Accepting Dual-Role Retention (Action 1) → Construction Phase Begins (Event 1)
Professional engineering ethics community
Engineer A, seeks to remain impartial in the dispute, citing a provision in his contract with the Owner
claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor
Provides the conceptual decision tool for distinguishing between Engineer A acting as a partisan agent (following Owner's preferred outcome) versus a trustee (exercising independent professional discretion on behalf of the Owner's legitimate interests), which is the core analytical question raised by the Owner's criticism.
Agent-Trustee Loyalty Obligation Standard
Engineer A, seeks to remain impartial in the dispute
Owner (as claimed basis for criticism); Engineer A (as defense of impartial conduct); Board of Ethical Review
Directly invoked by the Owner's claim that Engineer A's ethical duty of loyalty required a finding in the Owner's favor; this standard clarifies that impartial, objective performance of contractually defined duties fulfills rather than violates the loyalty obligation, even when the client prefers a partisan outcome.
Asserting Impartiality Over Loyalty (Action 2) → Conducting Impartial Dispute Review (Action 3)
BER-85-5 Precedent Confirmation Bias Resistance Cross-Application to Dispute Resolution
The Board drew an explicit analogy between the BER 85-5 research report omission case and Engineer A's dispute resolution role, applying the objectivity and bias-resistance principles from the research context to the contractual dispute resolution context.
Variance Data Inclusion in Technical Report Obligation
Engineer A was obligated to apply the BER 85-5 principle of confirmation bias resistance and objective data evaluation to the dispute resolution context — wrestling head-on with difficult issues rather than selectively emphasizing findings consistent with the Owner's preferred outcome.
While the facts in BER Case 85-5 are quite different than those in this case, the Board's discussion of the issues are quite relevant.
During the evaluation and determination of the Owner-Contractor dispute
Clearly, that discussion is pertinent to the Board's inquiry in the present case.
the challenge...is not to develop consistent or precise findings that one can identify and categorize neatly, nor is it to identify results that are in accord with one's basic premise. The real challenge...is to wrestle head-on with the difficult and sometimes insoluble issues that surface and try to gain some understanding of why they are at variance with other results.
BER-85-5 Research Engineer Variance Data Omission Ethical Violation
Graduate research report where the majority of data supported the engineer's conclusions but a minority of data points were at variance; engineer omitted the variance data to protect the report's persuasive thrust.
BER Case 85-5 Graduate Research Engineer
The BER 85-5 engineer was obligated to include all compiled data — including minority data at variance with the report's conclusions — in the research report, rather than omitting such data based on subjective conviction in the report's soundness.
In BER Case 85-5, the Board said it was unethical for an engineer to fail to include certain unsubstantiative data in a report.
At the time of compiling and finalizing the research report
Convinced of the soundness of his report and concerned that inclusion of the ambiguous data would detract from and distort the essential thrust of the report, the engineer decided to omit reference to the ambiguous report.
a few of the aspects of the data were at variance and not fully consistent with the conclusions contained in the engineer's report
BER 85-5 Ambiguous Data Omission in Graduate Research
From the point the engineer identified contradictory data through the decision to omit it from the final report
Future practitioners citing the conclusions
Research community relying on the report
Researcher Bias-Motivated Ambiguous Data Omission State
Engineer in BER Case 85-5 conducting graduate research
Ethics board determination in BER 85-5 that omission was unethical; obligation to include and analyze contradictory data
Convinced of the soundness of his report and concerned that inclusion of the ambiguous data would detract from and distort the essential thrust of the report, the engineer decided to omit reference to the ambiguous report
the Board said it was unethical for an engineer to fail to include certain unsubstantiative data in a report
Engineer's discovery that a subset of compiled data was at variance with the primary conclusions and prior research
BER 85-5 Cross-Domain Analogical Application Objectivity Principle BER 93-4
The Board explicitly acknowledged that 'the facts in BER Case 85-5 are quite different than those in this case' while simultaneously finding that 'the Board's discussion of the issues are quite relevant,' applying the objectivity and confirmation bias resistance principles from BER 85-5 to the dispute resolution context.
NSPE Board of Ethical Review (BER 93-4 analysis)
BER Precedent Cross-Domain Analogical Application Constraint
The Board was constrained to acknowledge the factual dissimilarity between BER Case 85-5 (graduate research data omission) and the current case (contractual dispute resolution) while still recognizing that the objectivity and bias-resistance principles from BER 85-5 were pertinent to the current inquiry, prohibiting wholesale rejection of BER 85-5 guidance solely because the factual contexts differed.
BER Case 85-5; NSPE Code Section II.3.a; BER Case 93-4
While the facts in BER Case 85-5 are quite different than those in this case, the Board's discussion of the issues are quite relevant
Board's ethical analysis in BER Case 93-4
Clearly, that discussion is pertinent to the Board's inquiry in the present case
BER 85-5 Objectivity Principle Applied to Current Case
During the Board's deliberation on the current case, when BER 85-5 is cited as relevant precedent
Comparative Case Precedent Distinguishing State
Board's application of BER 85-5 objectivity principle to Engineer A's impartiality obligation
Board's determination that Engineer A fulfilled ethical obligations by acting impartially, consistent with the objectivity principle from BER 85-5
the need for engineers to overcome bias, attempting to be objective and seeking resolution of issues through careful analysis and evaluation of the available information and data
Board's recognition that BER 85-5's discussion of objectivity and bias-overcoming is pertinent to Engineer A's duty of impartial adjudication
BER 85-5 Variance Data Omission Prohibition Research Engineer
An engineer conducting graduate research compiled a vast dataset, the majority of which supported the report's conclusions. A minority of data was at variance with those conclusions. Convinced of the soundness of the report, the engineer omitted the ambiguous data. The Board found this unethical.
Engineer in BER Case 85-5 (graduate research)
Confirmation Bias Resistance in Technical Report Preparation Constraint
The research engineer was constrained from omitting data at variance with the report's conclusions on the grounds that such data would 'detract from or distort the essential thrust of the report'; all compiled data, including ambiguous and inconsistent findings, was required to be included and analyzed.
In BER Case 85-5, the Board said it was unethical for an engineer to fail to include certain unsubstantiative data in a report
Duration of graduate research report preparation
The real challenge...is to wrestle head-on with the difficult and sometimes insoluble issues that surface and try to gain some understanding of why they are at variance with other results
the challenge...is not to develop consistent or precise findings that one can identify and categorize neatly, nor is it to identify results that are in accord with one's basic premise
BER Case 85-5 - Omission of Ambiguous Data in Engineering Report
Said the Board in BER Case 85-5, 'the challenge...is not to develop consistent or precise findings that one can identify and categorize neatly, nor is it to identify results that are in accord with one's basic premise. The real challenge...is to wrestle head-on with the difficult and sometimes insoluble issues that surface and try to gain some understanding of why they are at variance with other results.'
The Board's discussion in BER Case 85-5 was therefore largely focused on the need for engineers to overcome bias, attempting to be objective and seeking resolution of issues through careful analysis and evaluation of the available information and data.
NSPE Board of Ethical Review in analogical reasoning about Engineer A's objectivity obligation
Cited as analogical precedent establishing that it is unethical for an engineer to omit ambiguous or inconsistent data from a professional report; the Board's reasoning in that case—that engineers must wrestle with difficult, inconsistent findings rather than suppress them—is applied by analogy to Engineer A's obligation to provide objective, impartial interpretation in the present dispute
{'context': 'Graduate research', 'ethical_violation': 'Omission of ambiguous/contradictory data from professional report', 'ethical_standard': 'NSPE Code Section II.3.a'}
An engineer performing graduate research compiled extensive data for a report, where the majority supported the conclusions, but omitted a minority of ambiguous data points that were at variance with those conclusions, motivated by concern that their inclusion would distort the report's thrust — found unethical by the Board for failing to meet objectivity and truthfulness obligations under NSPE Code Section II.3.a.
{'type': 'precedent_case', 'target': 'BER Case 85-5'}
Ambiguous Data Omitting Research Engineer
the engineer was performing graduate research
it was unethical for an engineer to fail to include certain unsubstantiative data in a report
BER Case 85-5 Graduate Research Engineer Confirmation Bias Failure
Confirmation Bias Resistance in Technical Reporting Capability
The BER 85-5 graduate research engineer lacked or failed to exercise the capability to resist confirmation bias, omitting variance data from the research report because of conviction in the soundness of the conclusions and concern that discrepant data would distort the report's thrust — a failure the BER identified as unethical.
Graduate research engineer compiled extensive data for a report; majority of data supported conclusions; a minority was at variance; engineer omitted the variance data, which the BER found unethical under Code Section II.3.a.
Omission of minority data at variance with the report's conclusions, despite having compiled it, on the grounds that it would detract from the essential thrust of the report — the paradigmatic failure of confirmation bias resistance.
the Board said it was unethical for an engineer to fail to include certain unsubstantiative data in a report.
BER Case 85-5 before present case analysis
BER Ethics Board Cross-Context BER 85-5 Principle Transfer
Cross-Context BER Precedent Principle Extraction and Transfer Capability
The BER demonstrated the capability to extract the underlying normative principle from BER Case 85-5 — confirmation bias resistance and objectivity in professional analysis — and transfer that principle to the factually distinct dispute resolution context of the present case, despite explicitly acknowledging the factual differences between the two cases.
The BER used BER 85-5 as analogical support for Engineer A's objectivity obligation in the concrete pour dispute, despite the cases involving different professional contexts (research reporting vs. construction dispute resolution).
Retrieving BER 85-5 (graduate research data omission), acknowledging its factual differences from the present case, extracting the objectivity/bias-resistance principle, and applying it to Engineer A's obligation to render an impartial dispute determination rather than a partisan owner-favoring finding.
the Board's discussion in BER Case 85-5 was therefore largely focused on the need for engineers to overcome bias, attempting to be objective and seeking resolution of issues through careful analysis and evaluation of the available information and data.
CausalLink_Accepting Dual-Role Retention
CausalLink_Asserting Impartiality Over Lo
CausalLink_Conducting Impartial Dispute R
It would be unethical for Engineer A to have found in the Owner's favor, contrary to his considered professional findings in this matter.
Beyond the Board's finding that it would be unethical for Engineer A to have found in the Owner's favor contrary to his professional findings, the structural design of the contract itself — which simultaneously designated Engineer A as both the Owner's faithful agent and the impartial interpreter of contract documents — created a role architecture that the Board did not fully interrogate. The ethical legitimacy of Engineer A's impartial ruling depends not only on the correctness of his technical finding but also on whether Engineer A adequately disclosed, at the time of contract formation, that his quasi-judicial dispute resolution role would require him to rule against the Owner's interests in cases where the evidence so demanded. Without such proactive disclosure, the Owner's subsequent complaint, while factually mistaken about the content of the loyalty obligation, may reflect a genuine informational asymmetry that Engineer A had some responsibility to prevent. The Board's conclusion is correct as far as it goes, but a more complete ethical analysis would require examining whether Engineer A fulfilled a pre-dispute disclosure duty that would have rendered the Owner's complaint not merely wrong but impossible to make in good faith.
