8 firms responding affirmatively before Firms A and B disclosing Engineer X arrangement
Agency Direct Contact of Engineer X → Competitive Field Disrupted
Agency Direct Expert Solicitation Outside Original List
From agency's determination that Firms A and B were acting as brokers through Engineer X's response
We perceive no reason why it should not make direct contact with Engineer X once having learned from two separate sources that he was a highly qualified specialist
Agency-Initiated Direct Expert Solicitation Outside Original List State
Government agency's direct contact with Engineer X after determining responding firms would not contribute substantially
Engineer X's submission of qualifications (ambiguous prime role acceptance)
The mere fact that some eight firms had responded to the invitation for an expression of interest and qualification did not bind the agency to select one of those firms
Agency learned from two separate sources that Engineer X was a highly qualified specialist; determined neither responding firm would contribute substantially
Agency Direct Solicitation of Engineer X Outside Original List
From the agency's determination that Firms A and B would not make a substantial contribution through Engineer X's submission of qualifications
The firm of Engineer X was not on the original list of those contacted.
Government agency's direct contact with Engineer X
Engineer X submitting qualifications without definitive commitment
The government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X, advising him that two firms had indicated their intention to use him as a special technical consultant if awarded the contract and asked him if he would be interested in taking the contract on his own firm's account.
Agency concluding that Firms A and B would not make a substantial contribution and directly contacting Engineer X
Agency Independent Procurement Judgment Applied to Direct Contact with Engineer X
Engineer X Non-Supplanting Direct Contract Accepting Specialist
Government Agency Specialized Technical Services Solicitor
Procurement Integrity in Public Engineering
The Discussion finds no ethical bar to the agency's direct contact with Engineer X after learning from two separate sources that he was a highly qualified specialist — the agency was not bound to select from among the eight responding firms, and the fact that Firms A and B supplied the information about Engineer X did not impose any duty to award the contract to them.
In this context, the agency's independent judgment that neither Firm A nor Firm B would contribute substantially to the project was a sufficient basis for bypassing the expression-of-interest respondents and directly engaging the identified specialist.
Agency Independent Procurement Judgment Non-Bindingness to Prior Expression-of-Interest Respondents
The mere fact that some eight firms had responded to the invitation for an expression of interest and qualification did not bind the agency to select one of those firms for the contract.
The agency's independent procurement judgment is deemed consistent with fairness and procurement integrity because no binding commitment had been made to any respondent and the agency acted in the public interest in securing the most qualified specialist.
Nor did the fact that Firms A and B supplied the information as to the special qualifications of Engineer X impose any duty on the agency to award the contract to Firms A and B when it was apparent that neither would contribute very much, if anything, to the project.
we perceive no reason why it should not make direct contact with Engineer X once having learned from two separate sources that he was a highly qualified specialist of the type required.
Agency Initial Solicitation Exclusion → Solicitation Pool Formed
BER Ethics Board Dual-Precedent Supplanting Threshold Triangulation Application
BER Dual-Precedent Supplanting Prohibition Threshold Triangulation Capability
The BER retrieved and synthesized Cases 62-10 and 62-18 to establish the two-part threshold test for the supplanting prohibition and applied it to determine that Engineer X's acceptance of the direct engagement did not constitute improper supplanting.
BER analysis of whether Engineer X's acceptance of direct prime contract from government agency constituted improper supplanting of Firms A or B
BER Discussion's citation of Cases 62-10 and 62-18 to define the 'definite steps' threshold and application of the synthesized test to find no supplanting violation
the mandate of Section 11 (a) does not come into play unless '... the engineer has been informed by the client that he has been selected to negotiate an agreement for a specific project,' (Case 62-10) or that it be shown that '... the client specifically intended to retain the engineer for the ... work' (Case 62-18).
As we have stated previously, the mandate of Section 11 (a) does not come into play unless...
Broker-Only Role Transparency Obligation of Firms A and B
Competitive interest in prime contract award
Loyalty to business development interests
Firms A and B, recognizing that the entire substantive technical work fell within Engineer X's expertise and that their own contributions would be nominal, were obligated to transparently disclose their brokerage-only role to the government agency and recommend that the agency engage Engineer X directly.
The ethical path for Firms A and B was not to interpose themselves as nominal primes but to acknowledge their brokerage-only role and facilitate direct engagement of the specialist — serving the agency's interest in obtaining the best qualified services efficiently.
Firms A and B Broker-Only Prime Recommending Specialist Referral
Broker-Only Role Transparency and Specialist-Direct Referral Obligation
The work to be performed is entirely within Engineer X's field of expertise and does not require services from firms other than those of Engineer X.
Transparency and faithful agency to the procuring authority override the firms' commercial interest in capturing the prime contract role when their contribution would be purely nominal.
In actuality, these other services would be nominal in nature.
Broker-Only Role Transparency and Specialist Referral Obligation Applied to Firms A and B
Free and Open Competition as Engineering Ethics Boundary Condition
The Discussion finds that Firms A and B, whose only substantive service would have been to arrange for Engineer X's services, should not have offered to undertake the prime contract and instead should have recommended to the agency that it directly contact Engineer X as the better qualified engineer.
In this context, the broker-only transparency obligation required Firms A and B to disclose their brokerage-only role and redirect the agency to Engineer X directly, rather than interposing themselves as nominal primes.
Their ethical position in that event was to recommend to the agency that it directly contact Engineer X as the better qualified engineer for the services required.
The obligation to recommend direct specialist engagement overrides competitive self-interest in retaining the prime role when the firm's contribution would be purely nominal.
Firms A and B should not have offered to undertake the prime contract if their only substantive service would be to arrange for the services of Engineer X.
Broker Arrangement With Engineer X → Broker Arrangement Exposed to Agency
Case 62-10 and Case 62-18 rulings before Discussion section analysis
CausalLink_Agency Direct Contact of Engin
CausalLink_Agency Initial Solicitation Ex
CausalLink_Broker Arrangement With Engine
CausalLink_Disclosure of Engineer X Relia
CausalLink_Engineer X Prime Contract Acce
CausalLink_Engineer X Qualifications Subm
CausalLink_Firms A and B Affirmative Resp
Competence Prerequisite for Engagement Acceptance Applied to Firms A and B
Substantive Contribution Threshold as Ethical Prerequisite for Prime Engagement
The Discussion applies the competence prerequisite to find that Firms A and B should not have offered to undertake the prime contract when their only substantive service would be to arrange for Engineer X's services — because the code precludes an engineer from accepting an engineering engagement unless qualified to perform the services involved.
In this context, professional competence requires not merely that a firm hold a license, but that it be genuinely capable of performing the substantive engineering services for which it is accepting prime responsibility — a brokerage-only role does not satisfy the competence prerequisite.
Ethics Board applying Section 6 of the Code
The first part of Section 6 of the code precludes an engineer from accepting an engineering engagement unless qualified to perform the services involved.
No tension — the competence prerequisite and the substantive contribution threshold operate in concert to prohibit acceptance of a prime role where the firm can only broker.
it appears that Firm A and Firm B were primarily offering to serve in the capacity of a 'broker' and would furnish only the services involved in the negotiations and administration of the contract, looking to Engineer X as the sole technical contributor to the project.
Competitive Procurement Integrity Context
From initial solicitation through contract award
A government agency contacts 15 engineering firms to solicit their interest in, and a statement of expertise and capability to provide services in a highly specialized area of technical knowledge.
Competitive Procurement Public Interest Alignment State
The government agency's solicitation process for specialized engineering services
Contract award or procurement cancellation
Government agency issuing solicitation to 15 firms for highly specialized technical services
It was not ethical for Firm A or Firm B to offer its services as the prime professional under the stated circumstances.
Beyond the Board's finding that it was unethical for Firms A and B to offer their services as prime professionals, the ethical defect in their conduct was not merely one of incompetence but of affirmative misrepresentation. By submitting qualification responses that implied substantive prime capability while knowing their actual contribution would be nominal, Firms A and B did not simply fail a competence threshold — they made technically true but artfully misleading statements to a government agency in a competitive procurement context. The statements were technically accurate in that Engineer X had agreed to serve as subconsultant, but they were structured to create the false impression that the responding firm itself possessed the requisite specialized expertise. This conduct implicates honesty obligations independent of competence obligations: even if the nominal services Firms A and B proposed to furnish had been somewhat more substantial, the deliberate framing of their qualifications to obscure their actual limited role would remain an independent ethical violation. The Board's conclusion therefore rests on two distinct but reinforcing grounds — substantive contribution failure and procurement misrepresentation — and the analysis should not be read to suggest that disclosure of the broker-only arrangement would have cured the ethical defect entirely.
The Board's condemnation of Firms A and B as nominal prime contractors implicitly raises, but does not resolve, the question of where the permissible boundary lies between a legitimate prime-subconsultant structure and an ethically impermissible broker-only interposition. The case facts establish a clear outer limit: where the prime firm's proposed contribution is nominal in nature and the entire substantive technical work falls to a single specialist subconsultant, the prime role is ethically impermissible regardless of administrative or coordination services offered. However, the Board's reasoning suggests a calibrated threshold rather than a categorical prohibition on specialist reliance. A firm that genuinely contributes project management, regulatory navigation, client interface, quality assurance, or local knowledge proportionate to the scope of the engagement occupies a fundamentally different ethical position from one that contributes nothing of substance. The ethical analysis should therefore distinguish between firms that engage specialists to fill discrete competence gaps within an otherwise substantive prime contribution — which is permissible and common in engineering practice — and firms that use specialist arrangements as a mechanism to capture prime professional status and associated fees in a domain where they have no independent capability whatsoever. The latter constitutes not merely a competence failure but a structural misuse of the prime-subconsultant relationship that distorts competitive procurement, increases public cost, and reduces accountability to the client.
The Board's conclusion that it would be ethical for Engineer X to accept the contract as prime professional is sound, but the analysis should be extended to address the ethical significance of Engineer X's ambiguous response to the agency's direct solicitation. Engineer X submitted his qualifications without definitively stating whether he would be willing to undertake the work as prime professional, and — critically — without disclosing that he had already entered informal arrangements with both Firms A and B to serve as their subconsultant. While the Board correctly concludes that no definite steps had been taken by the agency toward selecting Firms A or B, and that the anti-supplanting prohibition is therefore not triggered, the omission of disclosure regarding his prior informal commitments to two competing firms raises an independent honesty concern. An engineer responding to a government solicitation occupies a position of trust in the procurement process, and the submission of qualifications without acknowledging a material conflict — namely, that the submitting engineer had simultaneously committed informally to serve as the technical backbone for two of the other responding firms — is at minimum a transparency deficit. The Board's conclusion that acceptance is ethical should therefore be understood as contingent on Engineer X resolving or disclosing those prior arrangements before executing any prime contract, rather than as a blanket endorsement of the ambiguous response as submitted.
The Board's implicit approval of the agency's decision to contact Engineer X directly — bypassing the original solicitation list — reflects a sound application of procurement integrity principles, but it raises a systemic concern the Board did not address: whether this corrective action creates a perverse incentive structure that could discourage honest disclosure in future procurements. If firms that transparently disclose their reliance on specialist subconsultants risk being bypassed in favor of those specialists, rational actors in future procurements may be incentivized to obscure such reliance rather than disclose it. The ethical justification for the agency's action in this case rests specifically on the finding that Firms A and B's proposed contributions were nominal — not merely that they relied on a specialist. A properly calibrated rule would hold that agency bypass is justified only when the prime firm's contribution falls below the substantive threshold, not whenever specialist reliance is disclosed. Agencies and reviewing bodies should therefore be careful to distinguish between the corrective action warranted in this case — where broker-only interposition was the problem — and a broader principle that specialist-reliant prime structures are always subject to disintermediation. Failure to draw this distinction would chill legitimate prime-subconsultant arrangements and undermine the transparency the Code of Ethics is designed to promote.
The Board's analysis, read in conjunction with the January 1971 Board of Directors directive on individual Code applicability, implies that the engineers within Firms A and B — not merely the firms as organizational entities — bore personal ethical responsibility for the misrepresentations made in the qualification submissions. This individual accountability dimension is significant because it forecloses the rationalization that organizational competitive pressures or firm-level business decisions insulate individual engineers from ethical responsibility for procurement conduct. Each engineer who reviewed, approved, or signed the qualification submissions of Firms A and B was individually obligated to assess whether the firm's proposed prime role met the substantive contribution threshold and whether the submission accurately represented the firm's actual capabilities. The same individual applicability principle extends to engineers within the government agency who designed and administered the solicitation process: their decision to contact Engineer X directly, while ethically sound on the merits, was itself an exercise of individual professional judgment subject to Code scrutiny. The Board's framework therefore operates at both the organizational and individual level simultaneously, and the ethical analysis of this case cannot be fully resolved by reference to firm-level conduct alone.
In response to Q101: Engineer X did bear an independent ethical obligation to disclose his prior informal arrangements with both Firms A and B when submitting qualifications in response to the agency's direct solicitation. The omission of that disclosure — combined with his ambiguous response that neither confirmed nor denied willingness to serve as prime — raises a genuine honesty concern under the Code's requirements for candor and non-misleading professional representations. Even if Engineer X had not yet made a definitive commitment to either firm, the existence of parallel informal arrangements with two competing firms was a material fact directly relevant to the agency's procurement judgment. A fully candid response would have acknowledged those arrangements and allowed the agency to assess whether proceeding with Engineer X as prime would create fairness complications. The ambiguity in his response, while not rising to a formal ethical violation given that no definite selection steps had been taken by either firm, nonetheless reflects a deficit in the transparency the Code expects of engineers in professional dealings. The Honesty Principle Invoked in Engineer X Qualification Submission is therefore not fully satisfied by mere technical compliance with the supplanting prohibition.
In response to Q102: The ethical analysis would change materially if Firms A and B had been fully transparent with the agency from the outset. Had they explicitly stated in their qualification submissions that Engineer X would perform all substantive specialized technical work and that their own contribution would be nominal in nature, the honesty and misrepresentation violations identified by the Board would be substantially mitigated or eliminated. The Broker-Only Role Transparency Obligation of Firms A and B would have been satisfied, and the Solicitation Deception Avoidance Obligation Violated by Firms A and B would not have been triggered. However, transparency alone would not render their prime proposals ethically permissible. The Substantive Contribution Threshold Failure by Firms A and B is an independent ethical defect that survives full disclosure: a firm that openly acknowledges it will contribute nothing of substance to a highly specialized technical engagement is not thereby entitled to serve as prime professional. The Code's competence prerequisites for accepting engagements are not waived by honest disclosure of incompetence. Transparent broker interposition remains broker interposition. The agency would still have been justified — and arguably obligated — to question whether such a nominal prime structure served the public interest, though the firms' conduct would have been far more honorable.
