we observed in Case 71-2 that Section 6 of the code '...recognizes the propriety and value of the prime professional or client retaining the services of experts and specialists in the interest of the project.'
The earlier case related to a single firm employing other firms as associates for part of the work, with the prime firm retaining full legal responsibility for the project assignment.
we see no real difference in the ethical obligation when instead of one 'prime' firm the legal entity is to be a joint venture in which all the involved firms are jointly responsible
NSPE Board of Ethical Review for analogical reasoning about joint venture specialist engagement obligations
Cited as precedent establishing that NSPE Code Section 6 recognizes the propriety of prime professionals retaining experts and specialists, and that a prime firm retaining full legal responsibility may engage associate firms for part of the work — analogically extended in this case to joint ventures where all firms share joint responsibility
BER Ethics Board QBS Law Best-Qualified Firm Permissive Procedure Interpretation
QBS Law Best-Qualified Firm Permissive Procedure Interpretation Capability
The BER applied purposive statutory interpretation to conclude that QBS law permits procedures enabling firms to present their best qualifications, recognizing that a contrary interpretation would produce a peculiar and self-defeating result
The BER analyzed whether the utility authority's amendment procedure violated QBS law and ethics, concluding that the procedure was consistent with the law's purpose
The BER's observation that interpreting QBS law to preclude qualification-enhancing procedures would be inconsistent with the law's fundamental purpose of selecting the best qualified firm
it would indeed be a peculiar result that a state or local law intended to have the client select the 'best qualified' firm be interpreted to preclude a procedure intended to present each 'firm' in its best light of technical and other professional qualifications.
Brooks Architect-Engineers Act (40 U.S.C. § 1101 et seq.)
Qualification-Based Selection Procurement Law
the applicable laws are similar to the Federal A/E selection law (Brooks Act) and the laws of other states, which contemplate a procedure whereby the public body may select the 'best qualified' firm
NSPE Board of Ethical Review to contextualize the governing procurement framework
Referenced as the federal analog to the applicable state law and local ordinance on engineering services procurement, establishing the 'best qualified' firm selection standard against which the ethical permissibility of joint venture team revision is assessed
CausalLink_Propose Joint Venture Structur
CausalLink_Reorganize Joint Venture Team
CausalLink_Request Permission to Revise S
CausalLink_Submit Revised Qualification P
Code Section 6 Upgrade-or-Withdraw Binary Firm A QBS Power Facility
Firm A's joint venture was publicly identified by the screening committee as lacking sufficient technical support; Firm A chose to restructure its joint venture team and request permission to amend its SOQ
Firm A competing in QBS procurement for power facility addition
Code Section 6 Qualification Deficiency Upgrade-or-Withdraw Binary Constraint
Upon receiving screening committee feedback indicating that its joint venture lacked sufficient technical support, Firm A was constrained by Code Section 6 to either upgrade its qualifications through internal or external revisions to its proposal, or eliminate itself from further consideration — with no ethically permissible intermediate option of continuing to compete without addressing the identified deficiency.
NSPE Code of Ethics Section 6 (former); BER Case 71-2
under the mandate of 6 of the code, Firm A might be held in violation if it did not make a reasonable effort to upgrade the qualifications of the joint venture for the assignment once it was indicated that additional technical support was required by the client
From the moment screening committee feedback identified the qualification deficiency until Firm A either upgraded or withdrew
Firm A had no ethical choice but to upgrade its qualifications through either internal or external revisions in its proposal, or eliminate itself from further consideration
Competing Firms Equal Amendment Opportunity Recognition and Response
Competitive Procurement Fairness Assessment Capability
The other six competing engineering firms demonstrated — or were required to demonstrate — the capability to recognize that the equal amendment opportunity extended to them by the utility authority was a legitimate and fair procedural accommodation, and to make informed decisions about whether to exercise that opportunity.
The equal amendment opportunity extended to all competing firms was the key fairness mechanism that distinguished the utility authority's accommodation as ethically permissible
Being offered the same opportunity as Firm A to revise their qualification submissions, and making informed decisions about whether to exercise that opportunity
Competing Engineering Firms Equal Amendment Opportunity Recipients (Other Six Competing Engineering Firms)
Firm A requested the utility authority to allow it to modify its qualification statement and proposal in light of the change it had made in the team, with the understanding that all competing firms be allowed to likewise modify their statements of qualification, if desired.
It was ethical for Firm A to seek to alter its qualification proposal in order to improve its position to secure the contract.
Beyond the Board's finding that it was ethical for Firm A to seek to alter its qualification proposal, the manner in which Firm A conditioned its amendment request — explicitly requiring that equal amendment opportunity be extended to all seven competing firms — represents a meaningful ethical act in its own right, not merely a procedural formality. By insisting on symmetrical access as a precondition rather than simply requesting a private accommodation, Firm A demonstrated that its conduct was oriented toward preserving competitive integrity rather than exploiting an informational advantage. This self-imposed constraint distinguishes Firm A's conduct from a purely self-interested maneuver and provides the primary ethical justification for the Board's conclusion. However, the Board did not address whether this equal-access condition was substantively sufficient to neutralize the informational asymmetry Firm A already possessed. Because the screening committee's deficiency feedback was specific and actionable — identifying particular gaps in technical experience and personnel backup — Firm A alone knew precisely what changes would improve its competitive standing. The other six firms, having received no comparable individualized feedback, had no equivalent signal about how to strengthen their own submissions. Equal formal access to the amendment procedure therefore did not translate into equal practical opportunity to benefit from it. The Board's conclusion, while defensible, rests on a procedural equality that was real in form but limited in substance.
The Board's conclusion that Firm A acted ethically implicitly endorses a permissive interpretation of the governing qualified-based selection law — one that treats the procurement framework as oriented toward securing the most qualified firm rather than enforcing rigid procedural closure at each stage. This interpretive stance is significant and deserves explicit recognition. The state law and local ordinance governing the utility authority's procurement were designed to ensure that the selected firm is the most qualified, not merely the most qualified among those who submitted complete and adequate proposals on the first attempt. Allowing mid-process amendments, when done transparently and with equal access extended to all competitors, is arguably more consistent with the law's underlying purpose than a strict procedural bar would be. The utility authority's decision to seek and receive legal clearance before granting the amendment request further supports this interpretation, demonstrating institutional good faith. However, the Board did not address the countervailing concern raised by public objectors and city council members: that permitting mid-process amendments effectively rewards firms that submit inadequate initial proposals, potentially creating perverse incentives in future procurements. If firms learn that deficiency feedback from screening committees can be used to revise submissions, the integrity of the initial qualification stage may be undermined over time. The Board's conclusion is sound for the specific case but leaves open the systemic question of whether the amendment procedure, if routinely permitted, would erode the procurement framework it was meant to serve.
The Board's conclusion that Firm A acted ethically does not fully resolve the question of whether Firm A had an antecedent ethical obligation under NSPE Code Section 6 to recognize and remedy its qualification deficiencies before the screening committee identified them publicly. Code Section 6 requires engineers to engage specialists when their own competence is insufficient, and this obligation is not contingent on external feedback triggering awareness of the gap. If Firm A's joint venture team was objectively deficient in technical experience and specialized personnel backup at the time of initial submission, then Firm A may have had an independent duty to self-assess and proactively cure that deficiency — or to withdraw — before the screening committee's public identification of the problem. The fact that Firm A acted only after receiving external feedback raises the question of whether its original qualification statement was an honest and accurate representation of its actual capabilities, as required by the principle of honesty in professional representations. The amendment, while ethically permissible as the Board concluded, does not retroactively cure any misrepresentation in the original submission; it merely corrects the team's composition going forward. The Board's analysis would have been strengthened by addressing whether the original submission itself met the standard of professional honesty, and whether the amendment procedure should be understood as a remediation of an ethical lapse rather than a neutral procedural option. Firm A's ethical conduct in requesting the amendment transparently and on equal terms is commendable, but the full ethical picture requires acknowledging that the need for the amendment may itself reflect a prior shortcoming in professional self-assessment.
Firm A did gain a meaningful informational advantage by receiving specific, individualized deficiency feedback from the screening committee at a public meeting. The equal-amendment-opportunity condition extended to all seven competing firms does not fully neutralize that advantage. The other six firms received no comparable signal about how to improve their standing — they were not told they had deficiencies, nor were they given any actionable basis for restructuring their teams. The equal-access condition ensured procedural symmetry in form, but not substantive equality in competitive position. Firm A alone knew precisely what to fix and why, making its amendment strategically targeted in a way that no other firm's amendment could be. This residual informational asymmetry is ethically significant and represents a genuine, if partial, unfairness to the other competing firms, even if it does not rise to the level of rendering Firm A's conduct unethical under the Board's conclusion.
The utility authority's decision to grant the amendment request was procedurally defensible but substantively ambiguous with respect to the spirit of the governing procurement framework. State law and local ordinance established a sequential, structured qualification-based selection process designed to identify the most qualified firm from among those who submitted complete and accurate statements at the outset. By permitting mid-process revision of a qualification statement after screening committee feedback had already been delivered, the authority effectively allowed one firm to cure a material deficiency that the process was designed to surface and penalize. While the authority obtained legal clearance confirming no legal impediment, legal permissibility does not automatically satisfy the spirit and intent of the procurement law. The decision functionally reopened a portion of the qualification competition for one firm in a way that the original procurement framework did not anticipate or explicitly authorize, creating a procedural irregularity that the public and city council objectors were not wrong to flag, even if the Board ultimately found the conduct ethical.
Under NSPE Code Section 6, which obligates engineers to engage specialists when their own competence is insufficient, Firm A arguably had a pre-existing ethical obligation to recognize and cure its joint venture team's technical deficiencies before the screening committee identified them. The Code's obligation is not triggered solely by external feedback — it attaches when a firm undertakes or proposes to undertake work beyond its competence. If Firm A's original joint venture proposal lacked sufficient experience in certain technical aspects and adequate backup of specialized technical personnel, as the screening committee found, then Firm A should have identified those gaps during its own internal assessment before submitting its qualification statement. The fact that external feedback was required to surface the deficiency suggests that Firm A either failed to conduct adequate self-assessment or proceeded with a proposal it knew or should have known was technically incomplete. This does not make the subsequent amendment unethical, but it does indicate that Firm A's conduct fell short of the proactive professional standard that Code Section 6 demands, and that the amendment was remedial rather than exemplary.
The fact that the screening committee's deficiency feedback was delivered at a public meeting rather than in a private communication is ethically significant, though not dispositive. Public delivery of the feedback reduces — but does not eliminate — the ethical concern about informational asymmetry. Because the feedback was public, any of the other six competing firms could theoretically have learned of Firm A's identified deficiencies and used that information to sharpen their own competitive positioning. However, in practice, the other firms had no deficiencies identified and thus no comparable basis for targeted amendment. The public nature of the disclosure matters most in assessing whether Firm A exploited a procedural irregularity: because the feedback was not delivered through a private channel that gave Firm A exclusive access to evaluator intelligence, the exploitation concern is meaningfully diminished. Had the feedback been private, the ethical case against Firm A's amendment request would have been substantially stronger, as it would have rested on information that no other firm could have accessed or acted upon.
The principle of Public Welfare Paramount — which favors selecting the most technically qualified firm for a large and complex power facility — does create genuine tension with the principle of Procurement Process Spirit and Intent, but the tension is not irresolvable. The QBS framework itself was designed precisely to serve the public welfare by ensuring that the most qualified firm is selected. When strict procedural adherence would result in excluding a firm that, after amendment, may be more qualified than its competitors, rigid process compliance can paradoxically undermine the very public interest the process was designed to serve. However, this reasoning has limits: if mid-process amendments are freely permitted whenever a firm receives negative feedback, the integrity of the initial qualification submission requirement is eroded, and the process loses its capacity to screen firms on the basis of their actual, pre-feedback capabilities. The Board's conclusion that Firm A's conduct was ethical implicitly resolves this tension in favor of substantive qualification over procedural formalism, but that resolution is defensible only because the equal-access condition was imposed and legal clearance was obtained — conditions that, together, preserved enough procedural integrity to make the outcome acceptable.
From a deontological perspective, Firm A's conditioning of its amendment request on equal access for all seven competing firms was a necessary but not fully sufficient discharge of its duty of fairness. The Kantian test — whether the maxim of one's action could be universalized — is partially satisfied: if any firm that received negative screening feedback could request an amendment on the condition of equal access for all, the rule would be universalizable without self-contradiction. However, the informational advantage Firm A already possessed from the individualized screening committee feedback means that the formal equality of the equal-access condition masked a substantive inequality in competitive position. A more complete discharge of the duty of fairness would have required either that Firm A advocate for the screening committee to provide comparable individualized feedback to all seven firms before any amendments were submitted, or that the amendment process be structured so that all firms received equivalent evaluative intelligence before revising their submissions. Because neither condition was met, Firm A's equal-access condition, while ethically commendable, did not fully satisfy the deontological standard of impartiality.
From a consequentialist standpoint, the utility authority's decision to permit Firm A's mid-process qualification amendment is defensible as likely serving the public interest better than strict procedural adherence, provided the amended firm is genuinely more qualified than it was before and the selection process ultimately identifies the most competent firm for the power facility. The purpose of the QBS framework is not procedural compliance for its own sake but the substantive outcome of securing the most qualified engineering services for a complex and consequential public project. Allowing a firm to cure a technical deficiency identified through legitimate public feedback, under conditions of equal access and legal clearance, increases the probability that the final selection pool contains the most capable firms. The consequentialist case is strongest when the deficiency identified was genuine, the cure is substantive rather than cosmetic, and the equal-access condition ensures that no other firm is materially disadvantaged by the amendment. All three conditions appear to be met in this case, supporting the Board's conclusion on consequentialist grounds even if the deontological case is more equivocal.
From a virtue ethics perspective, Firm A demonstrated a meaningful but imperfect expression of professional integrity. The proactive disclosure of the team restructuring to the utility authority and the insistence on equal amendment access for all competitors reflect virtues of transparency and fairness that are genuinely commendable. However, virtue ethics evaluates not only the actions taken but the character dispositions from which they arise. The self-interested motivation underlying Firm A's amendment request — securing a contract it was at risk of losing — does not automatically disqualify the conduct as virtuous, since virtuous action need not be purely altruistic. But the failure to self-identify the qualification deficiency before the screening committee surfaced it suggests a deficit in the virtue of professional humility and rigorous self-assessment that a fully honorable firm would have exercised at the outset. A firm of exemplary professional character would have either submitted a complete and adequate proposal from the beginning or voluntarily withdrawn upon recognizing its own deficiencies, rather than relying on external feedback to trigger corrective action. Firm A's conduct was virtuous enough to be ethical, but not exemplary by the highest standard of professional character.