The Board's conclusion that finding in the Owner's favor would have been unethical implicitly resolves a significant principle tension — between the faithful agent duty under Code Section II.4 and the objectivity obligation under Code Section II.3.a — without explicitly articulating the hierarchy between these duties. The more complete analytical extension is this: when an engineer is contractually designated as an impartial interpreter of contract documents, that designation does not eliminate the faithful agent relationship but rather redefines what faithful agency requires within that specific functional context. Faithful agency, properly understood, is not synonymous with advocacy or partisanship; it means acting in the Owner's genuine long-term interest, which includes the Owner's interest in having disputes resolved honestly and in accordance with the contract the Owner itself negotiated and signed. A finding in the Owner's favor unsupported by the evidence would have exposed the Owner to legal liability for wrongful rejection of conforming work, undermined the Owner's credibility in future disputes with the same or other contractors, and potentially constituted collusion against the Contractor — all outcomes contrary to the Owner's actual interests. Thus, the faithful agent duty and the impartiality obligation are not genuinely in conflict in this case; they converge on the same required conduct, and the Board's resolution of the apparent tension is correct but would benefit from this fuller articulation.
The Board's reliance on BER Case 85-5 to reinforce the objectivity principle, while analytically sound, raises a deeper question the Board did not address: whether Engineer A's prior involvement as designer — including his approval of the changes in the work that the Contractor relied upon — creates a structural confirmation bias risk that the objectivity principle itself should have required Engineer A to disclose or recuse himself from. When Engineer A ruled that the Contractor complied with the Owner-approved changes, he was simultaneously validating his own prior design-phase decisions. This is not merely an abstract conflict of interest; it is a situation where the engineer's impartial finding and his self-interest in vindicating his prior professional judgments point in the same direction. The Board's conclusion that Engineer A acted ethically is likely correct on the facts as presented, but a fully rigorous application of the objectivity obligation under Code Section II.3.a and the confirmation bias resistance principle drawn from BER 85-5 would require the Board to acknowledge that Engineer A's dual role as designer and dispute resolver creates a structural vulnerability to self-serving impartiality — that is, findings that are technically defensible but also conveniently consistent with the engineer's prior decisions. The ethical framework should therefore recognize that in cases where the dispute directly implicates the engineer's own prior design approvals, the engineer bears a heightened disclosure obligation, and the parties should be informed that a truly independent assessment might require a third-party reviewer.
The Owner's complaint that Engineer A owed a loyalty-based duty to find in the Owner's favor, while ethically mistaken, reveals a broader systemic problem that the Board's conclusion does not fully resolve: the standard construction contract architecture that designates the owner's own engineer as the impartial dispute resolver creates an inherent credibility deficit that neither party can fully escape. Even when the engineer rules correctly and impartially — as Engineer A did here — the structural appearance of partiality remains, because the engineer is simultaneously the Owner's retained professional and the purportedly neutral adjudicator. The Owner's complaint, however misguided in its specific claim, reflects a rational suspicion that an engineer retained and paid by the Owner cannot be genuinely impartial. Conversely, if Engineer A had ruled in the Owner's favor, the Contractor would have had equally rational grounds to question the impartiality of the finding. The Board's conclusion correctly resolves the specific ethical question presented, but the deeper analytical extension is that the NSPE Code and the profession more broadly should examine whether the standard AIA/EJCDC contract model — which assigns the owner's engineer this quasi-judicial role — is itself an ethically problematic structural arrangement that the profession should reform, rather than a practice whose ethical legitimacy can be fully secured through individual engineer conduct alone.
From a deontological perspective, the Owner's contractual agreement to Engineer A's impartial interpreter role generates not merely an estoppel against complaining about an adverse finding, but an affirmative ethical duty on the Owner's part not to demand that Engineer A violate the professional obligations the Owner helped establish. The Board's conclusion focuses on Engineer A's ethical duties but does not examine the reciprocal ethical obligations of the Owner as a party to a professional services relationship. Under the NSPE Code's framework of honesty and integrity, the Owner's complaint — demanding that Engineer A corrupt his professional judgment as a matter of loyalty — is itself ethically improper. It constitutes a request that Engineer A engage in the very conduct the Code prohibits: issuing a professional determination that is not objective and truthful. The Owner, having contractually designated Engineer A as impartial interpreter, cannot in good faith subsequently demand that Engineer A abandon that impartiality. This reciprocal ethical dimension — that clients bear duties not to demand that engineers violate their professional obligations — is an important analytical extension of the Board's conclusion that the profession should make more explicit, both to protect engineers from improper client pressure and to educate clients about the nature of the professional relationship they are entering.
In response to Q101: Engineer A did not bear a freestanding ethical duty to proactively warn the Owner, before accepting the dispute resolution role, that impartial findings might be adverse to the Owner's interests. The contractual provision designating Engineer A as initial interpreter and judge of work acceptability was itself the disclosure mechanism — it placed the Owner on constructive notice that Engineer A's determinations would follow the evidence rather than Owner preference. However, best practice would have supported an explicit pre-engagement conversation clarifying this role boundary, because such a conversation would have foreclosed the Owner's subsequent loyalty complaint at its inception. The absence of such a conversation did not render Engineer A's conduct unethical, but it did create the conditions for the Owner's misunderstanding. Had Engineer A provided explicit pre-dispute clarification, the ethical landscape would not have changed substantively — the impartiality obligation would have remained equally binding — but the Owner's complaint would have been even more clearly without foundation, and the professional relationship would have been better protected.
In response to Q102: The dual role of Engineer A — serving as both designer and construction-phase dispute resolver for the same Owner — does create a structural tension that warrants scrutiny, but it does not automatically constitute a disqualifying conflict of interest under the NSPE Code. The construction industry widely accepts the design engineer's role as initial interpreter of contract documents precisely because that engineer possesses the deepest knowledge of design intent. The structural tension becomes an actual conflict only when the engineer's prior design decisions are themselves the subject of the dispute, such that ruling in one direction would implicitly validate or repudiate the engineer's own prior work. In this case, the dispute concerned the Owner's approval of changes in the work and the Contractor's compliance with those changes — a factual determination that, while informed by design knowledge, did not require Engineer A to adjudicate the correctness of Engineer A's own original design choices. The credibility of Engineer A's impartiality is therefore not structurally undermined in this instance, though the dual-role arrangement should be recognized as one that demands heightened transparency and self-awareness from the engineer in every dispute it generates.
In response to Q103: If Engineer A had found in the Owner's favor on the same facts — facts that supported the Contractor's position — that finding would have constituted an ethical violation under NSPE Code Section II.3.a, which requires objectivity and truthfulness in professional determinations, and under Section III.1., which demands the highest standards of honesty and integrity. The standard the Board should apply to assess whether a dispute resolution finding was genuinely impartial versus subtly biased is a fact-grounded reasonableness standard: was the finding supported by the technical evidence available to the engineer at the time of review, and was the reasoning process free from the influence of the parties' interests? A finding that cannot be traced to articulable technical or contractual grounds, or that systematically diverges from the evidence in a direction that favors one party, should be treated as presumptively biased. In this case, Engineer A's finding that the Contractor complied with Owner-approved changes is a factually anchored conclusion, not a loyalty-driven one, and therefore satisfies the impartiality standard. A contrary finding, unsupported by the facts, would have been a form of professional dishonesty regardless of the loyalty rationale offered to justify it.
In response to Q104: The Owner's prior contractual agreement to Engineer A's role as impartial interpreter does create a form of estoppel that renders the Owner's loyalty complaint not merely factually mistaken but ethically problematic in its own right. By signing a contract that expressly designated Engineer A as the initial interpreter and judge of work acceptability, the Owner voluntarily accepted a framework in which Engineer A's findings would be governed by evidence and contractual requirements rather than by client preference. To subsequently demand that Engineer A override that framework in the Owner's favor is to ask Engineer A to breach both the contract and the professional ethics obligations the Owner was aware of when the engagement was established. This does not mean the Owner committed a formal ethical violation — the NSPE Code governs engineers, not clients — but it does mean the Owner's complaint lacks ethical legitimacy and should be understood as an attempt to retroactively redefine the terms of a professional relationship the Owner had already agreed to. The Board's implicit recognition of this dynamic reinforces the principle that contractual role clarity, once established, binds the expectations of all parties.
In response to Q201: The tension between the Faithful Agent Duty under NSPE Code Section II.4. and the Impartiality Obligation arising from Engineer A's contractual dispute resolution role is real but resolvable without abandoning either principle. The resolution lies in recognizing that the faithful agent duty is not equivalent to unconditional advocacy — it requires the engineer to act in the client's genuine interest, which includes performing contractually designated roles with integrity. When the Owner retained Engineer A under a contract that included an impartial interpreter provision, the Owner's genuine interest was served by having that provision performed honestly, because honest performance protects the Owner from contractor claims of bias, preserves the enforceability of dispute resolutions, and maintains the credibility of the entire construction administration process. The Impartiality Obligation therefore does not conflict with the Faithful Agent Duty in this context — it is the specific form the Faithful Agent Duty takes when the engineer's contractual role is quasi-judicial. The Impartiality Obligation takes precedence in the narrow sense that it defines the operative standard of conduct for this particular function, but it does so as an expression of, not a departure from, faithful agency.
In response to Q202: The Board's resolution — that impartiality is itself a form of loyalty when the engineer's contractual role is that of impartial arbiter — is analytically sound within the specific facts of this case, but it does carry a precedent risk that warrants acknowledgment. If the principle were applied without the limiting condition of a contractually established impartial role, it could be misused to justify engineer conduct adverse to clients in ordinary design or consulting contexts where no such role exists, on the theory that 'honest findings are always loyal.' That would be an overextension. The Board's reasoning is properly bounded by the contractual predicate: Engineer A's impartiality obligation arose from an explicit contract provision, not from a general claim that engineers owe impartiality to all parties in all circumstances. Future applications of this precedent should therefore be careful to distinguish cases where the engineer's impartial role is contractually established and mutually agreed upon from cases where an engineer unilaterally asserts impartiality as a shield against client service obligations. The ethical legitimacy of Engineer A's conduct rests on the contractual foundation, and that foundation must be present for the precedent to apply.