In response to Q103: There is a meaningful and ethically defensible threshold at which a prime firm's reliance on a specialist subconsultant remains permissible, but that threshold requires the prime to make a genuine and non-trivial contribution to the overall engagement. Legitimate contributions may include project management, client interface, quality assurance, local regulatory navigation, permitting coordination, or integration of the specialist's technical work into broader deliverables. The ethical defect in the conduct of Firms A and B was not that they planned to use Engineer X as a subconsultant — that structure is widely accepted and often beneficial — but that the remaining services they would themselves provide were explicitly nominal in nature, meaning they offered no real value addition. In highly specialized technical procurements where the specialized work constitutes the entirety of the engagement, the threshold must be calibrated accordingly: a prime firm that cannot independently perform or meaningfully supervise the core technical work, and whose ancillary contributions are de minimis relative to the total scope, fails the substantive contribution test. The Substantive Contribution Contextual Calibration Applied to Geographic and Local Factors principle acknowledges that context matters, but contextual calibration cannot rescue a prime proposal where the prime's contribution approaches zero. The Code does not prohibit prime-subconsultant structures; it prohibits nominal prime interposition that serves primarily to capture fees without delivering commensurate professional value.
In response to Q104: Engineer X bears a degree of moral responsibility for the competitive disruption caused by his simultaneous informal arrangements with two competing firms, though the Code as currently structured does not impose a formal prohibition on such parallel arrangements. The disruption was not merely incidental: by making himself available to both Firm A and Firm B as their exclusive technical resource, Engineer X effectively enabled both firms to submit affirmative responses to the agency's solicitation that they could not have made independently, thereby distorting the competitive field. The Fairness in Professional Competition Implicated by Nominal Prime Responses principle is implicated not only by the firms' conduct but also by the specialist's willingness to serve as the technical foundation for competing proposals simultaneously. A stronger reading of the Code's honesty and fairness obligations would support a norm — even if not yet codified — requiring specialist engineers who are approached by multiple competing primes to either limit such arrangements to one firm per procurement or to proactively disclose the parallel nature of their commitments to all parties. However, the countervailing consideration identified in Q204 is also valid: Engineer X did not solicit these arrangements, and imposing a unilateral burden on sought-after specialists to police competitive fairness may exceed what the Code was designed to require of individual engineers acting in good faith.
In response to Q201: The tension between Free and Open Competition in specialized procurement and the relational obligations potentially arising from Engineer X's informal prior arrangements with Firms A and B resolves in favor of the agency's independent procurement judgment, but the resolution is not without ethical nuance. The informal arrangements between Engineer X and the two firms had not ripened into binding commitments, and no definite selection steps had been taken by either firm or the agency on their behalf. The Definite Steps Threshold Applied to Firms A and B Non-Commitment Status principle confirms that the supplanting prohibition is not triggered in the absence of such steps. Consequently, the agency's direct contact with Engineer X did not violate any enforceable relational obligation owed to Firms A and B. However, the informal arrangements do create a soft relational obligation on Engineer X's part — not to the firms as competitors, but to the integrity of the procurement process — to disclose those arrangements when responding to the agency's direct solicitation. The agency's procurement judgment is independent and ethically sound; Engineer X's response to that judgment should have been correspondingly transparent.
In response to Q202: The tension between the Competence Prerequisite for Engagement Acceptance and the Specialist Engagement Obligation Contextual Application principle is real but resolvable by reference to the substantive contribution threshold. The Code does not prohibit prime firms from engaging specialists to fill competence gaps — that practice is legitimate, common, and often in the public interest. The ethical line is crossed when the prime firm's own contribution becomes so nominal that the prime role is reduced to mere brokerage: the firm adds no professional value, assumes no meaningful technical responsibility, and serves primarily as a fee-capturing intermediary between the client and the true expert. In this case, Firms A and B crossed that line because the services they would themselves furnish were explicitly nominal in nature and the work to be performed was entirely within Engineer X's field of expertise, requiring no contribution from any other firm. A legitimate prime-subconsultant structure requires the prime to exercise genuine professional judgment, oversight, or coordination — not merely to identify and retain the specialist. The distinction is therefore not about the presence of a subconsultant but about whether the prime's residual contribution clears the substantive threshold that justifies the prime designation and the associated professional and financial responsibility.
In response to Q203: The concern that the agency's corrective action — bypassing the original list and directly soliciting Engineer X — might set a chilling precedent discouraging honest disclosure of specialist reliance is a legitimate systemic worry, but it does not undermine the ethical soundness of the agency's decision in this case. The precedent risk identified in Q203 would only materialize if the agency's bypass were triggered by honest disclosure of specialist reliance per se, rather than by the nominal nature of the prime's own contribution. In this case, the agency's action was justified not because Firms A and B disclosed their reliance on Engineer X, but because that reliance was total and the firms' own contribution would be nominal. A firm that honestly discloses that it will rely on a specialist for a defined scope while itself contributing genuine project management, regulatory coordination, or technical oversight should not fear being bypassed on that basis. The Procurement Integrity in Public Engineering principle is therefore not in fundamental conflict with the Broker-Only Role Transparency Obligation: transparency is required, and it may trigger agency scrutiny, but that scrutiny is appropriately calibrated to the substantive contribution question rather than to the mere fact of specialist engagement.
In response to Q301: From a deontological perspective, Firms A and B violated a categorical duty of honest representation. The Code's prohibition on artfully misleading statements and misrepresentation of pertinent facts is not contingent on whether the agency was ultimately harmed or whether the deception was discovered. The firms' qualification submissions implied substantive prime capability while both firms knew their actual contribution would be nominal — a knowing misrepresentation of a material fact in a professional procurement context. Under a Kantian framework, this conduct fails the universalizability test: if all firms in competitive procurements were permitted to represent nominal capability as substantive prime competence whenever they had arranged for a specialist subconsultant, the entire qualification-based selection system would be undermined. The deontological violation is therefore complete at the moment of submission, regardless of outcome. The Firms A and B Artfully Misleading Procurement Statement Prohibition and the Firms A and B Pertinent Fact Misrepresentation in Qualification Submission constraints confirm that the Code reaches this conduct directly.
In response to Q302: From a consequentialist perspective, the broker-only prime structure proposed by Firms A and B would have produced net harm to the public interest across multiple dimensions. First, it would have interposed a nominally contributing intermediary between the government agency and the most qualified expert, increasing project cost without commensurate value. Second, it would have diluted accountability: the prime firm, lacking substantive technical competence, would have been poorly positioned to exercise meaningful oversight of Engineer X's work or to bear genuine professional responsibility for the technical deliverables. Third, it distorted the competitive procurement process by allowing firms without relevant expertise to compete on equal footing with genuinely qualified respondents, undermining the qualification-based selection system's purpose. Fourth, it created a precedent risk that other firms would adopt similar broker structures in future procurements, progressively eroding the integrity of the solicitation process. The Firm A Nominal Prime Interposition Public Procurement Harm Recognition and Firm B Nominal Prime Interposition Public Procurement Harm Recognition capabilities confirm that these harms were foreseeable. The consequentialist analysis therefore strongly supports the Board's conclusion that the conduct of Firms A and B was unethical.
In response to Q303 and Q304: From a virtue ethics perspective, Firms A and B failed to demonstrate the professional integrity, honesty, competence, and professional humility expected of engineering firms. A virtuous engineering firm, upon recognizing that it lacks the specialized expertise required for a procurement, would either decline to respond or would recommend that the agency engage the specialist directly — precisely the conduct the Broker-Only Role Transparency and Specialist Referral Obligation envisions. Instead, Firms A and B attempted to leverage their knowledge of Engineer X's expertise to capture a prime role they could not substantively fill, reflecting a failure of the virtues of honesty and professional humility. Regarding Engineer X (Q304), his conduct reflects a more modest virtue deficit. He did not misrepresent his capabilities, and his willingness to respond to the agency's direct solicitation was ethically permissible. However, his ambiguous response — submitting qualifications without disclosing his prior informal arrangements or definitively addressing his willingness to serve as prime — falls short of the candor and transparency that the virtue of professional integrity demands. A fully virtuous engineer in his position would have disclosed the prior arrangements and provided a clear, honest response to the agency's direct inquiry, enabling the agency to make a fully informed procurement decision.
In response to Q401: Even if Firms A and B had transparently disclosed their total reliance on Engineer X from the outset, their prime proposals would have remained ethically impermissible due to the independent substantive contribution threshold failure. Transparency is a necessary but not sufficient condition for ethical compliance in prime professional engagements. The Code's competence prerequisites require that a firm accepting a prime engagement be capable of making a genuine professional contribution to the work — not merely of identifying and retaining the expert who will actually perform it. Since the work to be performed was entirely within Engineer X's field of expertise and required no services from any other firm, no amount of honest disclosure could transform Firms A and B's nominal contributions into substantive ones. The Substantive Contribution Threshold Applied to Hypothetical Compliant Path for Firms A and B principle confirms this analysis. Disclosure would have eliminated the honesty violation but would not have cured the competence and substantive contribution defects that independently rendered the proposals ethically impermissible.
In response to Q402: If the agency had remained bound by its original solicitation list and declined to contact Engineer X directly, Engineer X would have faced a significant independent ethical obligation upon learning that two competing firms were each representing him as their exclusive technical resource. That situation — in which his name and expertise were being used simultaneously by competing firms to secure a contract, without his having made any exclusive commitment to either — would have created a material misrepresentation risk in the procurement process that Engineer X could not ethically ignore. Under the Code's honesty and fairness obligations, Engineer X would have been obligated to either proactively notify the agency of the dual-representation situation or to withdraw from one or both informal arrangements and clarify his status. Allowing both firms to proceed with representations of his exclusive availability would have been a form of passive participation in the misrepresentation, even if Engineer X had not himself made any false statement. The Engineer X Prior Sub-Consultant Arrangement Conflict Review Before Independent Acceptance obligation captures this duty, and the Fairness in Professional Competition principle would have required him to take corrective action to prevent the procurement from proceeding on a false factual basis.
In response to Q403: If Engineer X had declined the agency's direct solicitation out of loyalty to his prior informal arrangements with Firms A and B, that decision would not have served the public interest and would not have changed the ethical status of those firms' conduct. The public interest is best served by having the most qualified expert perform highly specialized technical work under a direct, accountable contractual relationship with the government agency — not by routing that work through nominally contributing intermediaries. Engineer X's hypothetical loyalty to informal, non-binding arrangements would have preserved a procurement structure that the Board found ethically impermissible, at the cost of the agency's ability to engage the best-qualified professional directly. Furthermore, the ethical impermissibility of Firms A and B's nominal prime proposals is an independent finding grounded in their own conduct — their misrepresentation of substantive capability and their failure to meet the competence threshold — and does not depend on Engineer X's choices. Whether Engineer X accepted or declined the direct solicitation, Firms A and B's original responses remained ethically defective. The Specialist Non-Supplanting Direct Engagement Permissibility Applied to Engineer X principle confirms that Engineer X was free to accept the direct engagement; the analysis does not require him to do so as a matter of obligation, but his acceptance serves the public interest in a way that his hypothetical refusal would not.
Public Procurement Fairness Standard - Out-of-List Contact
In response to Q404: The ethical justification for the agency's decision to bypass the original solicitation list and contact Engineer X directly does not depend exclusively on the finding that no responding firm could make a substantial independent contribution. Even if one or more of the other six affirmative respondents had been technically capable of performing the specialized work independently, the agency's direct contact with Engineer X would still have been ethically defensible on independent grounds: Engineer X was the recognized expert in the field, his firm was not on the original list through no fault of his own, and the agency had a legitimate interest in ensuring that the most qualified professional was considered for the engagement. However, the strength of the ethical justification would be diminished if genuinely capable independent respondents existed, because the agency's bypass of the original list would then appear less like a necessary correction of a procurement distortion and more like a discretionary preference for a particular expert. The Agency Independent Procurement Judgment Applied to Direct Contact with Engineer X principle supports the agency's action in either scenario, but the moral urgency of that action is highest — and the ethical case most compelling — precisely because the responding firms' proposals were nominally structured and no independent capable respondent was available to serve the public interest without the broker interposition.
It would be ethical for Engineer X or his firm to accept the contract under the stated circumstances.
The central principle tension in this case — between the Competence Prerequisite for Engagement Acceptance and the Specialist Engagement Obligation Contextual Application — was resolved by the Board in favor of a substantive contribution threshold rather than a categorical prohibition on prime-subconsultant structures. The Board did not hold that a firm must independently possess all specialized expertise to serve as prime professional; rather, it held that a firm must make a genuine, non-nominal contribution to the work. This resolution teaches that the Code tolerates competence gaps filled by subconsultants only when the prime firm's own contribution is substantive and not merely administrative or pretextual. Where, as here, the other services are 'nominal in nature' and the entire technical substance of the work resides in the subconsultant, the prime-subconsultant structure collapses into a broker-only interposition that the Code cannot sanction. The threshold is therefore qualitative and contextual, not categorical: the prime firm must add real value, not merely lend its name to a procurement response.
The tension between Free and Open Competition in specialized procurement and the Independent Arrangement Relational Obligation created by Engineer X's prior informal commitments to Firms A and B was resolved decisively in favor of procurement integrity and the public interest. The Board found that because neither Firm A nor Firm B had taken definite steps toward selection — the agency had not chosen either firm — the anti-supplanting prohibition was not triggered. This resolution reveals a critical principle prioritization: informal pre-procurement arrangements between a specialist and competing prime firms do not ripen into relational obligations strong enough to constrain either the agency's independent procurement judgment or the specialist's freedom to accept a direct engagement. The Code's anti-supplanting rule is designed to protect engineers who have been affirmatively selected, not to insulate broker-only arrangements from correction by a procurement authority acting in the public interest. Consequently, the agency's corrective action — bypassing the original list to contact Engineer X directly — was not merely procedurally permissible but was affirmatively consistent with the Code's underlying commitment to honest, competence-based procurement.
The interaction between the Honesty in Professional Representations principle and the Broker-Only Role Transparency Obligation reveals that the ethical defect in Firms A and B's conduct was not merely technical misrepresentation but a deeper failure of professional integrity that the Code treats as compounded rather than mitigated by partial disclosure. Firms A and B did disclose that they intended to use Engineer X — they were not entirely silent about their reliance on him. Yet the Board's implicit condemnation rests on the finding that their representations were 'artfully misleading': technically accurate in identifying Engineer X as a subconsultant, but structurally deceptive in implying that they themselves would make a substantive prime contribution when in fact their other services would be nominal. This teaches that the Code's honesty obligations are not satisfied by literal accuracy alone; they require that the overall impression conveyed to a procurement authority be truthful and not calculated to obscure the actual distribution of competence and contribution. The Broker-Only Role Transparency Obligation therefore demands affirmative clarity about the nature and extent of the prime firm's own contribution, not merely disclosure of the specialist's identity. Partial transparency that preserves a misleading impression of prime capability is itself a form of deception the Code prohibits.
The Ethics Code Individual-Person Applicability principle, when applied simultaneously to the engineers within Firms A and B, to the government agency's engineers, and to Engineer X himself, reveals that this case is not merely an organizational compliance matter but a web of individual ethical responsibilities that the Code holds each person to account for independently. The Board's reliance on the January 1971 NSPE Board of Directors directive — clarifying that the Code applies to individual engineers acting within organizational contexts — means that the engineers who authored and submitted Firms A and B's misleading qualification responses bear personal ethical responsibility for those misrepresentations, not merely institutional liability. Similarly, the agency's engineers who designed and executed the corrective direct solicitation of Engineer X were individually bound by the Code's fairness and integrity standards. And Engineer X himself, as an individual engineer, bore a personal obligation of candor when submitting his qualifications in response to the agency's direct contact. This multi-actor individual applicability framework teaches that the Code functions as a distributed accountability system: organizational structures do not dilute individual ethical responsibility, and each engineer in the procurement chain must independently assess and discharge their own Code obligations regardless of the institutional role they occupy.
