ABC Engineering Conflict of Interest Disclosure to State Agency Before Design-Build Participation
The evolved professional standard requires disclosure rather than automatic absolute avoidance. ABC Engineering must disclose its prior peer review role to the state agency and allow the agency to determine whether participation is permissible, rather than either automatically declining or automatically proceeding without disclosure.
Conflict of Interest Disclosure Supersession of Absolute Avoidance Constraint
Under the evolved professional standard, ABC Engineering must promptly and completely disclose to the state agency the conflict of interest arising from its prior peer review role before accepting XYZ Construction's design-build invitation — allowing the agency to make an informed decision about ABC Engineering's participation — rather than applying an absolute-avoidance standard that would categorically prohibit all participation.
NSPE Code of Ethics; Evolved Conflict-of-Interest Management Standard
ABC Engineering is retained by a state agency to participate in an independent external peer review of the design of a major state-funded transportation project.
Immediately upon receipt of XYZ Construction's invitation, before any proposal preparation or submission
XYZ Construction invites ABC Engineering to participate in a design-build joint venture and submit a proposal for the major road transportation project.
ABC Engineering Conflict of Interest Recognition in Design-Build Procurement
Conflict of Interest Recognition and Recusal Capability
ABC Engineering must recognize that its prior peer review role creates an actual or apparent conflict of interest in the subsequent design-build procurement, and must assess whether disclosure to the state agency, recusal from the procurement, or other remedial action is required to preserve procurement integrity.
ABC Engineering completed an independent external peer review for the state agency and was subsequently invited to participate in the design-build procurement for the same project, creating an actual or apparent conflict of interest.
Recognition that the peer review engagement created privileged access to design information that constitutes an actual or apparent conflict of interest in the design-build procurement, requiring disclosure and agency approval before proceeding.
No confidentiality agreement exists on the project.
ABC Engineering Conflict of Interest State
From the moment XYZ Construction's invitation was received, persisting through any procurement decision
ABC Engineering is retained by a state agency to participate in an independent external peer review
ABC Engineering's structural conflict between prior public peer review role and prospective private competitive interest
Not yet terminated — conflict is active and unresolved
XYZ Construction invites ABC Engineering to participate in a design-build joint venture and submit a proposal for the major road transportation project
Invitation from XYZ Construction to join design-build joint venture on the same project for which ABC Engineering served as independent peer reviewer
ABC Engineering Cooling-Off Period One-Year Sufficiency Assessment Constraint
Approximately one year elapsed between ABC Engineering's completion of the independent peer review and the state agency's issuance of the design-build RFP for the same major road transportation project.
Cooling-Off Period Sufficiency Assessment Constraint
ABC Engineering was constrained to assess whether the approximately one-year interval between completion of the peer review and issuance of the design-build RFP was sufficient to mitigate the conflict of interest arising from privileged access to non-public project information — recognizing that the one-year interval is a relevant but not automatically dispositive factor, and that sufficiency must be assessed in light of the nature of insider knowledge gained, its remaining competitive advantage, and applicable state law.
BER Case 18-10; NSPE Code of Ethics conflict of interest provisions; applicable state conflict-of-interest laws
the BER does not believe Engineer A and ABC Engineering's participation with XYZ Construction in the design-build joint venture raises a conflict of interest.
At the time of considering participation in the design-build RFP
The Board notes that state laws may vary regarding whether this situation constitutes a conflict of interest.
the access to confidential, nonpublic information could provide Engineer A with some advantages.
ABC Engineering Design-Build Joint Venture Engineer
{'firm': 'ABC Engineering', 'prior_role': 'Independent External Peer Reviewer', 'proposed_role': 'Design-Build Joint Venture Partner'}
ABC Engineering, having completed the independent external peer review of the state transportation project, is invited by XYZ Construction to join a design-build joint venture and submit a proposal for the same project, bearing obligations to obtain agency approval, comply with conflict-of-interest laws, and ensure prior review knowledge does not confer unfair competitive advantage.
{'type': 'joint_venture_partner', 'target': 'XYZ Construction Design-Build Joint Venture Inviting Contractor'}
{'type': 'prior_client', 'target': 'State Agency Peer Review Client'}
ABC Engineering is retained by a state agency to participate in an independent external peer review.
ABC Engineering Design-Build Joint Venture Participant
{'prior_role': 'External peer reviewer', 'current_role': 'Design-build joint venture participant with XYZ Construction', 'conflict_concern': 'Access to confidential nonpublic information from prior peer review'}
ABC Engineering, having previously conducted an independent external peer review, participates with XYZ Construction in a design-build joint venture, raising conflict-of-interest questions regarding access to confidential nonpublic information gained during the peer review and whether that access confers unfair competitive advantage in the design-build procurement.
{'type': 'joint_venture_with', 'target': 'XYZ Construction Design-Build Inviting Contractor'}
{'type': 'prior_reviewer_for', 'target': 'State Transportation Agency Peer Review Client'}
Engineer A and ABC Engineering's participation with XYZ Construction in the design-build joint venture
the BER does not believe Engineer A and ABC Engineering's participation with XYZ Construction in the design-build joint venture raises a conflict of interest
the access to confidential, nonpublic information could provide Engineer A with some advantages
ABC Engineering Design-Build Peer Review Conflict State Law Variability Awareness
Design-Build Peer Review Conflict State Law Variability Awareness Capability
ABC Engineering must recognize that state laws may impose additional restrictions on post-peer-review design-build participation beyond what BER ethical conclusions establish, and must conduct jurisdiction-specific legal research before proceeding with the design-build joint venture.
The peer review was conducted for a state agency on a major state-funded transportation project, and the subsequent design-build procurement is subject to state procurement law that may impose additional conflict-of-interest restrictions.
Recognition that the state agency's jurisdiction may have specific conflict-of-interest statutes governing post-peer-review competitive participation that require compliance independent of BER ethical analysis.
Approximately one-year after ABC Engineering completes the peer review, the state agency issues an RFP soliciting proposals for design-build services to complete the major road transportation project.
ABC Engineering Insider Knowledge Advantage
From completion of the peer review through any subsequent procurement participation decision
Engineer A is assigned to serve as the lead engineer on the independent external review
ABC Engineering's possession of privileged design knowledge from peer review role
The peer review is limited in scope and focused on clarifications and refinements of existing construction plans and specifications, which are ultimately incorporated into a Request for Proposal soliciting proposals for design-build services
ABC Engineering's completion of the lead peer review role, during which Engineer A gained detailed knowledge of the project's design, plans, and specifications that were subsequently incorporated into the RFP
ABC Engineering Insider Knowledge Competitive Advantage Prohibition in Design-Build RFP
ABC Engineering's peer review gave it access to construction plans and specifications that were subsequently incorporated into the design-build RFP. This insider knowledge — including understanding of design clarifications, refinements, and technical details — would provide ABC Engineering with a material informational advantage over competing design-build teams who did not have peer review access.
Insider Knowledge Competitive Advantage Prohibition Constraint
ABC Engineering is prohibited from leveraging the privileged, non-public knowledge of the state agency's construction plans, specifications, and design details — gained through the peer review engagement — to obtain a competitive advantage in the design-build procurement for the same major road transportation project, regardless of the absence of a formal confidentiality agreement.
NSPE Code of Ethics; BER Case 18-10; Professional Ethics Norms Governing Competitive Procurement
The peer review is limited in scope and focused on clarifications and refinements of existing construction plans and specifications, which are ultimately incorporated into a Request for Proposal soliciting proposals for design-build services to complete the major transportation project.
From receipt of XYZ Construction's invitation through any design-build proposal submission
ABC Engineering Jurisdiction-Specific Conflict of Interest Law Verification
The BER noted that state laws may vary regarding whether ABC Engineering's participation in the design-build joint venture after completing the peer review constitutes a conflict of interest, indicating a jurisdiction-specific legal verification obligation.
Jurisdiction-Specific Conflict of Interest Law Verification Obligation
ABC Engineering was obligated to verify the applicable state laws governing whether its prior peer review role created a conflict of interest barring participation in the subsequent design-build procurement, recognizing that state laws may vary on this question, and to seek legal counsel and agency guidance before proceeding.
Before accepting XYZ Construction's invitation to participate in the design-build joint venture
ABC Engineering No-Confidentiality-Agreement Conflict Management Non-Waiver
The case explicitly notes that no confidentiality agreement exists on the project, which might be misread as reducing ABC Engineering's obligations regarding the use of information obtained during the peer review. The ethical obligations, however, are independent of contractual confidentiality terms.
No-Confidentiality-Agreement Peer Review Conflict Management Obligation
ABC Engineering must recognize that the absence of a confidentiality agreement on the peer review project does not eliminate or reduce the ethical obligation to manage the conflict of interest arising from the prior peer review role, and must apply the same conflict disclosure and non-exploitation standards as would apply if a confidentiality agreement were in place — because the ethical obligations derive from the nature of the independent review engagement, not from contractual terms.
From the time of receiving XYZ Construction's invitation through the entire design-build procurement process
ABC Engineering No-Confidentiality-Agreement Conflict Persistence Recognition
No-Confidentiality-Agreement Conflict Persistence Recognition Capability
ABC Engineering must recognize that the absence of a confidentiality agreement on the peer review project does not eliminate the ethical conflict arising from its privileged access to the state agency's construction plans, specifications, and design details during the peer review.
No confidentiality agreement existed on the peer review project, yet ABC Engineering obtained privileged access to construction plans and specifications that were subsequently incorporated into the design-build RFP.
Recognition that the ethical conflict arises from informational and competitive advantage gained during the peer review, not from any contractual confidentiality obligation, and that the absence of a confidentiality agreement may heighten rather than resolve the conflict.
ABC Engineering No-Confidentiality-Agreement Ethical Obligation Persistence Constraint
The case explicitly notes the absence of a confidentiality agreement as a material fact, but the BER's analysis establishes that ethical obligations persist regardless of whether a formal confidentiality agreement was executed.
No-Confidentiality-Agreement Peer Review Ethical Obligation Persistence Constraint
The absence of a formal confidentiality agreement governing ABC Engineering's peer review engagement did not eliminate or reduce ABC Engineering's ethical obligations arising from access to non-public project information — including the obligation to avoid exploiting insider knowledge for competitive advantage in the subsequent design-build procurement — prohibiting ABC Engineering from treating the absence of a signed confidentiality agreement as implicit permission to use privileged review-acquired information for commercial benefit.
NSPE Code of Ethics; BER Case 18-10; professional ethics norms governing peer review
Following completion of peer review and throughout subsequent procurement process
Such programs are generally built on a foundation of confidentiality, whereby an individual agreeing to serve as a peer reviewer must sign a 'confidentiality agreement' in which the peer reviewer agrees not to disclose information that is revealed to the peer reviewer about the firm being reviewed during the peer-review process.
ABC Engineering No-Confidentiality-Agreement Insider Knowledge Non-Exploitation
No confidentiality agreement was executed on the peer review project. ABC Engineering gained access to non-public construction plans and specifications through the peer review. The absence of a formal agreement does not reduce the ethical obligation to treat that information as confidential and to refrain from exploiting it competitively.
The absence of a formal confidentiality agreement on the peer review engagement does not eliminate ABC Engineering's ethical obligation to refrain from exploiting privileged access to the state agency's construction plans, specifications, and design details obtained during the peer review in any subsequent design-build proposal for the same project.
NSPE Code of Ethics; Professional Ethics Norms Governing Peer Review Conduct
Ongoing from completion of peer review through any subsequent competitive participation
ABC Engineering One-Year Cooling-Off Period Sufficiency Assessment
Approximately one year elapsed between ABC Engineering's completion of the peer review and the state agency's issuance of the design-build RFP. The peer review findings were incorporated into the RFP, suggesting that the informational advantage obtained during the review remained directly relevant to the competitive procurement.
One-Year Cooling-Off Period Assessment for Post-Review Competitive Participation Obligation
ABC Engineering must assess whether the approximately one-year interval between completion of the peer review and issuance of the design-build RFP constitutes a sufficient cooling-off period to mitigate the conflict of interest arising from the prior review role — considering that the peer review findings were incorporated directly into the RFP — and must seek agency guidance or legal counsel if the sufficiency of the interval is uncertain before proceeding with the design-build joint venture.
Upon receiving XYZ Construction's invitation and before any commitment to participate in the design-build joint venture
ABC Engineering Peer Review Collegial Improvement Non-Exploitation Constraint
ABC Engineering participated in the peer review of the major road transportation project under the auspices of an organized peer-review program designed for collegial professional improvement, but subsequently considered participating in a design-build procurement for the same project using knowledge gained through the review.
Peer Review Program Collegial Improvement Non-Exploitation Constraint
ABC Engineering and Engineer A were constrained to participate in the organized peer-review program in good faith for the purpose of collegial professional improvement — prohibiting the use of peer review participation as a mechanism to gain competitive intelligence or insider access to non-public project information for subsequent commercial advantage in the design-build procurement.
NSPE Code of Ethics; organized peer-review program norms; BER Case 18-10
These programs have been immensely successful in creating a mechanism whereby professionals in a collegial atmosphere can work together to better understand and improve professional practice.