In response to Q203: The concern that Engineer A may have been validating his own prior design judgments rather than rendering a truly independent assessment is the most substantively challenging implicit question in this case. If the Owner's approval of changes in the work was itself a decision that Engineer A recommended or facilitated during the construction phase, then Engineer A's finding that the Contractor complied with those changes could reflect confirmation bias — a tendency to interpret ambiguous facts in a manner consistent with one's prior decisions — rather than genuine impartiality. The Objectivity Obligation under Section II.3.a. and the Confirmation Bias Resistance principle drawn from BER Case 85-5 together require that Engineer A's review be conducted as if the prior approvals were made by someone else, scrutinizing whether the Contractor's work actually conformed to the approved changes on their technical merits. The case record does not indicate that Engineer A's prior involvement in approving the changes was itself contested, which suggests the facts were sufficiently clear to support the finding without reliance on self-validating reasoning. However, this structural vulnerability — the designer-as-arbiter reviewing outcomes of the designer's own prior decisions — is a genuine limitation on the independence of the dispute resolution process that the parties and the profession should recognize when structuring construction administration contracts.
In response to Q204: The concern that repeated contractor-favorable rulings by a client-retained engineer could constitute disguised partiality is a legitimate systemic concern, but it does not apply to the facts of this case as presented, where a single finding is at issue. The Board should distinguish genuine impartiality from disguised partiality by applying a process-based standard rather than an outcome-based one: impartiality is demonstrated by the quality of the reasoning process — whether the engineer examined the evidence without predetermined conclusions, applied the contract documents consistently, and reached a finding that can be traced to articulable technical and contractual grounds — not by whether the finding favors one party or the other in any given instance. An engineer who consistently rules against the client is not necessarily biased toward the contractor; the engineer may simply be applying the contract correctly in cases where the contractor is consistently right. Conversely, an engineer who consistently rules for the client is not necessarily loyal in the proper sense — such a pattern would suggest the engineer is functioning as an advocate rather than an arbiter, which would itself be an ethical violation. The Collusion Avoidance obligation cuts in both directions: Engineer A must avoid both collusion with the Owner against the Contractor and the appearance of systematic bias toward the Contractor. A single finding, supported by the facts, satisfies neither concern.
In response to Q301: From a deontological perspective, Engineer A fulfilled the categorical duty of honesty and objectivity by ruling in the Contractor's favor when the facts supported that outcome. The NSPE Code's faithful agent obligation under Section II.4. does not impose a duty of unconditional advocacy; it imposes a duty of trustworthy service, which in the context of a contractually designated impartial role means performing that role with integrity. A deontological analysis grounded in Kantian ethics would hold that Engineer A's conduct is universalizable — if all engineers in impartial dispute resolution roles followed the evidence rather than client preference, the construction dispute resolution system would function with integrity and all parties would benefit from reliable, honest adjudication. The alternative — that engineers in impartial roles should favor their clients — is not universalizable, because it would render the impartial role meaningless and undermine the contractual framework that all parties, including owners, rely upon. The faithful agent obligation is therefore strictly bounded by the engineer's contractually designated role: within that role, faithful agency means honest performance, not partisan advocacy.
In response to Q302: From a consequentialist perspective, Engineer A's impartial ruling produced better long-term outcomes for all parties, including the Owner, than a loyalty-driven finding in the Owner's favor would have. Had Engineer A found in the Owner's favor despite the technical evidence supporting the Contractor, several adverse consequences would likely have followed: the Contractor would have had grounds to challenge the finding as biased, potentially escalating the dispute to formal arbitration or litigation at greater cost to all parties; the integrity of the construction administration process would have been compromised, exposing the Owner to future contractor claims of unfair dealing; Engineer A's professional credibility as a dispute resolver would have been undermined, reducing the value of the impartial interpreter provision in future disputes; and the Owner would have obtained a short-term win at the cost of a long-term weakening of the contractual dispute resolution framework that protects the Owner's interests throughout the construction project. The consequentialist calculus therefore strongly supports Engineer A's impartial conduct, and the Owner's complaint reflects a failure to appreciate the long-term consequences of the alternative the Owner was demanding.
In response to Q303: From a virtue ethics perspective, Engineer A demonstrated the professional virtues of integrity, courage, and practical wisdom by resisting the Owner's pressure and rendering an impartial finding. Integrity required Engineer A to align conduct with the contractual and professional obligations Engineer A had accepted; courage was required because finding against the client in a dispute the client expected to win carries professional and relational risk; and practical wisdom — phronesis — was demonstrated by Engineer A's recognition that genuine loyalty to the Owner's long-term interests required honest performance of the impartial role rather than short-term accommodation of the Owner's preference. The Owner's complaint itself reveals a misunderstanding of what virtuous professional loyalty requires. The Owner conflated loyalty with advocacy, treating Engineer A's role as equivalent to that of the Owner's legal counsel rather than that of a quasi-judicial arbiter. A virtuous professional does not abandon the integrity of a role simply because a client misunderstands what that role entails; rather, the virtuous professional performs the role with excellence and, where appropriate, educates the client about the nature of the obligations involved. Engineer A's conduct exemplifies this understanding of professional virtue.
In response to Q304: From a deontological perspective, the Owner's prior contractual agreement to Engineer A's impartial interpreter role does create a binding obligation on the Owner not to demand that Engineer A violate that role. This is not merely a contractual estoppel argument — it is an ethical one. If the Owner agreed to a contractual framework that designated Engineer A as an impartial arbiter, the Owner implicitly accepted the professional and ethical obligations that role entails, including the obligation that Engineer A's findings would be governed by evidence rather than loyalty. To subsequently demand that Engineer A breach those obligations is to ask Engineer A to act unethically, which is itself an ethically impermissible demand. The NSPE Code does not impose formal ethical duties on owners, but the ethical analysis of Engineer A's situation is clarified by recognizing that the Owner's complaint was not merely factually mistaken — it was a demand that Engineer A commit an ethical violation. Engineer A's refusal to comply with that demand was therefore not only ethically permissible but ethically required, and the Board's conclusion that finding in the Owner's favor would have been unethical directly supports this analysis.
In response to Q401: If Engineer A had found in the Owner's favor despite the technical evidence supporting the Contractor's position, Engineer A would have committed multiple ethical violations. Under Section II.3.a., Engineer A would have rendered a professional determination that was neither objective nor truthful, substituting client preference for evidence-based analysis. Under Section III.1., Engineer A would have acted contrary to the highest standards of honesty and integrity. Under Section III.3., Engineer A's finding could be characterized as a form of professional deception — presenting a biased determination as if it were an impartial one, thereby misleading the Contractor and potentially the public about the integrity of the dispute resolution process. Beyond ethical violations, such a finding would have exposed Engineer A to professional liability: the Contractor, having complied with Owner-approved changes, would have had grounds to challenge the finding as arbitrary and potentially to pursue claims against both the Owner and Engineer A for bad-faith dispute resolution. The integrity of the construction contract dispute resolution process would have been materially undermined, and Engineer A's conduct would have constituted a form of collusion with the Owner against the Contractor — precisely the outcome the Collusion Avoidance obligation is designed to prevent.
In response to Q402: If Engineer A had declined at the outset to serve as the impartial dispute resolver, citing the inherent tension between the loyal agent role and the quasi-judicial interpreter role, such a refusal would have been ethically defensible but not ethically required, and it is not clear that it would have better served the Owner's long-term interests. The construction industry's standard practice of designating the design engineer as initial interpreter of contract documents reflects a considered judgment that the designer's knowledge of design intent outweighs the structural tension created by the dual role, provided the engineer performs the role with integrity. A refusal to serve would have deprived the parties of the most knowledgeable arbiter available, potentially prolonged the dispute, and introduced the costs and delays associated with appointing a third-party arbitrator. However, if Engineer A had genuine reason to believe that the dual role would compromise the engineer's ability to render an impartial finding — for example, because the dispute directly implicated Engineer A's own prior design decisions in a way that created irresolvable bias — then declining the role would have been the more ethically cautious course. In the absence of such specific circumstances, Engineer A's decision to accept the role and perform it with integrity was the ethically appropriate choice.
In response to Q403: If BER Case 85-5 had not been available as analogical precedent, the ethical analysis of Engineer A's impartiality obligation would not have been materially weakened, because NSPE Code Section II.3.a. independently and directly compels the same conclusion. The requirement that engineers be objective and truthful in professional reports, statements, or testimony is a freestanding obligation that applies to all professional determinations, including dispute resolution findings. Engineer A's finding in the concrete pour dispute is a professional determination of the type Section II.3.a. governs, and the objectivity requirement admits of no exception for findings that happen to be adverse to the client. BER Case 85-5 strengthens the analysis by providing a cross-domain illustration of the objectivity principle — demonstrating that the Board has consistently applied this standard even when it produces results uncomfortable to the engineer's principal relationships — but the principle itself does not depend on the precedent. The Board's use of BER 85-5 is therefore best understood as confirmatory rather than foundational: it shows that the objectivity principle has been consistently applied, not that it requires analogical support to be operative.
In response to Q404: An Owner instruction, given prior to any dispute arising, that Engineer A's impartial interpreter role was subordinate to Engineer A's loyalty obligation would not have been enforceable as a matter of professional ethics, and compliance with such an instruction would not have been ethically permissible under the NSPE Code. The NSPE Code's ethical obligations — including the objectivity and truthfulness requirements of Section II.3.a. and the integrity standard of Section III.1. — are not contractually waivable by client instruction. An engineer cannot agree, in advance, to render biased professional determinations in exchange for client retention, because such an agreement would constitute a pre-commitment to dishonesty that violates the foundational ethical obligations of the profession. Furthermore, such an instruction would have effectively converted the impartial interpreter provision into a nullity, depriving the Contractor of the protection that provision was designed to afford. If the Owner had given such an instruction, Engineer A's ethically appropriate response would have been to decline to serve as the impartial interpreter under those conditions, or to clarify that the role could only be performed with integrity and that Engineer A would not agree in advance to findings that favor the Owner regardless of the evidence. The professional ethical duties of engineers set a floor that client instructions cannot lower.
The apparent conflict between the Faithful Agent Duty and the Impartiality Obligation is resolved in this case not by subordinating one to the other, but by recognizing that the contractually designated dispute resolution role redefines what faithful agency means in context. When an Owner retains an engineer to serve as the initial interpreter and judge of work acceptability, the Owner is contractually specifying the form that loyalty must take during disputes: impartial, fact-grounded adjudication. Engineer A's faithful agent duty was therefore not suspended during the dispute resolution phase — it was channeled through the impartiality obligation. The Board's conclusion that finding in the Owner's favor would have been unethical confirms that loyalty, in this structural context, is fulfilled by honest performance of the designated role, not by advocacy for the client's preferred outcome. This case teaches that the Faithful Agent Duty is not a fixed, content-invariant obligation but one whose specific demands are shaped by the contractual role the engineer has been assigned. Loyalty to an Owner who has contractually established an impartial arbiter role means honoring that role, not circumventing it.