Should Firms A and B offer their services as prime professional in the specialized procurement, or decline the prime role and recommend direct engagement of Engineer X?
Firms A and B face the threshold question of whether they may ethically offer their services as prime professional in a highly specialized procurement where all substantive technical work falls within Engineer X's expertise and their own proposed contribution would be nominal in nature. This decision point addresses the substantive contribution threshold, the competence prerequisite for accepting a prime engagement, and the honesty obligations governing qualification submissions to a government agency.
Decline to submit as prime professional, affirmatively disclose to the agency that the specialized work falls entirely within Engineer X's expertise, and recommend that the agency engage Engineer X directly as the best-qualified professional for the services required.
Submit a qualification response as prime professional while explicitly disclosing to the agency that Engineer X will perform all substantive specialized technical work and that the firm's own contribution will be limited to administrative coordination and project management, allowing the agency to assess whether this structure serves its needs.
Submit a qualification response as prime professional, representing the firm's contribution as encompassing project management, client interface, quality assurance, and local regulatory coordination — relying on the contextual calibration principle that such contributions may satisfy the substantiality threshold — while identifying Engineer X as the specialist subconsultant for the core technical work.
Should Engineer X accept the agency's direct prime solicitation and fully disclose his prior informal subconsultant arrangements with Firms A and B, or respond without disclosing those arrangements while reserving his decision on acceptance?
Engineer X, having been arranged as subconsultant by both competing Firms A and B, is directly solicited by the government agency to submit qualifications for prime engagement. He must decide whether to accept the direct prime engagement and, critically, whether to disclose his prior informal subconsultant arrangements with both firms when submitting his qualifications. This decision point addresses the anti-supplanting threshold, the permissibility of agency-initiated direct engagement, and the independent honesty obligation to disclose material prior arrangements.
Submit qualifications for direct prime engagement, affirmatively disclose to the agency the existence of prior informal subconsultant arrangements with both Firms A and B, confirm willingness to serve as prime professional, and resolve any conflicts arising from those prior arrangements before executing any contract.
Submit qualifications in response to the agency's direct solicitation without disclosing the prior informal subconsultant arrangements with Firms A and B, on the basis that no definite selection steps have been taken by either firm and the arrangements were informal and non-binding, leaving the agency to conduct its own procurement assessment.
Decline the agency's direct solicitation out of loyalty to the prior informal arrangements with Firms A and B, notifying the agency that he has existing commitments to other firms in the procurement and is not available for direct prime engagement, thereby preserving the relational integrity of those arrangements even absent a formal contractual obligation.
Should the government agency contact Engineer X directly for prime engagement, bypassing the original solicitation list, or proceed with selection from among the firms that responded to the original expression-of-interest solicitation?
The government agency's engineers, upon reviewing qualification submissions and determining that the responding firms would not make a substantial contribution to the specialized work, must decide whether to contact Engineer X directly — bypassing the original solicitation list — or to proceed with selection from among the original respondents. This decision point addresses the agency's independent procurement judgment, the non-bindingness of expression-of-interest responses, and the procurement integrity constraints governing out-of-list direct solicitation.
Bypass the original solicitation list, document the determination that responding firms would not make a substantial contribution, and directly solicit Engineer X to submit qualifications for prime engagement — ensuring the action is transparent and grounded in the substantive contribution finding rather than favoritism.
Treat the original expression-of-interest responses as binding the agency's selection pool, select the most qualified respondent from among the eight firms that replied, and negotiate a prime contract with that firm — accepting that Engineer X will participate as subconsultant through whichever prime firm is selected.
Decline to select from the original respondents or to contact Engineer X outside the formal process, instead reissuing the solicitation with an expanded list that explicitly includes Engineer X's firm — ensuring competitive fairness and procurement list integrity while still enabling the agency to obtain the most qualified professional.
Should Engineer X disclose his prior informal sub-consultant arrangements with both Firms A and B when submitting qualifications in response to the agency's direct solicitation, or submit qualifications without affirmative disclosure on the grounds that no definite selection steps have been taken?
Engineer X Specialist Expert Repositioned as Prime: Disclosure of Prior Informal Sub-Consultant Arrangements and Supplanting Threshold Verification Upon Direct Agency Solicitation
Submit qualifications with an explicit disclosure of the existing informal sub-consultant arrangements with both Firms A and B, enabling the agency to make a fully informed procurement decision before any prime contract is executed.
Submit qualifications in response to the agency's direct solicitation without affirmatively disclosing the prior informal arrangements, on the grounds that no definite selection steps have been taken by either firm and the anti-supplanting prohibition has not been triggered.
Before responding to the agency's direct solicitation, formally withdraw from the informal sub-consultant arrangements with both Firms A and B, then submit qualifications as a clean prime candidate without any conflicting prior commitments to disclose.
Engineer X Specialist Expert Repositioned as Prime
Should Firms A and B disclose to the agency that their own contribution would be nominal and refer the agency directly to Engineer X, or submit affirmative qualification responses as prime professionals while disclosing Engineer X as a planned sub-consultant?
Firms A and B Broker-Only Role Transparency and Specialist Referral Duty: Whether Firms A and B Should Disclose Their Nominal Contribution and Refer the Agency to Engineer X Directly Rather Than Submitting as Prime Professionals
Decline to submit as prime professional and instead affirmatively inform the agency that Engineer X is the qualified specialist for this work, satisfying the Broker-Only Role Transparency and Specialist Referral Duty without misrepresenting the firm's own substantive capability.
Submit an affirmative qualification response as prime professional while explicitly disclosing that Engineer X will perform all specialized technical work and that the firm's own contribution will be limited to project management, coordination, and administrative oversight — relying on contextual calibration of the substantive contribution threshold to justify the prime role.
Submit an affirmative qualification response as prime professional that identifies Engineer X as a planned sub-consultant without explicitly characterizing the firm's own contribution as nominal, relying on the recognized legitimacy of prime-subconsultant structures to justify the submission.
Should Engineer X accept the agency's direct prime contract offer on the basis that no definite selection steps were taken toward Firms A or B, or decline the direct engagement out of relational obligation to his prior informal sub-consultant arrangements with those competing firms?
Engineer X Supplanting Prohibition Definite-Steps Threshold Verification: Whether Engineer X May Ethically Accept the Agency's Direct Prime Contract Offer Given His Prior Informal Sub-Consultant Arrangements with Competing Firms
Accept the agency's direct prime contract offer after affirmatively disclosing the prior informal sub-consultant arrangements with Firms A and B, satisfying both the anti-supplanting threshold verification and the Code's candor requirements before executing the contract.
Decline the agency's direct solicitation out of relational obligation to the prior informal sub-consultant arrangements with Firms A and B, deferring to those firms as the appropriate prime candidates even though no definite selection steps have been taken.
Accept the agency's direct prime contract offer on the basis that the anti-supplanting prohibition is not triggered absent definite selection steps, without affirmatively disclosing the prior informal arrangements to the agency, treating those arrangements as superseded by the agency's independent procurement judgment.
Should Engineer X accept the agency's direct solicitation and disclose his prior informal sub-consultant arrangements with Firms A and B, accept without disclosing those arrangements, or decline the direct engagement to honor his informal prior commitments?
Engineer X, having made informal sub-consultant arrangements with both Firm A and Firm B simultaneously, must decide how to respond to the government agency's direct solicitation: whether to submit qualifications while disclosing his prior parallel informal arrangements, submit without disclosure, or decline the direct engagement out of loyalty to those prior arrangements.
Accept the agency's direct solicitation and proactively disclose in the qualifications submission that informal sub-consultant arrangements had already been made with both Firm A and Firm B, allowing the agency to make a fully informed procurement decision before any prime contract is executed.
Accept the agency's direct solicitation and submit qualifications on the merits, treating the prior informal arrangements as non-binding and therefore not requiring affirmative disclosure, on the grounds that no definite selection steps had been taken and the arrangements imposed no formal commitment.
Decline the agency's direct solicitation out of relational loyalty to the prior informal arrangements with Firms A and B, allowing the procurement to proceed through the original solicitation list rather than displacing the firms that had relied on Engineer X's availability in formulating their responses.
Definite Steps Threshold Applied to Firms A and B Non-Commitment Status
Independent Arrangement Relational Obligation Review Before Direct Engagement Acceptance
The Discussion applies the 'definite steps' threshold from Cases 62-10 and 62-18 to find that neither Firm A nor Firm B had any commitment or expectation of being awarded the contract at the time the agency contacted Engineer X — and therefore the supplanting prohibition did not activate to bar Engineer X's acceptance of the direct engagement.
In this context, the absence of formal selection notification or specific intent to retain either Firm A or Firm B meant that the supplanting prohibition threshold had not been crossed — Engineer X's acceptance of the direct engagement was therefore ethically permissible under the non-supplanting provision.
Ethics Board applying Section 11(a) and Cases 62-10, 62-18
Definite Steps Threshold for Engineer Supplanting Prohibition Activation
neither Firm A nor Firm B had any commitment or expectation of being awarded the contract at the time the agency contacted Engineer X.
The definite steps threshold resolves the apparent tension between the supplanting prohibition and Engineer X's acceptance of the direct engagement — because no definite steps had been taken toward either firm, no supplanting occurred.
Section 11 (a), which prohibits one engineer from supplanting another, is no bar unless it be shown that 'definite steps' have been taken by the client to retain another engineer.
neither Firm A nor Firm B had any commitment or expectation of being awarded the contract at the time the agency contacted Engineer X
Disclosure of Engineer X Reliance → Engineer X Identified as True Expert
Engineer X Agency-Initiated Direct Engagement Non-Supplanting Permissibility
Engineer X had been arranged as sub-consultant by both Firms A and B; the government agency independently contacted Engineer X directly after concluding the firms would not make a substantial contribution; Engineer X submitted qualifications in response.
Agency-Initiated Specialist Direct Engagement Non-Supplanting Permissibility Obligation
Engineer X was entitled to recognize that responding to the government agency's direct solicitation did not constitute improper supplanting of Firms A or B, because the agency independently initiated the contact based on its own determination that Firms A and B would not make a substantial contribution.
Upon receipt of the government agency's direct solicitation
Engineer X responded by submitting his qualifications but not stating definitely if he would be willing to undertake the work as the prime professional.
Engineer X Agency-Initiated Direct Solicitation Non-Supplanting Recognition
Supplanting Rule Precise Scope Discrimination Capability
Engineer X required the capability to correctly recognize that responding to the government agency's direct solicitation — initiated by the agency after determining Firms A and B would not make a substantial contribution — did not constitute improper supplanting of those firms
Engineer X was initially arranged as sub-consultant by Firms A and B but was then directly solicited by the agency; the supplanting rule did not apply because no active contract with Firms A or B existed
Partial: Engineer X responded to the agency's direct solicitation by submitting qualifications, implicitly recognizing the permissibility of responding, though without definitively committing to the prime role
Engineer X Ambiguous Prime Role Acceptance
From Engineer X's qualification submission through case resolution
We find no grounds in the code which would prevent Engineer X and his firm from accepting the contract on a direct basis if so desired by the client and the firm
Expert Ambiguous Prime Role Acceptance State
Engineer X's submission of qualifications in response to direct agency solicitation without definitive commitment to prime role
Engineer X should consider carefully whether his accepting the contract independently would violate any arrangement he might have had with Firms A or B
Engineer X submitted qualifications in response to agency's direct solicitation without definitively committing to undertake work as prime
Engineer X Ambiguous Prime Role Response
From Engineer X's submission of qualifications through resolution of the procurement
Engineer X's response to the government agency's direct solicitation
Engineer X submitting qualifications in response to direct agency solicitation without stating definitively whether he would undertake the work as prime professional
Engineer X Competence Scope Confirmation for Direct Prime Engagement
The work to be performed was entirely within Engineer X's field of expertise and did not require services from firms other than those of Engineer X, confirming that accepting the prime role would not violate scope of practice constraints.
Engineer X's acceptance of the prime role was constrained to work entirely within his field of expertise; the case establishes this constraint was satisfied because the work to be performed was entirely within Engineer X's field of expertise and did not require services from other firms.
NSPE Code of Ethics — Competence and scope of practice provisions
Throughout any engagement as prime professional
Engineer X Direct Engagement Permissibility Upon Agency-Initiated Contact
Government agency direct solicitation of Engineer X
Loyalty to Firms A and B who had arranged the sub-consultant relationship
Engineer X, having been arranged as sub-consultant by Firms A and B, responded to the government agency's independent direct solicitation by submitting his qualifications — an action that was ethically permissible because the agency independently initiated contact after determining the primes would not make a substantial contribution, and Engineer X did not actively solicit the direct engagement.
Engineer X's response to the agency's direct inquiry was ethically permissible: the agency independently concluded the primes would not make a substantial contribution, the work was entirely within Engineer X's expertise, and Engineer X responded without definitively committing — a measured, honest response to an agency-initiated inquiry.
Specialist Non-Supplanting Direct Engagement Permissibility Principle
The agency's independent judgment that the primes would not make a substantial contribution, combined with Engineer X's passive response to agency-initiated contact, resolves the tension in favor of permissibility of the direct engagement.
Engineer X Fully Qualified for Specialized Work
Engineer X's competence relative to the specialized technical work
Not terminated — persistent competence state
Government agency's recognition that the work is entirely within Engineer X's field of expertise
{'specialty': 'Highly qualified specialist of the type required', 'prior_role': 'Sub-consultant arranged by Firms A and B', 'new_role': 'Prospective direct prime contractor', 'anti_supplanting_analysis': "No definite steps taken toward Firms A or B's engagement; no bar under Section 11(a)"}
A recognized technical specialist initially arranged as sub-consultant by Firms A and B, subsequently contacted directly by the government agency and invited to submit qualifications as prime professional. The Discussion finds no ethical bar to accepting the direct contract under Section 11(a) but notes Engineer X must consider whether prior arrangements with Firms A or B create obligations.
{'type': 'arranged_by', 'target': 'Firm A Nominal Prime Contractor'}
{'type': 'arranged_by', 'target': 'Firm B Nominal Prime Contractor'}
{'type': 'directly_solicited_by', 'target': 'Government Agency Specialized Technical Services Solicitor'}
Non-Supplanting Direct Contract Accepting Specialist Engineer
We find no grounds in the code which would prevent Engineer X and his firm from accepting the contract on a direct basis if so desired by the client and the firm.
Engineer X should consider carefully whether his accepting the contract independently would violate any arrangement he might have had with Firms A or B.
Engineer X Personal Conscience Review of Prior Arrangements Before Independent Acceptance
Engineer X had made prior informal arrangements to serve as sub-consultant to both Firms A and B; the BER noted that even though the supplanting prohibition was not formally triggered, Engineer X should carefully consider whether independent acceptance would violate those prior arrangements.
Specialist Prior Arrangement Personal Conscience Review Before Independent Acceptance Constraint
Engineer X was constrained to carefully consider, before accepting the direct prime contract from the government agency, whether such acceptance would violate any arrangement he may have had with Firms A or B — even though the formal supplanting prohibition was not triggered, the personal conscience review of prior informal arrangements remained an ethical obligation.
