting that submission to potential FOIA disclosure; the principle places responsibility on Engineer A to have exercised info
Engineer B was obligated, as faithful agent and trustee of the franchiser client, to comply with the client's explicit instruction not to disclose his new engagement to incumbent Engineer A, and to refrain from notifying Engineer A of his r
Engineer B was obligated to prioritize the franchiser client's interests over his altruistic or collegial impulse to inform Engineer A of the new engagement, recognizing that the absence of personal advantage motivation did not render the u
Engineer B was obligated to recognize that the openness of the public procurement process — including FOIA availability of submitted qualifications — serves as a check against misleading representations, and to ensure that his own qualifica
Engineer B was obligated to act in conformance with applicable FOIA and public procurement laws and regulations, and the Board recognized that Engineer B appeared to have done so — operating within the legal framework rather than circumvent
Engineer A was obligated to refrain from including confidential or proprietary information in his qualifications submission to the public agency, recognizing that such submissions are subject to public disclosure under applicable FOIA laws
Engineer A was obligated to recognize that submitting qualifications to a public agency under public procurement procedures subjects those materials to potential FOIA disclosure, and therefore to refrain from including genuinely confidentia
Engineer B was obligated to conduct himself honorably and fairly in the public procurement process, which required not only compliance with the letter of FOIA law but also adherence to the spirit of fair competition — including refraining f
Engineer B was obligated to use Engineer A's qualifications submission obtained through FOIA only for legitimate competitive awareness purposes and not to reverse-engineer, copy, or exploit Engineer A's proprietary project descriptions, per
Engineer B was obligated to refrain from submitting a FOIA request to obtain Engineer A's qualifications until after Engineer B's own firm had submitted its qualifications to the state agency for the same RFQ, so as not to use competitor in
Engineer B was obligated to ensure that his participation in the public procurement process provided all competing firms — including Engineer A — a fair opportunity to compete on equal informational footing, and to refrain from actions that
Engineer B was obligated to recognize that any legitimate competitive curiosity or strategic awareness motivation for submitting the FOIA request does not cure the appearance of impropriety created by the timing of the request — submitted b
Engineer B was obligated to refrain from using the substantive content of Engineer A's qualifications submission — obtained through a lawful FOIA request — to tailor, improve, or strategically position Engineer B's own qualifications submis
Engineer B was obligated to structure his FOIA request so that its timing could not create an appearance of impropriety — specifically, by ensuring the request was not submitted during the window in which his own qualifications submission w
Engineer B was obligated to refrain from submitting a FOIA request to obtain Engineer A's qualifications submission prior to the close of Engineer B's own submission window, so as to avoid any appearance of impropriety and to preserve the i
state's provision of Engineer A's qualifications to Engineer B before Engineer B's own qualifications submission
The state provides the information to Engineer B. Thereafter, Engineer B submits his firm's engineering qualifications to the state agency for the same public project.