The Objectivity Obligation and the Confirmation Bias Resistance principle interact in this case to impose a heightened standard of intellectual discipline on Engineer A precisely because his prior design decisions are implicated in the dispute. Because Engineer A had approved certain changes in the work that the Contractor relied upon, his dispute resolution finding was not rendered from a position of pure detachment — he was, in effect, evaluating the downstream consequences of his own earlier professional judgments. The Board's cross-application of BER Case 85-5, which condemned omission of ambiguous data to protect a preferred conclusion, signals that the objectivity obligation requires engineers to resist not only external pressure from clients but also internal cognitive pressure to validate prior decisions. This synthesis reveals a structural risk in dual-role arrangements: the engineer's impartiality may be compromised not by corruption or favoritism but by the natural human tendency to confirm one's own prior judgments. The ethical resolution in this case — that Engineer A's finding was proper — implicitly depends on the assumption that Engineer A successfully resisted this confirmation bias. The case therefore teaches that the Objectivity Obligation, when applied to a dispute resolver who is also the original designer, demands active self-scrutiny, not merely the absence of overt partiality.
The Owner Misapplication of Loyalty Principle and the Collusion Avoidance Through Impartial Performance principle together reveal that the Owner's complaint, while factually mistaken, also reflects a deeper conceptual error about the nature of professional loyalty in quasi-judicial engineering roles. The Owner's position — that loyalty required Engineer A to find in the Owner's favor — would, if accepted, transform the dispute resolution mechanism from an impartial adjudicative process into a pre-determined advocacy exercise. This would not merely harm the Contractor; it would undermine the very contractual architecture the Owner established and accepted. The principle of Collusion Avoidance Through Impartial Performance makes explicit what the Owner's complaint obscures: a loyalty-driven finding in the Owner's favor would have constituted a form of collusion against the Contractor, exposing Engineer A to professional and potentially legal liability. The case therefore teaches that the conventional understanding of client loyalty as advocacy is not merely insufficient in dispute resolution contexts — it is actively incompatible with the engineer's professional and contractual obligations. The Board's resolution of this tension establishes that when an engineer is contractually designated as an impartial arbiter, the Collusion Avoidance obligation and the Impartiality Obligation jointly override the advocacy dimension of client loyalty, and the Owner's contractual awareness of this structure estops the Owner from treating the resulting impartial finding as a breach of duty.
Concrete Pour Dispute Arises (Event 2) → Both Parties Request Review (Event 3)
Conducting Impartial Dispute Review (Action 3) → Owner Accepts Ruling (Event 4)
Confirmation Bias Resistance Invoked in BER 85-5 Research Report
Graduate research report data selection and omission decision
The BER 85-5 engineer omitted minority data inconsistent with research conclusions because of subjective conviction in the report's soundness; the Board held this unethical, articulating that the real challenge of technical inquiry is to wrestle with data at variance with conclusions rather than to identify results in accord with one's basic premise
The principle operates here as a prohibition on selective data presentation driven by the engineer's pre-existing belief in the correctness of conclusions; the engineer's good-faith conviction does not cure the ethical violation of omitting contradictory data
Confirmation Bias Resistance and Variance Data Disclosure Obligation
The real challenge...is to wrestle head-on with the difficult and sometimes insoluble issues that surface and try to gain some understanding of why they are at variance with other results.
The Board held unequivocally that the obligation to include and engage with variance data overrides the engineer's judgment that such data would distort the report's thrust
Contractor compliance with changes before dispute over concrete pour acceptability
Should Engineer A render an impartial, evidence-based determination in the Owner-Contractor concrete pour dispute even though it finds against the Owner, or should Engineer A find in the Owner's favor on loyalty grounds?
Engineer A, retained by the Owner and contractually designated as the initial interpreter of contract documents and judge of work acceptability, must decide whether to render an impartial, evidence-based determination in the concrete pour dispute — finding in the Contractor's favor when the facts support that outcome — or to find in the Owner's favor out of client loyalty, despite the technical and contractual merits supporting the Contractor.
Apply the contractually designated impartial interpreter role strictly, ruling in the Contractor's favor based on the established facts that the Owner approved the relevant changes and the Contractor complied — treating the technical and contractual merits as the sole basis for the determination regardless of client preference.
Interpret the faithful agent duty as requiring a finding in the Owner's favor, reasoning that the retaining client relationship creates an obligation to resolve ambiguities and close judgment calls in the Owner's interest, particularly where the Owner's approval of changes could be construed as a discretionary rather than binding decision.
Decline to render a determination on the grounds that the dual role of designer and dispute resolver creates an irresolvable structural tension, and recommend that the parties appoint a neutral third-party arbitrator with no prior involvement in the project to adjudicate the concrete pour dispute.
Should Engineer A maintain the impartial determination adverse to the Owner and correct the Owner's misapplication of the loyalty principle, or acquiesce to the Owner's pressure and revise the finding in the Owner's favor?
When the Owner criticizes Engineer A's impartial finding and claims that the duty of loyalty required a partisan finding in the Owner's favor, Engineer A must decide whether to maintain the impartial determination or to acquiesce to the Owner's pressure and revise the finding — and must also decide whether to actively correct the Owner's misapplication of the loyalty principle.
Uphold the impartial determination, explain to the Owner that the duty of loyalty is fulfilled — not violated — by honest performance of the contractually designated impartial role, and decline to revise the finding on loyalty grounds alone.
Treat the Owner's criticism as a signal that the original finding may have overweighted the Contractor's position, and revise the determination to find in the Owner's favor on the grounds that close judgment calls in a dispute should be resolved in favor of the retaining client to preserve the professional relationship and avoid further conflict.
Acknowledge to the Owner that a genuine tension exists between the loyalty obligation and the impartial interpreter role, decline to revise the finding, but refrain from actively correcting the Owner's misapplication of the loyalty principle on the grounds that doing so exceeds the scope of Engineer A's advisory role in the dispute resolution context.
Should Engineer A proactively disclose the role-inherent tension between loyal agency and contractual impartiality — and the structural confirmation bias risk arising from the dual designer-arbiter role — before accepting the dispute resolution function, or rely on the contractual impartiality clause as sufficient constructive notice?
Engineer A, having been retained as both designer and construction-phase dispute resolver for the same Owner, must decide whether to proactively disclose — before or at the time of accepting the dispute resolution role — that the contractual impartiality obligation may produce findings adverse to the Owner's interests, and that Engineer A's prior design decisions may be implicated in any dispute arising from changes in the work.
Before accepting or exercising the dispute resolution function, proactively explain to the Owner that the contractual impartiality obligation requires findings based on evidence rather than client preference, that adverse findings are possible, and that Engineer A's prior design approvals may be implicated in any dispute — thereby foreclosing the Owner's subsequent loyalty complaint at its inception.
Treat the contractual impartiality provision as sufficient disclosure of the role's implications, proceeding to exercise the dispute resolution function without supplemental verbal clarification, on the grounds that the Owner read and signed the contract and is bound by its terms.
Disclose to both the Owner and Contractor that Engineer A's role as designer creates a structural confirmation bias risk when adjudicating disputes involving Owner-approved changes, and offer the parties the option to appoint a third-party reviewer for disputes that directly implicate Engineer A's prior design decisions — while remaining available to serve as interpreter for disputes that do not implicate those decisions.
Should Engineer A base the concrete pour determination strictly on the established facts of Owner approval and Contractor compliance, or should Engineer A conduct a broader technical re-examination that actively seeks out and engages with data at variance with the Contractor-favorable conclusion?
Engineer A must decide how to ground the concrete pour acceptability determination — specifically, whether to base the finding on the established facts that the Owner approved certain changes and the Contractor complied, or to engage in a broader re-examination of the technical merits that might surface ambiguous data inconsistent with the Contractor's position, consistent with the confirmation bias resistance principle drawn from BER Case 85-5.
Base the determination on the directly established facts — that the Owner approved the relevant changes and the Contractor demonstrably complied — treating these as sufficient factual anchors for the finding without conducting a broader search for ambiguous or contrary technical data.
Apply the confirmation bias resistance standard from BER Case 85-5 by actively seeking out and engaging with technical data at variance with the Contractor-favorable conclusion before finalizing the determination, including scrutiny of whether the Owner-approved changes themselves were technically sound and whether the Contractor's compliance was complete in all material respects.
Recognize that the finding validates Engineer A's own prior design approvals and, before finalizing the determination, disclose this structural self-validation risk to both parties and seek a peer technical review of the compliance assessment to provide an independent check on the conclusion.
Should the Owner accept Engineer A's impartial adverse finding as the legitimate product of the contractual framework the Owner established and signed, or press the loyalty-based complaint demanding that Engineer A revise the finding in the Owner's favor?
The Owner, having read and signed a contract designating Engineer A as the impartial interpreter of contract documents and judge of work acceptability, must decide whether to accept the adverse impartial finding as the legitimate product of the contractual framework the Owner established, or to press the claim that Engineer A's loyalty obligation required a finding in the Owner's favor — a claim that, if accepted, would require Engineer A to commit an ethical violation.
Recognize that the impartial adverse finding is the legitimate product of the contractual framework the Owner established and signed, accept the ruling without pressing a loyalty-based complaint, and treat Engineer A's compliance with the impartial interpreter role as fulfillment rather than breach of the professional relationship.
Maintain the position that Engineer A's duty of loyalty required a finding in the Owner's favor, demand that Engineer A revise the determination, and treat the adverse ruling as evidence that Engineer A failed to properly weigh the Owner's interests as the retaining client in a close factual dispute.
Accept the adverse ruling as binding for this dispute while seeking to renegotiate or clarify the impartial interpreter provision in the contract going forward, on the grounds that the Owner did not fully appreciate at signing that the provision could produce findings adverse to the Owner's interests in disputes where the Owner believed it had the stronger position.
Contract Provision: Engineer as Initial Interpreter and Judge of Work Acceptability
Engineer Impartiality in Dispute Resolution Standard
citing a provision in his contract with the Owner stating that the engineer is the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work
The specific contractual provision cited by Engineer A establishing his role as the impartial initial interpreter of contract document requirements and judge of work acceptability, which forms the direct basis for Engineer A's authority and obligation to render an objective determination in the concrete pour dispute.
Engineer A Client Loyalty Faithful Agent Impartiality Reconciliation BER 93-4
Owner claimed Engineer A's ethical duty of loyalty required a finding in Owner's favor; Engineer A had already rendered an impartial determination agreeing with the Contractor based on Owner-approved changes.
Client Loyalty Faithful Agent Impartiality Reconciliation Constraint
Engineer A was constrained from conflating his general duty of loyalty to the Owner with an obligation to render a partisan, owner-favoring finding in the contractual dispute — establishing that faithful agent obligations are fulfilled through candid, objective, and contractually compliant determinations, not through advocacy for the client's preferred outcome.