Throughout peer review engagement and in subsequent procurement activities
ABC Engineering Peer Review Confidentiality Agreement Absent
Throughout the entire peer review engagement and continuing into the post-review period when procurement participation is being considered
No confidentiality agreement exists on the project
Peer Review Confidentiality Agreement Absent State
ABC Engineering's peer review engagement with the state agency
Not terminated — no confidentiality agreement was ever executed
Establishment of the peer review engagement without execution of a confidentiality agreement
ABC Engineering Peer Review Privileged Access Non-Exploitation
Peer Review Proprietary Knowledge Competitive Advantage Recognition Capability
ABC Engineering was required to recognize that access to confidential, nonpublic project information obtained during the peer review could provide competitive advantages, and to assess whether exploiting that access in the subsequent design-build procurement would be ethically impermissible.
ABC Engineering obtained access to confidential, nonpublic information during the peer review and was subsequently invited to participate in a design-build procurement for the same project.
ABC Engineering evaluated whether the privileged access to construction plans, specifications, and design details obtained during the peer review constituted proprietary knowledge that would confer an unfair competitive advantage in the design-build joint venture.
Turning to the facts, the access to confidential, nonpublic information could provide Engineer A with some advantages.
However, the BER does not believe Engineer A and ABC Engineering's participation with XYZ Construction in the design-build joint venture raises a conflict of interest.
ABC Engineering Peer Review Privileged Access Non-Exploitation Design-Build
ABC Engineering obtained access to the agency's construction plans, specifications, and design details through the independent peer review, and was then invited to participate in a design-build joint venture for the same project.
Peer Review Privileged Access Non-Exploitation in Competitive Procurement Obligation
ABC Engineering was obligated to refrain from exploiting the privileged access to confidential, nonpublic project information obtained during its independent peer review of the state transportation project as a competitive advantage in the subsequent design-build procurement for the same project.
Upon considering and during participation in the design-build procurement
ABC Engineering Peer Review Privileged Access Non-Exploitation in Design-Build Procurement
ABC Engineering's peer review was focused on clarifications and refinements of existing construction plans and specifications, which were ultimately incorporated into the design-build RFP. This gave ABC Engineering detailed knowledge of the project design that competing design-build firms would not have had through the normal RFP process.
ABC Engineering must refrain from exploiting the privileged access to the state agency's construction plans, specifications, and design details obtained during the independent external peer review as a competitive advantage in the design-build procurement — including refraining from using insider knowledge of design weaknesses, specification details, or scope refinements incorporated into the RFP to gain an unfair advantage over competing design-build proposers.
From the time of accepting XYZ Construction's invitation through the entire design-build proposal and procurement process
ABC Engineering Peer Review Program Integrity Confidentiality Obligation
No confidentiality agreement was executed on the peer review project. The integrity of engineering peer review programs depends on reviewers treating acquired information as confidential. ABC Engineering's potential exploitation of peer review knowledge for competitive advantage would undermine the foundational confidentiality structure that makes peer review programs effective.
Peer Review Program Integrity Confidentiality Foundation Constraint
ABC Engineering must honor the confidentiality of information obtained during the peer review engagement as a foundational obligation supporting the integrity of engineering peer review programs — regardless of the absence of a formal confidentiality agreement — prohibiting the use of peer review-acquired information for competitive purposes in the design-build procurement.
NSPE Code of Ethics; Professional Ethics Norms Governing Peer Review Programs
ABC Engineering Peer Review Proprietary Knowledge Competitive Advantage Recognition
ABC Engineering must recognize that access to the state agency's construction plans, specifications, clarifications, and refinements obtained during the peer review constitutes proprietary knowledge that would confer an unfair competitive advantage if ABC Engineering participates in the design-build procurement.
ABC Engineering reviewed and refined construction plans and specifications during the peer review, and those clarifications and refinements were incorporated into the design-build RFP, giving ABC Engineering privileged knowledge of the project's design basis.
Identification that the peer review's focus on clarifications and refinements incorporated into the RFP means ABC Engineering has non-public knowledge of design details that other design-build competitors do not possess.
ABC Engineering must refrain from exploiting the privileged access to the state agency's construction plans, specifications, and design details obtained during the peer review.
ABC Engineering Peer Review Scope-to-Procurement Nexus Assessment
Peer Review Scope-to-Procurement Nexus Assessment Capability
ABC Engineering must assess the degree of nexus between the scope of its peer review — focused on clarifications and refinements of construction plans and specifications incorporated into the design-build RFP — and the scope of the subsequent design-build procurement, to determine whether the peer review created a disqualifying conflict of interest.
ABC Engineering completed a peer review of construction plans and specifications that were incorporated into a design-build RFP, then was invited by XYZ Construction to participate in the design-build procurement approximately one year later.
Assessment of whether the peer review's focus on clarifications and refinements incorporated into the RFP creates a sufficient nexus to the design-build procurement to preclude participation without agency approval.
ABC Engineering Post-Peer-Review Design-Build Conflict Self-Assessment
Post-Review Design-Build Conflict Assessment Capability
ABC Engineering was required to possess the capability to assess whether its prior peer review role created a conflict of interest barring participation in the design-build joint venture with XYZ Construction for the same state transportation project.
ABC Engineering completed an independent external peer review of a major state transportation project and was subsequently invited by XYZ Construction to participate in a design-build joint venture for the same project.
ABC Engineering evaluated whether the privileged access to confidential, nonpublic project information obtained during the peer review would confer an unfair competitive advantage in the subsequent design-build procurement.
ABC Engineering Post-Peer-Review Design-Build Participation Agency Approval Requirement
ABC Engineering completed an independent external peer review of the major road transportation project approximately one year before the state agency issued a design-build RFP for the same project. XYZ Construction then invited ABC Engineering to participate in a design-build joint venture. ABC Engineering's prior peer review role gave it access to non-public construction plans, specifications, and design details that were subsequently incorporated into the RFP.
Post-Peer-Review Design-Build Participation Conflict Clearance Constraint
ABC Engineering must obtain state agency approval and verify compliance with applicable state conflict-of-interest laws before participating in the design-build joint venture with XYZ Construction and submitting a proposal for the major road transportation project, given that ABC Engineering previously served as independent external peer reviewer on the same project.
NSPE Code of Ethics; BER Case 18-10; Applicable State Conflict-of-Interest Laws
From the date XYZ Construction's invitation was received through the design-build proposal submission deadline
ABC Engineering Post-Peer-Review Design-Build Participation Conflict Assessment
ABC Engineering completed an independent external peer review of a major state transportation project, then approximately one year later was invited by XYZ Construction to join a design-build joint venture and submit a proposal for the same project under an open RFP.
Post-Peer-Review Design-Build Participation Conflict of Interest Assessment Obligation
ABC Engineering was obligated to assess whether its participation with XYZ Construction in the design-build joint venture for the same state transportation project it had previously peer-reviewed raised a conflict of interest under applicable state law, to disclose its prior peer review role to the agency, and to seek agency approval and legal guidance before proceeding.
Upon receiving XYZ Construction's invitation to join the design-build joint venture and before accepting or submitting a proposal
ABC Engineering Post-Peer-Review Design-Build Participation Conflict Assessment Constraint
ABC Engineering, having served as independent peer reviewer on a major state-funded road transportation project under Engineer A's leadership, was subsequently invited by XYZ Construction to participate in a design-build joint venture and submit a proposal for the same project when the state agency issued a design-build RFP approximately one year after the peer review was completed.
ABC Engineering was constrained to obtain agency approval and verify compliance with applicable state conflict-of-interest laws before participating in the design-build joint venture with XYZ Construction for the same major road transportation project on which ABC Engineering had served as independent peer reviewer — because prior review access to non-public project information may confer an unfair competitive advantage, and state laws vary regarding whether this situation constitutes a conflict of interest.
Prior to submission of design-build proposal and throughout procurement process
ABC Engineering Post-Peer-Review Design-Build Procurement Participation
From the point XYZ Construction invited ABC Engineering to participate in the design-build joint venture, approximately one year after completion of the peer review
ABC Engineering is retained by a state agency to participate in an independent external peer review of the design of a major state-funded transportation project
Post-Peer-Review Design-Build Procurement Participation State
ABC Engineering's relationship to the major road transportation project procurement
Not yet terminated — state is active and unresolved
Approximately one-year after ABC Engineering completes the peer review, the state agency issues an RFP soliciting proposals for design-build services
XYZ Construction's invitation to ABC Engineering to participate in a design-build joint venture and submit a proposal for the same project on which ABC Engineering served as lead peer reviewer
ABC Engineering Post-Review Design-Build Conflict Assessment
ABC Engineering must assess whether it may ethically participate in the design-build joint venture with XYZ Construction given its prior peer review role — including evaluating whether agency approval is a prerequisite, whether the one-year interval is sufficient, and whether the absence of a confidentiality agreement affects the analysis.
ABC Engineering was invited by XYZ Construction to participate in a design-build joint venture approximately one year after completing an independent external peer review for the state agency on the same major transportation project.
Evaluation of ethical permissibility of design-build participation following completion of independent external peer review for the same state agency on the same transportation project.
ABC Engineering Post-Review Design-Build Conflict Disclosure to State Agency
ABC Engineering completed an independent external peer review of the state agency's major transportation project design, gaining access to construction plans and specifications that were subsequently incorporated into the design-build RFP. Approximately one year later, XYZ Construction invited ABC Engineering to join a design-build joint venture for the same project.
Post-Review Design-Build Participation Conflict Disclosure Obligation
Before accepting XYZ Construction's invitation to participate in the design-build joint venture and submit a proposal for the major road transportation project, ABC Engineering is obligated to disclose to the state agency its prior role as independent external peer reviewer of the same project — including the nature and scope of privileged access to construction plans and specifications obtained during the review — so that the agency can make an informed determination about whether ABC Engineering's participation in the design-build procurement is appropriate and legally compliant.
Before accepting XYZ Construction's invitation or submitting any design-build proposal in response to the state agency's RFP
ABC Engineering Post-Review Design-Build Participation Agency Approval Prerequisite
ABC Engineering completed an independent external peer review of the same project for which it is now being invited to compete as a design-build joint venture partner. The peer review findings were incorporated into the RFP, giving ABC Engineering informational advantages over competing proposers.
Post-Review Design-Build Participation Conditional Ethics Obligation
ABC Engineering must refrain from participating in the design-build joint venture with XYZ Construction and submitting a proposal for the major road transportation project unless and until the state agency has approved such participation with full knowledge of ABC Engineering's prior peer review role and the privileged access to project design information obtained during that review, and such participation complies with all applicable state laws and regulations regarding conflicts of interest in public procurement.
Before submitting any design-build proposal or formally accepting XYZ Construction's joint venture invitation
ABC Engineering Post-Review Design-Build Participation Conflict Disclosure to Agency
ABC Engineering completed an independent external peer review of the state transportation project and was subsequently invited to join a design-build joint venture for the same project, creating a sequential role transition requiring disclosure to the agency.
ABC Engineering was obligated to disclose to the state agency its prior peer review role, the privileged access to construction plans and specifications obtained during that review, and any potential conflict of interest arising from the sequential roles, before accepting XYZ Construction's invitation to participate in the design-build joint venture.
Before accepting the design-build joint venture invitation and before submitting any proposal
ABC Engineering Prior Review Participation Conflict
From issuance of the design-build RFP through resolution of whether ABC Engineering will participate
Prior Review Participation Conflict State
ABC Engineering's consideration of participation in the design-build RFP after serving as peer reviewer
The peer review is limited in scope and focused on clarifications and refinements of existing construction plans and specifications, which are ultimately incorporated into a Request for Proposal
State agency issuance of design-build RFP for the same project on which ABC Engineering conducted peer review, combined with XYZ Construction's invitation to form a joint venture
ABC Engineering State-Law Conflict-of-Interest Assessment Before Design-Build Participation
The state agency issued the design-build RFP approximately one year after ABC Engineering completed the peer review. State laws on conflict of interest vary and may independently prohibit ABC Engineering's participation regardless of the federal professional ethics analysis. ABC Engineering must conduct a jurisdiction-specific legal analysis before proceeding.
Post-Peer-Review Insider Knowledge State-Law-Variable Conflict Assessment Constraint
ABC Engineering must assess whether applicable state conflict-of-interest laws independently bar participation in the design-build procurement following the peer review engagement, recognizing that state law may impose a stricter bar than federal professional ethics standards, and must obtain agency approval before proceeding.
Applicable State Conflict-of-Interest Statutes; NSPE Code of Ethics; BER Case 18-10
Before accepting XYZ Construction's invitation and before submitting any design-build proposal
ABC Engineering State Agency Peer Review Conflict Disclosure
State Agency Peer Review Conflict Disclosure Obligation Capability
ABC Engineering must disclose its prior peer review engagement to the state agency before participating in the design-build joint venture with XYZ Construction and submitting a proposal, enabling the state agency to determine whether ABC Engineering's participation creates a conflict of interest or compromises procurement integrity.
ABC Engineering completed an independent external peer review for the state agency and was subsequently invited to participate in the design-build procurement for the same project, requiring disclosure to the state agency before proceeding.