NSPE Code of Ethics (general ethical conduct provisions); BER advisory note
We might note, however, that Engineer X should consider carefully whether his accepting the contract independently would violate any arrangement he might have had with Firms A or B.
Before accepting the direct prime contract from the government agency
Engineer X Prime Contract Acceptance Decision
Engineer X Prior Arrangement Disclosure Upon Direct Agency Solicitation
Engineer X had been independently arranged as sub-consultant by both Firms A and B before being directly solicited by the government agency. The BER noted Engineer X did not state definitively whether he would accept the contract independently.
Specialist Sub-Consultant Prior Arrangement Disclosure Upon Direct Agency Solicitation Obligation
Engineer X was obligated to disclose to the government agency the existence of his prior sub-consultant arrangements with both Firms A and B when submitting qualifications for direct prime engagement, to ensure the agency had complete information about the procurement context.
Upon submitting qualifications in response to the agency's direct solicitation
Honesty Principle Invoked in Engineer X Qualification Submission: Engineer X responded to the government agency's direct solicitation by submitting his qualifications but not stating definitively whether he would accept the contract independently.
Engineer X Prior Informal Commitments to Competing Firms
From the time Engineer X made arrangements with Firms A and B through the resolution of the procurement
Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X
Expert Prior Informal Commitment Conflicting with Direct Agency Solicitation State
Engineer X's prior arrangements with Firms A and B versus direct agency solicitation
Unresolved in the case text — Engineer X submitted qualifications without definitive commitment
The government agency...contacted Engineer X...asked him if he would be interested in taking the contract on his own firm's account.
Engineer X making arrangements with both Firm A and Firm B to serve as subconsultant, followed by direct agency solicitation to serve as prime
Engineer X Prior Sub-Arrangement Disclosure Upon Direct Agency Solicitation
Engineer X had made prior informal arrangements with both Firms A and B to serve as their sub-consultant. When the agency directly solicited him for prime engagement, he submitted qualifications without definitively committing to the prime role, but the prior arrangements required disclosure to preserve procurement integrity.
Specialist Prior Sub-Arrangement Competing-Firm Disclosure Constraint
Engineer X was constrained to disclose to the government agency, when submitting his qualifications for direct prime engagement, the existence of his prior informal arrangements with Firms A and B to serve as their sub-consultant, so the agency could make a fully informed procurement decision.
NSPE Code of Ethics — Non-deception provisions; honest representation obligations; procurement integrity standards
Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X...
At the time of submitting qualifications in response to the government agency's direct solicitation
The government agency... asked him if he would be interested in taking the contract on his own firm's account.
Engineer X Prior Sub-Consultant Arrangement Conflict Review Before Independent Acceptance
Engineer X had been independently arranged as sub-consultant by both Firms A and B. The BER noted this as a prudential obligation even while finding no ethics code bar to direct engagement.
Prior Sub-Consultant Arrangement Conflict Review Before Independent Acceptance Obligation
Engineer X was obligated to carefully consider whether accepting the direct prime contract from the government agency would violate any arrangement he had made with Firms A or B as part of the sub-consultant arrangements, and to resolve any such conflicts before proceeding with independent acceptance.
Engineer X Prior Sub-Consultant Arrangement Disclosure in Direct Solicitation Response
Engineer X had been independently arranged as sub-consultant by both Firms A and B before the agency contacted him directly; his qualification submission should have acknowledged these prior arrangements.
Engineer X was obligated to disclose to the government agency, when submitting his qualifications for direct prime engagement, the existence of his prior sub-consultant arrangements with both Firms A and B, to ensure the agency had complete information about the procurement context.
The government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X, advising him that two firms had indicated their intention to use him as a special technical consultant if awarded the contract
At the time of submitting qualifications to the government agency in response to the direct solicitation
Engineer X Qualifications Submission Without Commitment
Engineer X Qualifications Submission Without Commitment → Engineer X Prime Contract Acceptance Decision
Engineer X Specialist Direct Engagement Non-Supplanting Permissibility Recognition
Specialist Direct Engagement Agency-Initiated Non-Supplanting Permissibility Recognition Capability
Engineer X correctly recognized (or was entitled to recognize) that responding to the government agency's direct solicitation did not constitute improper supplanting of Firms A or B, because no active contract or formal selection of those firms had occurred and the agency itself was exercising its procurement authority.
Engineer X responding to government agency's direct solicitation after having been arranged as sub-consultant by Firms A and B
BER Discussion's finding that Engineer X could accept the direct contract without violating the supplanting prohibition, given that neither Firm A nor Firm B had any commitment or expectation of being awarded the contract
Under this reading we find that neither Firm A nor Firm B had any commitment or expectation of being awarded the contract at the time the agency contacted Engineer X.
{'expertise': 'Recognized expert in the highly specialized technical subject matter', 'firm_status': 'Principal in his own firm', 'prior_arrangements': 'Pre-arranged as sub-consultant by both Firm A and Firm B', 'response_to_agency': 'Submitted qualifications without definitive commitment to serve as prime', 'work_scope': 'Entirely within his field of expertise; no other firms required'}
A recognized expert and firm principal initially arranged by both Firms A and B as their specialized sub-consultant. Subsequently contacted directly by the government agency and invited to submit qualifications as prime professional. Submitted qualifications without definitively committing to serve as prime. The work is entirely within his field of expertise and requires no other firms.
{'type': 'pre_arranged_by', 'target': 'Firm A Nominal Prime Contractor'}
{'type': 'pre_arranged_by', 'target': 'Firm B Nominal Prime Contractor'}
Specialist Expert Repositioned as Prime Engineer
Engineer X, a recognized expert in the technical subject matter and a principal in his own firm
the government agency...asked him if he would be interested in taking the contract on his own firm's account
Engineer X Sub-Consultant Prior Arrangement Disclosure Obligation
Sub-Consultant Prior Arrangement Disclosure Upon Direct Agency Solicitation Capability
Engineer X required the capability to recognize his obligation to disclose to the government agency, when submitting his qualifications for direct prime engagement, the existence of his prior sub-consultant arrangements with Firms A and B
Engineer X was contacted directly by the agency after being arranged as sub-consultant by both Firms A and B; he submitted qualifications without definitively disclosing the prior arrangements
Partial: Engineer X submitted his qualifications but did not definitively state whether he would undertake the work as prime professional; the case indicates he should have disclosed the prior arrangements
Engineer X Sub-Consultant Prior Arrangement Disclosure Upon Direct Agency Solicitation
Engineer X was obligated to disclose to the government agency, when submitting qualifications for direct prime engagement, the existence of his prior sub-consultant arrangements with both Firms A and B.
Engineer X contacted directly by government agency after having been arranged as sub-consultant by both Firms A and B in their respective solicitation responses
BER Discussion's identification of Engineer X's disclosure obligation regarding prior sub-consultant arrangements when responding to the agency's direct solicitation
Engineer X Supplanting Prohibition Definite-Steps Threshold Verification
Engineer X was contacted directly by the government agency after being arranged as sub-consultant by both Firms A and B. The BER applied the 'definite steps' threshold from Cases 62-10 and 62-18 to find no supplanting prohibition was triggered.
Supplanting Prohibition Definite-Steps Threshold Verification Obligation
Engineer X was obligated to verify whether the supplanting prohibition was triggered before accepting the direct engagement — specifically, whether either Firm A or Firm B had been informed by the agency that they were selected to negotiate, or whether the agency specifically intended to retain either firm. The BER found neither condition was met, confirming Engineer X could ethically accept the direct engagement.
Upon receiving the government agency's direct solicitation
the mandate of Section 11 (a) does not come into play unless '. . . the engineer has been informed by the client that he has been selected to negotiate an agreement for a specific project,' (Case 62-10) or that it be shown that '. . . the client specifically intended to retain the engineer for the . . . work' (Case 62-18).
Engineer X Supplanting Prohibition Non-Activation — No Definite Client Selection
Firms A and B had only informally arranged for Engineer X's services as sub-consultant but had not been selected or entered into negotiation with the agency. The supplanting prohibition therefore did not bar Engineer X from accepting direct agency engagement.
Supplanting Rule Contract-or-Negotiation Predicate Non-Expansion Constraint
The anti-supplanting prohibition did not constrain Engineer X from accepting the government agency's direct solicitation because neither Firm A nor Firm B had been selected or entered into negotiation with the agency for the specific contract — the two-part predicate for the supplanting prohibition was not satisfied.
NSPE Code of Ethics Section 11(a) (former) — Supplanting prohibition; NSPE BER Cases 62-10 and 62-18
At the time Engineer X received and responded to the government agency's direct solicitation
Engineer X Supplanting Prohibition Non-Activation — No Definite Steps by Client
Engineer X was named as sub-consultant by both Firms A and B in their qualification submissions, but neither firm had been selected for negotiation or awarded a contract; the BER found the supplanting prohibition was not triggered and Engineer X could accept the direct engagement.
Engineer X was not constrained by the Section 11(a) supplanting prohibition from accepting the direct agency engagement because neither Firm A nor Firm B had been selected for negotiation or had a contract for the specific work — the anti-supplanting prohibition's two-part predicate (existing contract or definite steps toward selection) was not satisfied.
NSPE Code of Ethics Section 11(a) (former); BER Cases 62-10 and 62-18
At the time the government agency directly solicited Engineer X
Ethics Code Individual-Person Applicability Invoked in Organizational Context
The Discussion disposes of the threshold question of whether the ethics code applies to the government agency and consulting firms by establishing that the code applies to the individual engineers within those organizations who had the power of decision or effective recommendation — not to the organizations as such — and that business form cannot negate individual professional obligations.
In this context, the principle requires treating the case as involving the conduct of individual engineers within the agency and firms who held decision-making or recommendation authority, regardless of whether those entities are corporations, government agencies, or consulting firms.
NSPE Board of Directors (January 1971 directive)
Ethics Code Individual-Person Applicability Non-Waivability Through Business Form
The Code of Ethics applies only to individual engineers and not to organizations as such... business form or type should not negate nor influence conformance of individuals to the code.
No tension — the principle is applied as a threshold dispositional rule that clears the way for substantive ethics analysis of individual conduct.
Although this note refers to corporations rather than government agencies or firms, its premise applies to all forms of organizations, including governmental agencies and consulting firms.
Real persons in turn establish and implement policies within business structures.
The Code of Ethics applies only to individual engineers and not to organizations as such.
We therefore treat the case before us as involving actions of engineers in the governmental agency and consulting firms in situations in which the engineer(s) had the power of decision or effective recommendation as to the procedure followed.
business form or type should not negate nor influence conformance of individuals to the code.
Ethics Code Individual Applicability to Government Agency Engineers in Procurement
The BER disposed of the threshold technicality by establishing that the ethics code applies to individual engineers within all organizational forms, including government agencies and consulting firms, not merely to corporations.
Engineers within the government agency and consulting firms (Firms A, B) with decision-making or recommendation authority
Ethics Code Business-Form Non-Waivability Individual Engineer Compliance Obligation
Engineers within the government agency and within Firms A and B who had the power of decision or effective recommendation were personally obligated to comply with the ethics code, regardless of the organizational form (governmental agency or consulting firm) through which they acted.
business form or type should not negate nor influence conformance of individuals to the code
Fairness in Professional Competition Implicated by Nominal Prime Responses
Competitive procurement process among eight responding firms
By responding affirmatively to the government solicitation while intending only a nominal role, Firms A and B gained an unfair competitive advantage over other firms that might have responded honestly about their capabilities or declined to respond — and over Engineer X's firm, which was not on the original contact list and could not respond directly.
Competitive fairness requires that all firms respond honestly about their capabilities. Firms A and B's nominal prime strategy distorted the competitive field by allowing them to advance in the selection process based on Engineer X's expertise rather than their own — an unfair competitive advantage over firms that responded based on their genuine capabilities.
Eight firms responded affirmatively. Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X.
Fairness in competition requires honest representation of capabilities; competitive advantage obtained through misrepresentation of substantive contribution is not a legitimate form of competition.
Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X, a recognized expert in the technical subject matter and a principal in his own firm, to provide the highly specialized expertise and that they would themselves furnish all other services involved.
Firm A Artfully Misleading Solicitation Statement
Artful Misrepresentation in Negotiation Recognition Capability
Firm A required the capability to recognize that its statement — technically true in that it had arranged Engineer X — was artfully constructed to create a false impression that it would make a substantive prime contribution, constituting an ethical violation
Firm A's solicitation response was technically true (it had arranged Engineer X) but misleadingly implied substantive prime contribution capacity
Failure: Firm A's statement that it had arranged Engineer X while it would furnish all other services created the false impression of substantive prime capability when those other services were nominal
stated that they had each made arrangements with Engineer X, a recognized expert in the technical subject matter and a principal in his own firm, to provide the highly specialized expertise and that they would themselves furnish all other services involved.
Firm A Broker-Only Role Transparency and Specialist Referral Duty
Firm A recognized that all substantive technical work fell within Engineer X's expertise and that its own contribution would be limited to nominal administrative services; it should have disclosed this and recommended direct engagement of Engineer X.
Broker-Only Prime Role Transparency and Specialist-Direct Referral Obligation
Firm A was obligated to disclose to the government agency that its own contribution would be nominal and to recommend that the agency engage Engineer X directly, rather than interposing itself as a nominal prime contractor.
At the time of preparing and submitting the solicitation response, or upon recognizing the nominal nature of its own contribution
The government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X
Firm A Honorable Procurement Conduct Failure
Honorable Procurement Conduct Self-Regulation Capability
Firm A required the capability to conduct itself honorably in the government procurement by refraining from interposing itself as a nominal prime contractor between the agency and the specialist who could perform all required work directly
Firm A's conduct in the procurement was found to be inconsistent with honorable, responsible, and fair professional conduct
Failure: Firm A interposed itself as a nominal prime contractor, exploiting its prior arrangement with Engineer X to gain a competitive position it was not substantively qualified to hold
Firm A Nominal Prime Broker Interposition Prohibition
Firm A responded affirmatively to the government agency's solicitation, stating it had arranged for Engineer X's specialized expertise while it would furnish all other services — services that were in actuality nominal in nature.
Nominal Prime Broker Interposition Prohibition Constraint
Firm A was prohibited from representing itself as a capable prime contractor to the government agency when its actual contribution would be nominal and all substantive technical work would be performed by Engineer X as sub-consultant.
NSPE Code of Ethics — Sections on honest qualification representation, honorable competitive conduct, and prime professional responsibility standard; NSPE BER precedent on Section 6 specialist obligations
Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X... to provide the highly specialized expertise and that they would themselves furnish all other services involved.
At the time of submitting qualifications to the government agency and throughout the procurement process
The government agency, concluding that Firms A and B would not make a substantial contribution to the work...
Firm A Nominal Prime Capability Misrepresentation in Government Solicitation
Government agency solicitation for highly specialized engineering services; Firm A responded affirmatively stating it had arranged Engineer X as sub-consultant and would furnish all other services, but those other services were nominal.
Nominal Prime Capability Misrepresentation Non-Commission Obligation
Firm A was obligated to refrain from representing itself as a capable prime contractor furnishing all other services when, in actuality, those other services would be nominal in nature, with all substantive technical work to be performed by Engineer X.