NSPE Code of Ethics Section II.4; BER Case 93-4
Owner accepts Engineer A's interpretation, but also criticizes Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor.
At the time of rendering the concrete pour acceptability determination and in response to Owner's subsequent criticism
Engineer A agrees with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes.
Engineer A Client Loyalty Impartiality Paradox Recognition BER 85-5
Client Loyalty Impartiality Paradox Recognition Capability
Engineer A demonstrated the capability to recognize and correctly resolve the apparent paradox that loyalty to the Owner did not require — and in fact prohibited — finding in the Owner's favor when acting as the contractually designated impartial dispute resolver.
BER Case 85-5: Owner criticized Engineer A's impartial finding, claiming loyalty required a pro-owner determination; Engineer A's conduct demonstrated correct resolution of the loyalty-impartiality paradox.
Engineer A maintained his impartial finding in favor of the Contractor despite the Owner's criticism that loyalty required a partisan outcome, implicitly recognizing that impartial execution of the designated role constitutes the highest fulfillment of the loyalty obligation.
Engineer A Client Loyalty Impartiality Paradox Resolution BER 85-5
Engineer A demonstrated the capability to recognize and correctly resolve the apparent paradox that the duty of loyalty to the Owner did not require — and in fact prohibited — finding in the Owner's favor in the concrete pour dispute, and that acting impartially constituted the highest fulfillment of the loyalty obligation.
The Owner argued that Engineer A's duty of loyalty required a finding in the Owner's favor; Engineer A correctly recognized that impartial performance was the proper fulfillment of the loyalty duty.
Maintaining the impartial dispute resolver role despite the Owner's claim that loyalty required a partisan finding, recognizing that impartial performance fulfilled rather than violated the loyalty obligation.
We believe Engineer A owed a general duty of loyalty to the Owner and we also believe that in acting impartially under the terms of the contract, Engineer A fulfilled that ethical obligation to the Owner.
Engineer A Client Loyalty Non-Partisan Boundary BER 85-5
After Engineer A found in the Contractor's favor, the Owner criticized Engineer A, claiming the duty of loyalty required Engineer A to have found in the Owner's favor; Engineer A's impartial finding was the ethically correct response.
Client Loyalty Non-Partisan Dispute Finding Boundary Obligation
Engineer A was obligated to recognize that the duty of loyalty to the Owner did not extend to rendering a partisan, owner-favoring finding in the concrete pour dispute, and that finding in favor of the Contractor on the technical and contractual merits constituted fulfillment — not breach — of the loyalty obligation.
At the time of rendering the dispute finding and in response to the Owner's subsequent criticism
Following his review, Engineer A agrees with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes.
Engineer A Client Relationship — Design and Construction Phase Retention
From initial retention through at least the conclusion of the concrete pour dispute
Engineer A is retained by an Owner to provide both design and construction phase services
Engineer A's active professional relationship with Owner encompassing both design and construction phase services
Owner retaining Engineer A to provide both design and construction phase services
Engineer A Collusion Allegation Avoidance Through Impartiality
During Engineer A's adjudication of the contractor's claim, while the owner-engineer relationship created potential appearance of bias
Engineer A's action also complied with the terms of the agreement and avoided a charge that the Owner and Engineer A may have 'colluded' against the Contractor
Impartial Adjudication Collusion Allegation Avoidance State
Engineer A's conduct as contractual interpreter in the owner-contractor dispute
Resolution of the dispute and Board's confirmation that Engineer A's impartial conduct was ethically correct and legally protective
By acting in an impartial, neutral and objective manner as the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work, Engineer A fulfilled his legal and ethical responsibility under the terms of the agreement
Engineer A's issuance of an impartial determination adverse to the owner's preferred outcome, in compliance with contractual interpreter role
Engineer A Collusion Avoidance Impartial Performance BER 85-5
Collusion Appearance Avoidance Through Impartial Dispute Performance Capability
Engineer A demonstrated the capability to recognize that rendering a partisan, owner-favoring determination would expose both the engineer and the owner to a credible collusion charge against the Contractor, and to execute the impartial arbiter role in a manner that avoided such exposure.
Engineer A was jointly requested by both Owner and General Contractor to render an impartial determination; a partisan owner-favoring finding would have been susceptible to a collusion charge.
Rendering an impartial determination in the concrete pour dispute that complied with the contract terms and avoided any appearance of collusion between Engineer A and the Owner against the General Contractor.
Engineer A's action also complied with the terms of the agreement and avoided a charge that the Owner and Engineer A may have 'colluded' against the Contractor.
Engineer A Collusion Avoidance Through Impartial Performance
The Board noted that Engineer A's impartial performance avoided a charge that the Owner and Engineer A may have colluded against the Contractor — an additional dimension of the impartiality obligation beyond mere technical correctness.
Contractually Designated Dispute Resolver Impartiality Obligation
Engineer A was obligated to perform the contractually designated impartial arbiter role in a manner that avoided any appearance of collusion with the Owner against the Contractor, recognizing that partisan findings in the Owner's favor would expose both the Owner and Engineer A to collusion allegations.
Throughout the dispute resolution process
Engineer A Collusion Avoidance Through Impartial Performance BER 93-4
The Board noted that Engineer A's impartial determination 'complied with the terms of the agreement and avoided a charge that the Owner and Engineer A may have colluded against the Contractor,' identifying collusion avoidance as a distinct rationale for the impartiality constraint.
Impartial Dispute Resolution Collusion Avoidance Constraint
Engineer A was constrained to render the concrete pour dispute determination on strictly impartial, technical, and contractual grounds in order to avoid the risk that the Owner and Engineer A would be perceived as having colluded against the General Contractor.
NSPE Code professional integrity provisions; Contract provision; BER Case 93-4
Duration of the Owner-Contractor concrete pour dispute adjudication
Engineer A Competing Duties — Loyalty vs. Impartiality
From the moment the dispute was referred to Engineer A for review through the issuance of the determination
Engineer A's simultaneous obligations of faithful agency to the Owner and contractual impartiality as designated interpreter/judge of the construction contract
Engineer A's issuance of determination based on impartiality, effectively resolving the tension in favor of the contractual impartiality obligation
Owner accepts Engineer A's interpretation, but also criticizes Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor
Both Owner and Contractor requesting Engineer A's review under the contract's interpreter/judge provision, placing Engineer A between loyalty to retaining client and contractual impartiality obligation
Engineer A Confirmation Bias Resistance Dispute Resolution BER 85-5
Engineer A demonstrated the capability to resist confirmation bias and maintain objectivity in the concrete pour dispute determination, applying the BER 85-5 principle of wrestling with discrepant data rather than suppressing it in favor of a predetermined conclusion aligned with the owner's preferences.
Engineer A was contractually designated as the initial interpreter of contract documents and judge of work acceptability in a dispute between the Owner and General Contractor over concrete pour acceptability; the Owner expected a partisan finding in its favor.
Rendering an impartial, fact-grounded determination in the concrete pour dispute based on established facts — that the Owner had approved certain concrete specifications — rather than finding in the Owner's favor to satisfy the Owner's loyalty expectations.
Engineer A Construction Dispute Impartial Interpreter
{'license': 'Professional Engineer', 'contract_role': 'Design and construction-phase services provider', 'contractual_authority': 'Initial interpreter of contract documents and judge of work acceptability', 'impartiality_basis': 'Contractual provision designating engineer as neutral interpreter'}
Retained by Owner for both design and construction-phase services; contractually designated as initial interpreter of contract documents and judge of work acceptability; sought to remain impartial when a dispute arose between Owner and Contractor over a concrete pour; reviewed the dispute and ruled in the Contractor's favor based on Owner-approved changes; resisted Owner's claim that loyalty should have overridden impartiality.
{'type': 'dispute_reviewer_for', 'target': 'Owner and General Contractor'}
{'type': 'retained_by', 'target': 'Owner'}
{'type': 'ruled_in_favor_of', 'target': 'General Contractor'}
Construction Dispute Impartial Interpreter Engineer
Engineer A agrees with the Contractor's position
Owner criticizes Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor
Engineer A Contract Signatory Estoppel Recognition BER 85-5
Contract Signatory Estoppel Self-Application Capability
Engineer A demonstrated the capability to recognize that the Owner, having read and signed the contract designating Engineer A as the impartial dispute resolver, was estopped from complaining about Engineer A's faithful performance of that contractually designated role.
The Owner complained about Engineer A's impartial finding in the concrete pour dispute; the BER found it incongruous that the Owner would complain about the engineer complying with a contract the Owner had signed.
Maintaining the impartial dispute resolver role despite Owner complaints, on the basis that the Owner had agreed to the contract terms and could not legitimately object to the engineer's compliance with those terms.
we find it somewhat incongruous that the Owner should complain because the Engineer was complying with the terms and conditions of a contract that the Owner presumably read and understood before signing.
Engineer A Contractual Dispute Interpreter Role Scope Self-Recognition BER 85-5
Contractual Dispute Interpreter Role Scope Self-Recognition Capability
Engineer A demonstrated the capability to identify and correctly apply the contractual provision designating him as the initial interpreter of contract documents and judge of work acceptability, using it as the basis for maintaining impartiality in the dispute.
BER Case 85-5: Engineer A invoked the contractual interpreter/judge provision to justify his impartial stance when the dispute arose between Owner and Contractor.
Engineer A cited the specific contract provision establishing his role as initial interpreter and judge of acceptability when seeking to remain impartial, demonstrating correct identification and application of the role's scope.
Engineer A, seeks to remain impartial in the dispute, citing a provision in his contract with the Owner stating that the engineer is the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work.
Engineer A Contractual Dispute Resolver Impartiality BER 85-5
Engineer A was retained by the Owner for both design and construction-phase services; the contract designated Engineer A as the initial interpreter of contract documents and judge of work acceptability; a dispute arose between the Owner and General Contractor over the acceptability of a concrete pour.
Engineer A was obligated to render an impartial, technically grounded determination in the concrete pour dispute based solely on the contract documents and the facts, refraining from finding in the Owner's favor merely because the Owner was the retaining client.
Upon being jointly requested by the Owner and Contractor to review the dispute
Engineer A Contractual Impartiality Dispute Resolution BER 93-4
Engineer A was retained by the Owner for design and construction phase services. A dispute arose between the Owner and General Contractor over the acceptability of a concrete pour. Engineer A, contractually designated as the impartial initial interpreter, rendered a determination adverse to the Owner. The Owner complained that loyalty required a favorable finding.
Contractually Designated Dispute Resolver Impartiality Constraint
Engineer A was constrained to render an impartial, objective, and technically grounded determination in the Owner-Contractor concrete pour dispute based solely on the contract documents and technical facts, and was prohibited from finding in the Owner's favor merely because of a general duty of loyalty.