Fulfillment of obligation to disclose prior peer review role to state agency as a prerequisite to design-build participation, ensuring the state agency can make an informed determination about the propriety of ABC Engineering's participation.
ABC Engineering must refrain from participating in the design-build joint venture with XYZ Construction and submitting a proposal for the major road transportation project without first obtaining agency approval.
ABC Engineering State Law Variable Conflict of Interest Verification Constraint
The BER explicitly noted that state laws may vary regarding whether ABC Engineering's situation constitutes a conflict of interest, requiring ABC Engineering to verify state-specific requirements before concluding that participation is permissible.
ABC Engineering was constrained to verify the applicable state laws governing whether its prior peer review role created a conflict of interest barring participation in the design-build procurement — recognizing that while the BER did not find a conflict at the federal professional ethics level, state laws may vary and may independently impose a conflict-of-interest bar requiring compliance before participation.
BER Case 18-10; applicable state conflict-of-interest laws; NSPE Code of Ethics
Prior to submission of design-build proposal
ABC Engineering peer review before state agency RFP issuance
ABC Engineering retention for peer review before ABC Engineering completing peer review
Accept Design-Build Joint Venture Invitation
Accept Peer Review Lead Role (Action 1) → Information Asymmetry Established (Event 5)
Agency Disclosure and Approval Obligation Invoked by ABC Engineering Pre-Participation Decision
ABC Engineering's decision process regarding XYZ Construction's invitation
State Agency Transportation Project Peer Review Client
Faithful Agent Obligation Within Ethical Limits
Procurement Integrity in Public Engineering
Before accepting XYZ Construction's invitation to join the design-build joint venture, ABC Engineering bears an obligation to disclose its prior peer review role to the state agency, describe the scope of information it accessed, and obtain the agency's informed determination on whether participation is permissible — the absence of a confidentiality agreement does not eliminate this disclosure obligation, which is grounded in procurement integrity rather than contractual confidentiality
The relational obligation to the state agency — which retained ABC Engineering specifically for independent review — requires proactive disclosure and approval-seeking as a precondition to competitive participation, regardless of whether the RFP or any contract expressly prohibits such participation
Engineer A External Peer Review Lead Engineer
Agency Disclosure and Approval Obligation Before Post-Review Competitive Participation
The agency's authority over its own procurement integrity supersedes ABC Engineering's commercial interest in accepting the joint venture invitation; disclosure and approval must precede any commitment to XYZ Construction
In BER Case 94-5, a city engaged the services of a private consulting engineering firm, Firm A, to provide design review and construction inspection.
In determining that it was unethical for Engineer A to serve as city engineer and provide review and inspection services for private developers within the city, the BER noted that it could not see how an engineer can wear multiple hats and ethically serve multiple interests while representing the best interest of his clients.
BER in current case analysis to ground reasoning about conflict of interest in dual-role engineering service contexts
Cited as precedent establishing that an engineer serving simultaneously as a city's reviewing engineer and as a private design/inspection provider for developers within that same city creates an impermissible conflict of interest, as the engineer cannot adequately represent the separate and sometimes differing interests of multiple clients
This principle was illustrated in BER Case 96-8.
In this case, Engineer A served as a peer reviewer as part of an organized peer-review program developed to assist engineers in improving their professional practice.
the BER decided that if Engineer A determined that Engineer B's work is or may be in violation of state and local safety requirements and endangers the public health, safety, and welfare, the appropriate action would be for Engineer A to immediately discuss these issues with Engineer B
BER in current case analysis to ground reasoning about peer review confidentiality and public safety escalation obligations
Cited as precedent establishing that a peer reviewer who discovers potential safety code violations during a confidential peer review must first discuss the issue with the reviewed engineer and, if unresolved, notify proper authorities, notwithstanding the confidentiality agreement
BER Case Precedent - Peer Review and Subsequent Competition
NSPE Board of Ethical Review precedents on peer review participation and subsequent competitive procurement
XYZ Construction invites ABC Engineering to participate in a design-build joint venture
Engineer A and ethics reviewers in analogical reasoning
Prior BER case decisions addressing analogous situations where engineers who performed peer reviews subsequently sought to compete for contracts on the same projects provide analogical reasoning patterns for resolving this case
CausalLink_Accept Design-Build Joint Vent
CausalLink_Complete and Submit Peer Revie
CausalLink_Decide Whether to Breach Confi
CausalLink_Operate Dual Role as City Engi
City Municipal Client Plan Review Authority
{'entity_type': 'Municipal government', 'authority': 'Local ordinance governing land development plan review and approval', 'funding_mechanism': 'Developer-paid review and inspection expenses'}
The city engaged Firm A to provide design review and construction inspection for private development projects under local ordinance, bearing authority over the plan review process and obligations to ensure impartial, conflict-free oversight of private development in the public interest.
{'type': 'retains', 'target': 'Firm A Dual-Role City Engineer'}
a city engaged the services of a private consulting engineering firm, Firm A, to provide design review and construction inspection
private developers were required to submit plans to the city for review and approval
Complete and Submit Peer Review (Action 2) → RFP Issuance by State Agency (Event 3)
It would not be unethical for Engineer A and his firm ABC Engineering to participate in a design-build joint venture and submit a proposal for the major road transportation project, as long as the state agency approves and the work complies with state laws and regulations.
Beyond the Board's conditional approval, the absence of a confidentiality agreement does not extinguish ABC Engineering's ethical obligation to refrain from exploiting insider knowledge gained during the peer review. The ethical duty of faithful agency under Code Section II.4 runs independently of any contractual instrument: ABC Engineering was retained by the state agency as a trusted advisor, and that trust relationship generates a non-waivable obligation to treat privileged design information as confidential regardless of whether a formal agreement was signed. The absence of a confidentiality agreement is a procedural gap in the engagement structure, not a substantive license to leverage proprietary knowledge for competitive gain. Accordingly, even with state agency approval, ABC Engineering bears a continuing affirmative duty to ensure that no design-specific knowledge acquired during the peer review — including the clarifications and refinements it helped shape — is used to inform or advantage its design-build proposal. The Board's conditional approval implicitly assumes this duty will be honored, but the analysis would have been strengthened by making that assumption explicit.
The Board's analysis does not adequately grapple with the structural peculiarity that the peer review was specifically limited to clarifications and refinements that were directly incorporated into the design-build RFP. This narrow scope creates a stronger and more durable conflict of interest than a broad, general design review would have, because ABC Engineering's contributions did not merely inform its general understanding of the project — they literally shaped the procurement documents under which it now seeks to compete. This means ABC Engineering possesses not just background knowledge of the project but specific, formative insight into the evaluative criteria, technical specifications, and design trade-offs embedded in the RFP itself. A one-year cooling-off period may neutralize the staleness of general project familiarity, but it cannot neutralize the structural advantage of having authored portions of the competitive framework. The Board should have conditioned approval not only on state agency consent but also on a rigorous assessment of whether ABC Engineering's specific peer review contributions created an informational asymmetry so fundamental that no cooling-off period could adequately remediate it.
The Board's reliance on state agency approval as a sufficient ethical safeguard is analytically incomplete because the state agency occupies a structurally compromised position when making that approval decision. As both the client that retained ABC Engineering for the peer review and the procuring authority issuing the design-build RFP, the agency has an institutional interest in the success of the procurement that may bias its willingness to exclude a technically qualified firm. Approval by a conflicted approving authority cannot fully substitute for independent ethical scrutiny. The more ethically robust framework would require ABC Engineering to proactively disclose the conflict at the earliest moment — ideally when XYZ Construction extended the design-build invitation, and arguably even earlier, at the time of accepting the peer review engagement if future procurement interest was foreseeable — and to seek approval from a disinterested party or through a transparent public process. Code Section II.4.a's disclosure obligation is designed precisely to surface these conflicts before they become entrenched, not merely to ratify participation after the fact. The Board's conditional approval, while not incorrect, understates the proactive disclosure burden that Code Section II.4.a places on Engineer A.
From a virtue ethics perspective, the Board's analysis focuses on procedural compliance — agency approval, cooling-off period, state law conformity — but does not address whether Engineer A's decision to accept the design-build joint venture invitation reflects the professional character expected of an engineer who has served in a position of public trust. An engineer of genuine integrity, upon receiving the design-build invitation from XYZ Construction, would not merely ask whether participation is permissible but whether it is consistent with the spirit of the independent peer review role. The peer review program's foundational purpose is collegial improvement of public infrastructure design through disinterested expert scrutiny. An engineer who treats that advisory access as a stepping stone to competitive advantage — even after a cooling-off period and with agency approval — risks eroding the trust that makes peer review programs function. The Board's conclusion is legally and procedurally defensible, but a more complete ethical analysis would acknowledge that the virtuous course of action may have been for Engineer A to decline the invitation entirely, or at minimum to impose upon himself structural safeguards — such as recusal from proposal sections drawing on peer review knowledge — that go beyond what the Board required.
The Board's conclusion that participation is permissible with state agency approval and legal compliance leaves unresolved a systemic consequentialist risk: if engineers routinely accept peer review engagements with the understanding that they may later compete in procurements shaped by those reviews — provided a cooling-off period elapses and the agency consents — the independence and credibility of public peer review programs will be structurally undermined over time. Future peer reviewers may unconsciously or consciously calibrate their review recommendations to position their firms favorably in anticipated procurements, and state agencies may face pressure to approve post-review participation from firms whose technical expertise makes them attractive design-build partners. The Board's case-by-case conditional approval framework does not address these systemic incentive effects. A more complete analysis would recommend that engineering professional societies and public agencies adopt categorical prospective conflict-of-interest rules — analogous to cooling-off statutes in government ethics law — that prohibit peer reviewers from competing in procurements directly derived from their review work, regardless of agency approval, thereby protecting the institutional integrity of peer review as a public good.
In response to Q101: The absence of a formal confidentiality agreement does not eliminate ABC Engineering's ethical obligation to avoid exploiting insider knowledge gained during the peer review. The ethical duty to act as a faithful agent and trustee to the state agency client arises from the professional relationship itself, not from any contractual instrument. When the state agency retained ABC Engineering to conduct an independent external peer review, it extended a form of privileged access grounded in professional trust. That trust creates an independent ethical obligation — rooted in NSPE Code Section II.4 — to refrain from leveraging privileged design knowledge for subsequent competitive advantage. A confidentiality agreement would formalize and reinforce this duty, but its absence does not dissolve it. The ethical obligation persists because the informational asymmetry created by the peer review role is real and material regardless of whether it is contractually acknowledged.
In response to Q102: A one-year cooling-off period is a relevant mitigating factor but is not categorically sufficient to neutralize the competitive advantage ABC Engineering gained from its peer review role. The adequacy of any cooling-off period must be assessed in relation to the nature and specificity of the insider knowledge acquired. In this case, the peer review was narrowly scoped to clarifications and refinements that were directly incorporated into the design-build RFP — meaning ABC Engineering's privileged knowledge was not general or abstract but was specifically embedded in the very procurement documents it now seeks to compete under. This tight nexus between the peer review outputs and the RFP content means that the passage of one year does not erase the informational advantage; the design details, specification choices, and refinement rationale that ABC Engineering helped shape remain embedded in the RFP regardless of elapsed time. The cooling-off period analysis is therefore necessary but insufficient on its own — it must be weighed alongside the scope-to-procurement nexus, the degree of informational asymmetry, and whether the state agency has been fully informed of the conflict before granting approval.
In response to Q103: Engineer A had an ethical obligation to proactively disclose any foreseeable interest in future procurement opportunities related to the same project at the time of accepting the peer review engagement, not merely upon receipt of an RFP. NSPE Code Section II.4.a requires disclosure of all known or potential conflicts of interest that could influence or appear to influence professional judgment. At the moment ABC Engineering accepted the peer review role, the possibility that the same project would proceed to a design-build procurement was not speculative — the peer review was explicitly scoped to clarifications and refinements feeding into a design-build RFP. If Engineer A or ABC Engineering had any foreseeable interest in design-build work on this project, that interest constituted a potential conflict of interest that should have been disclosed upfront. Waiting until an RFP is issued before disclosing the conflict allows the informational advantage to accumulate unchecked and deprives the state agency of the opportunity to impose conditions, require recusals, or select a different peer reviewer at the outset. Early disclosure would have been both ethically cleaner and more protective of the peer review program's integrity.
In response to Q104: The narrow, RFP-specific scope of the peer review creates a stronger and more durable conflict of interest than a broader, more general review would have. When a peer review is limited to clarifications and refinements that are directly incorporated into a procurement document, the reviewing firm's knowledge is not merely background familiarity with a project type or general design approach — it is precise, actionable intelligence about the specific technical choices, trade-offs, and specification language that define the competitive landscape of the RFP. A broader review might yield general impressions that dissipate over time and are less directly translatable into competitive advantage. By contrast, ABC Engineering's contributions were surgically embedded into the RFP itself, meaning that its proposal team would approach the procurement with an insider's understanding of why particular specifications were written as they were, what alternatives were considered and rejected, and where the design has known vulnerabilities or opportunities. This specificity makes the conflict of interest more acute, not less, and strengthens the case for heightened disclosure obligations and more rigorous agency scrutiny before participation is approved.