state's provision of Engineer A's qualifications to Engineer B
From Engineer B's retention by franchiser through the conclusion of the engagement
Engineer B's obligation as faithful agent and trustee to the franchiser, constraining disclosure of the new client relationship to Engineer A
Conclusion of Engineer B's engagement with franchiser
the general duty of loyalty and fair dealing denotes that a person has the duty of carrying out a transaction, in which he and another person are interested, in such manner as will be most for the benefit of the latter
Engineer B's acceptance of retention by franchiser as new design engineer, creating faithful agent obligations
BER 93-3 Franchiser-Engineer B Covert Transition Engagement
From franchiser's initial retention of Engineer B through Engineer A's contract expiration; covert phase ended when Engineer B notified Engineer A of the relationship
franchiser began discussions with Engineer B and retained Engineer B to provide immediate review of design concerns that were pending
Client Transition Overlap Engagement State
Engineer B's engagement by franchiser to review design concerns while Engineer A's contract was still active, under instruction not to disclose the relationship to Engineer A
Engineer A's agreement with franchiser expired; Engineer B's disclosure to Engineer A of the relationship (which the Board found constituted neglect of client interests)
Engineer B reviewed the design information the following week and following his review, notified Engineer A of his relationship with franchiser
Franchiser's decision to transition from Engineer A to Engineer B before Engineer A's contract expired, combined with explicit instruction to Engineer B not to disclose the new relationship
Confidential Information in Public Procurement Submission Risk
From submission of qualification documents to public agency through conclusion of applicable records retention period
Engineering firms submitting qualifications
an engineer may wish to avoid including any confidential or proprietary information in this type of submission to a public agency since such information could be subject to public disclosure under applicable laws and regulations
Confidential Information Submitted to Public Disclosure-Eligible Repository State
The condition of engineering firms that include confidential or proprietary information in qualification statements or other submissions to public agencies subject to public records law
Expiration of statutory records retention period, or successful invocation of applicable disclosure exemption
Engineering firm's submission of qualification documents containing potentially confidential or proprietary information to a public agency
Engineer A Public RFQ Submitting Engineer
{'license': 'Professional Engineer', 'submission_type': 'Qualifications for public project RFQ', 'procurement_context': 'State public procurement procedures'}
Engineer A submits his firm's engineering qualifications to a state agency in response to a public RFQ under state public procurement procedures. His submission is subsequently obtained by competitor Engineer B via a FOIA request.
{'type': 'client', 'target': 'State Agency'}
{'type': 'competitor', 'target': 'Engineer B FOIA-Requesting Competing Engineer'}
Engineer A submits his firm's engineering qualifications to a state agency for a public project using the state's public procurement procedures
Engineer A Qualifications Submitted to Public RFQ
From submission of Engineer A's qualifications through FOIA disclosure and beyond
Engineer A's firm qualifications submitted in response to state RFQ
Engineer A's submission of qualifications to the state agency under public procurement procedures
Engineer B Asymmetric Competitive Advantage Post-FOIA
From receipt of Engineer A's qualifications through Engineer B's own submission and procurement conclusion
Competitor Qualification Visibility Advantage State
Engineer B's informational advantage over Engineer A in the same procurement competition, derived from reviewing Engineer A's qualifications before finalizing Engineer B's own submission
Thereafter, Engineer B submits his firm's engineering qualifications to the state agency for the same public project
State's provision of Engineer A's qualifications to Engineer B under FOIA
Engineer B Competitor Qualification FOIA Acquisition
From Engineer B's public records request through the Board's ethical evaluation of the conduct
Engineer B's acquisition and review of competitor qualifications submitted to the public agency via public records request, prior to or after submitting Engineer B's own qualifications
Conclusion of procurement process and Board's ethical determination
the Board is not in a position to second guess or otherwise determine the appropriateness of those rules and regulations
Engineer B's submission of a public records request to obtain competitor qualification statements from the public agency
Engineer B FOIA-Based Acquisition of Competitor Qualifications
From Engineer B's FOIA request through Engineer B's own qualifications submission and procurement conclusion
Engineer B, a competitor of Engineer A, whose firm also intends to respond to the same RFQ, submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state
FOIA-Based Competitor Intelligence Acquisition State
Engineer B's use of FOIA to obtain Engineer A's submitted qualifications prior to Engineer B's own submission
Conclusion of the procurement selection process
Engineer B submitting a FOIA request to the state to obtain Engineer A's qualifications before the interview process and before Engineer B's own submission
Faithful Agent Obligation Invoked as Analogical Bridge to Present Case
Engineer B Present Case Public Procurement Competitor
Free and Open Competition as Engineering Ethics Boundary Condition
The Board invokes BER 93-3's faithful agent analysis as a relevant precedent for the present case, establishing that the role of the engineer as the employer or client's faithful agent and trustee is a foundational principle that contextualizes how engineers must serve client and public interests in competitive procurement settings
The faithful agent concept extends beyond individual client relationships to encompass the engineer's role in serving the public interest through proper conduct in public procurement systems designed to advance that interest
Faithful Agent Obligation Within Ethical Limits
Case No. 93-3 makes an important point which is relevant to the case at hand—the role of the engineer in serving the legitimate needs of the client and the role of the engineer as the employer or client's 'faithful agent and trustee.'