From a deontological perspective, NSPE Code Section 6's obligation to engage specialists when competence is insufficient does create an affirmative duty that, once the screening committee identified Firm A's technical deficiencies, made the team restructuring not merely permissible but morally required. If Firm A accepted the screening committee's feedback as accurate — and its subsequent action in restructuring the joint venture team implies that it did — then it was obligated under the Code to remedy the deficiency or withdraw. The amendment request was the mechanism through which Firm A fulfilled that obligation within the constraints of the active procurement. On this analysis, the amendment request was not a strategic maneuver to improve competitive position but a compliance action required by professional ethics. This framing strengthens the Board's conclusion by grounding the ethical permissibility of the amendment in a positive duty rather than merely the absence of a prohibition, and it suggests that Firm A would have acted unethically had it chosen to remain in the competition without curing the identified deficiency.
If the screening committee's deficiency feedback had been delivered privately to Firm A rather than at a public meeting, the informational asymmetry between Firm A and the other six competing firms would have been substantially more pronounced and ethically more troubling. In that scenario, Firm A would have possessed evaluator intelligence that was structurally inaccessible to its competitors — not merely practically unused by them — making the equal-access condition a hollow remedy. The other firms would have had no basis for knowing that amendments were strategically valuable, no signal about what deficiencies the evaluators were concerned about, and no reason to believe that restructuring their teams would improve their competitive standing. Under those conditions, the equal-access condition would have provided formal procedural symmetry while masking a deep substantive inequality, and the amendment request would have been ethically impermissible even if legally unobstructed. The public nature of the feedback delivery is therefore a critical ethical variable in this case — one that the Board's analysis implicitly relies upon but does not explicitly articulate.
If Firm A had chosen to withdraw from the procurement rather than restructure its joint venture team after learning of the screening committee's deficiency findings, that withdrawal would have been consistent with the spirit of the governing procurement law but would not necessarily have represented a higher standard of professional conduct than the amendment path Firm A actually pursued. Withdrawal would have honored the procedural integrity of the original qualification submission framework by accepting the consequences of an inadequate initial proposal. However, it would also have deprived the authority of a potentially qualified firm — one that, after restructuring, may have been among the most capable competitors — and would have done nothing to serve the public interest in securing the best engineering services for a complex power facility. Moreover, Code Section 6's obligation to engage specialists when competence is insufficient does not mandate withdrawal as the preferred remedy; it equally permits remediation through specialist engagement. Withdrawal would have been the more procedurally conservative choice, but the amendment path, pursued transparently and under equal-access conditions, was at least as ethically defensible and arguably more consistent with the Code's substantive purpose.
If one or more of the other six competing firms had taken advantage of the equal amendment opportunity to substantially restructure their own teams, the resulting process would have been procedurally strained but not necessarily legally or ethically invalid, provided the authority continued to evaluate all firms against the same qualification criteria and the final selection remained grounded in comparative qualification assessment. The QBS framework's core requirement is that the most qualified firm be selected for negotiation — it does not prohibit the competitive field from evolving during the pre-selection phase, provided that evolution occurs under conditions of equal access and legal authorization. However, a scenario in which multiple firms substantially restructured their teams would have effectively reset the competitive field in a way that the original procurement framework did not contemplate, raising legitimate questions about whether the process retained sufficient integrity to satisfy the spirit of the governing law. The authority would have faced increasing pressure to either close the amendment window definitively or restart the procurement entirely. This counterfactual illustrates that the ethical acceptability of Firm A's amendment request was partly contingent on the other firms' decision not to exercise the equal-access opportunity in a similarly disruptive way — a contingency that Firm A could not have controlled and that the authority should have anticipated when granting the amendment permission.
The principle of Honesty in Professional Representations creates a genuine and underappreciated tension with the permissibility of post-feedback qualification amendments. Firm A's original qualification statement represented its team's capabilities to the authority as adequate for the project. The screening committee's finding that the proposal lacked sufficient experience in certain technical aspects and desirable backup of specialized technical personnel implies that the original representation was materially incomplete or inaccurate relative to the project's requirements. Allowing Firm A to amend its submission does not retroactively cure that original misrepresentation — it replaces it with a more accurate one. The ethical question is whether the amendment process adequately acknowledges and addresses the original inaccuracy or merely papers over it. The Board's conclusion that the amendment was ethical implicitly treats the amendment as a cure rather than a concealment, which is defensible if the authority and the public are fully informed of the nature and extent of the original deficiency and the changes made to address it. Transparency about the gap between the original and amended submissions is therefore a necessary condition for the amendment to satisfy the honesty principle, not merely a procedural nicety.
The tension between Public Welfare Paramount and Procurement Process Spirit and Intent was resolved in this case by treating the QBS framework's ultimate goal — selecting the most qualified firm for a complex public project — as the interpretive lens through which procedural rules should be read, rather than treating procedural rules as ends in themselves. The Board implicitly concluded that a procurement law designed to secure the best-qualified firm cannot be construed to prohibit a mid-process correction that moves the field closer to that goal, provided the correction is made transparently and with equal access extended to all competitors. This resolution teaches that in QBS contexts, procedural integrity is instrumentally valuable rather than intrinsically absolute: when strict procedural adherence would predictably produce a less-qualified selection outcome, the spirit of the law favors the substantive goal. However, this prioritization carries a significant caveat — it is only defensible when the procedural accommodation is genuinely symmetrical, meaning all competing firms receive the same corrective opportunity, and when the authority obtains legal clearance before acting. The case thus establishes a conditional hierarchy: Public Welfare Paramount supersedes Procurement Process Spirit and Intent only when the equal-access condition and legal-clearance condition are both satisfied.
The principle of Free and Open Competition and the principle of Fairness in Professional Competition were treated as jointly satisfiable through the equal-amendment-opportunity condition, but this synthesis is only partially successful and leaves a residual tension unresolved. Extending the right to amend qualification statements to all seven shortlisted firms formally equalizes procedural access, which satisfies the structural requirement of Free and Open Competition. However, Fairness in Professional Competition demands not merely equal formal access but substantively comparable competitive positioning. Because only Firm A received specific, individualized deficiency feedback from the screening committee — feedback that identified precisely which technical gaps needed to be filled — the equal-access condition gave Firm A a strategically targeted amendment opportunity while giving the other six firms only a generic, undirected opportunity to revise. The other firms had no comparable signal about how to improve their competitive standing. This asymmetry means the two principles were reconciled at the formal level but not at the substantive level. The case teaches that when informational asymmetry is the product of a public proceeding rather than a private communication, it is treated as sufficiently neutralized for ethical purposes — but this conclusion is more defensible as a pragmatic accommodation than as a rigorous resolution of the underlying fairness tension. The public nature of the screening committee's feedback is doing significant ethical work in this analysis: had the feedback been private, the residual unfairness would likely have been disqualifying.
The interaction between the Qualification Upgrade or Withdrawal Obligation under Code Section 6 and the principle of Post-Feedback Qualification Amendment Permissibility reveals that these two principles, which might appear to be in tension, are in fact mutually reinforcing in this case — but only because the amendment mechanism was available. Code Section 6 imposes a binary obligation on a firm that recognizes its own competence deficiency: either engage qualified specialists or withdraw from the engagement. Firm A's receipt of screening committee feedback identifying technical gaps triggered this obligation. The amendment request was the mechanism through which Firm A discharged the upgrade branch of that obligation. This synthesis teaches that the ethical duty to cure a competence deficiency does not require withdrawal when a legitimate procedural pathway exists to remedy the deficiency before final selection occurs. However, the synthesis also reveals a timing problem: Code Section 6's obligation arguably arose before the screening committee identified the deficiencies, at the moment Firm A itself should have recognized that its joint venture lacked sufficient expertise for the project's technical requirements. The Board's analysis implicitly treats the screening committee's feedback as the triggering event, but a stricter reading of the Qualification Upgrade or Withdrawal Obligation would hold that Firm A's ethical duty to self-assess and proactively cure arose at the time of initial submission. This suggests the case resolves the principle tension in Firm A's favor by accepting reactive rather than proactive compliance with the competence obligation — a resolution that is ethically permissible but represents a lower standard of professional conduct than the Code's underlying purpose contemplates.
Upon receiving public screening committee feedback identifying a qualification deficiency in its joint venture, should Firm A restructure its team to cure the deficiency, continue competing without remediation, or withdraw from the process?
After receiving screening committee feedback at a public meeting indicating that its joint venture lacked sufficient technical support for the large power facility addition, Firm A must decide how to respond to the identified qualification deficiency. The firm can either restructure its joint venture team to cure the deficiency, continue competing without remediation, or withdraw from the QBS process entirely. This decision is governed by Code Section 6's specialist engagement mandate and the upgrade-or-withdraw obligation triggered by client-identified deficiencies.
Proactively reorganize the joint venture by adding specialist partners or internal expertise sufficient to meet the large power facility addition's technical requirements, fulfilling the Code Section 6 specialist engagement mandate and the upgrade obligation triggered by the screening committee's feedback.
Proceed in the QBS process with the existing joint venture structure despite the publicly identified deficiency, neither upgrading qualifications nor withdrawing — a course the Code Section 6 specialist engagement obligation characterizes as an ethical violation when known deficiencies remain uncured.
Recognize that upgrading the joint venture's qualifications is not feasible within the procurement timeline and voluntarily withdraw from further consideration, fulfilling the ethical obligation to step aside when competence cannot be adequately demonstrated or remediated.
When seeking to submit a revised qualification proposal after restructuring its joint venture team, should Firm A openly disclose the restructuring and condition its amendment request on equal opportunity being extended to all competing firms, submit the revision without explanation, or request permission without the equal-treatment condition?
Having decided to restructure its joint venture team in response to the screening committee's deficiency feedback, Firm A must now decide how to handle the submission of revised qualifications to the utility authority. The firm can openly disclose the restructuring and formally request authorization to amend its submission — conditioning that request on equal amendment opportunity being extended to all seven competing firms — or it can submit an amended proposal without explanation, or it can request permission without conditioning it on equal treatment for competitors.
Openly inform the utility authority of the joint venture team restructuring, formally request authorization to submit an amended qualification statement through proper channels, and explicitly condition that request on the authority extending the same amendment opportunity to all seven competing firms — thereby satisfying both the honest disclosure obligation and the competitive fairness preservation obligation simultaneously.
File the revised qualification statement reflecting the restructured joint venture without disclosing the nature of the change to the utility authority or seeking formal authorization, circumventing the procurement process and violating the honest disclosure and honorable professional conduct obligations.
Honestly disclose the restructuring and seek formal authorization from the utility authority, but without conditioning the request on the authority extending equivalent amendment rights to all other competing firms — partially fulfilling the transparency obligation while failing the competitive fairness preservation obligation.
Should the utility authority grant Firm A's amendment request by extending equal amendment opportunity to all seven competing firms after obtaining legal clearance, deny the request and hold all firms to their original submissions, or grant the request to Firm A exclusively without extending it to other competitors?
The utility authority has received Firm A's request to amend its qualification submission, conditioned on extending the same opportunity to all seven competing firms. The authority must decide whether to grant the amendment request, and if so, how to structure the procedural accommodation. This decision implicates the authority's obligation to obtain legal clearance before granting a procedural exception not explicitly provided for in the governing procurement law, and its paramount obligation to select the most qualified firm for the complex power facility project.
Seek and obtain legal advice confirming no legal impediment exists under the governing procurement law, then formally extend the same qualification amendment opportunity to all seven competing firms on equal terms — satisfying the equal treatment obligation, the legal clearance obligation, and the public welfare paramount obligation to identify the most qualified firm.
Decline Firm A's request on the grounds that the governing QBS law or ordinance does not explicitly authorize post-screening amendments, preserving the original procedural framework but potentially foreclosing the selection of the most technically qualified firm for a large and complex power facility.
Allow Firm A alone to submit a revised qualification statement without extending the same opportunity to the other six competing firms, granting a competitive advantage through exclusive access to a procedural accommodation and violating the equal treatment principle fundamental to fair public procurement.
Given that Firm A received specific individualized deficiency feedback at a public meeting, does the equal-amendment-opportunity condition fully discharge Firm A's fairness obligations to competing firms, or must Firm A take additional steps to neutralize the informational advantage it gained?
The screening committee's deficiency feedback was delivered at a public meeting, meaning all seven competing firms and members of the public were theoretically present or could access the proceedings. Firm A received specific, individualized feedback identifying its joint venture's technical shortfall. The question arises whether the public nature of the feedback delivery changes the ethical calculus regarding the informational advantage Firm A gained, and whether the equal-amendment-opportunity condition fully neutralizes that advantage or whether additional remediation is required.
Proceed on the basis that conditioning the amendment request on equal opportunity for all seven firms fully neutralizes the informational advantage gained from individualized public feedback, accepting that the public nature of the meeting means all competitors had equivalent theoretical access to the same information.
Go beyond the equal-amendment condition by directly notifying all six other competing firms of the specific deficiency feedback Firm A received, ensuring that any informational asymmetry arising from differential attention to or presence at the public meeting is actively eliminated rather than merely procedurally offset.
Recognize that the equal-amendment condition may not fully neutralize the advantage of receiving targeted, actionable feedback, disclose this concern transparently to the utility authority, and defer to the authority's judgment — informed by legal counsel — about whether additional procedural steps are needed to preserve competitive integrity.
Should public objectors and elected officials pursue a formal protest of the utility authority's equal-amendment decision on the grounds that it violated procurement law, or should they recognize that the procedural accommodation — equally extended and legally cleared — does not constitute a genuine violation of procurement integrity?
Members of the public and elected officials have raised objections to the utility authority's decision to allow Firm A to amend its qualification submission. These objectors must decide whether their protest is grounded in a good-faith assessment that the procedural accommodation genuinely violated the spirit and intent of the governing procurement law, or whether it reflects competitive or political motivations disproportionate to the actual procurement integrity concern — particularly given that the amendment opportunity was extended equally to all seven firms and legally cleared.
File a formal procurement protest based on a good-faith legal analysis concluding that the governing QBS statute or ordinance prohibits post-screening qualification amendments regardless of equal extension, and that the utility authority exceeded its procedural authority in granting the accommodation — a protest proportionate to an actual legal violation.
Assess in good faith that the equal-amendment accommodation — extended to all seven firms, legally cleared by counsel, and oriented toward identifying the most qualified firm for a complex public project — does not violate the spirit and intent of the QBS framework, and withdraw or decline to escalate the objection accordingly.
Continue to oppose the amendment decision through political channels despite the absence of a clear legal violation, allowing competitive or political motivations to drive the protest rather than a proportionate assessment of actual procurement integrity harm — a course the protest proportionality obligation characterizes as an ethical failure.