In response to Q201: There is a genuine and unresolved tension between the principle of Fairness in Professional Competition — which holds that qualified firms should not be arbitrarily excluded from public procurement — and the principle of Independent Review Integrity Non-Exploitation, which holds that knowledge gained in a privileged advisory role must not be leveraged for subsequent competitive advantage. The Board's conditional approval attempts to reconcile these principles by delegating the resolution to the state agency, but this approach does not fully resolve the tension. Fairness in competition is not merely about formal eligibility; it encompasses substantive equality of informational access among competing firms. When ABC Engineering enters a design-build competition with insider knowledge of the RFP's technical foundations that no other competitor possesses, the competitive field is structurally unequal regardless of whether ABC Engineering is formally permitted to participate. The principle of Independent Review Integrity Non-Exploitation therefore imposes a constraint that cannot be fully satisfied by agency approval alone — it requires either categorical abstention or robust remedial measures that genuinely level the informational playing field.
In response to Q202: The tension between the Agency Disclosure and Approval Obligation and the Peer Review Independence and Integrity principle is not fully resolved by the Board's conditional approval framework, particularly because the state agency's own procurement interests may compromise the objectivity of its approval decision. The state agency has an interest in attracting qualified design-build proposals and may view ABC Engineering's technical familiarity with the project as an asset rather than a disqualifying conflict. This creates a structural bias in the agency's approval calculus that undermines the reliability of its consent as an ethical safeguard. A more robust resolution would require that the approval decision be made by a party independent of the procurement — such as an ethics board, inspector general, or independent procurement officer — rather than by the agency that both commissioned the peer review and issued the RFP. Absent such independence, the agency's approval is a necessary but not sufficient ethical condition for ABC Engineering's participation.
In response to Q203: The tension between the Dual Role Appearance of Impropriety Avoidance principle and the Jurisdiction-Specific Compliance Obligation principle reflects a broader conflict between ethical standards and legal permissibility that the Board does not fully resolve. State law may explicitly permit design-build participation by prior peer reviewers, and the Board correctly notes that compliance with applicable law is a necessary condition. However, legal permissibility does not establish ethical sufficiency. The NSPE Code of Ethics imposes obligations that frequently exceed minimum legal requirements, and the appearance of impropriety created by ABC Engineering's sequential roles — first as independent reviewer, then as competitive bidder on the same project — is not neutralized by statutory authorization. Engineers are held to a standard of conduct that preserves public trust in the profession, and that standard requires avoiding not only actual conflicts of interest but also situations that would cause a reasonable observer to question the integrity of the professional process. State law compliance is therefore a floor, not a ceiling, for ethical conduct in this context.
In response to Q301: From a deontological perspective, ABC Engineering has a strong prima facie categorical duty to refrain from competing in a procurement process it helped shape through its peer review role, and this duty is not dissolved by the absence of a confidentiality agreement or by state agency approval. Deontological ethics grounds obligations in the nature of the act and the relationship, not in consequences or permissions. The peer review relationship created a duty of faithful agency to the state client — a duty that includes refraining from using privileged access for self-interested competitive purposes. This duty is categorical in the sense that it applies regardless of whether a confidentiality agreement was signed, because the ethical obligation flows from the professional relationship and the trust it entails. Agency approval may shift moral responsibility partially to the approving party, but it does not eliminate ABC Engineering's independent duty to avoid exploiting its advisory role. A strict deontological analysis would therefore require either categorical abstention or, at minimum, robust disclosure and remediation measures that go beyond mere agency consent.
In response to Q302: From a consequentialist perspective, the Board's conditional approval framework — contingent on state agency consent — creates systemic incentive risks that may undermine the long-term integrity of public peer review programs. If engineering firms understand that participation in a peer review does not categorically preclude subsequent competition for the same project, rational self-interest will incentivize firms to seek peer review roles strategically, using them as intelligence-gathering opportunities rather than as genuine exercises in independent professional judgment. Over time, this dynamic would erode the independence and credibility of peer review programs, reduce the willingness of agencies to commission external reviews, and ultimately harm the public interest that peer review is designed to serve. A consequentialist analysis therefore suggests that the Board's permissive conditional approach, while reasonable in the individual case, may produce negative systemic consequences that outweigh the benefit of allowing any single qualified firm to compete. A categorical prohibition on post-review competition, or at minimum a longer and more rigorously defined cooling-off period tied to the specificity of the review, would better protect the systemic integrity of peer review as a public institution.
In response to Q303: From a virtue ethics perspective, Engineer A's decision to accept the design-build joint venture invitation raises legitimate questions about professional character that the Board's conditional approval does not fully address. A virtuous engineer — one who genuinely internalizes the values of objectivity, public trust, and professional integrity — would approach the design-build invitation with heightened caution precisely because of the prior peer review role, not merely seek agency approval as a procedural clearance. The virtue ethics question is not whether participation is permissible under the rules, but whether it reflects the disposition of an engineer who prioritizes the integrity of the advisory relationship over competitive opportunity. The fact that ABC Engineering's peer review contributions were directly incorporated into the RFP it now seeks to compete under creates a situation where a virtuous professional would at minimum question whether participation — even if approved — is consistent with the spirit of the peer review engagement. Virtue ethics would counsel Engineer A to err on the side of abstention or to impose self-directed constraints beyond what the agency requires, as an expression of genuine professional integrity rather than mere rule compliance.
In response to Q401: If ABC Engineering had proactively disclosed the potential conflict of interest to the state agency at the moment XYZ Construction extended the design-build invitation — rather than waiting for the agency to discover and evaluate it independently — the Board's ethical analysis would likely have been more straightforwardly permissive and the appearance of impropriety substantially reduced. Proactive disclosure signals that the disclosing party is prioritizing transparency and the client's interests over its own competitive advantage, which is precisely the disposition that NSPE Code Section II.4.a requires. It also gives the state agency the opportunity to impose conditions, require information firewalls, or otherwise structure ABC Engineering's participation in a way that mitigates the informational asymmetry before it is exploited. The ethical weight of disclosure timing is significant: a firm that discloses immediately upon receiving a conflicting invitation demonstrates that it is managing the conflict rather than concealing it, which is a materially different ethical posture from one that relies on the agency to independently identify and evaluate the conflict. Proactive disclosure would not eliminate the underlying conflict, but it would substantially satisfy the faithful agency obligation and reduce the appearance of impropriety.
In response to Q402: If the peer review had been broader in scope — encompassing full design development rather than limited clarifications and refinements — the Board would likely have faced a more difficult case for permitting ABC Engineering's participation, but the analytical framework would remain the same. A broader review would have given ABC Engineering deeper and more comprehensive knowledge of the project's design philosophy, technical constraints, and cost drivers, potentially creating an even more substantial informational advantage in the design-build competition. However, the critical ethical variable is not the absolute breadth of the review but the specificity and direct relevance of the knowledge gained to the competitive procurement at issue. In the present case, the narrow scope of the review is actually more problematic in one respect: the peer review outputs were directly incorporated into the RFP, creating a precise and traceable nexus between ABC Engineering's advisory contributions and the competitive documents. A broader review might have produced more diffuse knowledge that dissipates more readily over time. The Board's analysis should therefore focus on the scope-to-procurement nexus rather than scope breadth alone as the primary determinant of conflict severity.
In response to Q403: If the RFP had been issued immediately after the peer review was completed — with no cooling-off period — the Board would almost certainly have concluded that participation was unethical, as the informational advantage would have been at its maximum and the appearance of impropriety most acute. The one-year gap is therefore a relevant and potentially dispositive factor in the Board's permissive conclusion, but its significance depends on what changed during that year. If the design details, specifications, and refinements that ABC Engineering contributed to the peer review remained substantially unchanged in the RFP — as appears to be the case given the narrow, incorporation-focused scope of the review — then the passage of time does not meaningfully diminish the competitive advantage. The cooling-off period analysis is most meaningful when it corresponds to a period during which the insider knowledge becomes stale, publicly available, or otherwise neutralized. In this case, the one-year period may have been sufficient to satisfy a formal threshold but insufficient to eliminate the substantive informational asymmetry, suggesting that the Board's reliance on the cooling-off period as a key mitigating factor deserves more critical scrutiny.
In response to Q404: If a competing firm had formally challenged ABC Engineering's participation in the design-build RFP on grounds of unfair informational advantage, the state agency's approval alone would not have been sufficient to resolve the ethical and legal conflict. The agency's approval addresses the question of whether participation is administratively authorized, but it does not resolve the substantive question of whether the competitive process is fair to other bidders who lack equivalent insider knowledge. A formal challenge would likely require the agency — or an independent reviewing authority — to assess whether additional remedial measures are necessary to level the competitive playing field. Such measures might include: requiring ABC Engineering to disclose to all competing firms the specific design details and refinements it contributed during the peer review; imposing information firewalls between the peer review team and the proposal development team within ABC Engineering; requiring Engineer A to recuse himself from proposal development given his role as lead peer reviewer; or commissioning an independent assessment of whether the informational asymmetry is material and remediable. Agency approval is a necessary but not sufficient condition for ethical participation when a formal challenge raises substantive fairness concerns that affect third-party competitors.
The Board resolved the tension between Fairness in Professional Competition and Independent Review Integrity Non-Exploitation not by declaring one principle categorically superior, but by subordinating both to a procedural mechanism: agency disclosure and approval. This resolution is pragmatic rather than principled. It treats the state agency's consent as a proxy for ethical legitimacy, effectively converting a substantive conflict-of-interest question into a procedural compliance question. The danger of this approach is that it does not address whether the agency's approval is itself compromised by its own procurement interests — the agency may benefit from having a technically informed firm compete, creating an incentive to approve participation that has nothing to do with fairness to other competitors. The case therefore teaches that when two substantive principles conflict, routing resolution through a third procedural principle (agency approval) can obscure rather than resolve the underlying ethical tension.
The Peer Review Program Collegial Improvement Purpose principle and the Post-Review Conflict of Interest Avoidance principle exist in structural tension that the Board's conditional approval does not fully resolve. Peer review programs are premised on a collegial, trust-based exchange in which a reviewing firm gains privileged access to design details precisely because it is understood to be acting in a disinterested advisory capacity. When that same firm subsequently leverages the access afforded by that collegial trust to position itself competitively — even after a one-year cooling-off period — it retroactively reframes the peer review engagement as a market intelligence exercise. The Board's approval, conditioned on agency consent and legal compliance, does not address this systemic corrosion: if firms routinely accept peer review roles with an eye toward subsequent procurement opportunities, the collegial foundation of peer review programs is undermined regardless of whether any individual instance is technically permissible. The case teaches that short-term conditional permissibility can be in tension with long-term institutional integrity, and that consequentialist concerns about systemic effects deserve greater weight in principle prioritization than the Board's analysis affords them.
The interaction between the Dual Role Appearance of Impropriety Avoidance principle and the Jurisdiction-Specific Compliance Obligation principle reveals a persistent gap in the Board's reasoning: legal permissibility and ethical permissibility are treated as substantially convergent when they are analytically distinct. The Board conditions its approval on compliance with state laws and regulations, implying that legal authorization substantially satisfies the ethical inquiry. However, the Dual Role Appearance of Impropriety Avoidance principle operates independently of legal authorization — it is concerned with how sequential roles appear to the public and to competing firms, not merely whether they are legally sanctioned. A state law that explicitly permits post-review competition does not eliminate the reasonable perception that ABC Engineering held an informational advantage derived from its privileged advisory role. The case teaches that when jurisdiction-specific legal compliance is invoked to resolve an appearance-of-impropriety concern, the ethical analysis must still independently assess whether the appearance of unfairness persists even after legal authorization is confirmed, and that the two inquiries cannot be collapsed into one without sacrificing the integrity of the appearance standard.
Confidentiality-Bounded Safety Escalation Invoked in BER Case 96-8
Engineer A's discovery of potential safety code violations in Engineer B's work during peer review
Peer Review Confidentiality Agreement Obligation
When Engineer A discovered that Engineer B's work may violate state and local safety codes, the BER prescribed a sequential escalation: first discuss with Engineer B to seek resolution, then warn of intent to notify authorities, then report to authorities if unresolved — even though this would breach the confidentiality agreement
The confidentiality agreement does not bar Engineer A from reporting genuine safety violations; the sequential escalation protocol respects the peer review relationship while preserving the paramount public safety obligation
Engineer A Peer Review Program Participant
Confidentiality-Bounded Public Safety Escalation in Peer Review
the BER decided that if Engineer A determined that Engineer B's work is or may be in violation of state and local safety requirements and endangers the public health, safety, and welfare, the appropriate action would be for Engineer A to immediately discuss these issues with Engineer B in an effort to seek clarification and early resolution of this issue.
Public safety obligation overrides confidentiality agreement when safety code violations are discovered; sequential escalation gives Engineer B opportunity to cure before external disclosure
If Engineer A and Engineer B were unable to resolve the issue, Engineer A would be required to inform Engineer B that as a professional engineer, Engineer A's only alternative is to notify and inform the proper authorities as indicated above.