The Board uses the faithful agent framework to establish that engineers must serve the legitimate needs of clients — including the public as client — within the constraints of applicable procurement laws and regulations
Good Intent Does Not Cure Procedural Impropriety Invoked in BER 93-3 Analogy
Engineer B BER 93-3 Replacement Design Engineer
Benevolent Motive Does Not Cure Ethical Violation
Client Interest Primacy Over Engineer Personal Advantage in Faithful Agent Role
The Board's analysis of BER 93-3 reinforces that Engineer B's disclosure to Engineer A — though not motivated by personal advantage — still constituted an ethical violation because the procedural obligation of faithful agency requires adherence to client instructions regardless of the engineer's subjective intent; the good intent did not cure the impropriety of the unauthorized disclosure
Procedural obligations in professional relationships — such as the faithful agent duty to follow client confidentiality instructions — must be maintained regardless of the engineer's subjective motivation; benign intent is noted but does not alter the ethical evaluation
Good Intent Does Not Cure Procedural Impropriety
The Board applied an objective client-interest test rather than a subjective motivation test, finding the violation established by the nature of the act and its effect on client interests
Engineer A Present Case Incumbent Engineer
{'license': 'Professional Engineer', 'procurement_context': 'Active public engineering services contract subject to renewal competition'}
Incumbent engineer in the present case whose qualifications submission to a public agency was subject to review by competing Engineer B under public procurement and FOIA laws; analogous to Engineer A in BER 93-3 as the party whose representations were scrutinized
{'type': 'client', 'target': 'Public Agency Client'}
{'type': 'competitor_of', 'target': 'Engineer B Present Case Public Procurement Competitor'}
the public procurement system was designed to advance the public interest in obtaining the most qualified engineering services
misleading or deceptive representations are not made that could undermine the public interest
Engineer B Honorable Procurement Conduct Obligation
Engineer B used a lawful FOIA request to obtain Engineer A's qualifications before submitting his own, which, while technically legal, raises serious questions about honorable conduct in a competitive public procurement context.
Honorable Professional Conduct in Procurement Obligation
Engineer B was obligated to conduct himself honorably and fairly in the public procurement process, which required not only compliance with the letter of FOIA law but also adherence to the spirit of fair competition — including refraining from using the FOIA mechanism in a manner that creates an unfair informational advantage over a competitor in the same procurement.
Throughout the duration of the public RFQ process
Engineer B Present Case Competitor Qualifications Content Non-Exploitation
Engineer B obtained Engineer A's qualifications submission through a FOIA request and subsequently submitted his own qualifications for the same procurement, raising the question of whether the competitor intelligence was used to gain an unfair advantage.
Competitor Qualifications Content Non-Exploitation Obligation
Engineer B was obligated to refrain from using the substantive content of Engineer A's qualifications submission — obtained through a lawful FOIA request — to tailor, improve, or strategically position Engineer B's own qualifications submission for the same procurement.
From the time Engineer B obtained Engineer A's qualifications through the submission of Engineer B's own qualifications
FOIA Procurement Timing Integrity Invoked By Engineer B
Engineer B's FOIA request for Engineer A's qualifications
Engineer B's subsequent submission of his own qualifications
FOIA-Based Competitor Intelligence Ethical Use Constraint
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission prior to submitting his own firm's qualifications to the same RFQ, creating the precise timing impropriety the principle prohibits — using competitor intelligence to potentially inform his own submission
The ethical violation arises not from the FOIA request itself, which is lawful, but from its timing: Engineer B requested and received Engineer A's submission before submitting his own, creating an information asymmetry that undermines procurement fairness
Engineer B FOIA-Requesting Competing Engineer
FOIA Procurement Timing Integrity Obligation
Prior to the interview process, Engineer B...submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state...Thereafter, Engineer B submits his firm's engineering qualifications to the state agency for the same public project.