NSPE Code Section II.3.a; Contract provision designating Engineer A as initial interpreter of contract documents and judge of work acceptability; BER Case 93-4
Duration of the Owner-Contractor construction dispute adjudication
Engineer A Contractual Impartiality Dispute Resolver BER 93-4
Owner-contractor dispute over acceptability of concrete pour; Engineer A contractually designated as impartial interpreter; Owner subsequently claimed loyalty required a partisan finding in Owner's favor.
Engineer A was constrained by the contractual provision designating him as the initial interpreter of contract document requirements and judge of work acceptability to render an impartial, technically grounded determination in the concrete pour dispute — prohibiting him from finding in the Owner's favor merely on the basis of a general duty of loyalty.
NSPE Code of Ethics Section II.4; Contract provision designating Engineer A as initial interpreter and judge of work acceptability; BER Case 93-4
Throughout the construction phase dispute resolution process
Engineer A Contractual Impartiality Obligation — Owner-Contractor Concrete Pour Dispute
From commencement of the concrete pour dispute through Engineer A's issuance of determination in favor of Contractor
Engineer A, seeks to remain impartial in the dispute, citing a provision in his contract with the Owner stating that the engineer is the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work
Contractual Impartiality Obligation State
Engineer A's contractually designated role as initial interpreter and judge of work acceptability in the Owner-Contractor dispute
Owner's acceptance of Engineer A's determination (though followed by loyalty criticism)
Following his review, Engineer A agrees with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes
The Owner and the Contractor ask Engineer A to review the dispute
Dispute arising between Owner and General Contractor over acceptability of concrete pour, combined with both parties requesting Engineer A's review under the contract's interpreter/judge provision
Engineer A Contractually Designated Dispute Resolver Impartiality BER 85-5
Contractually Designated Dispute Resolver Impartiality Capability
Engineer A demonstrated the capability to render an impartial, technically grounded determination in the concrete pour dispute, based solely on contract documents and established facts, independent of the Owner's preferences.
BER Case 85-5: Construction dispute between Owner and General Contractor over concrete pour acceptability; Engineer A was contractually designated as initial interpreter and judge of work acceptability.
Engineer A agreed with the Contractor's position after reviewing the dispute, finding that the Owner had approved certain changes and the Contractor had complied — despite the Owner's expectation of a favorable finding.
Engineer A Contractually Designated Dispute Resolver Impartiality Performance
Owner-Contractor dispute over acceptability of a concrete pour; Engineer A was contractually designated as the initial interpreter of contract documents and judge of work acceptability; Engineer A rendered a finding in favor of the Contractor on the merits.
Engineer A was obligated to render an impartial, objective, and technically grounded determination in the Owner-Contractor concrete pour dispute, based solely on the merits of the contract documents and the facts, refraining from finding in favor of the Owner merely because the Owner was the retaining client.
By acting in an impartial, neutral and objective manner as the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work, Engineer A fulfilled his legal and ethical responsibility under the terms of the agreement.
Upon being called upon to resolve the Owner-Contractor concrete pour dispute under the contract's dispute resolution provision
Engineer A owed a general duty of loyalty to the Owner and we also believe that in acting impartially under the terms of the contract, Engineer A fulfilled that ethical obligation to the Owner.
Engineer A Dispute Resolution Candid Interpretation Client Benefit BER 93-4
The Board found that Engineer A's impartial action 'provided the Owner with a candid and straightforward interpretation of the issues involved in the claim, expedited the claim and avoided further delays and a potential for further misunderstandings between the parties,' demonstrating that faithful agency was fulfilled through impartiality.
Engineer A's impartial dispute determination was constrained to serve the Owner's genuine interests through candid and straightforward interpretation — expediting the claim, avoiding further delays, and preventing misunderstandings — rather than through partisan advocacy that would have disserved those interests.
Engineer A's action provided the Owner with a candid and straightforward interpretation of the issues involved in the claim, expedited the claim and avoided further delays and a potential for further misunderstandings between the parties
Duration of the Owner-Contractor construction dispute
Engineer A Fact-Grounded Technical Opinion Concrete Pour BER 85-5
Engineer A reviewed the dispute between Owner and General Contractor over the acceptability of a concrete pour and rendered a finding grounded in the factual record of Owner-approved changes and Contractor compliance.
Fact-Grounded Technical Opinion Obligation
Engineer A was obligated to base the concrete pour acceptability determination on established facts — specifically, that the Owner had approved certain changes in the work and that the Contractor had complied with those changes — rather than on client preference or loyalty considerations.
During the review of the concrete pour dispute
Engineer A Fact-Grounded Technical Opinion Concrete Pour BER 93-4
Engineer A reviewed the dispute and found that the Owner had approved changes and the Contractor had complied; the Owner-approved changes were the factual basis for the determination favoring the Contractor.
Engineer A was constrained to base his concrete pour acceptability determination on established facts — specifically, that the Owner had approved certain changes in the work and that the Contractor had complied with those changes — prohibiting him from rendering a technically unsupported determination in the Owner's favor.
NSPE Code of Ethics Section II.3.a (objectivity and truthfulness); BER Case 93-4
At the time of reviewing and determining the concrete pour dispute
Engineer A Facts-Versus-Adversarial-Interests Distinction BER 85-5
Facts-Versus-Adversarial-Interests Distinction Capability
Engineer A demonstrated the capability to treat established technical facts — the Owner's prior approval of changes and the Contractor's compliance — as the basis for determination, independent of which party's adversarial interests those facts favored.
BER Case 85-5: Engineer A reviewed the concrete pour dispute and grounded his determination in established facts rather than in the Owner's adversarial interest in a favorable outcome.
Engineer A based his determination on the factual record (Owner-approved changes, Contractor compliance) rather than on the adversarial interests of the retaining party, correctly treating facts as non-adversarial inputs to professional analysis.
Engineer A Faithful Agent Impartial Role Execution BER 85-5
The Owner retained Engineer A and the contract designated Engineer A as the initial dispute resolver; faithful agent duty required Engineer A to serve the Owner's genuine long-term interests through candid, accurate resolution rather than through a finding that could expose the Owner to collusion allegations or further disputes.
Engineer A was obligated to act as a faithful agent and trustee of the Owner by executing the contractually designated impartial interpreter role honestly and objectively, recognizing that faithful agency in this context required impartial performance rather than partisan advocacy.
Throughout the construction-phase dispute resolution process
Engineer A Faithful Agent Obligation Scope Boundary BER 85-5
Faithful Agent Obligation Scope Boundary Recognition Capability
Engineer A demonstrated the capability to correctly identify the scope and limits of the faithful agent obligation — recognizing that it imposes a general duty of loyalty and fair dealing, not a requirement to render partisan findings that favor the client in contractual disputes.
BER Case 85-5: Owner invoked faithful agent/loyalty duty to demand a pro-owner finding; Engineer A's conduct demonstrated correct understanding of the scope boundary of that duty.
Engineer A's impartial determination and resistance to the Owner's loyalty-based criticism reflects correct understanding that faithful agent duty does not extend to suppressing technically grounded adverse findings.
Engineer A Faithful Agent Trustee Loyalty Non-Fiduciary Interpretation BER 85-5
The Owner invoked the loyalty principle to argue Engineer A should have found in the Owner's favor; the correct interpretation of the faithful agent duty required impartial performance of the contractually designated role, not partisan advocacy.
Faithful Agent Trustee General Loyalty Non-Fiduciary Interpretation Compliance Obligation
Engineer A was obligated to interpret the faithful agent and trustee duty under NSPE II.4 as imposing a general duty of loyalty and fair dealing toward the Owner — carrying out the dispute resolution in the manner most beneficial to the Owner's genuine interests — rather than as a strict obligation to advocate for the Owner's preferred outcome in a contractually designated impartial role.
Throughout the dispute resolution and in response to the Owner's post-finding criticism
Engineer A Impartial Dispute Resolution Client Benefit Articulation BER 85-5
Impartial Dispute Resolution Client Benefit Articulation Capability
Engineer A demonstrated the capability to recognize and implicitly communicate — through professional conduct — the concrete practical benefits to the Owner of impartial dispute resolution: candid interpretation of issues, expedited claim resolution, avoidance of further delays and misunderstandings, and protection from collusion charges.
Engineer A's impartial determination in the concrete pour dispute provided the Owner with practical benefits that a partisan finding would have undermined, including claim expedition and protection from collusion charges.
Executing the impartial arbiter role in a manner that produced candid interpretation, expedited the claim, and avoided collusion exposure — demonstrating through action that impartial performance served the Owner's long-term interests.
Engineer A's action provided the Owner with a candid and straightforward interpretation of the issues involved in the claim, expedited the claim and avoided further delays and a potential for further misunderstandings between the parties.
Engineer A Loyalty Fulfillment Through Impartial Dispute Finding
Owner argued that Engineer A's loyalty obligation required a finding in the Owner's favor; Engineer A correctly understood that impartial performance of the contractually designated role fulfilled the loyalty duty by expediting the claim, avoiding delays, preventing collusion allegations, and providing candid analysis.
Engineer A was obligated to recognize that the duty of loyalty to the Owner did not require a partisan finding in the Owner's favor, and that rendering an impartial finding adverse to the Owner's expressed preference — when the technical and contractual merits supported the Contractor — constituted fulfillment rather than breach of the loyalty obligation.
At the time of rendering the dispute resolution finding and in response to the Owner's subsequent complaint
Engineer A Loyalty Fulfillment Through Impartiality Non-Partisanship BER 93-4
The Owner claimed that Engineer A's duty of loyalty required a finding in the Owner's favor. The Board found that acting impartially under the contract terms fulfilled rather than violated the loyalty obligation.
Engineer A was constrained from interpreting the general duty of loyalty to the Owner as requiring a partisan, owner-favoring finding in the concrete pour dispute; the faithful agent obligation was fulfilled through candid, objective, and contractually compliant determination rather than through partisan advocacy.
NSPE Code Section II.4 (faithful agent and trustee); BER Case 93-4
We believe Engineer A owed a general duty of loyalty to the Owner and we also believe that in acting impartially under the terms of the contract, Engineer A fulfilled that ethical obligation to the Owner
Engineer A Objectivity Truthfulness Professional Report Code II.3.a BER 93-4
Code Section II.3.a imposes the obligation to be objective and truthful in professional reports, statements, and testimony. Engineer A's dispute determination was required to be grounded in established facts — specifically, that the Owner had approved certain actions — rather than in the Owner's preferred outcome.
Engineer A was constrained by Code Section II.3.a to be objective and truthful in the professional determination rendered in the Owner-Contractor concrete pour dispute, prohibiting a finding unsupported by the contract documents and technical facts.