Conflict of Interest Disclosure Evolution Principle Invoked by ABC Engineering Post-Review Participation Assessment
XYZ Construction Design-Build Joint Venture Inviting Contractor
Post-Review Conflict of Interest Avoidance in Design-Build Procurement
Under the evolved disclosure-and-management standard for conflicts of interest, ABC Engineering's prior peer review role does not automatically bar participation in the design-build procurement, but does require prompt and full disclosure of the conflict to the state agency so that the agency can assess and manage the conflict — the ethical response is disclosure and agency-managed resolution, not automatic recusal or automatic participation
The profession's evolved approach to conflicts of interest recognizes that prior review relationships are a virtually immutable fact of professional practice in specialized markets, and that the ethical imperative is disclosure and management rather than absolute prohibition — but disclosure must be made to the agency, not merely acknowledged internally
Conflict of Interest Disclosure Evolution Principle
Disclosure to the agency enables the agency to determine whether the conflict is manageable or disqualifying, preserving both procurement integrity and the engineer's opportunity to participate if the agency so permits
Conflict of Interest Disclosure Evolution Principle Invoked in Dual-Role Analysis
Firm A's undisclosed dual role as city plan reviewer and private developer design consultant
Dual-Role Conflict of Interest in City Engineer Engagements
The case discussion of BER Case 94-5 reflects the profession's recognition that conflicts of interest require disclosure and management; Firm A's failure to disclose its dual role to both the city and private developer clients exemplifies the disclosure obligation that the evolved standard requires
Even under the evolved disclosure-and-management standard, some conflicts — like Firm A's dual role — are irreconcilable and cannot be managed through disclosure alone; they require structural separation of roles
The potential for a conflict of interest may also enter into situations of this type.
The irreconcilable nature of the dual role means disclosure is insufficient; structural separation is required
the BER noted that it could not see how an engineer can wear multiple hats and ethically serve multiple interests while representing the best interest of his clients.
Conflict of Interest Disclosure in Advisory Engagements Invoked by Engineer A Peer Review Role
Engineer A, as lead engineer on the independent peer review, occupied an advisory role to the state agency in which any personal or commercial interest in subsequent project participation would have been material to the agency's assessment of the review's objectivity; the principle requires that any such interest — including interest in design-build participation — be disclosed to the agency during or immediately following the review engagement
The advisory nature of the peer review role triggers disclosure obligations for conflicts of interest that could affect the objectivity of the advisory product — including prospective commercial interests in the reviewed project that may have influenced the scope or emphasis of the review
Conflict of Interest Disclosure in Advisory Engagements
Engineer A is assigned to serve as the lead engineer on the independent external review of the design of the major road transportation project prepared by the agency.
Disclosure of any prospective commercial interest during the review engagement, or immediately upon learning of XYZ Construction's invitation, preserves the agency's ability to assess the review's objectivity and manage the resulting conflict
Cooling-Off Period - One Year Gap Analysis
Approximately one-year interval between peer review completion and RFP issuance
Engineer A in evaluating whether temporal distance from peer review mitigates conflict of interest
The approximately one-year gap between ABC Engineering's completion of the peer review and the state agency's issuance of the design-build RFP is a material fact for evaluating whether a sufficient cooling-off period has elapsed to mitigate conflict of interest concerns
Should Engineer A and ABC Engineering proactively disclose to the state agency their prior peer review role — including the privileged access to construction plans and specifications obtained during that review — before accepting XYZ Construction's design-build invitation, and should that disclosure have occurred at the moment the invitation was received rather than at a later stage?
ABC Engineering's obligation to disclose its prior peer review role to the state agency before accepting XYZ Construction's design-build joint venture invitation, and the timing and adequacy of that disclosure
Immediately disclose to the state agency, upon receiving XYZ Construction's invitation, the full scope of the prior peer review role — including the nature of privileged access to construction plans and specifications and the direct incorporation of peer review outputs into the RFP — and refrain from accepting the invitation until the agency provides informed approval
Disclose the prior peer review role to the state agency as part of the formal proposal submission process, treating the RFP's public issuance as the appropriate trigger for conflict disclosure rather than the private receipt of XYZ Construction's invitation, on the grounds that the conflict only becomes procurement-relevant once a proposal is formally contemplated
Disclose the prior peer review role to the state agency at the time of accepting the original peer review engagement — before any design-build procurement is announced — on the grounds that the peer review scope was explicitly tied to RFP preparation, making future procurement interest foreseeable from the outset and requiring upfront transparency to preserve the independence of the review
Should Engineer A and ABC Engineering participate in the design-build joint venture and submit a proposal for the major road transportation project, given that ABC Engineering conducted the peer review whose outputs were directly incorporated into the RFP, and if so, under what conditions?
ABC Engineering Post-Peer-Review Design-Build Participation: Conflict Disclosure and Agency Approval
Proactively disclose the peer review conflict to the state agency immediately upon receiving the design-build invitation, seek explicit written agency approval before proceeding, and impose internal information firewalls separating the peer review team from the proposal development team
Decline the design-build joint venture invitation entirely on the grounds that ABC Engineering's peer review contributions were directly incorporated into the RFP, creating a structural conflict of interest that no cooling-off period or agency approval can adequately remediate
Accept the design-build invitation and disclose the prior peer review role to the state agency in the proposal submission itself, relying on the one-year elapsed period and the agency's own familiarity with the engagement as constructive notice sufficient to satisfy the disclosure obligation without seeking separate pre-participation approval
At what point was Engineer A obligated to disclose any foreseeable interest in future procurement opportunities related to the same project — at the time of accepting the peer review engagement, or only upon receipt of the design-build RFP — and does the absence of a formal confidentiality agreement affect the scope or timing of that disclosure duty?
Engineer A's Proactive Conflict Disclosure Timing: At Peer Review Acceptance vs. Upon RFP Issuance
Disclose to the state agency, at the time of accepting the peer review engagement, any foreseeable firm interest in future design-build procurement opportunities on the same project, and request the agency's acknowledgment of that potential conflict as a condition of proceeding
Accept the peer review engagement without upfront disclosure of potential future procurement interest, on the grounds that no specific design-build opportunity exists at that time and that disclosure obligations under Code Section II.4.a are triggered only by known or concrete conflicts rather than speculative future interests
Accept the peer review engagement and disclose the potential conflict only upon receipt of the design-build invitation from XYZ Construction, treating that moment as the point at which the conflict becomes sufficiently concrete to trigger the Code Section II.4.a disclosure obligation
Is state agency approval a sufficient ethical safeguard for ABC Engineering's post-peer-review design-build participation, given that the agency occupies a structurally compromised position as both the peer review client and the procurement authority, and given the systemic risk that conditional permissibility creates for the long-term integrity of public peer review programs?
Adequacy of Agency Approval as Ethical Safeguard: Structural Bias and the Limits of Conditional Permissibility
Seek state agency approval for design-build participation, disclose the full scope of peer review contributions to the agency, and accept participation only if the agency's approval is granted through a procurement officer or process independent of the design-build procurement decision
Seek and obtain state agency approval for design-build participation through the agency's standard procurement authorization process, treating that approval — combined with state law compliance and the one-year cooling-off period — as sufficient ethical authorization to proceed
Decline the design-build joint venture invitation on the grounds that the state agency's structural conflict of interest as both peer review client and procurement authority renders its approval an unreliable ethical safeguard, and that the systemic risk to peer review program integrity requires categorical abstention regardless of agency consent
Is it ethical for Engineer A and ABC Engineering to participate in the design-build joint venture with XYZ Construction and submit a proposal for the major road transportation project, given that the peer review outputs were directly incorporated into the RFP and approximately one year elapsed between completion of the review and issuance of the RFP?
Whether ABC Engineering may ethically participate in the design-build joint venture and submit a proposal for the same project it peer-reviewed, given the one-year cooling-off period and the direct incorporation of its peer review outputs into the RFP
Accept the design-build joint venture invitation and submit a proposal after disclosing the prior peer review role to the state agency, obtaining the agency's informed approval, confirming compliance with applicable state conflict-of-interest law, and implementing internal information safeguards — such as recusing Engineer A from proposal sections directly drawing on peer review knowledge — to mitigate the informational asymmetry
Decline the design-build joint venture invitation entirely, on the grounds that the narrow scope of the peer review — with its outputs directly incorporated into the RFP — created a structural informational advantage that no cooling-off period or agency approval can adequately remediate, and that participation would undermine the integrity of both the procurement and the peer review program regardless of procedural clearances
Accept the design-build joint venture invitation and submit a proposal after disclosing the prior peer review role to the state agency and confirming state law compliance, without imposing additional internal safeguards beyond what the agency requires, on the grounds that the one-year cooling-off period and the limited scope of the peer review are sufficient to neutralize any competitive advantage and that agency approval constitutes adequate ethical clearance
Does the absence of a formal confidentiality agreement eliminate ABC Engineering's ethical duty to treat privileged design knowledge gained during the peer review as non-exploitable in a subsequent competitive procurement, or does that duty persist independently of any contractual instrument — and what affirmative steps must ABC Engineering take to honor that duty even if agency approval is granted?
Whether the absence of a formal confidentiality agreement eliminates ABC Engineering's ethical obligation to refrain from exploiting insider knowledge gained during the peer review, and how that obligation interacts with the structural integrity of public peer review programs
Treat the ethical non-exploitation obligation as fully operative regardless of the absence of a confidentiality agreement — affirmatively segregating peer review knowledge from proposal development through documented internal information barriers, recusing Engineer A from proposal sections that draw on peer review findings, and disclosing to the state agency the specific nature of the informational asymmetry so the agency can assess whether additional remediation is required before approving participation
Treat the non-exploitation obligation as a best-practice standard rather than a binding ethical duty in the absence of a confidentiality agreement — applying ordinary firm-wide conflict-of-interest screening protocols to the design-build proposal without imposing additional peer-review-specific restrictions, on the grounds that the absence of a formal agreement means the information is not legally privileged and that standard professional judgment is sufficient to manage any residual ethical concern
Decline to participate in the design-build joint venture on the grounds that, without a confidentiality agreement to define and limit the scope of privileged information, the boundary between permissible general project familiarity and impermissible exploitation of insider knowledge is too uncertain to manage reliably — and that the integrity of the peer review program and the firm's professional reputation are better protected by categorical abstention than by attempting to self-police an undefined non-exploitation obligation
Should Engineer A and ABC Engineering accept the design-build joint venture invitation and submit a proposal for the same project they peer-reviewed, given the informational asymmetry created by their privileged advisory access?
ABC Engineering Post-Peer-Review Design-Build Participation: Privileged Access Non-Exploitation and Conflict of Interest Assessment
Disclose the peer review conflict to the state agency immediately upon receiving the design-build invitation, seek explicit agency approval, and implement internal information firewalls separating the peer review team from the proposal development team before submitting a design-build proposal
Decline the design-build joint venture invitation entirely on the grounds that the peer review's direct contributions to the RFP create an informational asymmetry that no cooling-off period or agency approval can adequately remediate, thereby preserving the integrity of the advisory relationship and the peer review program
Accept the design-build invitation and proceed with proposal development in reliance on the one-year elapsed period and the absence of a formal confidentiality agreement, treating the peer review engagement as concluded and the information gained as no longer conferring a material competitive advantage
At what point was Engineer A obligated to disclose a foreseeable interest in future procurement opportunities related to the same project — at the moment of accepting the peer review engagement, or only upon receipt of the design-build invitation after the RFP was issued?
Engineer A Proactive Conflict of Interest Disclosure Timing: At Peer Review Acceptance vs. Upon RFP Issuance
Disclose to the state agency any foreseeable interest in future design-build procurement opportunities on the same project at the moment of accepting the peer review engagement, before any privileged design information is accessed
Disclose the conflict of interest to the state agency immediately upon receiving the design-build joint venture invitation from XYZ Construction, before taking any further steps toward proposal development, and seek explicit agency approval as a condition of participation
Treat the disclosure obligation as triggered only upon formal submission of a design-build proposal, relying on the one-year elapsed period and the public nature of the RFP as sufficient to neutralize any prior informational advantage, and disclose the peer review history in the proposal documents themselves
Is state agency approval — from an authority that is both the peer review client and the design-build procurement issuer — a sufficient ethical safeguard to permit ABC Engineering's post-review competitive participation, or must additional independent remediation measures be imposed to protect the integrity of the procurement and the fairness of competition?
Adequacy of State Agency Approval as Ethical Safeguard: Structural Bias of Approving Authority and Sufficiency of Conditional Consent
Obtain state agency approval and proceed with design-build proposal submission, treating the agency's informed consent and compliance with applicable state law as sufficient ethical authorization for participation
Obtain state agency approval and additionally implement self-directed remedial measures — including an information firewall between the peer review team and the proposal development team, recusal of Engineer A from proposal sections drawing on peer review knowledge, and voluntary disclosure to all competing firms of the specific design clarifications and refinements ABC Engineering contributed — before submitting a design-build proposal
Seek approval from an independent reviewing authority — such as a state ethics board, inspector general, or independent procurement officer with no stake in the design-build outcome — rather than relying solely on the state agency's consent, given the agency's structurally compromised dual role as both peer review client and procurement issuer
Should Engineer A proactively disclose to the state agency, at the time of accepting the peer review engagement and again upon receiving the design-build invitation from XYZ Construction, any foreseeable or actual interest in future procurement opportunities related to the same project — rather than relying on the agency to independently identify and evaluate the conflict?