Firm A's qualification deficiencies become part of the official public record; competitive standing of Firm A implicitly threatened; pressure created on Firm A to respond; authority's evaluation criteria publicly clarified
After initial interview of shortlisted firms
Following an initial interview, the screening committee publicly announced at a public meeting that Firm A's joint venture lacked sufficient experience and specialized personnel in certain technical areas. This disclosure was made in a public forum, making the deficiency finding part of the official record.
Deficiencies Publicly Disclosed (Event 3) → Firm A Learns Of Deficiencies (Event 4)
Following an initial interview, the screening committee publicly announced at a public meeting that deficiencies existed, and Firm A's leadership became aware of the committee's deficiency findings by attending or receiving information from that public meeting
Deficiencies Publicly Disclosed (Event 3)
Without the public disclosure event, Firm A would not have learned of the specific deficiencies through this channel; however, it might have learned through private correspondence, making public disclosure the proximate but not sole possible cause
Committee's decision to publicly disclose deficiency findings at a public meeting
Deficiencies actually existing in Firm A's submission
Firm A's attendance at or receipt of information from the public meeting
Screening Committee / Public Utility Authority
Public disclosure at meeting + Firm A's awareness of the meeting + Firm A's presence or representation at the meeting
Equal Opportunity Fairness Condition Mid-Process Revision All Seven Competing Firms
Public and city council objected to the utility authority's decision to allow Firm A to amend its qualification submission; the BER found no basis to question fairness when all competing firms were given the same opportunity
Utility authority and Firm A in QBS procurement for power facility addition
Competitive Procurement Fairness Constraint
The fairness of allowing Firm A to revise its joint venture team composition mid-process was constrained on the condition that all competing firms were given the same opportunity to revise their qualifications — prohibiting any mid-process revision that conferred an exclusive informational or competitive advantage on Firm A not available to the other six competing firms.
NSPE Code of Ethics procurement fairness provisions; public procurement equal treatment norms
We do not see any basis to question the fairness of such a procedure when all competing firms are given the same opportunity.
At the point when Firm A requested permission to amend its SOQ and the utility authority considered granting that permission
Firm A Appearance of Impropriety Avoidance in SOQ Amendment Request
Public and city council objections raised the appearance of impropriety concern; Firm A's equal-access conditioning and transparent formal request were the primary mechanisms for avoiding this appearance
Appearance of Impropriety Avoidance in Public Procurement Constraint
Firm A was constrained to avoid not only actual unfairness in its amendment request but also the appearance of favoritism or impropriety — which it addressed by conditioning the request on equal access for all competing firms and by making the request transparently through formal channels rather than through informal back-channel communications.
NSPE Code of Ethics; BER Cases 82-2, 15-7, 16-3; public procurement appearance of impropriety norms
From the point Firm A decided to request an SOQ amendment through the authority's grant of the request
some members of the public and of the city council objected to allowing Firm A to alter its qualification proposal, alleging that in doing so it violated the intent of the governing procurement law
Firm A Code Section 6 Joint Venture Specialist Engagement Ethical Equivalence Application
Code Section 6 Prime-to-Joint-Venture Specialist Engagement Ethical Equivalence Application Capability
Firm A applied the BER Case 71-2 and Code Section 6 specialist engagement principle to its joint venture context, recognizing that the same duty to retain experts and specialists applied to the joint venture as would apply to a single prime firm
Upon receiving screening committee feedback that additional technical support was required, Firm A arranged for new joint venture partners to address the identified deficiencies
Firm A's restructuring of its joint venture to add qualified partners with the technical expertise identified as deficient by the screening committee, fulfilling the Code Section 6 specialist engagement duty
Firm A Qualification-Upgrading Joint Venture Lead
Section 6 contemplates that a prime professional will be expected to retain or recommend the retention of experts and specialists in situations in which the prime professional is performing substantial services of a project.
we see no real difference in the ethical obligation when instead of one 'prime' firm the legal entity is to be a joint venture in which all the involved firms are jointly responsible.
Firm A Competence Gap Joint Venture Partner Engagement Planning
Competence Gap Subconsultant Engagement Planning Capability
Firm A planned and executed the engagement of new joint venture partners to fill the technical experience and specialized personnel gaps identified by the screening committee
Upon receiving screening committee feedback identifying deficiencies in technical experience and specialized personnel coverage, Firm A restructured its joint venture team by adding qualified partners
Firm A's arrangement of new joint venture partners with the technical expertise required to address the deficiencies identified in the screening committee's public feedback
Firm A had no ethical choice but to upgrade its qualifications through either internal or external revisions in its proposal, or eliminate itself from further consideration.
Firm A Competitive Procurement Fairness Preservation Through Equal Treatment
Firm A demonstrated the capability to assess competitive procurement fairness by recognizing that its amendment request must not unfairly advantage itself over other competing firms, and by conditioning the request on equal treatment for all seven competing firms.
Firm A's equal-treatment condition preserved competitive procurement fairness and distinguished its conduct as ethically permissible
Conditioning amendment request on equal opportunity for all competing firms to modify their qualification statements
Firm A (QBS Qualification Amendment Requesting Engineering Firm)
Firm A Evaluator Feedback Informational Advantage Neutralization Requirement
Firm A learned at a public meeting that its joint venture lacked sufficient experience in certain technical aspects and specialized personnel backup, giving it specific knowledge of evaluation criteria weighting not available to other firms in the same form
Evaluator Feedback Informational Advantage Equal-Access Neutralization Constraint
The informational advantage Firm A gained from receiving specific screening committee feedback identifying its joint venture deficiencies had to be neutralized before any amendment was ethically permissible, requiring the utility authority to extend an equal amendment opportunity to all seven competing firms.
Firm A, one of the seven, following an initial interview, was advised that the screening committee of the authority felt that its joint venture proposal did not indicate sufficient experience in certain technical aspects, nor reflect a desirable backup of specialized technical personnel.
From the point Firm A received screening committee feedback until the amendment opportunity was formally extended to all competing firms
Upon learning of this reaction from the screening committee at a public meeting and prior to a selection by the authority, Firm A proceeded to arrange for other participation as part of the joint venture to overcome the apparent deficiencies
Firm A Honorable Conduct in QBS Procurement Amendment Request
Firm A openly disclosed its team restructuring, formally requested authorization, and conditioned the request on equal access for all competing firms, satisfying the honorable conduct constraint
Procurement Competition Honorable Conduct Constraint
Firm A was constrained to conduct itself honorably, responsibly, and fairly in making its amendment request, including by openly disclosing its team restructuring to the utility authority and conditioning the request on equal access for all competing firms rather than seeking a unilateral advantage.
NSPE Code of Ethics Sections II.5, III.6, III.7; professional procurement conduct norms
From the point Firm A decided to restructure its joint venture team through submission of the revised qualification proposal
Firm A Honorable Procurement Conduct in Amendment Request
Honorable Procurement Conduct Self-Regulation Capability
Firm A demonstrated honorable procurement conduct by openly disclosing its team restructuring, conditioning its amendment request on equal treatment for all competitors, and seeking formal authorization rather than proceeding unilaterally.
Firm A's transparent, equal-treatment-conditioned amendment request exemplified honorable procurement conduct under the NSPE Code
Openly requesting amendment permission with equal-treatment condition rather than attempting to substitute team members covertly or without authority authorization
Firm A Joint Venture Legal Entity QBS Firm Equivalence Recognition
Joint Venture Legal Entity QBS Firm Equivalence Recognition Capability
Firm A recognized that its joint venture constituted the legal 'firm' for QBS purposes and that all Code Section 6 specialist engagement obligations applied to the joint venture as a whole
Firm A competed in a QBS process for a large power facility addition, proposed a joint venture, received screening committee feedback identifying deficiencies, and restructured the joint venture team
Firm A's decision to restructure its joint venture team to cure qualification deficiencies, treating the joint venture as the qualifying entity subject to the same obligations as a prime firm
Firm A QBS Qualification Amendment Requesting Engineering Firm
In the context of this case the 'firm' would include a joint venture, which is a legal entity for the one project.
Firm A Joint Venture Legal Entity Qualification Status
From formation of the joint venture proposal through the conclusion of the procurement process
In the context of this case the 'firm' would include a joint venture, which is a legal entity for the one project
Joint Venture Unified Qualification Legal Entity State
Firm A's joint venture proposed for the utility authority project
Conclusion of the procurement selection process
instead of one 'prime' firm the legal entity is to be a joint venture in which all the involved firms are jointly responsible
Firm A's formation of a joint venture with other firms for the single project assignment
Firm A transitions from unknowing to knowing state regarding its qualification gaps; professional and ethical obligations that attach to knowledge of deficiency now fully activated
At or immediately after the public meeting where deficiencies were disclosed
Firm A's leadership became aware of the committee's deficiency findings by attending or receiving information from the public meeting where the findings were disclosed. This awareness event triggered Firm A's subsequent decision-making.
Firm A Learns Of Deficiencies (Event 4) → Reorganize Joint Venture Team (Action 2) and Request Permission to Revise Submission (Action 3)
Upon learning at a public meeting that the screening committee found the joint venture lacking in technical qualifications, Firm A reorganized its joint venture team and formally requested that the utility authority allow it to modify its qualification statement
Without learning of the deficiencies, Firm A would have had no basis to reorganize its team or request a revision; the public disclosure was the direct trigger for both responsive actions
Reorganize Joint Venture Team (Action 2) and Request Permission to Revise Submission (Action 3)
Existence of a procedural pathway allowing revision requests
Firm A's awareness of the specific deficiencies identified by the committee
Firm A's continued interest in remaining competitive in the procurement process
Knowledge of deficiencies + competitive motivation + perceived procedural opportunity to revise
Firm A Mandatory Qualification Upgrade or Withdrawal Recognition
QBS Mandatory Qualification Upgrade or Withdrawal Upon Deficiency Identification Capability
Firm A recognized that Code Section 6 created a mandatory ethical duty to upgrade its joint venture qualifications upon receiving screening committee feedback, and that failure to do so would constitute an ethical violation
The screening committee publicly indicated that additional technical support was required; Firm A had no ethical choice but to upgrade or withdraw
Firm A's proactive restructuring of its joint venture team rather than passively continuing in the competition with identified deficiencies or withdrawing without attempting remediation
under the mandate of 6 of the code, Firm A might be held in violation if it did not make a reasonable effort to upgrade the qualifications of the joint venture for the assignment once it was indicated that additional technical support was required by the client.
When that aspect was indicated on behalf of the client by the screening committee Firm A had no ethical choice but to upgrade its qualifications through either internal or external revisions in its proposal, or eliminate itself from further consideration.
Firm A Mid-Process SOQ Amendment Equal-Access Conditioned Request
Firm A received individualized screening committee feedback identifying joint venture competence deficiencies, restructured its team, and requested permission to amend its SOQ, conditioning the request on equal access for all competing firms
Mid-Process SOQ Amendment Equal-Access Conditioned Permissibility Constraint
Firm A could only ethically request permission to amend its qualification statement after receiving screening committee feedback if it explicitly conditioned the request on the utility authority extending the same amendment opportunity to all other six competing firms.
NSPE Code of Ethics; QBS procurement fairness norms; state law and local ordinance governing the selection process
From the point Firm A received screening committee feedback until the authority made its final selection decision
Firm A Procurement Process Challenge Vulnerability Self-Assessment
Procurement Process Challenge Vulnerability Assessment Capability
Firm A demonstrated awareness of the procurement process challenge vulnerability created by its amendment request, which it mitigated by conditioning the request on equal treatment for all competing firms and seeking formal authority authorization.
Firm A's equal-treatment condition and formal authorization request were the key mechanisms by which it reduced the procurement's vulnerability to legal challenge
Conditioning amendment request on equal treatment for all competitors and seeking formal utility authority authorization, thereby reducing the vulnerability of the procurement to legal challenge
Firm A QBS Amendment Request Equal Treatment Conditioning
QBS Amendment Request Equal Treatment Conditioning Capability
Firm A demonstrated the capability to condition its amendment request on equal treatment for all competing firms, recognizing that fairness required all seven competing firms to have the same opportunity to modify their qualification statements.
Firm A's self-imposed equal-treatment condition on its amendment request was the key ethical act that distinguished its conduct as honorable rather than opportunistic
Requesting amendment permission 'with the understanding that all competing firms be allowed to likewise modify their statements of qualification, if desired'
Firm A (Qualification-Upgrading Joint Venture Lead Engineer)
Firm A QBS Competitive Procurement Fairness Preservation Through Equal Treatment Condition
Firm A assessed the competitive fairness implications of its amendment request and recognized that conditioning the request on equal treatment for all competing firms was necessary to preserve procurement integrity
Firm A's amendment request was structured to preserve competitive fairness by requiring equal treatment as a condition
Firm A's conditioning of its amendment request on the utility authority extending the same opportunity to all other competing firms, preventing the request from conferring an unfair competitive advantage
Firm A QBS Joint Venture Competence Deficiency Cure Through Team Restructuring
Firm A restructured its joint venture team to add specialized technical personnel and experience, then formally requested authority permission to amend its SOQ, conditioned on equal access for all firms — satisfying the conditions for ethical permissibility
QBS Joint Venture Competence Deficiency Mid-Process Cure Ethical Permissibility Constraint
Firm A was constrained, upon receiving screening committee feedback identifying joint venture competence deficiencies, to cure those deficiencies only through a process of open disclosure, formal authorization request, equal-access conditioning, and legal clearance — prohibiting unilateral team restructuring and submission amendment without procuring authority authorization.
NSPE Code of Ethics (former Section 6); consulting-context competence remediation norms; QBS procurement fairness requirements
Firm A proceeded to arrange for other participation as part of the joint venture to overcome the apparent deficiencies in its overall ability to provide the total services needed to be selected for negotiations.
From receipt of screening committee feedback through submission of revised qualification proposal
Firm A QBS Post-Feedback Team Restructuring Transparent Disclosure
QBS Post-Feedback Team Restructuring Transparent Disclosure Capability
Firm A demonstrated the capability to transparently disclose its joint venture team restructuring to the utility authority when requesting amendment permission, openly explaining the change made to the team as the basis for the amendment request.
Firm A's transparent disclosure of its team restructuring to the utility authority enabled the authority to make an informed decision about whether to grant the amendment request
Requesting amendment permission 'in light of the change it had made in the team' — openly disclosing the restructuring rather than concealing it
Firm A QBS Procurement Honorable Conduct Self-Regulation in Amendment Request
Firm A conducted itself honorably in its amendment request by openly disclosing its team restructuring and conditioning its request on equal treatment being extended to all competing firms
Firm A requested permission to amend its qualification submission and conditioned the request on equal treatment for all competing firms, satisfying the honorable conduct obligation
Firm A's transparent disclosure of its joint venture restructuring and its insistence that the amendment opportunity be extended equally to all other competing firms as a condition of its own request
Firm A QBS Qualification Deficiency Self-Recognition Upon Screening Committee Feedback
QBS Qualification Deficiency Self-Recognition and Proactive Cure Capability
Firm A demonstrated the capability to recognize, upon receiving public screening committee feedback, that its joint venture proposal lacked sufficient experience in certain technical aspects and specialized personnel backup, and to proactively cure those deficiencies by arranging additional joint venture participation.