The timing sequence — FOIA request before own submission — is the operative ethical fact; the principle requires own submission first to eliminate the appearance of intelligence-driven competitive advantage
Prior to the interview process, Engineer B, a competitor of Engineer A, whose firm also intends to respond to the same RFQ, submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state.
Procurement Integrity in Public Engineering Implicated By State Agency Disclosure
The state agency's disclosure of Engineer A's qualifications submission to Engineer B under FOIA, while legally required, raises questions about whether the public procurement system adequately protects the integrity of the competitive qualification-based selection process when FOIA mechanisms can be used to obtain competitor submissions before the requesting party has submitted its own
The principle of procurement integrity applies not only to individual engineer conduct but to the systemic design of procurement processes; the case reveals a potential gap in procurement integrity when FOIA and procurement timelines interact in ways that enable pre-submission competitor intelligence gathering
Procurement integrity requires that all participants — including competing engineers — act in ways that preserve the competitive fairness of the process, even when individual acts (like FOIA requests) are legally permissible
Public Procurement System Public Interest Alignment
Throughout the public procurement process for engineering services in the present case
Competitive Procurement Public Interest Alignment State
The public procurement system within which Engineer B submitted qualifications and obtained competitor qualifications via public records request
Contract award concluding the procurement process
Public agency's establishment of a procurement process for engineering services subject to public records law
FOIA Competitor Intelligence Ethical Use Invoked By Engineer B
Engineer B's own subsequent qualifications submission
Engineer B's use of Engineer A's FOIA-obtained qualifications submission
Engineer B obtained Engineer A's qualifications submission through a lawful FOIA request and subsequently submitted his own qualifications for the same project, raising the question of whether the obtained information was used only for legitimate competitive awareness or was exploited to gain an unfair advantage in crafting his own submission
Even though the FOIA request was lawful, the ethical constraint requires that the obtained information be used only for general competitive awareness; using it to shape or improve Engineer B's own submission would cross into impermissible exploitation
Engineer B...submits a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state. The state provides the information to Engineer B. Thereafter, Engineer B submits his firm's engineering qualifications to the state agency for the same public project.
Public Procurement Confidentiality Self-Protection Obligation Invoked By Engineer A
Engineer A's proprietary information included in the submission
Engineer A's qualifications submission to the state agency
Engineer A submitted his firm's qualifications to a public agency under public procurement procedures, thereby subjecting that submission to potential FOIA disclosure; the principle places responsibility on Engineer A to have exercised informed judgment about what proprietary information to include in a submission known to be subject to public records laws
In the public procurement context, engineers must treat their submissions as potentially public documents; the ethical obligation to protect confidential information requires proactive exclusion of genuinely proprietary content before submission, not reliance on post-submission confidentiality expectations
Public Procurement Confidentiality Self-Protection Obligation
Benevolent Motive Non-Excuse Invoked in BER 93-3 Faithful Agent Analysis
The Board's finding in BER 93-3 that Engineer B's disclosure was ethically impermissible despite the absence of personal advantage motivation establishes that good intentions do not cure a violation of the faithful agent duty — the ethical evaluation turns on whether the client's interests were neglected, not on the engineer's subjective motivation
Even where an engineer's departure from client instructions is motivated by collegiality, fairness to the incumbent, or other benign considerations rather than personal gain, the faithful agent duty is still violated if the departure neglects the client's interests
Engineer B did not appear to be motivated by personal advantage in informing Engineer A of his relationship with client. The Board determined that Engineer B's disclosure of his relationship with client constituted a neglect of the interests of his client.
Client Loyalty Violated by Unauthorized Disclosure in BER 93-3
Engineer B's disclosure of his relationship with the franchiser to incumbent Engineer A, in violation of the client's explicit confidentiality instruction, was found to violate the duty of loyalty to the client — establishing that loyalty requires following client confidentiality directives even when the engineer believes disclosure would be beneficial
Client loyalty in the replacement engineer context requires strict adherence to client confidentiality instructions regarding the transition from incumbent to replacement engineer, even when the replacement engineer's motivations for disclosure are not self-serving
franchiser specifically told Engineer B not to disclose to their relationship to Engineer A. Nevertheless, Engineer B reviewed the design information the following week and following his review, notified Engineer A of his relationship with franchiser.