At the time of submitting the solicitation response to the government agency
{'arrangement': 'Pre-arranged Engineer X as specialized sub-consultant', 'own_contribution': 'Nominal — other services of peripheral nature', 'qualification_basis': "Engineer X's expertise, not firm's own"}
Responded affirmatively to the government solicitation, stating it had arranged Engineer X as a specialized sub-consultant while it would furnish all other (in actuality nominal) services. Sought to serve as prime contractor despite being unable to substantially contribute to the core specialized work.
{'type': 'arranged_specialist', 'target': 'Engineer X Specialist Expert Repositioned as Prime'}
{'type': 'competing_with', 'target': 'Firm B Nominal Prime Contractor'}
{'type': 'solicited_by', 'target': 'Government Agency Specialized Technical Services Solicitor'}
Nominal Prime Contractor Engineering Firm
Firm A Nominal Prime Contribution Self-Assessment Failure
Nominal Prime Contribution Self-Assessment and Broker-Role Transparency Capability
Firm A required the capability to honestly assess that its planned contribution was nominal and to disclose this to the agency rather than representing itself as a capable prime contractor furnishing all other services
Firm A responded affirmatively to the government solicitation, arranging Engineer X as sub-consultant while claiming to furnish all other services — services that were in actuality nominal
Failure: Firm A stated it would furnish all other services when those services would be nominal in nature, without disclosing the nominal character of its contribution
Firm A Nominal Prime Contribution Substantiality Threshold Failure
Firm A's proposed contribution was limited to nominal administrative services while Engineer X would perform all substantive technical work, falling below the substantiality threshold required for ethical prime engagement.
Nominal Prime Contribution Substantiality Threshold Constraint
Firm A was constrained by the prime professional responsibility standard to make a substantive technical contribution commensurate with a prime role; its planned nominal contribution failed to meet this threshold, prohibiting it from ethically accepting the prime role.
NSPE Code of Ethics Section 6 (former) — Prime Professional Responsibility Standard; NSPE BER precedent
Throughout the procurement and any resulting contract performance
Firm A Nominal Prime Interposition Public Procurement Harm Recognition
Nominal Prime Interposition Public Procurement Harm Recognition Capability
Firm A required the capability to recognize that interposing itself as a nominal prime contractor would harm the public procurement process by adding cost, reducing accountability, and subverting the agency's ability to engage the most qualified firm directly
The government agency ultimately had to bypass Firms A and B and contact Engineer X directly, demonstrating the procurement distortion caused by the nominal prime strategy
Failure: Firm A did not recognize or act on the procurement harms caused by its nominal prime interposition strategy
Firm A Pre-Acceptance Competence Self-Assessment Deficiency
Pre-Acceptance Competence Self-Assessment Capability
Firm A required the capability to honestly assess whether it possessed the technical competence to make a substantive prime contribution before responding affirmatively to the specialized government solicitation
The work required highly specialized technical knowledge that Firm A did not possess, yet it responded affirmatively as a prime contractor
Failure: Firm A accepted a prime contractor role without possessing the specialized expertise required, planning to rely entirely on Engineer X for the substantive technical work
Firm A Prime Substantiality Threshold Determination
From Firm A's submission of qualifications through the agency's determination that Firm A would contribute nominally
Firm A and Firm B were primarily offering to serve in the capacity of a 'broker' and would furnish only the services involved in the negotiations and administration of the contract, looking to Engineer X as the sole technical contributor
Prime Engineer Substantiality Threshold Determination State
Firm A's proposed prime role with Engineer X as sole technical contributor
Agency determination that Firm A would not make a substantial contribution; agency direct contact with Engineer X
Firms A and B should not have offered to undertake the prime contract if their only substantive service would be to arrange for the services of Engineer X
Firm A proposed to serve as prime professional while arranging for Engineer X to provide all technical services
Firm A Specialist-Retention Clause Contextual Reading Violation
Firm A proposed to serve as prime contractor with Engineer X as sole technical contributor, invoking the specialist-retention provision to justify this arrangement; the BER found this misread the clause out of context of the full Section 6 substantiality requirement.
Firm A and its decision-making engineers
Prime Professional Specialist-Retention Clause Contextual Substantiality Reading Constraint
Firm A was constrained from invoking the specialist-retention clause of Section 6 to justify its prime role when its only substantive service would be to arrange for Engineer X's services; the specialist-retention clause required reading in context of the full Section 6 competence requirement, which presupposes that the prime is performing substantial services.
NSPE Code of Ethics Section 6 (former), read in full context
We read this procedure in the context of the full Section 6, however, and conclude that in totality Section 6 contemplates that a prime professional engineer will be expected to retain or recommend the retention of experts and specialists in situations in which the prime professional engineer is performing substantial services of a project.
At the time of submitting qualifications and proposing the prime-contractor arrangement
we believe that Firms A and B should not have offered to undertake the prime contract if their only substantive service would be to arrange for the services of Engineer X.
Firm A Specialist-Retention Provision Contextual Reading Violation
Firm A responded affirmatively to the government solicitation, arranging Engineer X as sub-consultant while its own contribution would be nominal — limited to brokerage and administrative coordination.
Engineers within Firm A with authority over the solicitation response
Specialist-Retention Provision Prime-Substantive-Contribution Contextual Reading Obligation
Engineers within Firm A were obligated to read the specialist-retention provision of Section 6 in context of the full competence requirement, recognizing that the provision does not permit accepting a prime role when the firm's only substantive service would be to arrange for Engineer X's services, with no substantial technical contribution of its own.
The second clause of Section 6 recognizes the propriety and value of the prime professional or client retaining the services of experts and specialists in the interest of the project.
At the time of preparing and submitting the solicitation response
On that basis we believe that Firms A and B should not have offered to undertake the prime contract if their only substantive service would be to arrange for the services of Engineer X.
Firm A Substantive Prime Contribution Threshold Failure
Firm A proposed to serve as prime contractor for highly specialized engineering services while its own contribution would be nominal, with all substantive work performed by Engineer X.
Substantive Prime Contribution Threshold Compliance Obligation
Firm A was obligated to ensure it would make a substantive technical contribution commensurate with a prime contractor role before accepting that role; having only nominal services to offer, Firm A should have declined the prime role or restructured the engagement.
Prior to submitting the solicitation response and throughout the procurement process
The government agency, concluding that Firms A and B would not make a substantial contribution to the work
Firm A Technically True Misleading Statement in Procurement
Technically True Misleading Statement Recognition and Avoidance Capability
Firm A required the capability to recognize that its technically accurate statement about having arranged Engineer X was nonetheless materially misleading because it omitted the nominal nature of its own planned contribution
Firm A's solicitation response exploited the ambiguity between 'having arranged a specialist' and 'being a capable prime contractor'
Failure: Firm A's statement was technically accurate but omitted the critical context that its own services would be nominal, creating a false impression of substantive prime capability
stated that they had each made arrangements with Engineer X
that they would themselves furnish all other services involved
Firm B Artfully Misleading Solicitation Statement
Firm B required the capability to recognize that its statement — technically true in that it had arranged Engineer X — was artfully constructed to create a false impression that it would make a substantive prime contribution, constituting an ethical violation
Firm B's solicitation response was technically true (it had arranged Engineer X) but misleadingly implied substantive prime contribution capacity
Failure: Firm B's statement that it had arranged Engineer X while it would furnish all other services created the false impression of substantive prime capability when those other services were nominal
Firm B Broker-Only Role Transparency and Specialist Referral Duty
Firm B recognized that all substantive technical work fell within Engineer X's expertise and that its own contribution would be limited to nominal administrative services; it should have disclosed this and recommended direct engagement of Engineer X.
Firm B was obligated to disclose to the government agency that its own contribution would be nominal and to recommend that the agency engage Engineer X directly, rather than interposing itself as a nominal prime contractor.
Firm B Honorable Procurement Conduct Failure
Firm B required the capability to conduct itself honorably in the government procurement by refraining from interposing itself as a nominal prime contractor between the agency and the specialist who could perform all required work directly
Firm B's conduct in the procurement was found to be inconsistent with honorable, responsible, and fair professional conduct
Failure: Firm B interposed itself as a nominal prime contractor, exploiting its prior arrangement with Engineer X to gain a competitive position it was not substantively qualified to hold
Firm B Nominal Prime Broker Interposition Prohibition
Firm B, like Firm A, responded affirmatively to the government agency's solicitation, stating it had arranged for Engineer X's specialized expertise while it would furnish all other services — services that were in actuality nominal in nature.
Firm B was prohibited from representing itself as a capable prime contractor to the government agency when its actual contribution would be nominal and all substantive technical work would be performed by Engineer X as sub-consultant.
NSPE Code of Ethics — Sections on honest qualification representation, honorable competitive conduct, and prime professional responsibility standard
Firm B Nominal Prime Capability Misrepresentation in Government Solicitation
Government agency solicitation for highly specialized engineering services; Firm B responded affirmatively stating it had arranged Engineer X as sub-consultant and would furnish all other services, but those other services were nominal.
Firm B was obligated to refrain from representing itself as a capable prime contractor furnishing all other services when, in actuality, those other services would be nominal in nature, with all substantive technical work to be performed by Engineer X.
Responded affirmatively to the government solicitation, stating it had independently arranged Engineer X as a specialized sub-consultant while it would furnish all other (in actuality nominal) services. Sought to serve as prime contractor despite being unable to substantially contribute to the core specialized work.
{'type': 'competing_with', 'target': 'Firm A Nominal Prime Contractor'}
Firm B Nominal Prime Contribution Self-Assessment Failure
Firm B required the capability to honestly assess that its planned contribution was nominal and to disclose this to the agency rather than representing itself as a capable prime contractor furnishing all other services
Firm B responded affirmatively to the government solicitation, arranging Engineer X as sub-consultant while claiming to furnish all other services — services that were in actuality nominal
Failure: Firm B stated it would furnish all other services when those services would be nominal in nature, without disclosing the nominal character of its contribution
Firm B Nominal Prime Contribution Substantiality Threshold Failure
Firm B's proposed contribution was limited to nominal administrative services while Engineer X would perform all substantive technical work, falling below the substantiality threshold required for ethical prime engagement.
Firm B was constrained by the prime professional responsibility standard to make a substantive technical contribution commensurate with a prime role; its planned nominal contribution failed to meet this threshold, prohibiting it from ethically accepting the prime role.
Firm B Nominal Prime Interposition Public Procurement Harm Recognition
Firm B required the capability to recognize that interposing itself as a nominal prime contractor would harm the public procurement process by adding cost, reducing accountability, and subverting the agency's ability to engage the most qualified firm directly
Failure: Firm B did not recognize or act on the procurement harms caused by its nominal prime interposition strategy
Firm B Pre-Acceptance Competence Self-Assessment Deficiency
Firm B required the capability to honestly assess whether it possessed the technical competence to make a substantive prime contribution before responding affirmatively to the specialized government solicitation
The work required highly specialized technical knowledge that Firm B did not possess, yet it responded affirmatively as a prime contractor
Failure: Firm B accepted a prime contractor role without possessing the specialized expertise required, planning to rely entirely on Engineer X for the substantive technical work
Firm B Prime Substantiality Threshold Determination
From Firm B's submission of qualifications through the agency's determination that Firm B would contribute nominally
Firm A and Firm B were primarily offering to serve in the capacity of a 'broker'
Firm B's proposed prime role with Engineer X as sole technical contributor
Agency determination that Firm B would not make a substantial contribution; agency direct contact with Engineer X
neither would contribute very much, if anything, to the project
Firm B proposed to serve as prime professional while arranging for Engineer X to provide all technical services
Firm B Specialist-Retention Clause Contextual Reading Violation
Firm B proposed to serve as prime contractor with Engineer X as sole technical contributor, invoking the specialist-retention provision to justify this arrangement; the BER found this misread the clause out of context of the full Section 6 substantiality requirement.
Firm B and its decision-making engineers
Firm B was constrained from invoking the specialist-retention clause of Section 6 to justify its prime role when its only substantive service would be to arrange for Engineer X's services; the specialist-retention clause required reading in context of the full Section 6 competence requirement, which presupposes that the prime is performing substantial services.
Firm B Specialist-Retention Provision Contextual Reading Violation
Firm B responded affirmatively to the government solicitation, independently arranging Engineer X as sub-consultant while its own contribution would be nominal.
Engineers within Firm B with authority over the solicitation response
Engineers within Firm B were obligated to read the specialist-retention provision of Section 6 in context of the full competence requirement, recognizing that the provision does not permit accepting a prime role when the firm's only substantive service would be to arrange for Engineer X's services, with no substantial technical contribution of its own.
Firm B Substantive Prime Contribution Threshold Failure
Firm B proposed to serve as prime contractor for highly specialized engineering services while its own contribution would be nominal, with all substantive work performed by Engineer X.
Firm B was obligated to ensure it would make a substantive technical contribution commensurate with a prime contractor role before accepting that role; having only nominal services to offer, Firm B should have declined the prime role or restructured the engagement.
Firm B Technically True Misleading Statement in Procurement
Firm B required the capability to recognize that its technically accurate statement about having arranged Engineer X was nonetheless materially misleading because it omitted the nominal nature of its own planned contribution
Firm B's solicitation response exploited the ambiguity between 'having arranged a specialist' and 'being a capable prime contractor'
Failure: Firm B's statement was technically accurate but omitted the critical context that its own services would be nominal, creating a false impression of substantive prime capability
Firms A and B Artfully Misleading Procurement Statement Prohibition
Firms A and B's statements were technically true (they had arranged for Engineer X and would furnish other services) but created the materially false impression that they would make a substantial prime contribution, when in actuality their services would be nominal.
Business Negotiation Artfully Misleading Statement Prohibition Constraint
Firms A and B were prohibited from making technically true but artfully misleading statements in their solicitation responses — specifically, representing that they had arranged for Engineer X's expertise and would furnish all other services, when those other services were nominal, creating a false impression of substantive prime capability.
NSPE Code of Ethics — Non-deception provisions; prohibition on misleading statements in professional dealings
At the time of submitting qualification statements to the government agency
Firms A and B Artfully Misleading Statement Prohibition in Procurement Response
The statement that firms would 'furnish all other services' was technically true but artfully misleading because those other services were nominal in nature, creating a false impression of substantive capability.
Artfully Misleading Statement Prohibition Obligation
Firms A and B were obligated to refrain from making statements in their solicitation responses that were technically true (they had arranged Engineer X and would furnish other services) but designed to mislead the agency into believing they would make a substantial contribution, when those other services were nominal.
At the time of preparing and submitting solicitation responses
{'prescribed_action': 'Recommend agency directly contact Engineer X', 'actual_action': 'Offered to serve as prime contractor', 'ethical_gap': 'Failed to refer; instead misrepresented substantive contribution'}
The Discussion's normative finding is that Firms A and B, recognizing they could contribute only brokerage services, should have recommended to the agency that it directly contact Engineer X rather than offering to serve as prime contractors. This individual captures the prescriptive ethical path the Discussion identifies for firms in this position.
{'type': 'should_have_advised', 'target': 'Government Agency Specialized Technical Services Solicitor'}
{'type': 'should_have_referred', 'target': 'Engineer X Non-Supplanting Direct Contract Accepting Specialist'}
Broker-Only Prime Engineering Firm Recommending Specialist Referral
Firms A and B Broker-Only Role Specialist Referral Obligation
Firms A and B could contribute only brokerage and administrative coordination; the entire substantive technical scope fell within Engineer X's expertise. The BER found their ethical position was to recommend direct engagement of Engineer X.