Firm A received screening committee feedback identifying deficiencies in its joint venture proposal for a large power facility addition and proactively restructured its team before final selection
Arranging additional joint venture partners to overcome identified deficiencies in technical experience and specialized personnel coverage after receiving screening committee feedback at a public meeting
Firm A reorganizing its joint venture team before Firm A requesting authority to allow modification of qualification statement
Firm A requested the utility authority to allow it to modify its qualification statement and proposal in light of the change it had made in the team
Firm A reorganizing its joint venture team
Firm A requesting authority to allow modification of qualification statement
Firm A reorganizing its joint venture team before authority's final selection decision
Upon learning of this reaction from the screening committee at a public meeting and prior to a selection by the authority, Firm A proceeded to arrange for other participation
Firm A requesting modification before authority receiving legal advice on the request
The utility authority, after receiving advice that there was no legal impediment involved, granted the request of Firm A
authority receiving legal advice on the request
Firm A submitting revised qualification proposal before public and city council members objecting
Subsequently, some members of the public and of the city council objected to allowing Firm A to alter its qualification proposal
Firm A submitting revised qualification proposal
public and city council members objecting
Joint Venture Code Section 6 Equivalence Firm A Joint Venture Power Facility
BER extended the Code Section 6 specialist engagement obligation from the single-prime-firm context (BER Case 71-2) to the joint venture context, finding no real ethical difference
Firm A and its joint venture partners in QBS procurement for power facility addition
Joint Venture Prime Firm Code Section 6 Specialist Obligation Ethical Equivalence Constraint
Firm A and its joint venture partners were constrained by the same Code Section 6 specialist engagement obligations that apply to a single prime firm, notwithstanding the joint venture's distributed responsibility structure — prohibiting any interpretation that the joint venture arrangement reduced or altered the ethical obligation to engage specialists when required by the client's interests.
The earlier case related to a single firm employing other firms as associates for part of the work, with the prime firm retaining full legal responsibility for the project assignment. But we see no real difference in the ethical obligation when instead of one 'prime' firm the legal entity is to be a joint venture in which all the involved firms are jointly responsible.
Throughout the QBS procurement and any resulting project engagement
National Society of Professional Engineers
some members of the public and of the city council objected to allowing Firm A to alter its qualification proposal, alleging that in doing so it violated the intent of the governing procurement law, and that Firm A had acted unethically in making its request
Members of the public, city council members, ethics reviewers evaluating Firm A's conduct
Provides the professional ethics framework against which Firm A's conduct — requesting permission to amend its SOQ mid-process — is evaluated. The allegation that Firm A 'acted unethically' invokes professional code obligations regarding fairness, honesty, and equitable competition in procurement.
NSPE Code of Ethics for Engineers – Former Section 6 (Specialist Engagement Provision)
Section 6 of the code '...recognizes the propriety and value of the prime professional or client retaining the services of experts and specialists in the interest of the project.'
Note: The following Code section no longer exists: Code of Ethics – Section 6
under the mandate of Section 6 of the code, Firm A might be held in violation if it did not make a reasonable effort to upgrade the qualifications of the joint venture
NSPE Board of Ethical Review in analyzing Firm A's ethical obligations
Cited as the primary ethical authority establishing Firm A's affirmative obligation to upgrade joint venture qualifications when the screening committee indicated additional technical support was required; also cited to recognize the propriety of prime professionals retaining experts and specialists
Pre-revision (no longer exists in current code)
New Joint Venture Partner Competence Gap Filling in QBS Context
The new joint venture partner(s) arranged by Firm A demonstrated the capability to fill identified competence gaps in technical experience and specialized personnel coverage, enabling the joint venture team to collectively possess the qualifications required for the large and complex power facility addition.
The new joint venture partner's specialized expertise was the substantive cure for the qualification deficiencies identified by the screening committee
Joining Firm A's joint venture team to provide the technical experience and specialized personnel backup identified as deficient by the screening committee
New Joint Venture Partner Engineering Firm
{'participation_trigger': 'Screening committee feedback identifying technical deficiencies', 'contribution': 'Specialized technical expertise and/or personnel backup previously lacking'}
A new engineering firm (or firms) arranged by Firm A to join its joint venture team after the screening committee identified deficiencies in technical experience and specialized personnel backup, contributing the missing specialized expertise to strengthen the amended qualification submission.
{'type': 'evaluated_by', 'target': 'Utility Authority QBS Procurement Administrator'}
{'type': 'joint_venture_with', 'target': 'Firm A QBS Qualification Amendment Requesting Engineering Firm'}
Firm A proceeded to arrange for other participation as part of the joint venture to overcome the apparent deficiencies in its overall ability to provide the total services needed
Professional Competence Invoked in Firm A Qualification Upgrade Obligation
Firm A's joint venture technical qualifications
Screening committee's identification of technical support deficiency
Procurement Integrity in Public Engineering
The Board's holding that Firm A was obligated to upgrade its joint venture's qualifications reflects the professional competence principle: an engineer must not undertake assignments for which the team is not qualified, and must take affirmative steps to ensure adequate qualifications when deficiencies are identified
Professional competence in the QBS context requires not only that an engineer be personally competent but that the professional entity (including joint venture) assembled for the project collectively possesses the competence required for the assignment
The Engineer will undertake engineering assignments for which he will be responsible only when qualified by training or experience; and he will engage, or advise engaging, experts and specialists whenever the client's or employer's interests are best served by such service.
The competence obligation reinforces rather than conflicts with procurement integrity — ensuring the selected firm is genuinely qualified serves both professional competence and public interest goals
Joint venture structure may introduce coordination complexity
Screening committee may scrutinize the cohesion and experience of the combined team
Obligation of honesty in representing actual capabilities by acknowledging need for partners
Client service: assemble best possible team for client's benefit
Competence: only undertake work for which qualified
Professional integrity: accurately represent capabilities
Assemble sufficient technical breadth and specialized expertise to be competitive for a large, complex project
Code Section 6 obligation to engage experts and specialists when client interests are best served
Obligation to undertake assignments only when qualified
Ability to assess project technical requirements against firm capacity
Ability to identify and vet qualified partner firms
Knowledge of joint venture legal structures
Qualification submission phase, prior to initial interviews
Firm A chose to submit a joint venture proposal rather than a single-firm qualification statement, recognizing the project's size, complexity, and specialized technical requirements exceeded what it could offer alone.
Propose Joint Venture Structure (Action 1) → Deficiencies Publicly Disclosed (Event 3)
Firm A chose to submit a joint venture proposal rather than a single-firm qualification statement, resulting in the screening committee finding the joint venture lacking in technical qualifications sufficient to be shortlisted without deficiency findings
Propose Joint Venture Structure (Action 1)
Had Firm A submitted as a single qualified firm or selected a more technically complementary partner, deficiencies may not have been identified or publicly disclosed
Decision to structure submission as joint venture rather than single-firm
Joint venture's combined qualifications falling below committee's technical threshold
Screening committee's mandate to evaluate and publicly disclose deficiencies
Joint venture structure + insufficient combined technical credentials + committee's public disclosure obligation
Professional engineering ethics bodies and procurement regulatory frameworks
Public Procurement Fairness and Equal Treatment Standard in QBS Processes
Firm A (in framing its amendment request), utility authority (in evaluating the request), city council members (in objecting to the amendment)
Firm A explicitly conditioned its amendment request on the understanding that all competing firms be allowed to likewise modify their qualification statements, invoking the professional norm of equitable treatment of all competitors in public procurement. This standard is the ethical benchmark for evaluating whether Firm A's request was fair or gave it an improper competitive advantage.
Procurement process now under public and political scrutiny; allegations of law violation and unethical conduct formally on record; both authority and Firm A must defend their actions; potential for process invalidation or formal ethics review created
After Firm A submitted its revised qualification proposal
Following the authority's grant of Firm A's revision request and Firm A's submission of a revised proposal, public members and city council members formally objected, alleging that the authority had violated procurement law and that Firm A had acted unethically. This event transformed a procurement administration matter into a public controversy.
Public and City Council Objectors Equal Amendment Opportunity Fairness Sufficiency Recognition Deficit
Equal Competitive Amendment Opportunity Fairness Sufficiency Recognition Capability
The public and city council objectors lacked or failed to apply the capability to recognize that equal extension of amendment opportunity to all firms was the decisive fairness criterion, leading them to overstate the ethical significance of the procedural accommodation
Members of the public and city council objected to the utility authority's decision to allow Firm A to amend its qualification statement, but the BER found no ethical basis for the objection given equal treatment
The objectors' protests against the utility authority's amendment decision, which the BER found did not identify a valid basis to question the fairness of the procedure given equal treatment of all firms
Public and City Council Procurement Objectors
Public and City Council Objectors Procurement Spirit Intent Protest Proportionality Calibration
Procurement Objector Protest Proportionality and Spirit-Intent Calibration Capability
The public and city council objectors demonstrated a need for — but arguably lacked — the capability to calibrate their protest to the actual spirit and intent of the governing procurement law, as their objection overstated the ethical and legal significance of a procedural accommodation that was legally cleared, equally extended, and fairness-preserving.
The public and city council objectors' protest illustrated the challenge of calibrating procurement objections to actual violations of procurement spirit and intent versus procedurally accommodated fairness-preserving adjustments
Alleging that Firm A violated the intent of the governing procurement law and acted unethically, without adequately accounting for the equal-treatment condition, legal clearance, and fairness-preserving nature of the accommodation
Public and City Council Procurement Objectors (Public Procurement Objector Stakeholder)
Subsequently, some members of the public and of the city council objected to allowing Firm A to alter its qualification proposal, alleging that in doing so it violated the intent of the governing procurement law, and that Firm A had acted unethically in making its request.
QBS Joint Venture Unified Legal Entity Assessment Utility Authority Power Facility
Firm A proposed a joint venture for the power facility addition project; the utility authority needed to assess whether the joint venture as a whole met the 'best qualified' standard
Utility authority and all parties assessing qualifications in QBS procurement for power facility addition
QBS Joint Venture Legal Entity Unified Qualification Assessment Constraint
The utility authority was constrained to assess Firm A's joint venture as a unified legal entity for QBS qualification purposes, evaluating the collective qualifications of all joint venture partners and any engaged specialists as the relevant qualification baseline — prohibiting disaggregation of joint venture partners into separate firms for qualification assessment.
State QBS law and local ordinance analogous to federal Brooks Act; NSPE BER analysis
Throughout the QBS qualification assessment and selection process
QBS Law Best-Qualified Interpretation Utility Authority Power Facility Procurement
Public utility authority administering QBS selection for large power facility addition; question arose whether allowing Firm A to amend its SOQ mid-process was consistent with governing law
Utility authority administering QBS procurement for power facility addition
QBS Law Best-Qualified Firm Presentation Facilitation Interpretive Constraint
The utility authority was constrained to interpret the applicable state law and local ordinance — analogous to the Brooks Act — in a manner consistent with the 'best qualified' firm selection mandate, prohibiting interpretations that would preclude procedures designed to present each competing firm in its best light of technical and professional qualifications.
it would indeed be a peculiar result that a state or local law intended to have the client select the 'best qualified' firm be interpreted to preclude a procedure intended to present each 'firm' in its best light of technical and other professional qualifications
Throughout the active QBS procurement process for the power facility addition
QBS Procurement Balance Best-Qualified vs Strict Procedural Adherence Utility Authority
Public and city council objected on procurement spirit grounds; BER found the procedure acceptable when equal opportunity was extended to all competing firms and legal clearance was obtained
Utility authority administering QBS procurement and public objectors evaluating the amendment decision
QBS Procurement Balance Public Interest vs. Strict Rule Adherence Constraint
The utility authority was constrained to balance the public interest in selecting the most qualified firm against strict procedural adherence requirements, with the 'best qualified' mandate and the equal-access condition together providing sufficient justification for the permissive amendment interpretation in this case.
State QBS law analogous to Brooks Act; NSPE Code of Ethics; BER analysis
At the decision point when the utility authority granted Firm A permission to amend its SOQ
QBS Procurement Best-Qualified Firm Selection Public Interest Paramount Goal
The utility authority faced the question of whether to allow Firm A to amend its SOQ mid-process, balancing the public interest in selecting the most qualified firm against the procedural integrity of the QBS process
The utility authority was constrained to balance the paramount goal of selecting the most qualified firm for the large and complex power facility addition against strict adherence to procurement procedural rules, and to strike that balance in a manner that preserved procurement integrity while serving the public interest in obtaining the best-qualified engineering services.
State law and local ordinance QBS requirements; NSPE Code of Ethics; Brooks Act analog; BER Case 10-8 precedent
The state law and a local ordinance, which applied to the authority, required that all firms submitting statements of interest be considered
Throughout the QBS procurement process, particularly when deciding whether to grant Firm A's amendment request
Following these interviews, the agency is required to select the 'most qualified' firm for negotiation of a contract.
QBS Procurement Framework Active for Power Facility Addition
From public announcement of qualification solicitation through final contract negotiation
Public utility authority's procurement of engineering services for power facility addition
Execution of contract with selected firm
not less than three firms deemed most highly qualified be interviewed
the agency is required to select the 'most qualified' firm for negotiation of a contract
Public utility authority's announcement of plans and invitation for qualification statements under state law and local ordinance
Procurement process formally populated; authority now holds competing submissions and must apply consistent evaluation criteria to all firms
Early procurement phase, after public announcement
Multiple engineering firms submitted qualification statements in response to the public utility authority's open invitation for a large power facility addition. This created a competitive field of candidates subject to procurement rules.
Was it ethical for Firm A to seek to alter its qualification proposal in order to improve its position to secure the contract?
Did Firm A gain an unfair informational advantage by receiving specific, individualized deficiency feedback from the screening committee at a public meeting, and if so, does the equal-amendment-opportunity condition fully neutralize that advantage for the other six competing firms who had no comparable deficiencies identified?
Was the utility authority's decision to grant the amendment request procedurally sound, or did it effectively reopen the qualification competition in a way that undermined the integrity of the original procurement framework established by state law and local ordinance?
Under NSPE Code Section 6, was Firm A ethically obligated to either withdraw from the competition or proactively upgrade its joint venture team upon recognizing its own qualification deficiencies before the screening committee identified them, rather than waiting for external feedback to trigger corrective action?
Should the fact that the screening committee's deficiency feedback was delivered at a public meeting, rather than in a private communication, be treated as ethically significant in assessing whether Firm A's use of that feedback to restructure its team was permissible or constituted exploitation of a procedural irregularity?