Code Section II.3.a. imposes upon engineers the ethical obligation to be objective and truthful in professional reports, statements or testimony
Duration of the concrete pour dispute adjudication
Engineer A Objectivity in Concrete Pour Dispute Technical Review
Engineer A evaluated the concrete pour dispute by examining whether the Owner had approved changes and whether the work met contract specifications, rendering an objective finding in favor of the Contractor based on the merits.
Objective and Complete Reporting Obligation
Engineer A was obligated to be objective and truthful in the professional report and determination rendered in the Owner-Contractor concrete pour dispute, consistent with NSPE Code Section II.3.a, evaluating the dispute on its technical and contractual merits without bias toward the retaining Owner.
Code Section II.3.a. imposes upon engineers the ethical obligation to be objective and truthful in professional reports, statements or testimony.
During the review and determination of the concrete pour dispute
the Board's inquiry in the present case...the need for engineers to overcome bias, attempting to be objective and seeking resolution of issues through careful analysis and evaluation of the available information and data.
Engineer A Owner Loyalty Misapplication Non-Acquiescence BER 85-5
After Engineer A found in the Contractor's favor on the merits, the Owner criticized Engineer A and invoked the loyalty principle; Engineer A's obligation was to maintain the impartial finding and resist the pressure to recharacterize the loyalty duty as requiring partisan advocacy.
Owner Loyalty Misapplication Non-Acquiescence Obligation
Engineer A was obligated not to acquiesce to the Owner's erroneous claim that loyalty required a partisan finding in the Owner's favor, maintaining the impartial determination and recognizing that the Owner's misapplication of the loyalty principle did not create an ethical duty to revise the technically and contractually grounded finding.
In response to the Owner's post-finding criticism invoking the loyalty principle
Engineer A Trustee Term General Loyalty Non-Fiduciary Interpretation BER 93-4
Owner invoked Engineer A's duty of loyalty as 'faithful agent or trustee' to argue that Engineer A was ethically obligated to find in Owner's favor regardless of the technical and contractual merits.
Trustee Term General Loyalty Non-Fiduciary Interpretation Constraint
Engineer A was constrained from interpreting the NSPE Code II.4 'faithful agent or trustee' obligation as imposing a strict fiduciary or partisan duty requiring a client-favorable outcome in a contractual dispute — the term 'trustee' in that provision imposes only a general duty of loyalty and fair dealing, not a duty to subordinate impartial contractual adjudication to client preference.
Throughout the dispute resolution and in response to Owner's post-determination criticism
Engineer A retention by Owner before commencement of construction
Engineer A review of dispute before Engineer A ruling in favor of Contractor
Engineer A ruling in favor of Contractor before Owner acceptance of interpretation and criticism of Engineer A
Engineer Impartiality in Dispute Resolution Standard - Contract Provision
Standard engineering contract provisions; Owner-Contractor agreement
Contractual and Professional Norm: Engineer as Impartial Initial Interpreter and Judge of Work
in acting impartially under the terms of the contract, Engineer A fulfilled that ethical obligation to the Owner.
NSPE Board of Ethical Review in concluding that Engineer A's impartial conduct was ethically and legally proper
The contractual terms establishing Engineer A as the impartial initial interpreter of contract documents and judge of work acceptability are invoked to confirm that Engineer A's neutral, objective conduct fulfilled—rather than breached—the duty of loyalty to the Owner, and that the Owner had agreed to these terms before signing
As incorporated in the Owner-Contractor agreement
Faithful Agent Duty Correctly Executed By Engineer A As Impartial Arbiter
Engineer A's dual role as Owner's retained engineer and contractually designated impartial dispute arbiter
Impartiality in Contractually Designated Dispute Resolution Role
Engineer A's faithful execution of the contractually defined impartial interpreter role — including rendering a finding adverse to the retaining Owner — was the correct expression of the faithful agent duty, because the engagement scope itself required impartiality rather than advocacy
The faithful agent obligation must be interpreted in light of the contractual scope of the engagement; when the contract designates the engineer as impartial arbiter, faithful agency means honest, objective performance of that role — not partisan advocacy for the retaining client
Faithful Agent Obligation Within Ethical Limits
Engineer A is retained by an Owner to provide both design and construction phase services.
No genuine conflict: the faithful agent duty, properly understood, required Engineer A to execute the impartial arbiter role honestly; the Owner's criticism conflated faithful agency with blind partisanship
Faithful Agent Obligation Bounded by Impartial Role Designation
Construction-phase services under Owner contract
Engineer A's faithful agent obligation to the Owner was bounded and shaped by the contractual impartial-adjudicator role the Owner had agreed to; faithful agency in this context meant executing the impartial role faithfully, not advocating for the Owner's preferred outcome in the dispute
The faithful agent duty does not require engineers to subordinate their contractually and ethically mandated impartiality to client preferences; rather, faithful agency is fulfilled by honest and diligent execution of the role as defined by the engagement terms
The Board found that faithful agency and impartiality were complementary rather than conflicting in this context, with the Owner's true interests best served by impartial performance
we find it somewhat incongruous that the Owner should complain because the Engineer was complying with the terms and conditions of a contract that the Owner presumably read and understood before signing
General Contractor Construction Dispute Party
{'dispute_subject': 'Acceptability of a concrete pour', 'dispute_outcome': "Prevailed in Engineer A's impartial ruling", 'basis_for_ruling': 'Owner had approved certain changes in the work and Contractor complied with those changes'}
Party to a dispute with the Owner over the acceptability of a concrete pour; jointly requested Engineer A's impartial review with the Owner; prevailed in Engineer A's ruling based on Owner-approved changes to the work.
{'type': 'dispute_party_against', 'target': 'Owner'}
{'type': 'requested_review_from', 'target': 'Engineer A'}
{'type': 'subject_to_ruling_by', 'target': 'Engineer A'}
a dispute arises between the Owner and the General Contractor concerning the acceptability of a concrete pour by the Contractor
Engineer A agrees with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes
Impartiality Obligation Invoked By Engineer A In Concrete Pour Dispute
Concrete pour acceptability dispute between Owner and General Contractor
Engineer A invoked the contractual provision designating him as initial interpreter of contract documents and judge of work acceptability to justify remaining impartial in the Owner-Contractor dispute over the concrete pour, ultimately finding in favor of the Contractor based on technical and contractual merits
The contractual designation of Engineer A as impartial arbiter creates an obligation of objectivity that supersedes the ordinary loyalty obligation to the retaining client; Engineer A correctly recognized that his role in this dispute was adjudicatory, not advocacy-based
The impartiality obligation prevailed: Engineer A found in favor of the Contractor based on the technical and contractual record (Owner-approved changes, Contractor compliance), and the Owner's subsequent acceptance of the interpretation validated the correctness of this approach
Impartiality Obligation Invoked in Engineer A Dispute Role
Concrete pour acceptability determination
Engineer A, contractually designated as the initial interpreter of contract documents and judge of work acceptability, was obligated to render an impartial determination of the concrete pour dispute regardless of the Owner's retaining relationship; the Board confirmed this impartial performance was both legally and ethically required
The contractual designation of the engineer as impartial adjudicator creates an ethical obligation coextensive with the legal one; the engineer may not allow the retaining relationship to bias determinations made in the impartial role
Impartiality prevailed as the governing standard for the dispute resolution role; the Board found that this did not conflict with loyalty but rather expressed it
Loyalty Fulfilled Through Impartial Role Performance by Engineer A
Owner-Contractor concrete pour acceptability dispute
Engineer A's impartial determination of the Owner-Contractor concrete dispute fulfilled rather than violated the duty of loyalty to the Owner, because the Owner's true interests were served by candid resolution, expedited claim processing, avoidance of further delays, and elimination of collusion risk — not by partisan advocacy in the Owner's favor
The loyalty obligation is not violated when an engineer acts objectively in a role the client contractually designated as impartial; the client's interest in accurate, expeditious, and legally defensible resolution is better served by impartial performance than by biased advocacy
Loyalty Fulfillment Through Role-Faithful Objective Performance
The Board found no genuine conflict: loyalty and objectivity were harmonized because faithful execution of the impartial role is itself the most loyal service the engineer can render to the Owner in this contractual context
Loyalty Fulfillment Through Impartial Performance By Engineer A
Owner's claim that loyalty required Engineer A to find in Owner's favor
Engineer A's honest, impartial finding in favor of the Contractor — though adverse to the retaining Owner — constituted fulfillment rather than breach of the loyalty obligation, because the Owner's genuine interest was served by an accurate, defensible, and expeditious resolution of the dispute
Loyalty in an adjudicatory role means honest, role-faithful performance; the Owner's demand that loyalty required a partisan finding misunderstands the nature of the obligation when the engineer has been contractually designated as an impartial interpreter
The principle resolves the apparent tension between loyalty and impartiality by redefining loyalty in the context of the contractual role: faithful execution of the impartial arbiter function is itself the highest expression of loyalty to the client
National Society of Professional Engineers
Owner also criticizes Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor
Provides the normative framework for evaluating whether Engineer A's impartial judgment in the owner-contractor dispute fulfills or violates the duty of loyalty to the Owner; the Code's provisions on faithful agent/trustee obligations and professional objectivity are the ultimate authority for resolving the Owner's criticism.
NSPE Code Section II.3.a - Objectivity and Truthfulness Obligation
NSPE Code of Ethics for Engineers, Section II.3.a
NSPE Board of Ethical Review in evaluating Engineer A's conduct
Cited as the foundational ethical obligation requiring engineers to be objective and truthful in professional reports, statements, and testimony; anchors the Board's analysis of Engineer A's duty to provide impartial, candid interpretation of contract documents
Objectivity Exercised By Engineer A In Concrete Pour Review
Technical and contractual evaluation of concrete pour acceptability
Engineer A evaluated the concrete pour dispute on its technical and contractual merits — examining whether the Owner had approved changes and whether the Contractor had complied — and rendered an objective finding in favor of the Contractor despite being retained by the Owner
Objectivity required Engineer A to follow the evidence and the contract documents wherever they led, including to a finding adverse to the retaining client; the principle prohibited distorting the technical and contractual analysis to favor the Owner
Objectivity prevailed over any pressure to favor the retaining client; Engineer A's finding that the Contractor complied with Owner-approved changes was grounded in the factual record and the contract documents
Objectivity Obligation Applied to Engineer A Dispute Resolution Role
Concrete pour acceptability determination in Owner-Contractor dispute
Engineer A, acting as the contractually designated initial interpreter of contract documents and judge of work acceptability, was required to render an impartial, objective determination of the concrete pour dispute — the Board found that Engineer A's objective and neutral conduct satisfied the objectivity obligation and was directly analogous to the objectivity principle articulated in BER 85-5
Objectivity in this context required Engineer A to evaluate the technical and contractual merits of the dispute without allowing the Owner's retaining relationship to skew the determination; the BER 85-5 discussion of overcoming bias and seeking resolution through careful analysis applied directly
Objectivity and loyalty were reconciled: acting objectively in the impartially-designated role fulfilled rather than violated loyalty, because the Owner's true interest was served by candid, accurate resolution
the Board's discussion of the issues are quite relevant
Objectivity Obligation Invoked in BER 85-5 Research Report Context
Graduate research report compilation and data selection
In BER Case 85-5, the Board held that an engineer performing graduate research acted unethically by omitting data that was at variance with the report's conclusions, even though the engineer was convinced of the soundness of those conclusions and believed the ambiguous data would distort the report's thrust — the objectivity obligation required inclusion and engagement with all compiled data
Objectivity in technical reporting is not merely about avoiding self-serving bias in favor of personal interest; it extends to resisting confirmation bias — the tendency to omit data that complicates one's preferred conclusions. The engineer's subjective conviction in the correctness of the conclusions does not satisfy the objectivity standard.