Engineers within Firms A and B with authority over the solicitation response
Engineers within Firms A and B, recognizing that their only substantive service would be to arrange for Engineer X's services, were obligated to recommend to the agency that it directly contact Engineer X as the better-qualified engineer for the services required, rather than offering to serve as nominal prime contractors.
Firms A and B Competence Gap Subconsultant Engagement Planning Misuse
Competence Gap Subconsultant Engagement Planning Capability
Firms A and B required the capability to recognize that engaging Engineer X as a sub-consultant to fill a competence gap is only ethically permissible when the prime firm itself makes a substantive contribution — not when the prime role is purely nominal brokerage
The legitimate use of sub-consultant engagement to fill competence gaps requires the prime firm to make a substantive contribution; Firms A and B's planned contribution was nominal
Failure: Firms A and B attempted to use the sub-consultant engagement mechanism to position themselves as prime contractors without making any substantive technical contribution
Firms A and B Competitive Procurement Fairness Violation
By representing themselves as capable prime contractors while planning to rely entirely on Engineer X for all substantive technical work, Firms A and B undermined the fairness of the competitive procurement process and the agency's ability to make a genuinely qualification-based selection.
Competitive Procurement Fairness Constraint
Firms A and B were constrained by competitive procurement fairness requirements to not undermine the government agency's ability to identify and engage the most qualified firm through the open qualification-based selection process by interposing themselves as nominal prime contractors.
QBS procurement law; NSPE Code of Ethics competitive procurement provisions
Throughout the government solicitation process
Firms A and B Ethical Referral Obligation — Recommend Direct Specialist Engagement
The BER found that Firms A and B's ethical position, given their nominal contribution, was to recommend direct agency contact with Engineer X rather than to submit themselves as prime contractors.
Firms A and B were constrained, upon recognizing that their only substantive service would be brokerage, to recommend to the agency that it directly contact Engineer X as the better qualified engineer for the services required, rather than interposing themselves as nominal prime contractors.
NSPE Code of Ethics Section 6 (former); general ethical conduct provisions
At the time of preparing and submitting qualification responses
Firms A and B Ethics Code Individual Applicability Recognition Failure
Ethics Code Government-Agency and Consulting-Firm Individual Engineer Applicability Recognition Capability
Engineers within Firms A and B who had the power of decision or effective recommendation were individually obligated to apply the ethics code to their own conduct, regardless of the consulting firm organizational form.
Government solicitation for highly specialized engineering services; Firms A and B responded as nominal prime contractors while arranging Engineer X as sole technical contributor
Failure to recognize individual ethics code applicability when structuring broker-only prime contractor responses to government solicitation
Engineers within Firms A and B with decision-making power or effective recommendation authority
Firms A and B Geographic Factor Substantiality Calibration Failure
The BER noted that geographic location, familiarity with local conditions, and other pertinent factors should be considered in defining 'substantial,' implying that Firms A and B should have assessed whether such factors elevated their contribution above nominal — but the facts indicated their contribution remained brokerage-only.
Firms A and B and their decision-making engineers
Prime Substantiality Geographic and Local Factor Calibration Constraint
Firms A and B were constrained to assess whether their proposed contributions — including any geographic, local-conditions familiarity, or other pertinent factors — met the substantiality threshold before accepting the prime role; the definition of 'substantial' required calibration to include such factors, but even with this calibration, their contributions remained nominal.
NSPE Code of Ethics Section 6 (former); BER interpretive guidance on 'substantial'
In defining the word 'substantial,' consideration should be given to benefits to the client due to geographic locations, familiarity with local conditions, and other pertinent factors.
At the time of assessing whether to submit qualifications for the prime role
If Firms A and B had proposed to provide a substantial portion of the work through their own capabilities, they acted quite appropriately in making arrangements with Engineer X to provide his expertise and proposing this mode of service to the client.
Firms A and B Honest Competence Representation Violation in Specialized Procurement
Firms A and B responded affirmatively to a government solicitation for highly specialized services, implying substantive capability while their actual contribution would be nominal.
Honest Competence Representation in Procurement Obligation
Firms A and B were obligated to represent their qualifications and capability honestly in their solicitation responses, including accurately characterizing the nominal nature of their own technical contribution and not creating a false impression of substantive team capability.
At the time of preparing and submitting solicitation responses to the government agency
Firms A and B Honorable Competitive Conduct in Specialized Procurement
Firms A and B's interposition as nominal prime contractors, when they could not make a substantive contribution, constituted dishonorable competitive conduct that undermined the integrity of the qualification-based selection process.
Procurement Competition Honorable Conduct Constraint
Firms A and B were required to conduct themselves honorably and fairly in the government procurement process, which prohibited interposing themselves as nominal prime contractors between the agency and Engineer X when they could not make a substantive contribution.
NSPE Code of Ethics Sections II.5, III.6, III.7 — Honorable competitive conduct; prohibition on improper competitive methods
Throughout the government solicitation and procurement process
Firms A and B Honorable Professional Conduct in Specialized Procurement
By responding affirmatively to a specialized procurement while intending only a nominal role, Firms A and B gained an unfair competitive advantage over firms that honestly disclosed their limitations or did not respond.
Honorable Professional Conduct in Procurement Obligation
Firms A and B were obligated to conduct themselves honorably and fairly in the government procurement process, which required not interposing themselves as nominal prime contractors to gain competitive advantage when their actual contribution would be nominal.
Firms A and B Hypothetical Compliant Path Specialist Retention
Prime Contractor Specialist-Retention Provision Substantive-Contribution Contextual Reading Capability
Had Firms A and B proposed to provide a substantial portion of the work through their own capabilities, they would have correctly applied the specialist-retention provision by retaining Engineer X for additional expertise while performing substantial prime services themselves.
BER Discussion's identification of the hypothetical compliant scenario for Firms A and B
Hypothetical scenario identified by BER Discussion as the compliant path: firms performing substantial work and retaining Engineer X for specialized expertise
Engineers within Firms A and B (hypothetical compliant scenario)
Firms A and B Hypothetical Compliant Path Substantive Contribution Geographic Calibration
The BER identified the hypothetical compliant path: if Firms A and B had proposed substantial contributions of their own, their arrangement with Engineer X would have been appropriate.
Substantive Contribution Geographic and Local Factor Calibration Obligation
Had Firms A and B proposed to provide a substantial portion of the work through their own capabilities — including geographic, local-conditions, or other contextual contributions — they would have satisfied the substantiality threshold and could ethically have arranged Engineer X as a specialist sub-consultant.
Hypothetical — at the time of solicitation response preparation
Firms A and B Hypothetical Geographic Contribution Compliant Path
Substantive Prime Contribution Geographic and Local Factor Calibration Capability
Had Firms A and B possessed and correctly assessed substantive geographic, local-conditions, or other client-benefit contributions, they could have legitimately proposed a prime contractor role with Engineer X as specialist sub-consultant.
BER Discussion's articulation of the multi-factor substantive-contribution threshold
BER Discussion's identification of geographic location, local conditions familiarity, and other pertinent factors as legitimate components of the substantive-contribution calculus
Firms A and B No Definite Selection Steps — Anti-Supplanting Non-Activation
Throughout the agency's direct solicitation of Engineer X; no formal selection of Firms A or B had occurred
Section 11 (a), which prohibits one engineer from supplanting another, is no bar unless it be shown that 'definite steps' have been taken by the client to retain another engineer
Anti-Supplanting Rule Non-Activation State
Engineer X's eligibility to accept direct agency engagement without violating anti-supplanting prohibition
Not terminated within the case — Engineer X's acceptance decision remains open
Agency contacted Engineer X directly after determining Firms A and B would not contribute substantially; no prior formal selection of any firm
Firms A and B Nominal Contribution Misrepresentation
From the time Firms A and B submitted their affirmative responses through the agency's determination that they would not make a substantial contribution
Nominal Subconsultant Arrangement Misrepresenting Prime Capability State
Firms A and B's qualification submissions to the government agency
Government agency's determination that Firms A and B would not make a substantial contribution to the work
Firms A and B submitting affirmative responses claiming capability while arranging for Engineer X to provide all specialized expertise, with their own services being nominal
Firms A and B Nominal Prime Contribution Self-Assessment Failure
Engineers within Firms A and B failed to honestly assess that their planned contribution to the prime contract was merely nominal (brokerage/administrative) and failed to transparently disclose this to the agency or recommend direct engagement of Engineer X.
Government solicitation for highly specialized engineering services; Firms A and B each arranged Engineer X as sub-consultant while proposing to serve as prime contractors
Responding to government solicitation as prime contractors while arranging Engineer X as sole technical contributor, without disclosing the nominal nature of their own contribution
Firms A and B Nominal Prime Interposition Public Procurement Harm Recognition Failure
Engineers within Firms A and B failed to recognize that interposing themselves as nominal prime contractors between the government agency and Engineer X — who could perform all required work independently — caused concrete harm to the public procurement process.
Government solicitation for highly specialized engineering services; Firms A and B interposed themselves as nominal prime contractors while Engineer X could perform all required work
Responding to government solicitation as nominal prime contractors, causing the agency to receive responses that obscured the availability of direct specialist engagement and potentially increasing cost and reducing accountability
it was apparent that neither would contribute very much, if anything, to the project
Firms A and B Nominal Prime Role Misrepresentation Ethics Violation
Firms A and B responded affirmatively to the government solicitation, each independently arranging Engineer X as sub-consultant while representing they would furnish all other services — when in reality their contribution was nominal.
Engineers within Firms A and B were obligated to refrain from representing themselves as capable prime contractors when their actual contribution would be nominal — limited to brokerage and administrative coordination — while all substantive technical work would be performed by Engineer X as the sole technical contributor.
Firms A and B Nominal Prime Role — Section 6 Competence Acceptance Prohibition
Firms A and B were primarily offering to serve as brokers, furnishing only negotiation and administration services while looking to Engineer X as the sole technical contributor; the BER found this violated Section 6's competence requirement for prime engagement.
Firms A and B were prohibited by Section 6 from accepting the prime contract when their only substantive service would be to arrange for Engineer X's services; the first part of Section 6 precluded accepting an engineering engagement unless qualified to perform the services involved, and a brokerage-only role did not satisfy this requirement.
Firms A and B Pertinent Fact Misrepresentation in Qualification Submission
Firms A and B's qualification submissions omitted the material fact that their own services would be nominal, while representing that they had arranged for Engineer X's expertise — a misrepresentation of pertinent facts designed to enhance their apparent qualifications.
Pertinent Fact Dual-Element Misrepresentation Prohibition Constraint
Firms A and B were prohibited from misrepresenting pertinent facts in their qualification submissions — specifically, the nominal nature of their own planned contribution — with the intent to enhance their apparent qualifications for the specialized procurement.
NSPE Code of Ethics — Non-misrepresentation provisions; BER Case 83-1 dual-element misrepresentation standard
Firms A and B Pre-Acceptance Competence Self-Assessment Failure
Firms A and B lacked the technical competence to perform the highly specialized work that was the subject of the government solicitation, yet responded affirmatively as prime contractors.
Pre-Acceptance Competence Self-Assessment Obligation
Engineers within Firms A and B were obligated to conduct an honest and rigorous self-assessment of their firms' technical competence in the highly specialized domain before accepting the prime contract role, and to decline the engagement given their lack of substantive technical capability in the specialized area.
Before submitting the solicitation response
Firms A and B Pre-Acceptance Competence Self-Assessment Failure in Specialized Procurement
Engineers within Firms A and B failed to conduct an honest and rigorous self-assessment of their firms' technical competence in the highly specialized engineering services required before accepting the prime contractor role.
Government solicitation for highly specialized engineering services requiring domain expertise that Firms A and B did not possess
Responding to government solicitation as prime contractors for highly specialized services without possessing the requisite technical competence, relying entirely on Engineer X as sole technical contributor
On the basis of the stated facts, it appears that Firm A and Firm B were primarily offering to serve in the capacity of a 'broker' and would furnish only the services involved in the negotiations and administration of the contract, looking to Engineer X as the sole technical contributor to the project.
Firms A and B Procurement Rationalization Resistance Failure
Procurement Rationalization Resistance Capability
Firms A and B required the capability to resist rationalizing their nominal prime contractor strategy — potentially rationalizing it as a legitimate use of sub-consultant arrangements — and to maintain ethical procurement standards
The firms may have rationalized their conduct as a standard sub-consultant arrangement, failing to recognize that the nominal nature of their own contribution made this an impermissible procurement strategy
Failure: Firms A and B rationalized their nominal prime role as a legitimate sub-consultant arrangement rather than recognizing it as an ethical violation of procurement integrity
Firms A and B Qualifications Non-Misrepresentation in Solicitation
Firms A and B stated they would furnish all other services beyond Engineer X's specialized expertise, creating a misleading impression of substantive team capability when those other services were nominal.
Qualifications Non-Falsification and Non-Misrepresentation Obligation
Firms A and B were obligated to refrain from misrepresenting their qualifications and capability in the government solicitation by implying they would furnish substantive services when those services would in fact be nominal.
At the time of submitting solicitation responses
Firms A and B Solicitation Misrepresentation in Specialized Procurement
Solicitation Misrepresentation Recognition Capability
Firms A and B required the capability to recognize that their solicitation responses misrepresented their qualifications and capability by implying they would make a substantive prime contribution when their planned contribution was nominal
The firms' responses to the government solicitation implied they would furnish all other services substantively, when those services would be nominal in nature
Failure: Firms A and B's solicitation responses misrepresented their capability by implying substantive prime contribution capacity they did not possess
Firms A and B Specialist-Retaining Prime (Hypothetical Compliant Path)
{'scenario_type': 'Hypothetical compliant path', 'condition': 'If firms had proposed to provide substantial portion of work through own capabilities', 'ethical_finding': 'Would have acted quite appropriately in making arrangements with Engineer X'}
The Discussion identifies a hypothetical compliant scenario: if Firms A and B had proposed to provide a substantial portion of the work through their own capabilities, they would have acted appropriately in arranging for Engineer X's expertise. This captures the legitimate version of the prime-specialist relationship contemplated by Section 6 of the Code.
{'type': 'would_retain_specialist', 'target': 'Engineer X Non-Supplanting Direct Contract Accepting Specialist'}
Specialist-Retaining Prime Consulting Engineer
Section 6 contemplates that a prime professional engineer will be expected to retain or recommend the retention of experts and specialists in situations in which the prime professional engineer is performing substantial services of a project.
Firms A and B Specialist-Retention Provision Contextual Reading Failure
Engineers within Firms A and B failed to correctly read the specialist-retention provision of Section 6 in context of the full competence requirement, incorrectly invoking it to justify a broker-only prime contractor role.
Firms A and B each arranged Engineer X as sub-consultant while proposing to serve as prime contractors with only brokerage/administrative contributions
Responding to government solicitation as prime contractors while arranging Engineer X as sole technical contributor, without recognizing that the specialist-retention provision presupposes substantial prime services
Firms A and B Substantive Contribution Geographic Factor Calibration Failure
The BER noted that in defining 'substantial,' consideration should be given to geographic location, familiarity with local conditions, and other pertinent factors — implying Firms A and B should have assessed whether such factors could justify their prime role before responding.