Does the principle of Public Welfare Paramount — which favors selecting the most technically qualified firm for a complex power facility — conflict with the principle of Procurement Process Spirit and Intent, which demands that procedural rules be followed consistently and not bent mid-process to accommodate a firm that initially submitted an inadequate proposal?
Does the principle of Free and Open Competition — served by extending equal amendment opportunity to all seven firms — genuinely resolve the tension with Fairness in Professional Competition, given that only Firm A had actionable deficiency feedback that made a targeted amendment strategically meaningful, while other firms had no comparable signal about how to improve their standing?
Does the Qualification Upgrade or Withdrawal Obligation — which holds that a firm recognizing its own incompetence must either remedy it or step aside — conflict with the Screening Committee Public Feedback Non-Exploitation principle, in that acting on the obligation necessarily requires Firm A to exploit the specific deficiency intelligence it received from the screening committee before other firms had any equivalent opportunity to act on comparable feedback?
Does the principle of Honesty in Professional Representations — which requires that qualification statements accurately reflect a firm's actual capabilities — conflict with Post-Feedback Qualification Amendment Permissibility, in the sense that allowing Firm A to revise its submission implicitly acknowledges that its original representation was materially inaccurate, raising the question of whether the amendment cures or merely obscures that original misrepresentation?
From a deontological perspective, did Firm A fulfill its duty of fairness to competing firms by conditioning its amendment request on equal access for all seven shortlisted firms, or did the informational advantage it already possessed from individualized screening committee feedback make that condition insufficient to discharge its duty of impartiality?
From a consequentialist standpoint, did the utility authority's decision to permit Firm A's mid-process qualification amendment ultimately serve the public interest better than strict procedural adherence would have, given that the goal of qualified-based selection is to secure the most competent firm for a large and complex power facility?
From a virtue ethics perspective, did Firm A demonstrate genuine professional integrity by proactively disclosing its team restructuring to the utility authority and insisting on equal amendment access for all competitors, or did the self-interested motivation underlying those actions undermine the character-based standard of honorable professional conduct?
From a deontological perspective, did Firm A's ethical obligation under Code Section 6 to engage specialists when its own competence is insufficient create an affirmative duty to restructure its joint venture team upon receiving screening committee feedback identifying technical deficiencies, making the amendment request not merely permissible but morally required?
If the screening committee's deficiency feedback had been delivered privately to Firm A rather than disclosed at a public meeting, would the informational asymmetry between Firm A and the other six competing firms have been so pronounced that the amendment request would have been ethically impermissible, even with equal access extended to all firms?
If Firm A had chosen to withdraw from the procurement rather than restructure its joint venture team after learning of the screening committee's deficiency findings, would that withdrawal have better served the spirit and intent of the governing procurement law, and would it have represented a higher standard of professional conduct than seeking an amendment?
If the utility authority had denied Firm A's amendment request on grounds of preserving strict procedural integrity, and the ultimately selected firm later proved unable to handle the technical complexities of the power facility addition, would that outcome have retroactively validated Firm A's argument that the public interest in securing the most qualified firm outweighs rigid adherence to procurement process rules?
If one or more of the other six competing firms had also taken advantage of the equal amendment opportunity to substantially restructure their own teams in response to Firm A's amendment, effectively resetting the competitive field, would the resulting process still have satisfied the legal and ethical requirements of the qualified-based selection framework, or would it have constituted an impermissible restart of the procurement?
Action could be perceived as gaming the selection process
Other competing firms might object to the procedural fairness of mid-process team changes
Public and political scrutiny of the procurement process could be triggered
Code Section 6 obligation to engage specialists when client interests require it
Obligation to act in the client's best interest by assembling the most capable team
Obligation to be genuinely qualified before undertaking a professional assignment
Client welfare: client's interests are best served by the most qualified team
Competence: engineers must be qualified for assignments they undertake
Professional responsibility: once deficiencies are identified, remediation is required
Cure identified technical deficiencies in the joint venture team to meet the client's actual needs and remain competitive in the selection process
Ability to negotiate and formalize joint venture participation on short notice
Judgment to assess which deficiencies were material and how to cure them
Rapid identification of qualified firms with the specific technical expertise flagged as deficient
Immediately after the public meeting where screening committee concerns were disclosed, prior to authority's final selection
Upon learning at a public meeting that the screening committee found the joint venture lacking in technical experience and specialized personnel, Firm A proactively arranged for additional or replacement participants in the joint venture to address the identified deficiencies.
Even if granted, public objection and political scrutiny were foreseeable
Granting the request could open the process to broader revision by all seven firms, potentially extending the timeline
Request could be denied on legal or procedural grounds
Fairness obligation: explicitly conditioning request on equal opportunity for all competing firms
Obligation to act within the authority's procedural framework rather than unilaterally
Transparency obligation: openly requesting permission rather than attempting to substitute team members without disclosure
Client service: ensuring the authority can select the most qualified firm
Fairness to competitors in procurement processes
Respect for lawful authority and procurement procedures
Transparency and honesty in dealings with public clients
Obtain authority approval to submit a revised qualification proposal that accurately reflects the upgraded team, while preserving competitive fairness through equal access for all firms
Obligation to present accurate and current qualifications to the client
Ability to frame a procedurally fair request that addresses likely objections
Professional judgment about the ethical dimensions of mid-process team changes
Understanding of procurement law and selection procedures
After team reorganization, prior to authority's final selection decision
Firm A formally requested that the utility authority allow it to modify its qualification statement to reflect the reorganized joint venture team, explicitly conditioning the request on all competing firms being given the same opportunity to revise their submissions.
Request Permission to Revise Submission (Action 3) → Revision Permission Granted (Event 5)
After receiving legal advice that no legal impediment existed, the authority formally granted Firm A permission to revise its qualification statement following Firm A's formal request
Request Permission to Revise Submission (Action 3)
Without Firm A's formal request, the authority would have had no occasion to seek legal advice or grant permission; the request was the necessary initiating cause of the permission event
Authority's discretionary decision to approve the request
Authority's receipt of legal advice confirming no legal bar to granting the request
Firm A's formal submission of a revision request to the authority
Shared. Firm A (initiating cause) and Public Utility Authority (granting cause)
Formal revision request + absence of legal impediment + authority's exercise of discretion in favor of approval
The competitive process formally reopened for qualification revisions; submission finality principle suspended; all seven shortlisted firms now hold equal right to revise; the procurement process materially altered from its original structure
After Firm A submitted its request and authority obtained legal advice
After receiving legal advice that no legal impediment existed, the authority formally granted Firm A's request to revise its qualification statement, subject to the condition that all competing firms be given the same opportunity. This administrative decision became an event that changed the competitive landscape for all shortlisted firms.
Revision Permission Granted (Event 5) and Submit Revised Qualification Proposal (Action 4) → Public Objections Raised (Event 6)
Following the authority's grant of Firm A's revision request and Firm A's submission of a revised proposal, public objections were raised by competing firms and other stakeholders regarding the fairness and procedural integrity of allowing a mid-process revision
Revision Permission Granted (Event 5) and Submit Revised Qualification Proposal (Action 4)
Without the authority granting permission and Firm A submitting a revised proposal, there would have been no basis for public objections regarding mid-process revision; the objections are a direct consequence of both the authority's decision and Firm A's action
Authority's decision to grant revision permission to one competing firm
Competing firms' awareness of the revision and its potential competitive impact
Competing firms' or stakeholders' willingness to formally object
Firm A's actual submission of a revised qualification proposal
Shared. Public Utility Authority (primary) and Firm A (contributing)
Granting of revision to one firm + submission of revised proposal + perceived competitive disadvantage to other shortlisted firms + public nature of the procurement process
Procurement law, professional engineering ethics norms
Standard for Post-Submission SOQ Amendment in Qualification-Based Selection Procurement
SOQ Amendment and Modification Procedure Standard
The utility authority, after receiving advice that there was no legal impediment involved, granted the request of Firm A and a revised qualification proposal was submitted to it.
Firm A, utility authority screening committee, city council, public objectors
The central procedural and ethical question of the case: whether Firm A was permitted to modify its qualification proposal after initial submission and after receiving informal feedback from the screening committee, and whether the utility authority acted properly in granting that request. This standard governs the permissibility and ethical implications of mid-process SOQ amendments.
SOQ Amendment and Modification Procedure Standard (Joint Venture Team Revision)
NSPE Board of Ethical Review / professional procurement ethics norms
SOQ Amendment and Modification Procedure Standard – Joint Venture Team Composition Revision
whether it is fair to allow a competing firm to revise the elements making up the team of its joint venture in order to meet a higher level of qualification on the basis of public comments made by the screening committee
NSPE Board of Ethical Review in assessing fairness of mid-process joint venture team revision
The ethical permissibility of Firm A revising its joint venture team composition in response to screening committee feedback, conditioned on all competing firms receiving the same opportunity to amend
Screening Committee Actionable Qualification Feedback Delivery
QBS Screening Committee Actionable Qualification Feedback Delivery Capability
The screening committee demonstrated the capability to identify specific technical deficiencies in Firm A's joint venture proposal — insufficient experience in certain technical aspects and inadequate backup of specialized technical personnel — and to communicate those deficiencies publicly and specifically.
The screening committee's specific, public feedback enabled Firm A to understand and cure its qualification deficiencies, which was the triggering event for the entire amendment request sequence
Advising Firm A that its joint venture proposal did not indicate sufficient experience in certain technical aspects nor reflect a desirable backup of specialized technical personnel, at a public meeting
QBS Screening Committee Qualification Feedback Body
Upon learning of this reaction from the screening committee at a public meeting
Competition formally narrowed to seven firms; non-shortlisted firms eliminated; Firm A's joint venture now holds a competitive position that carries implicit representation of minimum qualification
After receipt and initial review of qualification statements
The authority's screening committee narrowed the field of all submitting firms down to seven qualified firms, including Firm A's joint venture, who advanced to the interview stage. This formal selection outcome conferred competitive standing on the shortlisted firms.
State legislature and local municipal authority
State Law and Local Ordinance Governing Qualification-Based Selection for Public Engineering Contracts
The state law and a local ordinance, which applied to the authority, required that all firms submitting statements of interest be considered, that not less than three firms deemed most highly qualified be interviewed to consider in more detail the ability of the professional personnel; past performance; ability to meet time and budget requirements; location of the firms; recent, current, and projected workloads of the firms; and other qualification factors determined by the agency.
Utility authority, Firm A, competing firms, city council members
Establishes the mandatory QBS procedure: all SOQ submitters must be considered, at least three most-qualified firms must be interviewed on detailed criteria, the most qualified firm is selected for negotiation, and if negotiations fail the second-ranked firm is approached. This law is the legal framework within which Firm A's amendment request and the authority's response must be evaluated.
Other firms that chose not to revise their submissions might be disadvantaged relative to Firm A's upgraded proposal
Revised submission would invite continued public and political scrutiny
The revised proposal would be evaluated against the same criteria as all other firms, with no guarantee of selection
Code Section 6 obligation to engage specialists and present genuine qualifications
Obligation to act in the client's best interest by presenting the most capable team
Obligation to provide accurate and complete information to the client authority
Client welfare: the authority deserves to evaluate the firm's true best qualifications
Competence: qualifications presented must reflect actual capability
Honesty and accuracy in representations to clients
Professional integrity: follow through on commitments made in the revision request
Present an accurate, complete, and strengthened qualification statement that reflects the joint venture team's actual current capabilities and addresses the deficiencies identified by the screening committee
Ability to accurately document and present the reorganized joint venture team's qualifications
Knowledge of the evaluation criteria specified in the procurement law
Technical writing and proposal preparation skills
After authority granted permission to revise; during revised submission period
Following the authority's approval of its request, Firm A submitted a revised qualification proposal reflecting the reorganized joint venture team with the additional specialized technical personnel and experience.
Utility Authority Equal Amendment Opportunity Extension to All Seven Competing Firms
The utility authority granted Firm A's amendment request conditioned on equal access for all competing firms, consistent with Firm A's own condition, satisfying this constraint
The utility authority was constrained, upon granting Firm A permission to amend its qualification statement, to extend the same amendment opportunity to all other six competing firms on equal terms, prohibiting selective permission that would advantage Firm A alone.
NSPE Code of Ethics; state law and local ordinance QBS requirements; public procurement equal treatment norms
with the understanding that all competing firms be allowed to likewise modify their statements of qualification, if desired
Concurrent with or immediately following the grant of Firm A's amendment request
Utility Authority Equal Competitive Amendment Opportunity Fairness Sufficiency Recognition
The utility authority recognized that extending the same amendment opportunity to all seven competing firms was the decisive criterion establishing the fairness of the amendment procedure
The utility authority granted Firm A's amendment request and extended the same opportunity to all other competing firms, which the BER found resolved the fairness question
The utility authority's extension of equal amendment opportunity to all competing firms as a condition of granting Firm A's request, thereby satisfying the equal treatment requirement
Utility Authority QBS Procurement Administrator
Utility Authority Legal Clearance Before Granting Firm A SOQ Amendment Permission
The utility authority received Firm A's request to amend its SOQ mid-process and obtained legal advice before granting the request, satisfying this constraint
QBS Procurement Authority Legal Clearance Before Mid-Process Exception Granting Constraint
The utility authority was constrained from granting Firm A's request to amend its qualification statement without first obtaining legal advice confirming that no legal impediment existed to the proposed procedural exception.
State law and local ordinance governing QBS procurement; public agency procedural due diligence obligations
Before granting Firm A's amendment request
Utility Authority Procurement Fairness Appearance Management in Amendment Grant
Procurement Fairness Appearance Management Capability
The utility authority demonstrated the capability to manage the appearance of fairness when granting Firm A's amendment request by obtaining legal clearance and extending equal opportunity to all competing firms, thereby structuring the accommodation to withstand scrutiny for fairness.
Despite the utility authority's procedural safeguards, public and city council objectors still raised appearance-of-impropriety concerns, illustrating the challenge of managing procurement fairness appearance
Obtaining legal advice and extending equal amendment opportunity to all competitors before granting Firm A's request, thereby managing the appearance of favoritism
Utility Authority (QBS Procurement Administering Public Utility Authority)
Utility Authority Procurement Integrity Balance Judgment in Amendment Grant
Procurement Integrity Balance Judgment Capability
The utility authority demonstrated the capability to balance the tension between strict procedural adherence and the paramount goal of selecting the most qualified firm, resolving that tension by obtaining legal clearance and extending equal opportunity to all competitors before granting the amendment.