Engineer A / ABC Engineering: Conflict of Interest Disclosure and Timing Obligation Upon Accepting Peer Review and Upon Receiving Design-Build Invitation
Disclose to the state agency at the time of accepting the peer review engagement any foreseeable interest in future design-build procurement on the same project, and again immediately upon receiving the design-build invitation from XYZ Construction, seeking explicit informed agency approval before proceeding
Disclose the conflict to the state agency upon receiving the design-build invitation — treating that moment as the point at which the conflict becomes concrete and actionable — and seek agency approval before submitting any proposal
Decline the design-build joint venture invitation entirely, treating the peer review role as categorically precluding subsequent competitive participation on the same project regardless of agency approval or elapsed time
Would it be ethical for Engineer A and ABC Engineering to accept the design-build joint venture invitation and submit a proposal for the major road transportation project, given that ABC Engineering's peer review contributions — scoped to clarifications and refinements — were directly incorporated into the RFP under which it now seeks to compete, and that one year elapsed between completion of the peer review and issuance of the RFP?
ABC Engineering / Engineer A: Ethical Permissibility of Participating in Design-Build Joint Venture After Serving as Lead Peer Reviewer on the Same Project
Accept the design-build joint venture invitation, disclose the peer review conflict fully to the state agency, obtain explicit agency approval, and implement internal information firewalls separating the peer review team from the proposal development team before submitting any proposal
Accept the design-build joint venture invitation and disclose the peer review role to the state agency, relying on the one-year cooling-off period and agency consent as sufficient ethical safeguards without imposing additional internal structural constraints on proposal development
Decline the design-build joint venture invitation on the grounds that ABC Engineering's peer review contributions were directly incorporated into the RFP, creating a structural informational asymmetry that no cooling-off period or agency approval can adequately remediate
When the state agency receives ABC Engineering's disclosure that it served as lead peer reviewer on the same project for which it now seeks to compete in a design-build procurement, what approval standard and remedial conditions — if any — should the agency impose to preserve procurement integrity and protect competing firms from the informational asymmetry created by ABC Engineering's privileged advisory access?
State Agency: Procurement Integrity Preservation When Approving Post-Peer-Review Design-Build Participation by the Reviewing Firm
Approve ABC Engineering's participation conditioned on mandatory information firewalls between the peer review team and the proposal development team, disclosure of ABC Engineering's specific peer review contributions to all competing firms, and recusal of Engineer A from proposal sections directly drawing on peer review knowledge
Approve ABC Engineering's participation on the basis of the one-year cooling-off period and ABC Engineering's disclosure alone, treating informed agency consent as a sufficient procedural safeguard without imposing additional structural remediation requirements
Refer the approval decision to an independent procurement officer or ethics board with no stake in the design-build outcome, and withhold agency approval pending that independent determination, on the grounds that the agency's dual role as peer review client and procurement authority structurally compromises its ability to render an objective consent decision
Decide Whether to Breach Confidentiality to Report Safety Violations
Decide Whether to Breach Confidentiality to Report Safety Violations (Action 5 - BER 96-8 Precedent) → BER Precedent Cases Referenced (Event 6)
Design-Build RFP - Major State-Funded Transportation Project
Request for Proposal for Design-Build Services - Major Road Transportation Project
the state agency issues an RFP soliciting proposals for design-build services to complete the major road transportation project
Request for Proposal soliciting proposals for design-build services to complete the major transportation project
State agency (issuing), XYZ Construction and ABC Engineering (prospective respondents)
The RFP soliciting design-build proposals is the procurement instrument that creates the ethical conflict for ABC Engineering, which previously served as independent peer reviewer on the same project
Issued approximately one year after peer review completion
Dual-Role Conflict of Interest Invoked in BER Case 94-5
Firm A's dual role as city engineer and private developer consultant within the same city
Firm A's simultaneous service as city plan reviewer and inspection authority for private developers while also providing design and construction services to those same developers created an irreconcilable conflict of interest that the BER determined was unethical
The firm cannot adequately represent the separate and sometimes differing interests of the public agency and the private developers whose work it reviews; the structural conflict is irreconcilable regardless of intent
The irreconcilable nature of the dual role means no balancing is possible; the conflict requires the engineer to choose one role or the other
Firm A, a private consulting engineering firm regularly prepared drawings for developers and at the same time reviews those drawings at developer expense for the benefit of the city, while performing inspection services at developer expense for the benefit of the city.
In fact, Firm A used its position as the city's engineer as a marketing tool, openly telling prospective clients that they can save 50% on inspection costs by using Firm A.
The BER could not see how Firm A could adequately represent the separate and sometimes differing interests of its clients under the facts presented.
Dual Role Appearance of Impropriety Avoidance Invoked by ABC Engineering Sequential Role Transition
ABC Engineering's sequential occupancy of the independent external peer reviewer role and the prospective design-build joint venture participant role — for the same project — creates an appearance of impropriety that compromises the interests of the state agency (whose procurement integrity is at stake), other design-build proposers (who lack equivalent insider knowledge), and ABC Engineering's own professional credibility as an independent reviewer
Even if ABC Engineering's peer review was conducted with complete objectivity and its design-build proposal would be technically superior, the sequential role transition creates an appearance of impropriety that must be addressed through disclosure and agency approval before participation proceeds
Dual Role Appearance of Impropriety Avoidance
The appearance of impropriety is managed — though not eliminated — through full disclosure to the agency and compliance with the agency's conflict-of-interest determination; if the agency approves participation, the appearance concern is substantially mitigated by the agency's informed consent
Dual Role City Engineer and Private Developer Consultant - Firm A
Throughout Firm A's concurrent engagement as city engineer and private developer consultant
Firm A also provided design and inspection services for private developers within the city
Dual Role City Engineer and Private Developer Consultant State
Firm A simultaneously serving as city engineer for design review/inspection and as design/inspection consultant to private developers within the same city
Termination of one or both roles, or formal ethical resolution separating the conflicting functions
Firm A used its position as the city's engineer as a marketing tool, openly telling prospective clients that they can save 50% on inspection costs by using Firm A
Firm A, a private consulting engineering firm regularly prepared drawings for developers and at the same time reviews those drawings at developer expense for the benefit of the city
it was unethical for Engineer A to serve as city engineer and provide review and inspection services for private developers within the city
City engagement of Firm A for design review and construction inspection combined with Firm A's active marketing of dual-role cost savings to private developers
Engineer A ABC Engineering Insider Knowledge from Peer Review
From completion of peer review through participation in design-build joint venture procurement
Engineer A and ABC Engineering's access to confidential nonpublic information from peer review and subsequent participation with XYZ Construction in design-build joint venture
BER determination that participation does not raise a conflict of interest under the specific facts presented
The Board notes that state laws may vary regarding whether this situation constitutes a conflict of interest
Engineer A's peer review of project generating insider knowledge, followed by invitation to participate in design-build joint venture with XYZ Construction
Engineer A Advisory Self-Interest Conflict Identification and Disclosure
Advisory Self-Interest Conflict Identification and Disclosure Capability
Engineer A, as lead engineer on the independent external peer review, must recognize and proactively disclose to the state agency any commercial or competitive interest that ABC Engineering has or may develop in the design-build procurement for the same project.
Engineer A served as lead engineer on the peer review for the state agency, and ABC Engineering was subsequently invited to participate in the design-build procurement for the same project, creating a self-interest conflict in the advisory role.
Recognition that serving as lead peer reviewer while ABC Engineering subsequently considers participating in the design-build procurement creates a self-interest conflict requiring proactive disclosure to the state agency.
{'license': 'Professional Engineer', 'firm': 'ABC Engineering', 'role_on_review': 'Lead Engineer'}
Engineer A, as owner of ABC Engineering, is assigned as lead engineer on the independent external peer review of the major state-funded transportation project design, and later is invited by XYZ Construction to participate in a design-build joint venture for the same project, generating conflict-of-interest obligations.
{'type': 'client', 'target': 'State Agency Peer Review Client'}
{'type': 'joint_venture_invitee', 'target': 'XYZ Construction Design-Build Joint Venture Inviting Contractor'}
Engineer A is a professional engineer and owner of ABC Engineering.
Engineer A is assigned to serve as the lead engineer on the independent external review of the design of the major road transportation project.
Engineer A Lead Peer Reviewer Conflict of Interest Disclosure to Retaining Attorney or Agency
Engineer A served as lead engineer on the peer review, placing him in an advisory role to the state agency. The subsequent invitation from XYZ Construction to join a design-build joint venture creates a direct commercial interest in the outcome of the procurement that the agency commissioned the peer review to inform.
Advisory Engagement Self-Interest Conflict Disclosure Obligation
Engineer A, as lead engineer on the independent external peer review, is obligated to proactively disclose to the state agency any commercial or competitive interest ABC Engineering holds in the outcome of the design-build procurement — specifically the firm's potential participation as a design-build joint venture partner — before or contemporaneously with any decision to accept XYZ Construction's invitation, so that the agency can appropriately weigh the conflict and determine whether ABC Engineering's participation is permissible.
Engineer A Peer Review Confidentiality Agreement Bound
From signing of confidentiality agreement through completion of peer review process
Engineer A was asked to sign a 'confidentiality agreement,' whereby Engineer A agrees not to disclose confidential information involving peer-reviewed firms
Peer Review Confidentiality Agreement Bound State
Engineer A's contractual confidentiality obligation as peer reviewer of Engineer B's firm
Completion of peer review process or overriding public safety obligation requiring disclosure
Engineer A discovered that Engineer B's work may be in violation of state and local safety code requirements and could endanger the public health, safety, and welfare
Engineer A signed confidentiality agreement upon selection as peer reviewer
Engineer A Peer Review Confidentiality Agreement Obligation BER 96-8
Engineer A served as peer reviewer under an organized peer-review program and signed a confidentiality agreement before visiting Engineer B's firm and reviewing technical documentation.
Peer Review Confidentiality Agreement Binding Constraint
Engineer A was bound by the confidentiality agreement signed as a condition of serving as peer reviewer for Engineer B's firm, prohibiting disclosure of confidential information revealed during the peer review process — subject to override if safety code violations endangering public health were discovered.
BER Case 96-8; Organized peer-review program confidentiality agreement
When originally selected as a peer reviewer, Engineer A was asked to sign a 'confidentiality agreement,' whereby Engineer A agrees not to disclose confidential information involving peer-reviewed firms.
Duration of peer review engagement and thereafter
Engineer A Peer Review Confidentiality Agreement Signing BER 96-8
Engineer A served as a peer reviewer under an organized peer-review program and was asked to sign a confidentiality agreement before conducting a peer-review visit to Engineer B's firm.
Peer Review Confidentiality Agreement Signing Obligation
Engineer A was obligated to sign and honor the confidentiality agreement as a condition of serving as peer reviewer for Engineer B's firm, refraining from disclosing confidential information about Engineer B's firm revealed during the peer-review process.
Upon agreeing to serve as peer reviewer and throughout the peer-review engagement
Engineer A Peer Review Confidentiality Rationale Understanding
Peer Review Confidentiality Framework Navigation Capability
Engineer A possessed the capability to understand and operate within the confidentiality framework of the organized peer-review program, including signing the confidentiality agreement and recognizing the rationale for confidentiality as a trust-building and disclosure-maximizing mechanism.
Engineer A served as peer reviewer under an organized peer-review program and was required to sign a confidentiality agreement before conducting the review of Engineer B's firm.
Engineer A signed a confidentiality agreement as a condition of serving as peer reviewer and conducted the peer review visit to Engineer B's firm within that confidentiality framework.
Such programs are generally built on a foundation of confidentiality, whereby an individual agreeing to serve as a peer reviewer must sign a 'confidentiality agreement.'
Engineer A Peer Review Lead Objectivity Non-Exploitation in Subsequent Role
Engineer A served as lead engineer on the independent external peer review, placing him in a position of trust and objectivity relative to the state agency. The subsequent invitation to join a design-build joint venture for the same project creates a conflict that must be managed under the current disclosure-and-management standard.
Conflict of Interest Disclosure Evolution Compliance Obligation
Engineer A must comply with the current evolved standard of conflict-of-interest management — which requires prompt disclosure of all known or potential conflicts to employers or clients — by disclosing to the state agency the potential conflict arising from ABC Engineering's consideration of the design-build joint venture invitation, recognizing that the prior peer review role creates a conflict that must be disclosed and managed rather than simply avoided or ignored.
Engineer A Peer Review Program Collegial Improvement Participation
Peer Review Program Public Benefit Recognition Capability
Engineer A possessed the capability to recognize and participate in the organized peer-review program as a legitimate collegial mechanism for improving professional practice, analyzing and evaluating professional decisions, and offering constructive feedback.
Engineer A served as a peer reviewer under an organized peer-review program developed to assist engineers in improving their professional practice.
Engineer A participated in the organized peer-review program, visited Engineer B's firm, and conducted a thorough review of technical documentation in connection with recent design projects.