Engineers within Firms A and B were obligated to assess whether their proposed contributions — including any geographic, local-conditions familiarity, or other contextual benefits — met the substantiality threshold before offering to serve as prime contractors; the facts indicate no such substantial contextual contribution was identified or offered.
Firms A and B Substantive Prime Contribution Threshold Failure
Firms A and B proposed to serve as prime contractors while delegating all substantive technical work to Engineer X, retaining only nominal administrative and brokerage functions.
Engineers within Firms A and B were obligated to ensure their firms would make a substantive — not merely nominal — technical contribution commensurate with the prime contractor role, and to decline the prime role, restructure the engagement, or disclose their nominal role and recommend direct specialist engagement when they could not meet this threshold.
Firms A and B disclosing Engineer X arrangement before agency contacting Engineer X directly
Firms A and B responses meets agency concluding Firms A and B would not contribute substantially
Free and Open Competition Boundary Condition in Specialized Procurement
Competitive solicitation among 15 contacted firms
Government agency specialized engineering services procurement
The case illustrates the boundary of permissible competitive conduct: while firms may legitimately compete for contracts by assembling teams with specialist sub-consultants, the ethical boundary is crossed when the firm's own contribution is nominal and its solicitation response misrepresents the substantive nature of its team — conduct that falls beyond the ethical bounds of free and open competition.
Free and open competition is a legitimate and valued principle in engineering procurement, but it operates within ethical boundaries that prohibit misrepresentation of capabilities. The nominal prime strategy of Firms A and B exceeded those boundaries by using competitive mechanisms to capture a contract the firms could not genuinely perform.
Free and open competition does not license misrepresentation of capabilities; the ethical boundaries of competition require honest representation of the firm's substantive contribution.
Government Agency Engineers Ethics Code Individual Applicability Recognition
Engineers within the government agency who had the power of decision or effective recommendation in the procurement process were individually subject to the ethics code, regardless of their governmental organizational form.
Government agency procurement process for specialized engineering services; agency engineers exercised procurement authority to contact Engineer X directly
Recognition that governmental agency form does not exempt individual engineers from ethics code compliance in procurement decisions
Engineers within the government agency with decision-making power or effective recommendation authority
Government Agency Expression-of-Interest Non-Bindingness Recognition in Direct Contact with Engineer X
The government agency, after evaluating eight responses and determining Firms A and B would not make substantial contributions, independently contacted Engineer X directly for prime engagement.
Engineers within the government agency with procurement decision authority
Agency Expression-of-Interest Response Non-Bindingness Recognition Obligation
Engineers within the government agency were entitled — and obligated to recognize their authority — to make direct contact with Engineer X after learning from two separate sources of his specialized qualifications, without being bound by the eight firms' prior expressions of interest and qualification statements.
After evaluating the eight expression-of-interest responses and determining their inadequacy
Government Agency Non-Bindingness to Original Solicitation List — Engineer X Direct Contact
The government agency contacted Engineer X directly despite his not being on the original list of 15 firms; the BER found no ethical bar to this action because the agency had determined the responding firms would not make a substantial contribution and Engineer X was identified as the genuinely qualified specialist.
Agency Non-Bindingness to Original Solicitation List Upon Nominal-Contribution Determination Constraint
The government agency was not bound by the original solicitation list of 15 firms and was ethically and procedurally permitted to make direct contact with Engineer X once it had determined from two independent sources that he was the highly qualified specialist required and that the responding firms would contribute little or nothing of technical substance.
NSPE Code of Ethics; qualification-based selection procurement principles; BER analysis
After reviewing qualifications submitted by responding firms and determining nominal contribution
Government Agency Out-of-List Direct Solicitation of Engineer X
The government agency contacted Engineer X directly after learning from Firms A and B's submissions that he was the genuine source of specialized expertise. Engineer X's firm was not on the original list of 15 firms contacted, raising procurement integrity questions that required legitimate grounding.
Out-of-List Direct Agency Solicitation Procurement Integrity Constraint
The government agency's direct solicitation of Engineer X — who was not on the original list of 15 firms — was constrained to be grounded in legitimate procurement integrity concerns (the nominal nature of Firms A and B's contributions) rather than favoritism, and required transparent documentation of the rationale.
QBS procurement law; NSPE Code of Ethics procurement integrity provisions; public procurement fairness standards
At the time the agency determined Firms A and B would not make a substantial contribution and decided to contact Engineer X directly
The government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X...
Government Agency Procurement Information Asymmetry Recognition and Correction
Procurement Information Asymmetry Recognition Capability
The government agency demonstrated the capability to recognize that Firms A and B's responses created a procurement information asymmetry — the agency had been misled about the substantive contribution those firms would make — and acted to correct it by directly contacting Engineer X
The government agency evaluated eight responses, determined Firms A and B would not make substantial contributions, and directly contacted Engineer X to explore direct prime engagement
Success: The agency correctly identified that Firms A and B would not make a substantial contribution and took corrective action by directly soliciting Engineer X
{'procurement_method': 'Direct solicitation to defined firm list with capability evaluation', 'authority': 'Government agency with procurement decision authority', 'action_taken': 'Bypassed original list to directly solicit recognized specialist'}
Contacted 15 firms for specialized engineering services, evaluated eight responses, determined Firms A and B would not make substantial contributions, then directly contacted Engineer X to invite him to submit qualifications as prime professional.
{'type': 'direct_solicitor', 'target': 'Engineer X Specialist Expert Repositioned as Prime'}
{'type': 'solicitor', 'target': 'Firm A Nominal Prime Contractor'}
{'type': 'solicitor', 'target': 'Firm B Nominal Prime Contractor'}
Specialized Technical Services Soliciting Government Agency
A government agency contacts 15 engineering firms to solicit their interest in, and a statement of expertise and capability
the government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X
Government Agency Specialized Technical Services Solicitor Expression-of-Interest Non-Bindingness Recognition
Agency Expression-of-Interest Response Non-Bindingness Recognition and Direct Specialist Contact Authority Capability
Engineers within the government agency correctly recognized that the eight firms' responses to the expression-of-interest solicitation did not bind the agency to select one of those firms, and exercised their authority to contact Engineer X directly after determining that Firms A and B would not make substantial contributions.
Government agency received eight responses to expression-of-interest solicitation, determined Firms A and B would not make substantial contributions, and contacted Engineer X directly
Agency's direct contact with Engineer X after evaluating qualification responses and determining that responding firms would not contribute substantially to the project
Engineers within the government agency procurement function
We perceive no reason why it should not make direct contact with Engineer X once having learned from two separate sources that he was a highly qualified specialist of the type required.
Government Procurement Contact List Integrity Standard - Engineer X Solicitation
Federal A/E selection law; public procurement fairness norms
Government Procurement Contact List Integrity Standard
The firm of Engineer X was not on the original list of those contacted
Engineer X responded by submitting his qualifications but not stating definitely if he would be willing to undertake the work as the prime professional
Engineer X in deciding whether and how to respond to the agency's direct solicitation
Engineer X was not on the original list of 15 firms contacted, yet the agency contacted him directly after learning he was named by Firms A and B; the ethical permissibility of this out-of-list contact and Engineer X's appropriate response are central to the case
Honesty Principle Invoked in Engineer X Qualification Submission
Government agency direct solicitation response
Engineer X responded to the government agency's direct solicitation by submitting his qualifications but not stating definitively whether he would be willing to undertake the work as prime professional — an honest, measured response that accurately represented his position without overclaiming or underclaiming.
Engineer X's honest, non-committal response to the agency's inquiry exemplifies the honesty principle: he submitted accurate qualifications without making a definitive commitment he was not prepared to make, thereby providing the agency with accurate information while preserving his own decision-making autonomy.
Honesty in responding to a legitimate agency inquiry takes precedence; Engineer X's measured response was both honest and appropriately cautious.
Honesty in Professional Representations Violated by Firms A and B
Qualification and capability representations
Competitive interest in winning contracts
Firms A and B made representations to the government agency that they had arranged Engineer X as a sub-consultant and would furnish all other services, when in actuality those other services were nominal — constituting a false assurance of substantive capability that misled the agency about the true nature of the proposed team.
The firms' representations implied a genuine division of labor with substantial contributions from both the firm and Engineer X. The actuality — that the firms' services were nominal — rendered these representations materially misleading, violating the obligation to make only truthful and accurate representations of capabilities.
Firms A and B stated they would furnish all other services involved; in actuality, these other services would be nominal in nature.
Honesty in professional representations is not subject to competitive pressure exceptions; the obligation to accurately represent capabilities applies regardless of the competitive stakes.
Independent Arrangement Relational Obligation Review Applied to Engineer X and Firms A and B
The Discussion notes that Engineer X should consider carefully whether accepting the contract independently would violate any arrangement he might have had with Firms A or B — acknowledging that prior sub-consultant arrangements with competing firms may generate independent relational obligations separate from the formal supplanting prohibition analysis.
In this context, the principle operates as a residual prudential obligation — even though the supplanting prohibition does not bar Engineer X's acceptance, he retains an independent obligation to review and honor any commitments made in his prior arrangements with Firms A and B.
Ethics Board noting residual prudential obligation
The principle does not override the permissibility finding but adds a layer of relational due diligence — Engineer X must satisfy himself that acceptance does not breach prior commitments, even if it does not violate the formal supplanting prohibition.
we might note, however, that Engineer X should consider carefully whether his accepting the contract independently would violate any arrangement he might have had with Firms A or B.
the mandate of Section 11 (a) does not come into play unless '. . . the engineer has been informed by the client that he has been selected to negotiate an agreement for a specific project,' ( Case 62-10 )
BER in determining that neither Firm A nor Firm B had reached the threshold for supplanting protection
Cited as precedent establishing that the Section 11(a) supplanting prohibition is triggered only when 'the engineer has been informed by the client that he has been selected to negotiate an agreement for a specific project'
or that it be shown that'. . . the client specifically intended to retain the engineer for the . . . work' ( Case 62-18 )
Cited as precedent establishing that the Section 11(a) supplanting prohibition requires that 'the client specifically intended to retain the engineer for the work' — a second threshold condition complementing Case 62-10
NSPE Board of Directors Directive on Code Applicability to Organizations (January 1971)
This point has now been noted by action of the NSPE Board of Directors in its directive adopted in January 1971 to include the following note on each printing of the Code of Ethics
Real persons in turn establish and implement policies within business structures. The code is clearly written to apply to the engineer
BER in framing the analysis of engineers acting within the governmental agency and consulting firms
Resolves the threshold technicality of whether the NSPE Code of Ethics applies to organizations (corporations, government agencies, consulting firms) by affirming that individual engineers within those organizations remain personally bound by the Code
National Society of Professional Engineers
We find no grounds in the code which would prevent Engineer X and his firm from accepting the contract on a direct basis
BER throughout the analysis as the foundational ethical framework
Primary normative authority governing all aspects of the case: engineer competence obligations, prime professional duties, specialist retention, and anti-supplanting prohibitions
Current at time of case (with January 1971 Board directive note)
NSPE Code of Ethics, Section 11(a) (historical) — Prohibition on Supplanting Another Engineer
Engineer Supplanting Prohibition Standard
The Engineer will not attempt to supplant another engineer in a particular employment after becoming aware that definite steps have been taken toward the other's employment.
BER in evaluating Engineer X's ethical position in accepting the direct contract
Determines whether Engineer X's direct acceptance of the contract would constitute unethical supplanting of Firms A or B; BER concludes the threshold conditions for this prohibition were not met
Pre-revision (historical; noted as no longer existing in current form)
NSPE Code of Ethics, Section 6 (historical) — Engineer Competence and Specialist Engagement
Engineer Specialist Retention Obligation Standard
BER in evaluating whether Firms A and B acted ethically in offering to serve as prime professionals
Establishes that engineers may only undertake assignments for which they are qualified, and that a prime professional must perform substantial services rather than acting as a mere broker; also recognizes the propriety of retaining experts and specialists
NSPE Board January 1971 Directive Individual Engineer Code Applicability — Firms A and B Engineers
Firms A and B submitted qualifications representing prime capability while planning to rely entirely on Engineer X; the organizational form of the firms could not shield individual engineers from ethics code obligations regarding honest qualification representation and substantive prime contribution.
Engineers within Firms A and B who had power of decision or effective recommendation
Business-Form Non-Influence on Individual Ethics Code Conformance Constraint
Engineers within Firms A and B who had the power of decision or effective recommendation regarding the procurement response were individually bound by the NSPE Code of Ethics regardless of the corporate or firm form through which services were delivered; the business form of Firms A and B could not negate or influence their individual obligation to conform to the Code.
NSPE Board of Directors Directive, January 1971; NSPE Code of Ethics (all pertinent sections)
Throughout the procurement process and submission of qualifications
we treat the case before us as involving actions of engineers in the governmental agency and consulting firms in situations in which the engineer(s) had the power of decision or effective recommendation as to the procedure followed
NSPE Board January 1971 Directive Individual Engineer Code Applicability — Government Agency Engineers
The government agency's decision to contact Engineer X directly outside the original solicitation list required individual engineers within the agency to exercise judgment consistent with the Code of Ethics, not merely institutional procurement procedures.
Engineers within the government agency who had power of decision or effective recommendation
Engineers within the government agency who had the power of decision or effective recommendation regarding the procurement process were individually bound by the NSPE Code of Ethics; the governmental agency form could not negate or influence their individual obligation to conform to the Code in conducting the procurement.
NSPE Board of Directors directive before Discussion section analysis
NSPE Code Individual Applicability Clarification Active
From January 1971 NSPE Board of Directors directive onward, active throughout this case analysis
The Code of Ethics applies only to individual engineers and not to organizations as such
Code Individual-Not-Organization Applicability Clarification Active State
NSPE Code of Ethics applicability to engineers within firms and government agencies
Not terminated — persistent clarification state
We therefore treat the case before us as involving actions of engineers in the governmental agency and consulting firms in situations in which the engineer(s) had the power of decision or effective recommendation
NSPE Board of Directors directive adopted January 1971 clarifying code applies to individuals not organizations
NSPE Code Individual Applicability — Firms A and B Engineer Conduct
The NSPE Board of Directors clarified that the NSPE Code of Ethics applies to individual engineers within firms and government agencies, not to the organizations themselves — meaning the individual engineers at Firms A and B who prepared and submitted the misleading qualification statements bear personal ethical responsibility.
Individual engineers within Firms A and B
The NSPE Code of Ethics applies to the individual engineers within Firms A and B who made the decision to submit qualification statements misrepresenting the nominal nature of their firms' contributions, not to the corporate entities as such — constraining those individual engineers to comply with all Code provisions regardless of their firms' business decisions.