Engineer B had an obligation as 'faithful agent and trustee' to not to tell Engineer A of his relationship with the client.
Engineer B's actions were not consistent with the NSPE Code of Ethics
franchiser specifically told Engineer B not to disclose to their relationship to Engineer A.
{'license': 'Professional Engineer', 'specialty': 'Franchise facility design review', 'confidentiality_instruction': 'Explicitly directed by client not to disclose relationship to Engineer A'}
Retained by franchiser to replace Engineer A; explicitly instructed to keep the engagement confidential from Engineer A; reviewed pending design concerns; then disclosed the relationship to Engineer A contrary to client instructions; later retained as permanent design engineer
{'type': 'peer', 'target': 'Engineer A BER 93-3 Incumbent Design Engineer'}
Confidentiality-Directed Replacement Design Engineer
Client Interest Primacy Over Personal Advantage Invoked in BER 93-3 Analysis
Engineer B's disclosure to Engineer A of his relationship with the franchiser client
Franchiser client's confidentiality instruction
In BER Case No. 93-3, Engineer B disclosed his relationship with the franchiser client to incumbent Engineer A despite the client's explicit instruction of confidentiality; the Board found this violated the faithful agent duty even though Engineer B was not motivated by personal advantage, because the disclosure neglected the client's interests and the benefits did not outweigh the detriments to the client
The faithful agent duty requires prioritizing client interests over third-party relationships even when the engineer's motivation is benign; the absence of personal advantage does not excuse a disclosure that harms the client
Engineer B Competitive Procurement Fairness Obligation
By obtaining Engineer A's qualifications before submitting his own, Engineer B created an information asymmetry that potentially disadvantaged Engineer A and undermined the equal competitive footing that qualification-based selection processes are designed to ensure.
Competitive Procurement Fairness Obligation
Engineer B was obligated to ensure that his participation in the public procurement process provided all competing firms — including Engineer A — a fair opportunity to compete on equal informational footing, and to refrain from actions that structurally disadvantage competitors through asymmetric access to their own submitted materials.
Throughout the public RFQ process from initial submission through interview
Engineer B FOIA Content Non-Exploitation Obligation
Engineer B obtained Engineer A's qualifications submission through a lawful FOIA request and subsequently submitted his own qualifications to the same state agency for the same public project, creating the risk that the competitor intelligence was used to gain an unfair advantage.
Engineer B was obligated to use Engineer A's qualifications submission obtained through FOIA only for legitimate competitive awareness purposes and not to reverse-engineer, copy, or exploit Engineer A's proprietary project descriptions, personnel credentials, or methodologies to tailor his own qualifications submission for the same procurement.
Upon receipt of Engineer A's qualifications through FOIA and continuing through submission of Engineer B's own qualifications
Engineer B Good Intent Non-Justification Procurement Obligation
Engineer B's FOIA request was lawful, but its timing — before submitting his own qualifications — created an appearance of impropriety that undermines the integrity of the competitive procurement process regardless of Engineer B's motivation.
Good Intent Non-Justification for Procedural Impropriety Obligation
Engineer B was obligated to recognize that any legitimate competitive curiosity or strategic awareness motivation for submitting the FOIA request does not cure the appearance of impropriety created by the timing of the request — submitted before his own qualifications — and that the structural harm to procurement fairness is independent of his subjective intent.
At the time of deciding to submit the FOIA request and prior to submitting his own qualifications
Engineer B Present Case Public Procurement FOIA Timing Appearance of Impropriety Avoidance
Engineer B submitted a FOIA request to obtain Engineer A's qualifications prior to the interview process and before Engineer B's own submission was finalized, raising timing concerns for the Board.