The utility authority's balanced judgment in granting the amendment with legal clearance and equal treatment was the central ethical decision in the case
Resolving the tension between strict deadline enforcement and most-qualified-firm selection by obtaining legal advice and extending equal amendment opportunity to all competing firms
Utility Authority Public Procurement Integrity Public Interest Articulation
Public Procurement Integrity Public Interest Articulation Capability
The utility authority demonstrated the capability to understand and apply the public interest rationale underlying QBS procurement rules, recognizing that the process serves the public interest in obtaining the most qualified engineering services for a large and complex power facility addition.
The utility authority's administration of the QBS process reflected understanding of the public interest rationale underlying QBS procurement law
Administering the QBS process with the goal of selecting the most qualified firm, including granting procedural accommodations that preserved rather than undermined the public interest purpose of QBS
Utility Authority QBS Equal Amendment Opportunity Extension to All Seven Firms
QBS Equal Amendment Opportunity Extension Administration Capability
The utility authority demonstrated the capability to extend the same amendment opportunity to all seven competing firms when granting Firm A's amendment request, ensuring no firm gained an unfair competitive advantage from the procedural accommodation.
The utility authority's equal extension of amendment opportunity to all competing firms was the key administrative act that preserved procurement fairness
Granting Firm A's amendment request on the condition that all competing firms be allowed to likewise modify their qualification statements
Utility Authority QBS Law Best-Qualified Firm Permissive Procedure Interpretation
The utility authority interpreted the governing QBS law as permitting the amendment procedure because a law designed to select the 'best qualified' firm should not be construed to preclude procedures that enable firms to present their highest qualification level
The utility authority administered a QBS process under state law and local ordinance, and granted Firm A permission to amend its qualification submission after obtaining legal advice
The utility authority's decision to grant Firm A's amendment request after obtaining legal clearance, grounded in the purposive interpretation that QBS law supports rather than prohibits qualification-enhancing procedures
the applicable laws are similar to the Federal A/E selection law (Brooks Act) and the laws of other states, which contemplate a procedure whereby the public body may select the 'best qualified' firm.
Utility Authority QBS Legal Clearance Before Granting Amendment Exception
QBS Procurement Legal Clearance Before Exception Granting Capability
The utility authority demonstrated the capability to recognize that granting Firm A's amendment request required legal clearance, and to obtain legal advice confirming no legal impediment existed before granting the exception.
The utility authority's legal clearance step was a critical procedural safeguard that made the amendment grant legally defensible
Seeking and receiving legal advice confirming no legal impediment before granting Firm A's request to amend its qualification submission
Utility Authority QBS Most-Qualified Firm Selection Paramount Goal Maintenance
QBS Most-Qualified Firm Selection Paramount Goal Maintenance Capability
The utility authority demonstrated the capability to maintain the paramount goal of selecting the most qualified firm throughout its procedural decisions, including when granting the amendment accommodation that enabled Firm A to cure its qualification deficiencies.
The utility authority's procedural accommodation served the fundamental QBS purpose of selecting the most qualified firm for a large and complex power facility addition
Granting amendment permission after legal clearance and with equal-treatment extension, thereby enabling the most qualified firm to emerge from the process rather than excluding a potentially qualified firm on procedural grounds
Utility Authority QBS Procurement Law Conformance Administration
The utility authority demonstrated knowledge of applicable state law and local ordinance QBS requirements, including the obligation to consider all submitting firms, interview at least three most highly qualified firms, and select the most qualified firm for negotiation.
The utility authority's administration of the QBS process under state law and local ordinance provided the legal framework within which the amendment request arose
Administering the QBS process in conformance with state law and local ordinance requirements, narrowing submissions to seven qualified firms and conducting interviews
The state law and a local ordinance, which applied to the authority, required that all firms submitting statements of interest be considered, that not less than three firms deemed most highly qualified be interviewed
Utility Authority QBS Procurement Law Conformance in Administering Selection
The utility authority narrowed submissions to seven qualified firms, conducted interviews, and administered the selection process under state law and local ordinance QBS requirements
Public Procurement Procedural Compliance Constraint
The utility authority was constrained to administer the QBS selection process in conformance with the applicable state law and local ordinance, including the requirements that all submitting firms be considered, at least three most-qualified firms be interviewed, and the most qualified firm be selected for negotiation.
State law and local ordinance governing QBS procurement (analogous to Brooks Act)
Throughout the entire QBS procurement process
authority announcement of plans and invitation for qualification statements before firms submitting qualification statements
A public utility authority announced plans to build a large and complex addition to its power facilities, and publicly invited qualification statements from interested engineering firms.
authority announcement of plans and invitation for qualification statements
firms submitting qualification statements
authority granting Firm A's request before Firm A submitting revised qualification proposal
granted the request of Firm A and a revised qualification proposal was submitted to it
authority narrowing to seven qualified firms before initial interview of Firm A
Firm A, one of the seven, following an initial interview, was advised that the screening committee...felt that its joint venture proposal did not indicate sufficient experience
authority narrowing to seven qualified firms
authority receiving legal advice before authority granting Firm A's request
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.8
The public character of the feedback delivery is the critical ethical determinant: public feedback accessible to all competitors does not create the same impropriety as privately communicated evaluator preferences, though the objectors disputed whether all competitors had equal practical ability to respond
source_field=tensionresolution; confidence=0.85
Equal extension of the amendment opportunity was treated as sufficient to maintain the free and open competitive character of the process, though objectors argued this did not cure the spirit-of-the-law violation
source_field=tensionresolution; confidence=0.88
The equal-treatment condition was treated as the primary mechanism for preserving competitive fairness, neutralizing the potential advantage that Firm A might otherwise have gained from its amendment
source_field=tensionresolution; confidence=0.9
The Board resolved the tension between amendment flexibility and procurement integrity by conditioning permissibility entirely on equal treatment — the equal opportunity condition simultaneously satisfies fairness to competitors and serves the client's interest in best-qualified firm selection
source_field=tensionresolution; confidence=0.82
The transparency of Firm A's approach — openly requesting authorization rather than acting unilaterally — is treated as a mitigating factor supporting ethical permissibility, even if the underlying amendment itself remained contested
source_field=tensionresolution; confidence=0.78
No tension was identified; the Board treated the extension as a straightforward application of the same ethical principle to a different legal form
The Board resolved the tension between procedural rigidity and best-qualified selection by finding that the amendment procedure, when applied equally, serves rather than undermines procurement integrity
The Board resolved that Firm A's decision to upgrade (rather than withdraw) was ethically correct, provided the equal treatment condition was satisfied for all competing firms
The honesty obligation to accurately represent the proposed team actually supports the amendment request: submitting an outdated qualification statement would itself have been a form of misrepresentation
source_field=tensionresolution; confidence=0.83
The utility authority resolved this tension by obtaining legal advice that no legal impediment existed and by extending equal amendment opportunity to all competing firms, treating the equal-treatment condition as sufficient to preserve process integrity
source_field=tensionresolution; confidence=0.86
The equal-treatment condition and the procuring authority's legal clearance together resolved the tension in favor of permissibility, though the spirit-of-the-law objection remained contested
source_field=tensionresolution; confidence=0.87
Legal clearance combined with equal treatment extension was treated as sufficient to satisfy the procurement integrity obligation, though public objectors disputed whether this was adequate
Public welfare considerations support both strict process integrity (to ensure public trust) and flexibility to obtain the most qualified team (to ensure technical competence); the tension is resolved differently by the authority (flexibility) and the objectors (strict process)
source_field=tensionresolution; confidence=0.84
failed negotiation with top-ranked firm before negotiations with second-ranked firm
If the parties are not able to agree on the terms of an agreement, the agency then undertakes negotiations with the second-ranked firm.
firms submitting qualification statements before authority narrowing submissions to seven qualified firms
The utility authority narrowed a large number of qualification submissions to seven qualified firms
authority narrowing submissions to seven qualified firms
initial interview of Firm A before screening committee advising Firm A of deficiencies
Firm A, one of the seven, following an initial interview, was advised that the screening committee of the authority felt that its joint venture proposal did not indicate sufficient experience in certain technical aspects
screening committee advising Firm A of deficiencies
invokedby: Firm A Qualification-Upgrading Joint Venture Lead
Firm A conditioned its amendment request on all competing firms receiving the same opportunity to revise their qualification statements, and the utility authority honored this condition by extending equal amendment opportunity to all seven
invokedby: Firm A QBS Qualification Amendment Requesting Engineering Firm
invokedby: Utility Authority QBS Procurement Administrator
The Board observed that QBS laws contemplate selecting the 'best qualified' firm, and that a procedure allowing firms to present themselves in their best light of technical qualifications — including through joint venture team revision — is
invokedby: QBS Screening Committee Qualification Feedback Body
invokedby: Public and City Council Procurement Objectors
The Board's analysis of whether Firm A's team amendment was ethically permissible was framed as a fairness question — whether allowing one firm to revise its joint venture team gave it an unfair competitive advantage over the other six shor
The NSPE Board held that allowing Firm A to revise its joint venture team composition in response to screening committee feedback was ethically permissible specifically because all competing firms were given the same opportunity to make equ
When the screening committee publicly identified that Firm A's joint venture lacked sufficient technical support, Firm A faced a binary ethical obligation: upgrade its qualifications (through internal or external means) or eliminate itself
The NSPE Board invoked Code Section 6's specialist engagement obligation to establish that Firm A was ethically required — not merely permitted — to upgrade its joint venture's technical qualifications by engaging additional specialists onc
The NSPE Board held that the ethical obligations applicable to a single prime firm — including the Code Section 6 specialist engagement obligation — apply equally to a joint venture, because the ethical substance of professional responsibil
Firm A's decision to openly disclose its team restructuring and seek formal amendment rather than submitting an unchanged qualification statement that no longer accurately reflected its proposed team reflects the professional honesty obliga
Rather than concealing its team restructuring or presenting an amended submission without disclosure, Firm A openly informed the utility authority of the change and formally requested permission to submit a revised qualification statement —
Firm A, upon receiving public screening committee feedback identifying deficiencies in its joint venture proposal, restructured its team and openly requested permission to amend its qualification statement, conditioning the request on equal
The equal amendment opportunity extended to all seven competing firms preserved the free and open competitive character of the QBS process by ensuring that no single firm gained an exclusive procedural advantage — all firms operated within
The utility authority sought and received legal advice confirming no legal impediment before granting Firm A's amendment request, reflecting its obligation to ensure that the QBS process remained lawful, competitive, and qualification-based
The QBS process itself — requiring selection of the 'most qualified' firm for a large and complex power facility addition — reflects the paramount public welfare obligation: the public has a vital interest in ensuring that complex, safety-c
Members of the public and city council alleged that allowing Firm A to alter its qualification proposal violated the intent of the governing procurement law, arguing that the QBS process was designed to evaluate firms on their qualification
Firm A was obligated to conduct itself honorably, responsibly, and fairly in making its amendment request, including by openly disclosing its team restructuring, conditioning the request on equal treatment for all competitors, and seeking f
Firm A was obligated to openly disclose its joint venture team restructuring to the utility authority and formally request authorization to submit an amended qualification statement, rather than submitting an amended proposal without explan
The utility authority was obligated to administer the QBS process with the paramount goal of selecting the most qualified firm for the large and complex power facility addition, ensuring that procedural decisions — including the grant of th
The utility authority was obligated to administer the QBS selection process in conformance with the applicable state law and local ordinance, including considering all submitting firms, interviewing not fewer than three most highly qualifie
The other six competing engineering firms were obligated to recognize that the equal amendment opportunity extended to them by the utility authority preserved the competitive fairness of the QBS process, and to respond to that opportunity i
Members of the public and city council members who objected to the utility authority's decision to allow Firm A to amend its qualification submission were obligated to ground their objection in a good-faith assessment of whether the decisio
Members of the public and city council who objected to the utility authority's decision to allow Firm A to amend its qualification submission were obligated to ground their objection in a good-faith assessment of whether the decision actual
Firm A was obligated, upon restructuring its joint venture team in response to screening committee feedback, to openly and honestly disclose that restructuring to the utility authority and formally request authorization for the amendment th
Firm A was obligated, upon receiving public screening committee feedback identifying deficiencies in its joint venture proposal, to proactively cure those deficiencies by restructuring its joint venture team, and — when requesting permissio
Firm A was obligated to ensure that its amendment request did not unfairly advantage itself over other competing firms, which it satisfied by conditioning the request on the utility authority extending the same amendment opportunity to all
Firm A was obligated, upon receiving public screening committee feedback indicating that its joint venture lacked sufficient technical support for the large power facility addition, to either upgrade its joint venture qualifications by rest
Firm A and its joint venture partners were obligated to fulfill the same Code Section 6 specialist engagement obligations that would apply to a single prime firm — ensuring the joint venture collectively possessed or engaged all necessary s
The utility authority was obligated, when granting Firm A permission to amend its qualification submission, to extend the same amendment opportunity to all other competing firms on equal terms, ensuring no single firm gained a competitive a
The utility authority was obligated to seek and obtain legal advice confirming no legal impediment existed before granting Firm A's request to amend its qualification submission, ensuring the procedural accommodation was legally defensible
The utility authority was obligated to interpret the governing QBS law — which contemplates selection of the 'best qualified' firm — as permitting the procedural accommodation of allowing firms to amend qualification submissions in response
screening committee advising Firm A of deficiencies at public meeting before Firm A reorganizing its joint venture team
screening committee advising Firm A of deficiencies at public meeting
state law and local ordinance requirements (interviews) before agency selecting most qualified firm for negotiation
state law and local ordinance requirements (interviews)
agency selecting most qualified firm for negotiation
{'procurement_stage': 'Shortlisted among seven qualified firms', 'amendment_opportunity': "Offered equal right to amend qualification statements per Firm A's request"}
Six other engineering firms (besides Firm A) submitted qualifications and were shortlisted among the seven most qualified firms, participating in the same QBS process and offered the opportunity to likewise amend their qualification statements if desired.
{'type': 'competes_with', 'target': 'Firm A QBS Qualification Amendment Requesting Engineering Firm'}
{'entity_type': 'Public evaluation committee', 'procurement_context': 'Qualifications-based selection for public utility engineering services', 'feedback_function': 'Identified technical deficiencies and communicated them publicly to competing firms', 'equal_treatment_action': 'Extended amendment opportunity to all competing firms equally'}
The screening committee evaluated competing firms' qualification statements and made public comments indicating that additional technical support was required for the project. These comments triggered Firm A's ethical obligation to upgrade its joint venture team. The committee's decision to allow all competing firms the same amendment opportunity is cited as the basis for finding the procedure fair.