NSPE Board of Directors Directive (January 1971) — Code applies to individual engineers, not organizations
NSPE Code of Ethics - Engineer Competence Scope
The work to be performed is entirely within Engineer X's field of expertise and does not require services from firms other than those of Engineer X
Engineer X, a recognized expert in the technical subject matter
Government agency in assessing whether Engineer X could serve as prime professional; ethical analysis of whether Firms A and B were competent to serve as prime
The case establishes that the work is entirely within Engineer X's field of expertise and does not require services from other firms, grounding the agency's judgment that Engineer X alone is qualified to serve as prime professional
NSPE Code of Ethics - Engineer Solicitation and Competition Ethics
Engineer Solicitation and Competition Ethics Standard
Engineer X in deciding how to respond to the government agency's direct contact
Engineer X is placed in the position of responding to a government solicitation that arose because two competing firms named him as their key consultant; the ethics of his response — submitting qualifications without committing to serve as prime — must be evaluated against professional competition norms
NSPE Code of Ethics - Qualification Representation Obligations
Two of the eight firms, A and B, stated that they had each made arrangements with Engineer X...to provide the highly specialized expertise
these other services would be nominal in nature
Government agency evaluating Firms A and B; ethical analysis of Firms A and B's conduct
Firms A and B represented to the government agency that they had arranged for Engineer X's specialized expertise, implying they could deliver the full scope of services, when in actuality their own contribution would be nominal — raising questions about honest representation of qualifications
Nominal Capability Misrepresentation by Firm A in Solicitation Response
Firm A responded affirmatively to the government solicitation stating it had arranged Engineer X as a specialized sub-consultant and would itself furnish all other services, when in actuality those other services were nominal in nature — creating a materially false impression of the firm's substantive contribution.
Firm A's affirmative response implied a genuine team with substantial contributions from both the firm and Engineer X, when the firm's own contribution was nominal. This misrepresentation misled the agency about the actual distribution of work and expertise.
Nominal Capability Misrepresentation Prohibition in Procurement Responses
Firm A stated it had arranged Engineer X as sub-consultant and would furnish all other services, when in actuality those services were nominal.
Honesty in professional representations overrides competitive interest; the firm's obligation to accurately characterize its contribution is not diminished by competitive pressure to respond affirmatively.
Nominal Capability Misrepresentation by Firm B in Solicitation Response
Firm B responded affirmatively to the government solicitation stating it had arranged Engineer X as a specialized sub-consultant and would itself furnish all other services, when in actuality those other services were nominal in nature — creating a materially false impression of the firm's substantive contribution.
Firm B's affirmative response implied a genuine team with substantial contributions from both the firm and Engineer X, when the firm's own contribution was nominal. This misrepresentation misled the agency about the actual distribution of work and expertise.
Firm B stated it had arranged Engineer X as sub-consultant and would furnish all other services, when in actuality those services were nominal.
Honesty in professional representations overrides competitive interest; the firm's obligation to accurately characterize its contribution is not diminished by competitive pressure.
Nominal Subconsultant Arrangement — Firm A
From Firm A's submission through agency's direct contact with Engineer X
Firm A's qualification submission representing prime capability while planning to rely entirely on Engineer X
Agency bypassed Firm A and contacted Engineer X directly
Firm A arranged for Engineer X as subconsultant while offering to serve as prime with only brokerage/administrative contribution
Nominal Subconsultant Arrangement — Firm B
From Firm B's submission through agency's direct contact with Engineer X
Firm B's qualification submission representing prime capability while planning to rely entirely on Engineer X
Agency bypassed Firm B and contacted Engineer X directly
Firm B arranged for Engineer X as subconsultant while offering to serve as prime with only brokerage/administrative contribution
Prime Professional Responsibility Standard - Nominal Contribution Prohibition
NSPE Code of Ethics; professional engineering procurement norms
Prime Professional Responsibility Standard
Government agency in evaluating Firms A and B's proposed arrangements; ethical analysis of whether Firms A and B acted properly
The government agency concluded that Firms A and B would not make a substantial contribution to the work, as their services would be nominal while Engineer X would provide all substantive specialized expertise — the core ethical issue driving the agency's decision to contact Engineer X directly
Procurement Integrity in Public Engineering Implicated by Nominal Prime Structure
The nominal prime structure proposed by Firms A and B — in which they would serve as prime contractors while contributing only nominal services and routing all substantive technical work to Engineer X — threatened the integrity of the public procurement process by interposing unnecessary intermediaries that would capture prime contract fees without making genuine technical contributions.
Public procurement integrity requires that prime contractors genuinely contribute to the work. The nominal prime structure proposed by Firms A and B would have resulted in a contract award to firms that could not make substantial contributions, undermining the qualification-based selection process and potentially wasting public resources on unnecessary intermediary fees.
The government agency, concluding that Firms A and B would not make a substantial contribution to the work, then contacted Engineer X.
Procurement integrity requires that competitive responses be honest about the nature of the firm's contribution; the agency's independent determination that the firms would not make a substantial contribution and its direct engagement of Engineer X represents the appropriate corrective action.
Professional Competence Threshold Not Met by Firms A and B for Prime Role
Prime contract role in government procurement
Firms A and B lacked the professional competence to perform the highly specialized technical work that was the subject of the government solicitation, and their acceptance of a prime role would have placed them in a position of representing competence they did not possess — a violation of the professional competence obligation.
Professional competence requires that engineers only accept engagements for which they are competent. Firms A and B's intended reliance on Engineer X for all substantive technical work demonstrates that they lacked the competence to perform the prime role in this specialized engagement.
Professional competence obligations are not diminished by the availability of a competent sub-consultant; the prime firm must itself be capable of making a substantial contribution to the work.
Professional engineering procurement norms; federal and state A/E selection frameworks
the government agency...then contacted Engineer X, advising him that two firms had indicated their intention to use him as a special technical consultant
Government agency in deciding to contact Engineer X directly
The government agency's decision to contact Engineer X — a firm not on the original solicitation list — raises questions about equitable treatment of all firms in the procurement process and whether bypassing the original list is consistent with fair procurement norms
Qualification-Based Selection Procurement Law - Government Agency Solicitation Process
Federal and state A/E selection statutes
Qualification-Based Selection Procurement Law
A government agency contacts 15 engineering firms to solicit their interest in, and a statement of expertise and capability to provide services in a highly specialized area of technical knowledge
Government agency in structuring its procurement; Engineer X in responding to the solicitation
The government agency's process of contacting 15 firms, soliciting statements of expertise and capability, and evaluating qualifications reflects a qualification-based selection framework; the legal and ethical rules governing this process constrain both the agency's and Engineer X's conduct
Was it ethical for Firm A or B to offer its services as the prime professional under the stated circumstances?
Did Engineer X have an independent ethical obligation to disclose to the government agency, when submitting his qualifications in response to the direct solicitation, that he had already made informal arrangements with both Firms A and B to serve as their subconsultant — and does the omission of that disclosure in his ambiguous response itself raise a honesty concern?
Would the ethical analysis change if Firms A and B had been transparent with the agency from the outset — explicitly stating in their qualification submissions that Engineer X would perform all specialized technical work and that their own contribution would be nominal — rather than implying they possessed the requisite expertise themselves?
Is there a threshold at which a firm's reliance on a subconsultant for specialized work becomes ethically permissible — for example, where the prime firm provides genuine project management, coordination, or local regulatory expertise — and if so, how should that threshold be calibrated in highly specialized technical procurements where the nominal services are truly de minimis?
Does Engineer X bear any moral responsibility for the competitive disruption caused by his willingness to enter informal arrangements with two competing firms simultaneously, and should the Code of Ethics require engineers who serve as specialist subconsultants to limit such parallel arrangements in order to preserve fairness in competitive procurement?
Was it consistent with the Code of Ethics for the agency to contact Engineer X directly rather than through Firms A or B as the prime professional?
Does the principle of Free and Open Competition in specialized procurement — which supports the agency's right to bypass Firms A and B and contact Engineer X directly — conflict with the Specialist Non-Supplanting Direct Engagement Permissibility principle, given that Engineer X had already made informal arrangements with those firms, and at what point do those informal arrangements create a relational obligation strong enough to constrain the agency's independent procurement judgment?
Does the Competence Prerequisite for Engagement Acceptance principle — which condemns Firms A and B for offering prime services they cannot substantively deliver — conflict with the Specialist Engagement Obligation Contextual Application principle, which recognizes that prime firms may legitimately engage specialists to fill competence gaps, and how should the Code distinguish between a legitimate prime-subconsultant structure and an ethically impermissible broker-only interposition?
Does the Broker-Only Role Transparency Obligation of Firms A and B — which requires honest disclosure of their actual limited contribution — conflict with the Procurement Integrity in Public Engineering principle when applied to the agency's response, in that the agency's corrective action of bypassing the original list and directly soliciting Engineer X, while restoring procurement integrity, may itself set a precedent that discourages firms from honestly disclosing specialist reliance for fear of being cut out of the procurement entirely?
Does the Ethics Code Individual-Person Applicability principle — which holds individual engineers within firms and agencies personally accountable to the Code — conflict with the Fairness in Professional Competition principle when applied to Engineer X, in that holding him individually responsible for the competitive consequences of his parallel informal arrangements with competing firms may impose a burden the Code was not designed to place on specialist engineers who are sought out by multiple competing primes without their own solicitation?
Would it be ethical for Engineer X or his firm to accept the contract under the stated circumstances?
From a deontological perspective, did Firms A and B violate a categorical duty of honest representation by submitting qualifications that implied substantive prime capability while knowing their actual contribution would be nominal, regardless of whether the agency was ultimately harmed?
From a consequentialist perspective, did the broker-only prime structure proposed by Firms A and B produce net harm to the public interest by interposing a nominally contributing intermediary between the government agency and the most qualified expert, thereby increasing cost, reducing accountability, and distorting the competitive procurement process?
From a virtue ethics perspective, did Firms A and B demonstrate the professional integrity expected of engineering firms by attempting to position themselves as prime professionals in a domain where they possessed no substantive expertise, or does this conduct reflect a failure of the virtues of honesty, competence, and professional humility?
From a virtue ethics perspective, did Engineer X act with the professional integrity and transparency expected of a recognized expert by submitting qualifications to the agency without definitively disclosing or resolving his prior informal arrangements with Firms A and B, and does this ambiguity reflect a virtue deficit in candor even if it does not rise to a formal ethical violation?
If Firms A and B had transparently disclosed to the agency at the outset that they intended to rely entirely on Engineer X for the specialized technical work and would themselves contribute only nominal administrative services, would their solicitation responses have been ethically permissible, or would the substantive contribution threshold failure have remained a disqualifying ethical defect regardless of disclosure?
If the government agency had remained bound by its original solicitation list and declined to contact Engineer X directly, what ethical obligations would have fallen on Engineer X upon learning that two competing firms were each representing him as their exclusive technical resource — and would he have been obligated to proactively notify the agency or withdraw from both arrangements?
If Engineer X had declined the agency's direct solicitation out of loyalty to his prior informal arrangements with Firms A and B, would that decision have served the public interest, and would the ethical analysis of Firms A and B's conduct have changed — or would their nominal prime proposals have remained ethically impermissible regardless of Engineer X's choice?
If one or more of the other six affirmative respondents — firms not relying on Engineer X — had been technically capable of performing the specialized work independently, would the agency's decision to bypass the original solicitation list and contact Engineer X directly still have been ethically justified, or does the justification depend specifically on the finding that no responding firm could make a substantial independent contribution?
Solicitation Deception Avoidance Obligation Violated by Firms A and B
Government agency solicitation responses
Qualification statements submitted to government agency
Firms A and B used framing in their solicitation responses that created a false impression of substantive team capability — representing that they would furnish 'all other services' while omitting that those services were nominal in nature, thereby deceiving the procuring agency about the genuine composition and contribution of the proposed team.
The firms' solicitation responses were structured to imply a capable, multi-contributor team. The omission of the nominal character of the firms' own services constituted a deceptive framing that misled the agency — a violation of the obligation to avoid misleading language in solicitation of professional employment.
Solicitation Deception Avoidance Obligation
The deception avoidance obligation applies to omissions and framings that create false impressions, not only to affirmative misstatements; the firms' omission of the nominal character of their services was ethically equivalent to an affirmative misrepresentation.
Specialist Engagement Obligation Contextual Application in Prime-Sub Structure
The Discussion affirms that the code's provision permitting a prime professional to retain specialists is proper and valuable, but only when the prime is itself performing substantial services — the specialist engagement provision is not a standalone authorization for brokerage-only primes to legitimize their role by naming a specialist.
In this context, the specialist engagement obligation operates within the constraint that the prime must be performing substantial services of its own — it is a supplement to genuine prime competence, not a substitute for it.
Ethics Board interpreting Section 6 second clause
Specialist Engagement Obligation When Client Interests Require It
The specialist engagement provision is read in the context of the full competence section, requiring that the prime be performing substantial services before the specialist engagement authorization applies.
Specialist Non-Supplanting Direct Engagement Permissibility Applied to Engineer X
The Discussion finds no grounds in the code that would prevent Engineer X and his firm from accepting the contract on a direct basis when desired by the client, given that no definite steps had been taken toward retaining either Firm A or Firm B and the work fell entirely within Engineer X's specialized expertise.
In this context, Engineer X's acceptance of the direct prime engagement was ethically permissible because the agency independently initiated contact, no definite steps had been taken toward the competing firms, and the work fell entirely within Engineer X's field of expertise.
Ethics Board evaluating Engineer X's conduct
Permissibility is established by the absence of definite steps toward the competing firms; the residual obligation to review prior arrangements with Firms A and B is noted as a separate prudential consideration.
Substantive Contribution Contextual Calibration Applied to Geographic and Local Factors
The Discussion instructs that in defining 'substantial,' consideration should be given to benefits to the client due to geographic locations, familiarity with local conditions, and other pertinent factors — recognizing that non-technical contributions may constitute substantiality in appropriate contexts.
In this context, geographic proximity and local-conditions familiarity are identified as potentially legitimate bases for substantiality — but only when genuinely present and relevant to project success, not as pretextual justifications for a brokerage-only role.
Ethics Board defining 'substantial contribution'
Substantive Contribution Contextual Calibration Principle
The contextual calibration principle prevents mechanical rejection of non-technical contributions while the misrepresentation prohibition prevents pretextual invocation of geographic factors to disguise a brokerage-only role.
Substantive Contribution Threshold Applied to Hypothetical Compliant Path for Firms A and B
The Discussion identifies the hypothetical compliant path: if Firms A and B had proposed to provide a substantial portion of the work through their own capabilities, they would have acted appropriately in making arrangements with Engineer X and proposing this mode of service to the client.
In this context, the substantive contribution threshold is satisfied when the prime firm genuinely proposes to perform a substantial portion of the work through its own capabilities, with the specialist providing supplementary expertise — not when the specialist provides all technical substance.
The threshold is met when the prime's own capabilities constitute a substantial portion of the work — the specialist engagement is then a legitimate supplement rather than a substitute for prime competence.
Substantive Contribution Threshold Failure by Firms A and B
Highly specialized engineering services procurement
Firms A and B lacked the substantive contribution threshold required to ethically accept a prime contract role in this highly specialized procurement, as their entire technical contribution depended on Engineer X and their own services would be nominal in nature.
The government agency's independent conclusion that Firms A and B would not make a substantial contribution validates the principle that substantive contribution is an ethical prerequisite for prime engagement — the firms' own assessment of their capabilities should have led them to the same conclusion before responding affirmatively.
The ethical obligation to honestly assess and represent one's substantive contribution overrides competitive and business development incentives to respond affirmatively to specialized solicitations.
agency contacting Engineer X before any definite steps to retain Firm A or Firm B
agency contacting Engineer X directly before Engineer X submitting qualifications
agency solicitation of 15 firms before 8 firms responding affirmatively
agency solicitation of 15 firms before Engineer X's firm being contacted