Public Procurement FOIA Timing Appearance of Impropriety Avoidance Obligation
Engineer B was obligated to structure his FOIA request so that its timing could not create an appearance of impropriety — specifically, by ensuring the request was not submitted during the window in which his own qualifications submission was still being prepared or could be influenced by the competitor intelligence obtained.
During the period between the RFQ issuance and Engineer B's own qualifications submission
Fairness in Professional Competition Implicated By Engineer B FOIA Conduct
Engineer B's use of a FOIA request to obtain Engineer A's qualifications before submitting his own creates an information asymmetry that potentially undermines the fairness of the competitive procurement process, even though the FOIA request itself was lawful
Fair professional competition requires that all competitors operate from equivalent informational starting points; Engineer B's pre-submission FOIA request potentially compromised that equivalence
Good Intent Does Not Cure Procedural Impropriety Invoked Against Engineer B
Engineer B's pre-submission FOIA request
Engineer B's FOIA request may have been motivated by legitimate competitive curiosity or strategic awareness, but the timing of the request — before submitting his own qualifications — creates a procedural impropriety that cannot be cured by pointing to the lawfulness of the FOIA mechanism or the legitimacy of competitive intent
The ethical analysis must focus on the procedural effect of Engineer B's actions on procurement fairness, not on whether his motivations were benign; the appearance of impropriety created by the timing is ethically significant regardless of intent
Public Procurement Confidentiality Self-Protection Obligation Invoked as Caution to Engineers
Engineers submitting qualifications to public agencies generally
The Board cautions engineers that they should avoid including confidential or proprietary information in public procurement submissions because such information may be subject to mandatory public disclosure under applicable FOIA laws — placing the responsibility for protecting sensitive information on the submitting engineer rather than on the procurement system
Engineers bear personal responsibility for protecting their own confidential information in public procurement contexts by exercising informed judgment about what to include in submissions subject to public disclosure laws
Engineer B BER 93-3 Client Confidentiality Instruction Faithful Agent Compliance
Engineer B was retained by a major franchiser to replace incumbent Engineer A before Engineer A's contract expired. The franchiser explicitly instructed Engineer B to keep the engagement confidential from Engineer A. Engineer B nonetheless notified Engineer A of his relationship with the franchiser and the preliminary results of his design review.
Client Confidentiality Instruction Faithful Agent Compliance Obligation
Engineer B was obligated, as faithful agent and trustee of the franchiser client, to comply with the client's explicit instruction not to disclose his new engagement to incumbent Engineer A, and to refrain from notifying Engineer A of his relationship with the client or the preliminary results of his design review.
franchiser specifically told Engineer B not to disclose to their relationship to Engineer A. Nevertheless, Engineer B reviewed the design information the following week and following his review, notified Engineer A of his relationship with franchiser and the preliminary results of his review.
From the time of retention by the franchiser until Engineer A's contract expired and the confidentiality instruction was no longer operative
the Board determined that Engineer B had an obligation as 'faithful agent and trustee' to not to tell Engineer A of his relationship with the client.
{'license': 'Professional Engineer', 'procurement_context': 'Public qualifications-based selection process', 'timing_concern': 'Timing of request noted as a concern by the Board'}
Competing engineer in the present case who submitted qualifications to a public agency under public procurement procedures and whose timing of the FOIA/qualifications review request raised concern; found to have acted consistently with applicable laws and regulations
{'type': 'competitor_of', 'target': 'Engineer A Present Case Incumbent Engineer'}
{'type': 'subject_to', 'target': 'Public Procurement Authority'}
a review of a party's representations provides the public with some degree of protection
Engineering Procurement Free Competition Legal Framework
Ongoing — established when restrictive NSPE code provisions were removed following government regulatory challenge; persists as background legal context for all engineering procurement
All engineering firms competing for public and private contracts
Free and Open Competition Legal Framework Active State
The legal and regulatory environment governing engineering firm competition at local, state, and federal levels
Not terminated — persists as ongoing regulatory framework
Government regulatory determination that NSPE code provisions prohibiting advertising and competitive bidding conflicted with free and open competition law, leading to removal of those provisions
FOIA-Based Competitor Intelligence Ethical Use Constraint Invoked in Public Procurement Review
Public Procurement Transparency as Public Interest Protection Mechanism
Engineer B's use of a FOIA request to obtain Engineer A's qualifications submission is evaluated against the constraint that lawfully obtained competitor information must be used for legitimate purposes — here, the Board characterizes the review as serving the public interest in verifying accuracy of representations rather than as misappropriation of proprietary information
A FOIA-obtained competitor qualifications submission may be reviewed to verify the accuracy of representations made in a public procurement, which serves a legitimate public interest function distinct from misappropriating proprietary competitive methodology
a review of a party's representations provides the public with some degree of protection that misleading or deceptive representations are not made that could undermine the public interest.