{'type': 'acts_on_behalf_of', 'target': 'QBS Procurement Administering Public Utility Authority'}
{'type': 'evaluates', 'target': 'Firm A Qualification-Upgrading Joint Venture Lead'}
{'type': 'triggers_obligation_on', 'target': 'All Competing Engineering Firms'}
QBS Screening Committee Qualification Feedback Authority
on the basis of public comments made by the screening committee
When that aspect was indicated on behalf of the client by the screening committee
we do not see any basis to question the fairness of such a procedure when all competing firms are given the same opportunity
Competing Engineering Firms Equal Amendment Opportunity Recipients
{'entity_type': 'Competing engineering firms (collective)', 'procurement_context': 'Qualifications-based selection for public utility engineering services', 'interest': 'Procedural fairness and equal treatment in QBS amendment process'}
Other firms competing in the QBS process who were given the same opportunity as Firm A to revise their qualification submissions. Their equal treatment is the ethical basis for finding Firm A's amendment procedure fair. They represent the competitive field whose interests in procedural fairness are protected by the equal-opportunity requirement.
{'type': 'competes_with', 'target': 'Firm A Qualification-Upgrading Joint Venture Lead'}
{'type': 'evaluated_by', 'target': 'QBS Screening Committee Qualification Feedback Body'}
Competitive Procurement Public Interest Framework for Power Facility
Throughout the entire procurement process from public announcement through contract execution
publicly invited qualification statements from interested engineering firms
Competitive Procurement Public Interest Alignment State
The overall QBS procurement framework designed to serve public interest by selecting the most qualified firm for a large, complex public utility project
the state law and a local ordinance, which applied to the authority, required that all firms submitting statements of interest be considered
Public utility authority's public announcement and invitation for qualification statements under state law and local ordinance
Consulting Context Specialist Engagement Obligation Active for Joint Venture
Throughout the procurement process, particularly after the screening committee's feedback
Section 6 contemplates that a prime professional will be expected to retain or recommend the retention of experts and specialists in situations in which the prime professional is performing substantial services of a project
Consulting Context Competence Remediation Flexibility State
Firm A's ethical position regarding specialist engagement under Code Section 6 in the joint venture context
Firm A's revision of joint venture composition to include required technical support
we see no real difference in the ethical obligation when instead of one 'prime' firm the legal entity is to be a joint venture
Code Section 6 obligation to engage experts and specialists when client interests are best served, applied to the joint venture context
Firm A Screening Committee Qualification Deficiency Identification
From the moment the screening committee publicly indicated that additional technical support was required, through Firm A's decision to revise its joint venture composition
Firm A might be held in violation if it did not make a reasonable effort to upgrade the qualifications of the joint venture for the assignment once it was indicated that additional technical support was required by the client
Client-Identified Qualification Deficiency Mandatory Upgrade-or-Withdraw State
Firm A's proposed joint venture team in the active QBS procurement
Firm A's revision of its joint venture team to upgrade qualifications, followed by the authority permitting all firms to revise submissions equally
When that aspect was indicated on behalf of the client by the screening committee Firm A had no ethical choice but to upgrade its qualifications through either internal or external revisions in its proposal, or eliminate itself from further consideration
Screening committee's public comments indicating that additional technical support was required by the client
QBS Procurement Best-Qualified Firm Selection Framework Active
Throughout the procurement process for the project
Utility authority's engineering services procurement governed by state law analogous to the Brooks Act
Conclusion of the selection process and contract award
It is beyond our charter to pass judgment on the issue whether the utility authority violated the governing state law or the local ordinance on engineering services procurement
Utility authority initiating procurement under applicable state QBS law and local ordinance
Joint Venture Ethical Equivalence Invoked in Firm A QBS Analysis
Application of Code Section 6 to joint venture context
Firm A's joint venture structure in the QBS process
The NSPE Board held that the ethical obligations applicable to a single prime firm — including the Code Section 6 specialist engagement obligation — apply equally to a joint venture, because the ethical substance of professional responsibility does not vary with the legal form of the professional entity undertaking the project
The Board extended the prime-firm precedent from Case 71-2 to the joint venture context by reasoning that the ethical obligation is the same regardless of whether the legal entity is a single firm or a joint venture — the form of legal organization does not alter the substance of professional ethical duty
Joint Venture Ethical Equivalence to Prime Firm Responsibility Principle
{'objection_basis': 'Alleged violation of procurement law intent and unethical conduct by Firm A', 'forum': 'Public meeting and city council'}
Members of the public and city council members who objected to the utility authority's decision to allow Firm A to amend its qualification statement, alleging both a violation of the intent of the governing procurement law and unethical conduct by Firm A in making the request.
{'type': 'alleges_misconduct_by', 'target': 'Firm A QBS Qualification Amendment Requesting Engineering Firm'}
{'type': 'objects_to_decision_of', 'target': 'Utility Authority QBS Procurement Administrator'}
some members of the public and of the city council objected to allowing Firm A to alter its qualification proposal
alleging that in doing so it violated the intent of the governing procurement law
and that Firm A had acted unethically in making its request
Screening Committee Public Feedback Non-Exploitation Invoked by Firm A Team Restructuring
Free and Open Competition as Engineering Ethics Boundary Condition
Procurement Process Spirit and Intent Compliance Obligation
Firm A learned of the screening committee's concerns at a public meeting and acted on that public feedback to restructure its joint venture team before final selection, raising the question of whether acting on publicly delivered evaluator feedback constitutes exploitation of an improper advantage or legitimate responsiveness to a transparent public process
Because the screening committee's feedback was delivered at a public meeting — not in a private communication — all competing firms theoretically had equal access to the same information; Firm A's responsiveness to publicly available feedback is therefore distinguishable from exploitation of privately communicated evaluator preferences
Screening Committee Public Feedback Non-Exploitation Boundary Principle
Upon learning of this reaction from the screening committee at a public meeting and prior to a selection by the authority, Firm A proceeded to arrange for other participation as part of the joint venture
Upon learning of this reaction from the screening committee at a public meeting and prior to a selection by the authority, Firm A proceeded to arrange for other participation as part of the joint venture to overcome the apparent deficiencies in its overall ability to provide the total services needed to be selected for negotiations.
Firm A Evaluator Feedback Informational Advantage
From screening committee's communication of deficiencies to Firm A through equal-access modification opportunity being extended to all firms
the screening committee of the authority felt that its joint venture proposal did not indicate sufficient experience in certain technical aspects, nor reflect a desirable backup of specialized technical personnel
Evaluator Feedback Informational Advantage in Active Procurement State
Firm A's possession of specific, individualized screening committee feedback identifying its qualification deficiencies before final selection
Authority's extension of equal modification opportunity to all competing firms
Firm A proceeded to arrange for other participation as part of the joint venture to overcome the apparent deficiencies
upon learning of this reaction from the screening committee at a public meeting and prior to a selection by the authority
Screening committee's specific feedback to Firm A about insufficient experience and inadequate backup personnel in its joint venture proposal
Firm A Post-Feedback QBS Team Restructuring Honest Disclosure to Utility Authority
After restructuring its joint venture team in response to screening committee feedback, Firm A openly informed the utility authority of the change and formally requested permission to submit a revised qualification proposal, rather than attempting to submit silently or without disclosure.
Post-Feedback QBS Qualification Amendment Honest Disclosure to Procuring Authority Obligation
Firm A was obligated to openly disclose its joint venture team restructuring to the utility authority and formally request authorization to submit an amended qualification statement, rather than submitting an amended proposal without explanation or concealing the nature of the change.
Upon completing the joint venture team restructuring and prior to submitting any amended qualification statement
Rather than concealing its team restructuring or presenting an amended submission without disclosure, Firm A openly informed the utility authority of the change.
Qualification Upgrade or Withdrawal Obligation Invoked Against Firm A
Firm A's continued participation in QBS process after screening committee feedback
Firm A's decision to add new joint venture partners
Post-Feedback Qualification Amendment Permissibility Under Equal Treatment Condition
When the screening committee publicly identified that Firm A's joint venture lacked sufficient technical support, Firm A faced a binary ethical obligation: upgrade its qualifications (through internal or external means) or eliminate itself from further consideration — remaining in the process without addressing the deficiency would have constituted an ethical violation
The obligation is framed as a binary — upgrade or withdraw — with no ethical middle ground of passive continuation; the client's expressed need for additional technical support transforms what might otherwise be a permissive option (engaging specialists) into a mandatory ethical duty
Qualification Upgrade or Withdrawal Obligation Upon Client-Identified Deficiency
Specialist Engagement Obligation Invoked by NSPE Board in Firm A QBS Context
Firm A's QBS joint venture qualification amendment
Screening committee feedback on technical support deficiency
The NSPE Board invoked Code Section 6's specialist engagement obligation to establish that Firm A was ethically required — not merely permitted — to upgrade its joint venture's technical qualifications by engaging additional specialists once the screening committee indicated that additional technical support was required by the client
In this context, the specialist engagement obligation operates not merely as a permissive authorization but as an affirmative ethical duty: when the client's representative identifies a technical gap, the engineer must act to fill it or withdraw — passive continuation without response is ethically impermissible
Specialist Engagement Obligation When Client Interests Require It
The Board resolved that the specialist engagement obligation reinforces rather than conflicts with procurement fairness, because the obligation to upgrade or withdraw serves the client's interest in selecting the best-qualified firm
Utility Authority QBS Legal Clearance Before Granting Firm A Amendment Request
The utility authority administered a QBS process governed by state law and local ordinance. When Firm A requested permission to amend its qualification submission after restructuring its joint venture team, the authority sought legal advice before granting the request.
QBS Procurement Authority Legal Clearance Before Procedural Exception Granting Obligation
The utility authority was obligated to seek and obtain legal advice confirming no legal impediment existed before granting Firm A's request to amend its qualification submission, ensuring the procedural accommodation was legally defensible under the governing state law and local ordinance.
Before granting Firm A's amendment request and before accepting the revised qualification proposal
Competing Engineering Firms Equal Amendment Opportunity Acceptance and Response
The six other shortlisted firms were given the same opportunity as Firm A to revise their qualification submissions. Their equal treatment preserved the free and open competitive character of the QBS process.
Other Six Competing Engineering Firms (Equal Amendment Opportunity Recipients)
Competitive Procurement Fairness Obligation
The other six competing engineering firms were obligated to recognize that the equal amendment opportunity extended to them by the utility authority preserved the competitive fairness of the QBS process, and to respond to that opportunity in a manner consistent with honest and accurate representation of their qualifications.
Upon receiving notice from the utility authority of the equal amendment opportunity
Firm A Honorable Professional Conduct in QBS Procurement Amendment Request
Firm A, after receiving public screening committee feedback, restructured its joint venture team and openly requested formal amendment authorization conditioned on equal treatment for all competing firms, reflecting honorable conduct in the procurement process.
Honorable Professional Conduct in Procurement Obligation
Firm A was obligated to conduct itself honorably, responsibly, and fairly in making its amendment request, including by openly disclosing its team restructuring, conditioning the request on equal treatment for all competitors, and seeking formal authorization rather than attempting to circumvent the procurement process.
From receipt of screening committee feedback through submission of the revised qualification proposal
Firm A Joint Venture Code Section 6 Specialist Engagement Equivalence Compliance
The NSPE Board analyzed whether Code Section 6's specialist engagement obligation applied differently to a joint venture than to a single prime firm, concluding there was 'no real difference in the ethical obligation' and that the joint venture structure did not alter the underlying competence and specialist engagement requirements.
Firm A (as joint venture lead) and all joint venture partner firms
Joint Venture Code Section 6 Specialist Engagement Ethical Equivalence to Prime Firm Obligation
Firm A and its joint venture partners were obligated to fulfill the same Code Section 6 specialist engagement obligations that would apply to a single prime firm — ensuring the joint venture collectively possessed or engaged all necessary specialist expertise for the large power facility addition — without the joint venture structure diminishing that ethical obligation.
Throughout the QBS process and, if selected, throughout the project assignment
Post-Feedback Qualification Amendment Permissibility Invoked by Firm A
Procurement Rule Strict Adherence Over Equitable Discretion
Firm A, upon receiving public screening committee feedback identifying deficiencies in its joint venture proposal, restructured its team and openly requested permission to amend its qualification statement, conditioning the request on equal treatment for all competitors — arguing that this transparent, equal-access approach was ethically permissible
The ethical permissibility of Firm A's amendment request turned on the equal-treatment condition: by ensuring all competitors could also amend, Firm A avoided creating an improper competitive advantage and acted transparently with the procuring authority
Utility Authority QBS Equal Amendment Opportunity Extension to All Seven Competing Firms
The utility authority administered a QBS process with seven shortlisted firms. Firm A's amendment request was conditioned on equal treatment for all competitors. The authority's grant of the request implicitly or explicitly extended the same opportunity to all seven firms.
QBS Equal Amendment Opportunity Extension to All Competing Firms Obligation
The utility authority was obligated, when granting Firm A permission to amend its qualification submission, to extend the same amendment opportunity to all other competing firms on equal terms, ensuring no single firm gained a competitive advantage through exclusive access to the procedural accommodation.
{'entity_type': 'Engineering firm (joint venture lead)', 'procurement_context': 'Qualifications-based selection for public utility engineering services', 'ethical_obligation_trigger': 'Screening committee feedback indicating technical deficiency', 'code_basis': 'NSPE Code of Ethics Section 6 (historical) — duty to undertake only qualified assignments and engage experts'}
Firm A served as the lead party in a joint venture competing in the QBS process. Upon receiving screening committee feedback indicating the need for additional technical support, Firm A had an ethical obligation under Code Section 6 to upgrade its joint venture team's qualifications — either through internal revisions or by adding external specialist partners — or to withdraw from further consideration. The discussion concludes Firm A acted ethically by upgrading its team.
{'type': 'competes_with', 'target': 'Other Competing Engineering Firms'}
{'type': 'evaluated_by', 'target': 'QBS Screening Committee'}
{'type': 'joint_venture_with', 'target': 'Joint Venture Partner Firms'}
Qualification-Upgrading Joint Venture Lead Engineer
Firm A might be held in violation if it did not make a reasonable effort to upgrade the qualifications of the joint venture
Free and Open Competition Invoked by Equal Amendment Opportunity
The equal amendment opportunity extended to all seven competing firms preserved the free and open competitive character of the QBS process by ensuring that no single firm gained an exclusive procedural advantage — all firms operated within the same amended framework
Free and open competition requires not only that all firms have equal initial access to the procurement but also that any mid-process accommodations be extended equally; the equal-treatment condition is the mechanism by which the amendment accommodation was kept within the bounds of free and open competition
Pre-Selection Process Openness Invoked by Firm A Disclosure to Authority
Rather than concealing its team restructuring or presenting an amended submission without disclosure, Firm A openly informed the utility authority of the change and formally requested permission to submit a revised qualification statement — demonstrating transparency toward the procuring authority as the ethically appropriate response to mid-process team changes
Firm A's open disclosure and formal authorization request reflects the professional obligation to be transparent with the procuring authority about material changes to the proposed team, rather than attempting to conceal changes or proceed without authorization
Pre-Selection Process Openness and Responsiveness Permissibility Principle
{'governing_framework': 'State law and local ordinance requiring QBS procedures', 'selection_criteria': 'Professional personnel ability, past performance, time/budget capability, location, workload, other qualification factors', 'procedural_decision': 'Granted amendment request after legal review'}
The public utility authority administered the QBS process under state law and local ordinance, narrowed submissions to seven qualified firms, conducted interviews via a screening committee, and granted Firm A's request to amend its qualification statement after receiving legal advice that no legal impediment existed.