The Board resolved the tension in favor of full data inclusion, holding that the real challenge of technical inquiry is to engage with difficult and contradictory findings, not to present only consistent results
Owner-Contractor Construction Dispute — Concrete Pour Acceptability
From dispute arising following commencement of construction through Owner's acceptance of Engineer A's determination
Following the commencement of construction, a dispute arises between the Owner and the General Contractor concerning the acceptability of a concrete pour by the Contractor
Owner-Contractor Construction Dispute Adjudication State
Active dispute between Owner and General Contractor over acceptability of concrete pour, requiring Engineer A's adjudicative determination
Owner's acceptance of Engineer A's interpretation favoring Contractor
Dispute arising between Owner and General Contractor concerning acceptability of a concrete pour
{'contract_relationship': 'Retained Engineer A for design and construction-phase services', 'dispute_position': "Challenged acceptability of Contractor's concrete pour", 'outcome': "Accepted Engineer A's ruling but criticized the impartiality exercised"}
Retained Engineer A for design and construction-phase services; became party to a dispute with the General Contractor over concrete pour acceptability; jointly requested Engineer A's impartial review; accepted Engineer A's ruling against their position but criticized Engineer A for not applying loyalty-based partiality in their favor.
{'type': 'dispute_party_against', 'target': 'General Contractor'}
{'type': 'retains', 'target': 'Engineer A'}
Owner Contract Awareness Negating Complaint Legitimacy
From the owner's post-determination complaint through the Board's resolution
Client Loyalty Claim Overriding Contractual Impartiality State
Owner's complaint that Engineer A should have found in the owner's favor as a matter of loyalty
Board's finding that the owner's complaint was incongruous given the owner's prior acceptance of the contract terms requiring impartiality
Owner's objection to Engineer A's impartial determination adverse to the owner's position, framed as a loyalty obligation violation
Owner Contract Signatory Estoppel Impartial Finding Complaint BER 93-4
After Engineer A rendered an impartial determination adverse to the Owner in the concrete pour dispute, the Owner complained that loyalty required a favorable finding. The Board found it 'somewhat incongruous' that the Owner should complain about conduct that complied with contract terms the Owner had signed.
Contract Signatory Estoppel from Impartial Determination Complaint Constraint
The Owner was constrained from legitimately complaining that Engineer A's impartial determination violated the duty of loyalty, having read and signed the contract that designated Engineer A as the impartial initial interpreter of contract documents and judge of work acceptability.
Contract provision designating Engineer A as impartial arbiter; BER Case 93-4
Owner Contract Signatory Estoppel from Impartial Finding Complaint
Owner complained that Engineer A's impartial finding in favor of the Contractor violated the duty of loyalty; the Board found it incongruous that the Owner complained about the engineer complying with contract terms the Owner had presumably read and understood before signing.
Owner (Construction Dispute Owner Client)
Contract Signatory Owner Impartial Arbiter Clause Estoppel Obligation
The Owner, having read and signed the contract designating Engineer A as the impartial interpreter of contract documents and judge of work acceptability, was obligated to refrain from complaining that Engineer A acted unethically by rendering an impartial finding adverse to the Owner's interests.
Upon the Owner's post-finding complaint against Engineer A's impartial determination
Owner Loyalty Claim Against Engineer A's Impartial Determination
From Owner's acceptance of Engineer A's determination through Owner's criticism invoking loyalty duty
Owner's post-determination assertion that Engineer A's ethical duty of loyalty required a client-favorable outcome regardless of contractual and technical merits
Not resolved within the case facts; persists as an open ethical challenge
Owner accepting Engineer A's determination but criticizing Engineer A for not finding in Owner's favor on loyalty grounds
Owner Misapplication of Loyalty Principle Against Engineer A
Engineer A's impartial finding in favor of the General Contractor
The Owner incorrectly invoked the loyalty principle to argue that Engineer A was ethically obligated to find in the Owner's favor in the concrete pour dispute, misreading loyalty as requiring partisan findings rather than honest, role-faithful performance
The Owner's invocation of loyalty represents a surface-level misreading: loyalty does not require an engineer to abandon impartiality when the contractual role is explicitly adjudicatory; the Owner's genuine interest is served by an accurate resolution, not a biased one
The loyalty claim was rejected: the Owner's acceptance of Engineer A's interpretation implicitly acknowledged that the impartial finding was correct, and the ethical analysis confirms that loyalty in this context required honest performance of the adjudicatory role
Owner approval of changes in work before Contractor compliance with changes
Did Engineer A owe an ethical duty to the Owner to find in the Owner's favor?
Did Engineer A have an obligation to proactively inform the Owner, before accepting the dispute resolution role, that his contractual duty of impartiality might produce findings adverse to the Owner's interests, and would such disclosure have altered the ethical landscape of this case?
Does the dual role of Engineer A — serving as both designer and construction-phase dispute resolver for the same Owner — create a structural conflict of interest that undermines the credibility of his impartiality, regardless of whether his technical finding was correct?
If Engineer A had found in the Owner's favor based on the same facts, would that finding have constituted an ethical violation, and what standard of review should the Board apply to assess whether a dispute resolution finding was genuinely impartial versus subtly biased?
Does the Owner's contractual awareness of Engineer A's impartiality role, combined with the Owner's subsequent acceptance of the ruling, create a form of estoppel that renders the Owner's loyalty complaint not merely factually wrong but ethically improper in itself?
Does the principle of Faithful Agent Duty — which obligates Engineer A to act in the Owner's interest — fundamentally conflict with the Impartiality Obligation that Engineer A's contractual dispute resolution role imposes, and if so, which principle takes precedence and on what ethical basis?
Is there a genuine tension between Loyalty Fulfilled Through Impartial Role Performance and the conventional understanding of client loyalty as advocacy, and does the Board's resolution of this tension — that impartiality is itself a form of loyalty — risk setting a precedent that could be misused to justify engineer conduct that is adverse to clients in contexts where no impartial-arbiter role was contractually established?
Does the Objectivity Obligation — requiring Engineer A to be truthful and unbiased in professional determinations — conflict with the Confirmation Bias Resistance principle when the engineer's prior design decisions are themselves implicated in the dispute, since Engineer A's approval of changes in the work that the Contractor relied upon may mean Engineer A is effectively validating his own prior judgments rather than rendering a truly independent assessment?
Does the principle of Collusion Avoidance Through Impartial Performance conflict with the Faithful Agent Obligation when the engineer's impartial finding consistently favors one party — the Contractor — since repeated contractor-favorable rulings by a client-retained engineer could raise questions about whether the engineer's 'impartiality' is itself a form of misaligned loyalty, and how should the Board distinguish genuine impartiality from disguised partiality in either direction?
From a deontological perspective, did Engineer A fulfill their categorical duty of honesty and objectivity by ruling in the Contractor's favor, even though this conflicted with the Owner's expectation of loyalty, and does the NSPE Code's faithful agent obligation impose a duty that is strictly bounded by the engineer's contractually designated impartial role?
From a consequentialist perspective, did Engineer A's impartial ruling produce better long-term outcomes for all parties — including the Owner — than a loyalty-driven finding in the Owner's favor would have, particularly with respect to the integrity of the construction process, future dispute resolution credibility, and avoidance of collusion?
From a virtue ethics perspective, did Engineer A demonstrate the professional virtues of integrity, courage, and impartiality by resisting the Owner's pressure to find in their favor, and does the Owner's complaint itself reveal a misunderstanding of what virtuous professional loyalty actually requires of an engineer serving in a quasi-judicial dispute resolution role?
From a deontological perspective, does the Owner's prior contractual agreement to Engineer A's role as impartial interpreter create a binding estoppel that makes the Owner's subsequent loyalty complaint not merely factually mistaken but ethically impermissible — that is, does the Owner have a duty not to demand that Engineer A violate the very contractual and professional obligations the Owner helped establish?
If Engineer A had found in the Owner's favor despite the technical evidence supporting the Contractor's position, what ethical violations would Engineer A have committed, and would such a finding have exposed Engineer A to professional liability, undermined the integrity of the construction contract dispute resolution process, or constituted collusion with the Owner against the Contractor?
What if Engineer A had declined to serve as the impartial dispute resolver at the outset, citing the inherent tension between the loyal agent role and the quasi-judicial interpreter role — would such a refusal have been ethically preferable, and would it have better served the Owner's long-term interests by prompting appointment of a truly independent third-party arbitrator?
If the BER Case 85-5 precedent regarding omission of ambiguous data had not been available to the Board, would the ethical analysis of Engineer A's impartiality obligation have been materially weakened, or does the objectivity principle embedded in NSPE Code Section II.3.a independently compel the same conclusion regardless of analogical precedent?
What if the Owner had explicitly instructed Engineer A, prior to the dispute arising, that Engineer A's role as impartial interpreter was subordinate to Engineer A's loyalty obligation — would such an instruction have been enforceable, and would compliance with it have been ethically permissible under the NSPE Code, or would it have constituted an impermissible contractual override of Engineer A's professional ethical duties?
Ruling in Contractor's Favor (Action 4) → Owner Criticizes Engineer A (Event 5)
Trustee Loyalty Non-Fiduciary Interpretation Engineer A BER 93-4
The Owner invoked the faithful agent and trustee language of NSPE Code II.4 to argue that Engineer A was obligated to find in the Owner's favor. The Board rejected this interpretation, holding that the trustee term imposes general loyalty, not fiduciary partisanship.
Engineer A's faithful agent and trustee obligation under NSPE Code II.4 was constrained to impose a general duty of loyalty and fair dealing rather than a strict fiduciary obligation requiring partisan advocacy for the Owner's preferred outcome in the dispute.
Duration of the professional engagement and dispute resolution
commencement of construction before dispute between Owner and General Contractor
contract signing by Owner before Engineer A retention
design phase services before construction phase services
dispute between Owner and General Contractor before Engineer A review of dispute