Public Procurement Transparency as Public Interest Protection Mechanism Invoked in FOIA Review Justification
The Board characterizes the openness of the public procurement process — including the availability of submitted qualifications through FOIA — as serving the public interest by enabling verification that competing firms have not made misleading or deceptive representations in their qualification submissions, thereby protecting the integrity of the qualification-based selection system
Procurement transparency is not merely a procedural requirement but a substantive public interest protection mechanism that enables accuracy verification of professional representations — a function that benefits the public even when it disadvantages individual submitting firms
the public procurement process is intended to be free and open in order to, among other considerations, avoid misrepresentations by parties including consultants, a review of a party's representations provides the public with some degree of protection that misleading or deceptive representations are not made that could undermine the public interest.
Engineer A Present Case Public Procurement Qualifications Confidentiality Self-Protection
Engineer A submitted qualifications to a public agency under public procurement procedures. The Board cautioned that engineers in this situation should avoid including confidential or proprietary information in such submissions because they are subject to FOIA disclosure.
Public Procurement Qualifications Confidentiality Self-Protection Obligation
Engineer A was obligated to refrain from including confidential or proprietary information in his qualifications submission to the public agency, recognizing that such submissions are subject to public disclosure under applicable FOIA laws and regulations.
Engineer A Public Procurement Qualifications Confidentiality Self-Protection Obligation
Engineer A submitted his firm's engineering qualifications to a state agency in response to a public RFQ under state public procurement procedures, which subjected the submission to FOIA disclosure to competitors such as Engineer B.
Engineer A was obligated to recognize that submitting qualifications to a public agency under public procurement procedures subjects those materials to potential FOIA disclosure, and therefore to refrain from including genuinely confidential or proprietary information in the submission, or to accept that any such information would be publicly disclosable.
At the time of preparing and submitting qualifications to the state agency
Engineer B Present Case FOIA Pre-Submission Competitor Intelligence Abstention
Engineer B submitted a FOIA request to obtain Engineer A's qualifications before Engineer B's own firm had submitted its qualifications to the same agency, creating a potential informational advantage and an appearance of impropriety.
FOIA Pre-Submission Competitor Intelligence Abstention Obligation
Engineer B was obligated to refrain from submitting a FOIA request to obtain Engineer A's qualifications submission prior to the close of Engineer B's own submission window, so as to avoid any appearance of impropriety and to preserve the integrity of the competitive procurement process.
Prior to Engineer B's own qualifications submission to the public agency
{'license': 'Professional Engineer', 'foia_timing': 'Prior to interview process, before submitting own qualifications', 'procurement_context': 'State public procurement procedures'}
Engineer B, a competitor of Engineer A, submits a state FOIA request prior to the interview process to obtain Engineer A's qualifications submission, and thereafter submits his own firm's qualifications to the same state agency for the same public project.
{'type': 'competitor', 'target': 'Engineer A Public RFQ Submitting Engineer'}
Engineer B submits his firm's engineering qualifications to the state agency for the same public project
Engineer B FOIA Pre-Submission Timing Violation Obligation
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission prior to the interview process and prior to submitting his own firm's qualifications to the same state agency for the same public project.