Engineer A served as a peer reviewer as part of an organized peer-review program developed to assist engineers in improving their professional practice.
Engineer A Peer Review Program Collegial Improvement Participation BER 96-8
Engineer A served as a peer reviewer under an organized peer-review program designed to assist engineers in improving their professional practice through collegial evaluation and feedback.
Peer Review Program Collegial Improvement Participation Obligation
Engineer A was obligated to participate in the organized peer-review program in good faith for the purpose of collegial professional improvement, providing constructive and critical feedback to Engineer B's firm, and refraining from using the peer-review role as a vehicle for competitive advantage.
This can be accomplished by analyzing and evaluating the actions, decisions, and techniques of the professional and offering constructive and, at times, critical feedback.
{'license': 'Professional Engineer', 'program_role': 'Peer reviewer under organized peer-review program', 'confidentiality_agreement': 'Signed'}
Engineer A served as a peer reviewer under an organized peer-review program, signed a confidentiality agreement, visited Engineer B's firm, and discovered potential violations of state and local safety code requirements that could endanger public health, safety, and welfare, triggering a conflict between confidentiality obligations and the paramount duty to protect the public.
{'type': 'participant_in', 'target': 'Organized Peer Review Program'}
{'type': 'peer_reviewer_of', 'target': 'Engineer B Peer Review Subject'}
Peer Review Program Participant Engineer
Engineer A served as a peer reviewer as part of an organized peer-review program
Engineer A discovered that Engineer B's work may be in violation of state and local safety code requirements
Engineer A was asked to sign a 'confidentiality agreement'
Engineer A Peer Review Program Public Benefit Recognition
Engineer A must recognize that the independent external peer review program serves public safety and professional quality improvement purposes, and that this public benefit rationale creates obligations that persist beyond the immediate peer review engagement — including obligations not to exploit peer review access for competitive gain.
Engineer A served as lead engineer on an independent external peer review commissioned by a state agency for a major transportation project, a program designed to improve design quality and public safety.
Understanding that the peer review program's public benefit purpose requires Engineer A and ABC Engineering to refrain from exploiting privileged access to design documents for competitive advantage in the subsequent design-build procurement.
Engineer A Peer Review Safety Code Violation Sequential Escalation
Peer Review Safety Escalation Sequencing Capability
Engineer A was required to possess the capability to correctly sequence escalation steps upon discovering potential safety code violations in Engineer B's work — first discussing with Engineer B, then informing Engineer B of intent to notify authorities, and finally reporting to appropriate authorities if resolution failed.
Engineer A discovered during the peer review that Engineer B's work may be in violation of state and local safety code requirements and could endanger public health, safety, and welfare.
The BER determined that Engineer A's appropriate action was to immediately discuss issues with Engineer B, and if unresolved, to inform Engineer B that notification of proper authorities was the only alternative.
if Engineer A determined that Engineer B's work is or may be in violation of state and local safety requirements and endangers the public health, safety, and welfare, the appropriate action would be for Engineer A to immediately discuss these issues with Engineer B in an effort to seek clarification and early resolution of this issue.
Engineer A Peer Review Safety Code Violation Sequential Escalation BER 96-8
During a peer-review visit to Engineer B's firm, Engineer A discovered through review of technical documentation that Engineer B's work may be in violation of state and local safety code requirements and could endanger public health, safety, and welfare.
Peer Review Safety Code Violation Escalation Obligation
Engineer A was obligated, upon discovering that Engineer B's work may violate state and local safety code requirements, to first discuss the issues with Engineer B seeking clarification and resolution, and if unresolved, to inform Engineer B that the only alternative is to notify the proper authorities, and then to do so notwithstanding the confidentiality agreement.
Following a review of the technical documentation in connection with a series of recent design projects involving Engineer B's firm, Engineer A discovered that Engineer B's work may be in violation of state and local safety code requirements and could endanger the public health, safety, and welfare.
Upon discovery of potential safety code violations during the peer-review visit
In reviewing the facts, the BER decided that if Engineer A determined that Engineer B's work is or may be in violation of state and local safety requirements and endangers the public health, safety, and welfare, the appropriate action would be for Engineer A to immediately discuss these issues with Engineer B in an effort to seek clarification and early resolution of this issue.
Engineer A Peer Review Safety Violation Discovery
From discovery of potential safety code violations through resolution via discussion with Engineer B or notification of authorities
Peer Review Safety Violation Discovery State
Engineer A's discovery during peer review that Engineer B's work may violate safety codes
Resolution through direct discussion with Engineer B, or notification of proper authorities if unresolved
if Engineer A determined that Engineer B's work is or may be in violation of state and local safety requirements and endangers the public health, safety, and welfare, the appropriate action would be for Engineer A to immediately discuss these issues with Engineer B
Engineer A's review of technical documentation revealing potential violations of state and local safety code requirements
Engineer A Peer Review Scope-to-Procurement Nexus Assessment
Engineer A was required to assess the degree of nexus between the scope of the peer review — including the specific documents reviewed, clarifications provided, and design details accessed — and the scope of the subsequent design-build procurement for the same state transportation project.
Engineer A, as lead engineer on the peer review, needed to assess whether the access to confidential project information during the review created a nexus to the subsequent design-build procurement that would bar participation.
Engineer A evaluated whether the peer review engagement was sufficiently connected to the subsequent design-build procurement to create a disqualifying conflict of interest or unfair competitive advantage.
Engineer A Safety Code Violation Sequential Escalation Constraint BER 96-8
Engineer A discovered during peer review of Engineer B's firm that Engineer B's work may be in violation of state and local safety code requirements and could endanger the public health, safety, and welfare.
Peer Review Confidentiality Safety Override Constraint
Upon discovering that Engineer B's work may violate state and local safety code requirements and endanger public health, safety, and welfare, Engineer A was constrained to first discuss the issues with Engineer B seeking clarification and resolution, and only if unresolved, to notify Engineer B of intent to report to proper authorities before doing so — prohibiting silence on safety grounds alone.
BER Case 96-8; NSPE Code of Ethics public safety paramount obligation
Engineer A discovered that Engineer B's work may be in violation of state and local safety code requirements and could endanger the public health, safety, and welfare.
Upon discovery of potential safety code violations during peer review
the appropriate action would be for Engineer A to immediately discuss these issues with Engineer B in an effort to seek clarification and early resolution of this issue.
Engineer A assigned as lead engineer starts ABC Engineering peer review
{'license': 'Professional Engineer', 'firm_role': 'Principal or responsible engineer of reviewed firm'}
Engineer B's firm was the subject of a peer review visit by Engineer A, during which technical documentation revealed potential violations of state and local safety code requirements, triggering obligations for Engineer A to discuss findings with Engineer B and seek resolution before escalating to authorities.
{'type': 'subject_of_review_by', 'target': 'Engineer A Peer Review Program Participant'}
Engineer A would be required to inform Engineer B that as a professional engineer, Engineer A's only alternative is to notify and inform the proper authorities
Engineer B's work may be in violation of state and local safety code requirements
Fairness in Professional Competition Invoked by State Agency Procurement Integrity Concern
The state agency's issuance of an open RFP for design-build services creates a competitive procurement in which all proposing firms should have equal access to project information; ABC Engineering's prior peer review role — which gave it access to design clarifications and refinements incorporated into the RFP — creates an informational asymmetry that, if unaddressed, would undermine the fairness of the competitive process
Fairness in professional competition requires that the agency's procurement process not be distorted by informational advantages derived from prior privileged access, and that the agency take steps — through disclosure requirements, conflict-of-interest determinations, or disqualification — to preserve competitive equity among proposers
The agency bears responsibility for managing the competitive fairness risk by making an informed determination about ABC Engineering's eligibility to participate, potentially with conditions such as information barriers or scope limitations
{'firm_type': 'Private consulting engineering firm', 'city_role': 'City-designated plan review and construction inspection engineer', 'private_role': 'Design and inspection services provider to private developers', 'marketing_practice': 'Advertised 50% inspection cost savings to developers who also hired Firm A'}
Firm A was engaged by the city to provide design review and construction inspection for private development projects while simultaneously providing design and inspection services to those same private developers, using its city engineer position as a marketing tool and creating an irreconcilable conflict of interest between its obligations to the city and to private developer clients.
{'type': 'provides_services_to', 'target': 'Private Developers'}
{'type': 'retained_by', 'target': 'City Municipal Client'}
Firm A Dual-Role City Engineer Irreconcilable Conflict Recognition
Dual-Role City Engineer Conflict of Interest Recognition Capability
Firm A was required to possess — but failed to exercise — the capability to recognize that simultaneously serving as the city's plan reviewer and construction inspector while providing design and inspection services for private developers within the city created an irreconcilable conflict of interest that could not be managed through disclosure alone.
Firm A was engaged by the city to provide design review and construction inspection for private development projects while simultaneously providing design and inspection services for private developers within the same city.
The BER determined that Firm A could not adequately represent the separate and sometimes differing interests of the city and private developer clients simultaneously, and that the dual role was unethical.
Firm A Dual-Role City Engineer Private Developer Service Conflict BER 94-5
Firm A was engaged by the city to provide design review and construction inspection for private developers under local ordinance, while simultaneously providing design and inspection services for those same private developers in a private capacity, and using its city engineer role as a marketing tool.
Firm A (private consulting engineering firm)
Dual-Role City Engineer Private Developer Service Conflict Prohibition Obligation
Firm A was obligated to refrain from simultaneously providing design and inspection services for private developers within the city while serving as the city's plan reviewer and inspection authority for those same developers, as the firm could not adequately represent the separate and sometimes differing interests of both the city and the private developers.
Throughout the period of dual engagement as city engineer and private developer consultant
Firm A Dual Role City Engineer Private Developer Self-Review Prohibition BER 94-5
Firm A served as the city's engineer for design review and construction inspection while simultaneously providing design and inspection services for private developers within the city whose plans Firm A was reviewing on the city's behalf.
Dual Role Self-Review Conflict Prohibition Constraint
Firm A was prohibited from simultaneously serving as the city's reviewing engineer for design review and construction inspection and as a design and inspection service provider for private developers within the same city — because the structural conflict of interest created by self-review rendered both roles ethically impermissible to hold concurrently.
BER Case 94-5; NSPE Code of Ethics conflict of interest provisions
a city engaged the services of a private consulting engineering firm, Firm A, to provide design review and construction inspection.
Duration of simultaneous dual-role engagement
Firm A also provided design and inspection services for private developers within the city.
Firm A Public Agency Role Marketing Exploitation BER 94-5
Firm A openly used its city engineer role to market private services to developers subject to its public review authority, telling prospective clients they could save 50% on inspection costs by using Firm A.
Public Agency Role Marketing Exploitation Prohibition Obligation
Firm A was obligated to refrain from using its position as the city's engineer as a marketing tool to attract private developer clients, including refraining from advertising that private developers could save 50% on inspection costs by also retaining Firm A for private services.
Firm A used its position as the city's engineer as a marketing tool, openly telling prospective clients that they can save 50% on inspection costs by using Firm A.
Throughout the period of dual engagement
Firm A Public Agency Role Marketing Exploitation Prohibition BER 94-5
Firm A openly told prospective private developer clients that they could save 50% on inspection costs by using Firm A, exploiting its insider position as the city's reviewing engineer as a competitive marketing advantage.
Dual Role Self-Review Marketing Exploitation Prohibition Constraint
Firm A was prohibited from using its position as the city's reviewing engineer as a marketing tool to attract private developer clients — including by advertising that private developers could save 50% on inspection costs by using Firm A — because such marketing exploitation compounded the underlying conflict of interest and independently violated faithful agent obligations to the public agency client.
BER Case 94-5; NSPE Code of Ethics faithful agent and conflict of interest provisions
Duration of dual-role engagement and marketing activities
Firm A Public Agency Role Marketing Exploitation Recognition
Firm A was required to possess — but failed to exercise — the capability to recognize that using its position as the city's engineer as a marketing tool to attract private developer clients compounded the underlying conflict of interest and constituted an independent ethical violation.
Firm A used its position as the city's engineer as a marketing tool, openly advertising cost savings to prospective private developer clients based on the dual-role arrangement.
Firm A openly told prospective private clients that they could save 50% on inspection costs by using Firm A, directly exploiting the public agency role for commercial advantage.