{'type': 'evaluates', 'target': 'Firm A QBS Qualification Amendment Requesting Engineering Firm'}
{'type': 'evaluates', 'target': 'Other Six Competing Engineering Firms'}
{'type': 'subject_of_objection_by', 'target': 'Public and City Council Procurement Objectors'}
QBS Procurement Administering Public Utility Authority
A public utility authority announced plans to build a large and complex addition to its power facilities
Authority Equal-Access Modification Permission with Public Objection
From authority's grant of modification permission through public and council objection period
the utility authority, after receiving advice that there was no legal impediment involved, granted the request of Firm A
Authority-Permitted Equal-Access Procurement Modification State
Public utility authority's legally cleared grant of equal-access mid-process modification permission, contested by public and council on procurement-intent grounds
Resolution of public/council objections; final procurement selection
a revised qualification proposal was submitted to it
Authority receiving legal advice of no impediment and granting Firm A's modification request with equal-access condition
Fairness in Professional Competition Invoked by Equal Opportunity Extension
Firm A conditioned its amendment request on all competing firms receiving the same opportunity to revise their qualification statements, and the utility authority honored this condition by extending equal amendment opportunity to all seven shortlisted firms
Fairness in competition required that any procedural accommodation granted to one firm be equally available to all competitors; Firm A's proactive insistence on this condition reflects recognition of the fairness obligation
Fairness in Professional Competition Invoked in QBS Amendment Objection Analysis
Other competing firms' equal amendment opportunity
Public objections to the utility authority's decision
The Board's analysis of whether Firm A's team amendment was ethically permissible was framed as a fairness question — whether allowing one firm to revise its joint venture team gave it an unfair competitive advantage over the other six shortlisted firms — resolved by finding that equal treatment of all competitors satisfied the fairness requirement
Fairness in professional competition in the QBS context requires not only that the initial process be open and equal, but that any mid-process accommodations be extended equally to all competitors — selective accommodation without equal treatment would violate competitive fairness
Resolved by conditioning amendment permissibility on equal opportunity for all competitors, thereby satisfying both the fairness obligation and the client's interest in best-qualified firm selection
The remaining issue, presumably, is whether it is fair to allow a competing firm to revise the elements making up the team of its joint venture in order to meet a higher level of qualification on the basis of public comments made by the screening committee.
Firm A Joint Venture Qualification Upgrade Upon Screening Committee Deficiency Feedback
Firm A submitted qualifications for a large power facility addition as a joint venture. The public screening committee identified deficiencies in the joint venture's technical support. Firm A restructured its team by adding a new joint venture partner to cure the deficiency, then requested a formal amendment to its qualification submission.
Firm A (Qualification-Upgrading Joint Venture Lead)
Joint Venture Qualification Upgrade or Withdrawal Upon Screening Deficiency Identification Obligation
Firm A was obligated, upon receiving public screening committee feedback indicating that its joint venture lacked sufficient technical support for the large power facility addition, to either upgrade its joint venture qualifications by restructuring its team to include adequate specialist expertise, or withdraw from further consideration in the QBS process.
Upon receipt of public screening committee feedback identifying joint venture qualification deficiencies, before submission of amended qualifications
Firm A Post-Feedback QBS Qualification Amendment Honest Disclosure to Utility Authority
Firm A openly informed the utility authority of its team restructuring and formally requested permission to amend its qualification submission, conditioning that request on all competing firms receiving the same opportunity. The Board found this open disclosure consistent with ethical requirements.
Firm A was obligated, upon restructuring its joint venture team in response to screening committee feedback, to openly and honestly disclose that restructuring to the utility authority and formally request authorization for the amendment through proper channels, rather than submitting an amended qualification statement without explanation.
Firm A openly informed the utility authority of its team restructuring and formally requested permission to amend its qualification submission
Upon deciding to restructure the joint venture team and before submitting the amended qualification statement
Pre-Selection Process Openness and Responsiveness Permissibility Principle -- Rather than concealing its team restructuring or presenting an amended submission without disclosure, Firm A openly informed the utility authority
{'procurement_stage': 'Post-initial-interview, pre-selection', 'team_structure': 'Joint venture', 'amendment_basis': 'Cure of screening committee-identified deficiencies in technical experience and specialized personnel', 'transparency_measure': 'Requested equal amendment opportunity for all competing firms'}
Firm A submitted qualifications for a large power facility addition, proposed a joint venture, received screening committee feedback identifying deficiencies in technical experience and specialized personnel backup, then restructured its joint venture team and requested permission to amend its qualification statement — requesting equal amendment opportunity for all competing firms — which the authority granted after legal review.
{'type': 'joint_venture_with', 'target': 'New Joint Venture Partner Engineering Firm'}
{'type': 'submits_qualifications_to', 'target': 'Utility Authority QBS Procurement Administrator'}
QBS Qualification Amendment Requesting Engineering Firm
Firm A requested the utility authority to allow it to modify its qualification statement and proposal
Firm A QBS Qualification Deficiency Proactive Cure Equal Treatment Amendment Request
Firm A was one of seven shortlisted firms in a QBS process for a large and complex power facility addition. After an initial interview, the screening committee publicly indicated that Firm A's joint venture proposal lacked sufficient experience in certain technical areas and desirable backup of specialized technical personnel. Firm A restructured its team and requested amendment permission conditioned on equal treatment for all competitors.
QBS Qualification Deficiency Proactive Cure and Equal Treatment Conditioned Amendment Obligation
Firm A was obligated, upon receiving public screening committee feedback identifying deficiencies in its joint venture proposal, to proactively cure those deficiencies by restructuring its joint venture team, and — when requesting permission to amend its qualification submission — to condition that request on the utility authority extending the same amendment opportunity to all other competing firms.
After receiving screening committee feedback at a public meeting and prior to final selection by the authority
Procurement Integrity in Public Engineering Invoked by Utility Authority Legal Clearance
The utility authority sought and received legal advice confirming no legal impediment before granting Firm A's amendment request, reflecting its obligation to ensure that the QBS process remained lawful, competitive, and qualification-based even when accommodating a mid-process amendment
The utility authority's procurement integrity obligation required it to independently verify the legal permissibility of the amendment accommodation before granting it, rather than simply accepting Firm A's request at face value
Public Welfare Paramount Invoked by QBS Process Design for Complex Power Facility
The QBS process itself — requiring selection of the 'most qualified' firm for a large and complex power facility addition — reflects the paramount public welfare obligation: the public has a vital interest in ensuring that complex, safety-critical infrastructure is designed by the most technically competent engineering team available, which is the underlying rationale for QBS law
The public welfare obligation supports the QBS framework's emphasis on technical qualifications over price, and also supports the screening committee's identification of technical deficiencies — the public interest in a competent engineering team for a complex power facility is the foundational justification for the entire process
the agency is required to select the 'most qualified' firm for negotiation of a contract.
the screening committee of the authority felt that its joint venture proposal did not indicate sufficient experience in certain technical aspects, nor reflect a desirable backup of specialized technical personnel.
Utility Authority QBS Best-Qualified Firm Law Permissive Amendment Interpretation
The utility authority sought and received legal advice confirming no legal impediment before granting Firm A's amendment request, and extended the same opportunity to all seven competing firms. The NSPE Board observed that interpreting QBS law to preclude such procedures would produce a 'peculiar result' contrary to the law's purpose.
Public Utility Authority (QBS Procurement Administrator)
QBS Best-Qualified Firm Selection Law Permissive Amendment Interpretation Obligation
The utility authority was obligated to interpret the governing QBS law — which contemplates selection of the 'best qualified' firm — as permitting the procedural accommodation of allowing firms to amend qualification submissions in response to screening feedback, rather than reading the law to preclude a procedure designed to achieve the very goal of identifying the most qualified firm, provided legal clearance was obtained and equal opportunity was extended to all competing firms.
At the time the amendment request was evaluated and the procedural decision was made
Utility Authority QBS Public Welfare Paramount Most Qualified Firm Selection
The QBS process was designed to select the most qualified firm for a large and complex power facility addition. The authority's decision to allow amendment of qualification submissions, after legal clearance and with equal treatment for all competitors, served the public welfare objective of ensuring the most qualified firm was ultimately selected.
The utility authority was obligated to administer the QBS process with the paramount goal of selecting the most qualified firm for the large and complex power facility addition, ensuring that procedural decisions — including the grant of the equal amendment opportunity — served the public welfare objective of obtaining the highest quality engineering services for the project.
Equal Opportunity Condition as Fairness Threshold Invoked in QBS Amendment Analysis
Other six competing engineering firms' equal amendment opportunity
Public and City Council Procurement Objectors' fairness challenge
The NSPE Board held that allowing Firm A to revise its joint venture team composition in response to screening committee feedback was ethically permissible specifically because all competing firms were given the same opportunity to make equivalent revisions — establishing equal opportunity as the necessary and sufficient ethical condition for such amendments
The Board's analysis treats equal opportunity not as a procedural nicety but as the ethical linchpin of the entire amendment permissibility analysis — without equal treatment of all competitors, the amendment would have been ethically impermissible regardless of its substantive merit
Equal Opportunity Condition as Fairness Threshold in QBS Team Amendment
Procurement Process Spirit and Intent Invoked by Public Objectors
Members of the public and city council alleged that allowing Firm A to alter its qualification proposal violated the intent of the governing procurement law, arguing that the QBS process was designed to evaluate firms on their qualifications as originally submitted, not on post-feedback restructured teams
The objectors interpreted the spirit of QBS procurement law as requiring that firms be evaluated on their genuine, pre-feedback qualifications, and that permitting post-feedback amendment undermines the competitive integrity of the process even if technically legal
some members of the public and of the city council objected to allowing Firm A to alter its qualification proposal, alleging that in doing so it violated the intent of the governing procurement law, and that Firm A had acted unethically in making its request.
Public and City Council Procurement Objectors Good Faith Protest Proportionality Assessment
Members of the public and city council objected that allowing Firm A to alter its qualification proposal violated the intent of the governing procurement law. The NSPE Board found the procedure ethically permissible because equal opportunity was extended to all firms and legal clearance was obtained, suggesting the objections were not grounded in a violation of procurement spirit and intent.
Members of the public and city council members objecting to the utility authority's amendment decision
Public Procurement Objector Procurement Spirit and Intent Protest Proportionality Obligation
Members of the public and city council members who objected to the utility authority's decision to allow Firm A to amend its qualification submission were obligated to ground their objection in a good-faith assessment of whether the decision actually violated the spirit and intent of the governing procurement law, recognizing that the equal amendment opportunity extended to all seven competing firms and the legal clearance obtained by the authority did not necessarily violate procurement integrity.
At the time the objections were raised, after the utility authority granted the amendment opportunity to all competing firms
It is beyond our charter to pass judgment on the issue whether the utility authority violated the governing state law or the local ordinance on engineering services procurement.
Firm A Competitive Procurement Fairness Preservation Through Equal Treatment Condition
By conditioning its amendment request on equal treatment for all competitors, Firm A preserved the competitive fairness of the QBS process and avoided gaining an exclusive procedural advantage over the other six shortlisted firms.
Firm A was obligated to ensure that its amendment request did not unfairly advantage itself over other competing firms, which it satisfied by conditioning the request on the utility authority extending the same amendment opportunity to all seven competing firms.
At the time of making the amendment request to the utility authority
Firm A Mid-Process Qualification Modification After Screening Feedback
From Firm A's receipt of screening committee feedback at public meeting through authority's grant of revision permission and submission of revised proposal
Public utility authority screening committee
Firm A proceeded to arrange for other participation as part of the joint venture to overcome the apparent deficiencies in its overall ability
Mid-Process Qualification Proposal Modification After Evaluator Feedback State
Firm A's restructuring of its joint venture team and request to revise qualification statement during active QBS procurement
Submission of revised qualification proposal by Firm A; subsequent public and council objection
Screening committee's communication that Firm A's joint venture lacked sufficient experience in certain technical aspects and desirable backup of specialized technical personnel
Honesty in Professional Representations Invoked by Firm A Qualification Accuracy
Firm A's decision to openly disclose its team restructuring and seek formal amendment rather than submitting an unchanged qualification statement that no longer accurately reflected its proposed team reflects the professional honesty obligation to ensure that qualification representations are accurate and not misleading
Had Firm A restructured its team without disclosing the change or seeking amendment authorization, it would have presented a qualification statement that misrepresented its actual proposed team; the amendment request was therefore also an honesty obligation, not merely a competitive strategy
Procurement Integrity Invoked in QBS Best-Qualified Firm Selection Analysis
QBS process under state law and local ordinance
Utility authority's decision to allow Firm A to amend its qualification statement
The Board observed that QBS laws contemplate selecting the 'best qualified' firm, and that a procedure allowing firms to present themselves in their best light of technical qualifications — including through joint venture team revision — is consistent with rather than contrary to the purpose of QBS procurement law and ethics
Procurement integrity in the QBS context is served by procedures that maximize the likelihood of selecting the genuinely best-qualified firm, not by rigid procedural rules that prevent firms from presenting their full qualifications — provided equal treatment is maintained
Public and City Council Objectors Procurement Spirit Intent Protest Proportionality
Members of the public and city council objected to the utility authority's grant of Firm A's amendment request, alleging violation of procurement law intent and unethical conduct by Firm A. The NSPE BER ultimately found that Firm A had not acted unethically.
Protest of Non-Compliant Procurement Obligation
Members of the public and city council who objected to the utility authority's decision to allow Firm A to amend its qualification submission were obligated to ground their objection in a good-faith assessment of whether the decision actually violated the spirit and intent of the governing procurement law, recognizing that a legally cleared, equally extended procedural accommodation does not necessarily constitute an ethics violation.
After the utility authority granted Firm A's amendment request and accepted the revised qualification proposal
Utility Authority QBS Procurement Law Conformance in Administering Selection Process
State law and a local ordinance required the authority to consider all firms submitting statements of interest, interview at least three most highly qualified firms on specified criteria, and select the most qualified firm for negotiation. The authority narrowed submissions to seven qualified firms and conducted interviews.
The utility authority was obligated to administer the QBS selection process in conformance with the applicable state law and local ordinance, including considering all submitting firms, interviewing not fewer than three most highly qualified firms, and selecting the most qualified firm for contract negotiation.
Throughout the entire QBS procurement process from initial solicitation through final selection