FOIA Competitor Intelligence Post-Submission Timing Obligation
Engineer B was obligated to refrain from submitting a FOIA request to obtain Engineer A's qualifications until after Engineer B's own firm had submitted its qualifications to the state agency for the same RFQ, so as not to use competitor intelligence to inform or improve his own submission.
From the moment Engineer B's firm decided to respond to the same RFQ until Engineer B's own qualifications were submitted
Free and Open Competition Boundary Condition Invoked in Engineering Practice Context
Engineer B's FOIA request for Engineer A's qualifications submission
The Board contextualizes the FOIA-based competitor intelligence dispute within the broader framework that engineering is both a business and a profession, that free and open competition is a basic legal rule, and that formerly anti-competitive ethics provisions were removed — establishing that competition itself is an ethically recognized value that constrains how the Board evaluates Engineer B's conduct
The Board uses the free-and-open-competition framework to establish that Engineer B's FOIA request, while of concern regarding timing, operated within a legal framework the Board cannot second-guess, and that competitive review of public submissions is not inherently impermissible
The practice of engineering is a business as well as a profession. Engineers and engineering companies compete within the legal framework that exists at the local, state, and federal levels.
The practice of engineering is a business as well as a profession.
it is also clear that free and open competition is a basic rule that generally exists under local, state, and federal laws and regulations.
Engineer B BER 93-3 Faithful Agent Client Interest Primacy Over Altruistic Disclosure
Engineer B's disclosure to Engineer A was not motivated by personal advantage but by collegial or altruistic considerations. The Board nonetheless found the disclosure ethically impermissible because it neglected the client's interests.
Faithful Agent Client Interest Primacy Over Altruistic Disclosure Obligation
Engineer B was obligated to prioritize the franchiser client's interests over his altruistic or collegial impulse to inform Engineer A of the new engagement, recognizing that the absence of personal advantage motivation did not render the unauthorized disclosure ethically permissible.
At the time Engineer B decided to notify Engineer A of his relationship with the franchiser and the preliminary review results
Engineer B's disclosure of his relationship with client constituted a neglect of the interests of his client and that on balance the benefits to be derived by Engineer B's disclosure, for all parties involved, did not outweigh detriments that may be suffered by the client.
FOIA Procurement Timing Integrity Obligation Invoked for Engineer B Present Case
The Board expresses concern about the timing of Engineer B's FOIA request relative to the procurement process, suggesting that submitting a FOIA request before the interview process to obtain a competitor's qualifications raises timing-based appearance of impropriety concerns even if the request was otherwise lawful
The timing of a FOIA request in a public procurement context is ethically significant — a request made before the interview process to obtain a competitor's submission creates concerns about competitive intelligence use that a post-submission request would not
overlooking the timing of Engineer B's request, which is of concern to the Board, Engineer B appears to have been acting in a manner consistent with those laws and regulations, and the Board is not in a position to second guess or otherwise determine the appropriateness of those rules and regulations.
Engineer B Present Case Public Procurement Misrepresentation Check Transparency Recognition
The Board noted that the public procurement process's openness, including FOIA availability, provides protection against misleading or deceptive representations by competing consultants, grounding a duty of accuracy in procurement submissions.
Public Procurement Misrepresentation Check Transparency Recognition Obligation
Engineer B was obligated to recognize that the openness of the public procurement process — including FOIA availability of submitted qualifications — serves as a check against misleading representations, and to ensure that his own qualifications submission contained no misleading or deceptive representations.
Engineer B Present Case Public Procurement Regulatory Deference
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission in a public procurement process. The Board found that Engineer B appeared to have acted consistently with applicable laws and regulations, and declined to second-guess the policy choices embedded in those rules.
Public Procurement Regulatory Deference Obligation
Engineer B was obligated to act in conformance with applicable FOIA and public procurement laws and regulations, and the Board recognized that Engineer B appeared to have done so — operating within the legal framework rather than circumventing it — even though the timing of the FOIA request raised concerns.
During the public procurement process in which both Engineer A and Engineer B submitted qualifications