Firm A design review services (BER 94-5) before Firm A construction inspection services (BER 94-5)
Firm A drawing preparation for developers (BER 94-5) equals Firm A review of those same drawings for the city (BER 94-5)
Independent External Peer Review - Major Road Transportation Project
Independent External Peer Review of Major State-Funded Transportation Project Design
Engineer A as lead engineer; state agency as client
The peer review conducted by ABC Engineering under Engineer A's leadership is the prior engagement that creates the conflict of interest when ABC Engineering is subsequently invited to compete for the design-build contract
Independent Review Integrity Non-Exploitation Invoked by ABC Engineering Post-Peer-Review Commercial Decision
ABC Engineering's consideration of whether to join XYZ Construction's design-build proposal team
ABC Engineering's role as independent external peer reviewer gave it privileged access to the agency's construction plans, specifications, and design clarifications that were subsequently incorporated into the RFP; accepting XYZ Construction's invitation without agency approval would convert that privileged access into a commercial competitive advantage inconsistent with the integrity of the independent review role
The professional virtue of independent review integrity requires Engineer A and ABC Engineering to recognize that the peer review role was accepted on behalf of the agency's interest in objective independent assessment, and that converting the knowledge gained in that role into competitive advantage — even after the engagement concluded — would betray the foundational purpose of independent review
Independent Review Integrity and Non-Exploitation of Privileged Access
The non-exploitation obligation requires that ABC Engineering's general professional expertise remains available for competitive use, but that specific knowledge gained through privileged review access must not be leveraged without agency authorization
Independent Review Non-Exploitation Invoked for ABC Engineering
ABC Engineering's use of information obtained during independent peer review in subsequent design-build competitive participation
Jurisdiction-Specific Ethics Compliance Obligation
ABC Engineering's prior independent peer review of the state transportation project gave it access to confidential nonpublic project information; the BER evaluated whether this privileged access created an impermissible competitive advantage in the subsequent design-build procurement
The BER acknowledged the potential for competitive advantage from privileged review access but did not find it rose to an ethical violation at the national level; the principle requires engineers to be vigilant about the boundary between legitimate professional experience and exploitation of privileged access
the access to confidential, nonpublic information could provide Engineer A with some advantages. However, the BER does not believe Engineer A and ABC Engineering's participation with XYZ Construction in the design-build joint venture raises a conflict of interest.
BER found no national-level ethical violation but flagged state law variability; engineers must proactively assess whether their use of prior review knowledge crosses into impermissible exploitation
Information Asymmetry Established (Event 5) → Accept Design-Build Joint Venture Invitation (Action 3)
Jurisdiction-Specific Compliance Obligation Invoked for State Law Variability
ABC Engineering's obligation to assess state-specific conflict of interest rules before participating in design-build procurement after peer review
The BER's explicit notation that state laws may vary regarding whether ABC Engineering's design-build participation after peer review constitutes a conflict of interest imposes on ABC Engineering an obligation to research and comply with the applicable state law in the jurisdiction where the project is located
The BER's national-level finding of no conflict does not discharge ABC Engineering's obligation to comply with potentially more stringent state law; engineers must proactively identify and comply with the most demanding applicable standard
Engineers must comply with the most stringent applicable standard; where state law is more restrictive than national ethics standards, state law governs
National Society of Professional Engineers
Engineer A is a professional engineer and owner of ABC Engineering
XYZ Construction invites ABC Engineering to participate in a design-build joint venture and submit a proposal
Engineer A (ABC Engineering) in evaluating ethical permissibility of joining XYZ Construction's design-build proposal
Primary normative authority governing Engineer A's ethical obligations regarding conflict of interest arising from peer review participation and subsequent design-build proposal submission
Objectivity Invoked by Engineer A Independent External Peer Review Role
Engineer A's role as lead engineer on the independent external peer review required objective, unbiased technical assessment of the agency's transportation project design, free from any commercial interest in the project's subsequent procurement — the objectivity of the review is called into question if ABC Engineering later seeks to compete for the same project without agency disclosure and approval
Objectivity in the peer review context requires not only that the review itself be conducted without bias, but that the reviewer's subsequent conduct not create a reasonable inference that the review was influenced by commercial self-interest in the project's future procurement
The objectivity obligation is satisfied by conducting the review without commercial bias and by making full disclosure to the agency before accepting any subsequent commercial role in the project
Operate Dual Role as City Engineer and Private Developer Consultant
Operate Dual Role as City Engineer and Private Developer Consultant (Action 4 - BER 94-5 Precedent) → BER Precedent Cases Referenced (Event 6)
Peer Review Confidentiality Agreement - Absence on Transportation Project
Absence of confidentiality agreement on the major state-funded transportation project peer review
Engineer A in assessing constraints on use of peer review knowledge in design-build proposal
The absence of a confidentiality agreement is explicitly noted as a material fact shaping the ethical analysis of whether ABC Engineering may use knowledge gained during peer review in a subsequent competitive proposal
Peer Review Confidentiality Agreement - Current Case
Engineer A (peer reviewer) and the peer-review program organizing body
The contractual confidentiality agreement signed by peer reviewers as a foundational element of organized peer-review programs, requiring non-disclosure of information revealed during the peer review process, and whose scope and limits relative to public safety obligations are at issue in the case
Peer Review Confidentiality Agreement Absent - BER Case Context
When peer review proceeds without a confidentiality agreement in place
Such programs are generally built on a foundation of confidentiality, whereby an individual agreeing to serve as a peer reviewer must sign a 'confidentiality agreement'
Absence of confidentiality agreement in peer review contexts where one is not required or not executed, contrasted with the standard program requirement
Execution of confidentiality agreement or completion of review
Firms being peer reviewed should be encouraged to provide as much pertinent, detailed information to the peer reviewer
Peer review engagement initiated without execution of confidentiality agreement
Peer Review Confidentiality Foundation - Program Level
From program inception through all peer review engagements conducted under it
Peer Review Program Confidentiality Foundation State
Organized peer-review program's foundational confidentiality structure
Program dissolution or policy change removing confidentiality requirement
confidentiality helps build trust between the parties in the peer-review process and promotes an atmosphere that will improve the likelihood that the process will be mutually productive
confidentiality helps to assure that the maximum amount of disclosure will occur
Establishment of peer-review program requiring confidentiality agreements as a condition of reviewer participation
Peer Review Confidentiality Obligation Invoked in BER Case 96-8
Engineer A's peer review of Engineer B's firm under organized peer-review program
Engineer A signed a confidentiality agreement as a condition of serving as peer reviewer for Engineer B's firm, creating a binding obligation not to disclose non-public information obtained during the review process
The confidentiality agreement serves the instrumental purpose of encouraging maximum disclosure by Engineer B's firm; Engineer A is bound by it but the obligation is not absolute when public safety is at stake
Engineer A served as a peer reviewer as part of an organized peer-review program developed to assist engineers in improving their professional practice. When originally selected as a peer reviewer, Engineer A was asked to sign a 'confidentiality agreement,' whereby Engineer A agrees not to disclose confidential information involving peer-reviewed firms.
Confidentiality yields to public safety when safety code violations are discovered; Engineer A must first seek resolution with Engineer B before disclosing to authorities
Engineer A was asked to sign a 'confidentiality agreement,' whereby Engineer A agrees not to disclose confidential information involving peer-reviewed firms.
Peer Review Independence and Integrity Invoked by ABC Engineering Post-Review Commercial Decision
ABC Engineering was retained specifically for its independence as an external peer reviewer; accepting a design-build joint venture invitation for the same project without agency disclosure and approval would retroactively compromise the independence of the prior review by revealing — or creating the appearance — that the review was conducted with an eye toward subsequent commercial participation
The integrity of independent peer review requires not only that the review itself be conducted objectively, but that the reviewer's subsequent conduct not undermine public confidence in the independence of the review — participation in competitive procurement for the reviewed project, without agency approval, creates such an appearance even if the review itself was objectively conducted
The independence and integrity of the peer review function is preserved through disclosure and agency approval, which allows the agency to determine whether subsequent participation is consistent with the review's independence or whether it would retroactively compromise it
Peer Review Program Collegial Improvement Purpose Invoked in Case Discussion
Organized peer-review program in which Engineer A reviewed Engineer B's firm
The case discussion affirms that peer-review programs serve the legitimate purpose of enabling engineers to work together collegially to improve professional practice through constructive analysis and feedback, providing the normative foundation for the confidentiality obligations that support those programs
The collegial improvement purpose of peer review justifies the confidentiality framework; both reviewer and reviewed firm must support this purpose by engaging honestly and constructively
Peer Review Program Integrity and Collegial Improvement Purpose
Peer-review programs have become an important part of the professional practice of engineering. These programs have been immensely successful in creating a mechanism whereby professionals in a collegial atmosphere can work together to better understand and improve professional practice.
The collegial improvement purpose is served by confidentiality but does not override public safety obligations when safety violations are discovered
Firms being peer reviewed should be encouraged to provide as much pertinent, detailed information to the peer reviewer to allow the peer reviewer the opportunity to perform a thorough evaluation of the firm
Peer Review Program Confidentiality Foundation Integrity Constraint
The case discussion emphasizes that peer-review programs are built on a foundation of confidentiality, and that this confidentiality is essential to encouraging maximum disclosure by reviewed firms and building trust between parties.
All peer reviewers participating in organized peer-review programs
Peer reviewers participating in organized engineering peer-review programs are constrained to honor confidentiality commitments as a structural foundation of the program — enabling reviewed firms to provide maximum disclosure, building trust between parties, and promoting mutual productivity — prohibiting peer reviewers from treating confidentiality obligations as optional or subordinate to competitive interests.
NSPE Code of Ethics; BER Case 96-8; organized peer-review program norms
Throughout peer review engagement and thereafter
Firms being peer reviewed should be encouraged to provide as much pertinent, detailed information to the peer reviewer to allow the peer reviewer the opportunity to perform a thorough evaluation of the firm, and confidentiality helps to assure that the maximum amount of disclosure will occur.
confidentiality helps build trust between the parties in the peer-review process and promotes an atmosphere that will improve the likelihood that the process will be mutually productive and ultimately successful.
Post-Peer-Review Procurement Conflict Standard - ABC Engineering Case
NSPE Board of Ethical Review and professional engineering societies
Professional norms governing post-peer-review procurement participation
Post-Peer-Review Procurement Conflict Standard
Engineer A in evaluating the ethical permissibility of the design-build joint venture invitation
Governs whether ABC Engineering may ethically participate in the design-build RFP after having served as independent peer reviewer on the same project
Post-Peer-Review Procurement Conflict Standard - Design-Build Joint Venture
NSPE Board of Ethical Review / professional engineering ethics community
BER in evaluating the conflict of interest question regarding the design-build joint venture
Applied to evaluate whether Engineer A and ABC Engineering's participation with XYZ Construction in a design-build joint venture following the peer review of XYZ's design raises an impermissible conflict of interest due to access to confidential, nonpublic information gained during the peer review
Post-Review Conflict of Interest Avoidance Invoked by ABC Engineering Design-Build Participation Decision
ABC Engineering's decision whether to accept XYZ Construction's design-build joint venture invitation
ABC Engineering, having completed an independent external peer review of the state transportation project design — including access to construction plans and specifications that were incorporated into the RFP — is invited approximately one year later to join a design-build joint venture to compete for the same project, creating a direct conflict between its prior independent reviewer role and its proposed competitive participant role
The principle requires ABC Engineering to assess whether its prior peer review role — which provided access to design details, clarifications, and refinements that were incorporated into the RFP — creates an impermissible competitive advantage or appearance of impropriety that bars or conditions participation in the design-build procurement, and to seek agency approval before proceeding
The conflict avoidance principle requires disclosure and agency approval as a precondition to participation; if the agency determines the prior review creates an impermissible conflict, ABC Engineering must decline the invitation regardless of the commercial opportunity
Post-Review Conflict of Interest Avoidance Invoked for ABC Engineering Design-Build Participation
ABC Engineering's participation in design-build joint venture with XYZ Construction for the state transportation project it previously peer-reviewed
ABC Engineering's participation with XYZ Construction in a design-build joint venture for the same state transportation project it had previously reviewed as an independent peer reviewer raised conflict of interest concerns that the BER evaluated, ultimately finding no conflict at the national ethics level while noting state law variability
The BER found that access to confidential nonpublic information could provide competitive advantages but did not rise to the level of a conflict of interest under national ethics standards; state law may impose stricter requirements
At the national ethics level, the BER found no conflict; however, engineers must consult applicable state law which may impose additional restrictions
Procurement Integrity in Public Engineering Invoked by State Agency Design-Build RFP Process
The state agency's design-build procurement must be conducted through a lawful, competitive, qualification-based selection process; the agency bears an obligation to assess whether ABC Engineering's prior peer review role creates a conflict that compromises the integrity of that process, and to take appropriate action — including potential disqualification or imposition of conditions — to protect the procurement's integrity
Procurement integrity requires not only that the agency follow applicable procurement statutes, but that it proactively manage conflicts of interest created by its own prior contracting decisions — including the decision to retain a firm for peer review that may later seek to compete for the reviewed project
The agency must balance the public interest in competitive procurement with the practical reality that specialized engineering markets may have limited qualified firms — the resolution is disclosure-based management rather than automatic exclusion, but the agency must make an affirmative determination
Public Procurement Fairness Standard - Design-Build RFP Context
NSPE and professional engineering societies
Professional norms governing equitable treatment of bidders in public design-build procurement
the state agency issues an RFP soliciting proposals for design-build services
Engineer A in evaluating the fairness implications of joining the design-build proposal
Governs whether ABC Engineering's participation in the design-build RFP, having gained insider knowledge through the peer review, would compromise the fairness of the competitive procurement process for other bidders
Public Welfare Paramount Invoked in BER Case 96-8 Safety Violation Discovery
Engineer A's obligation to report Engineer B's potential safety code violations despite confidentiality agreement
Engineer A's discovery that Engineer B's work may violate state and local safety codes and endanger public health, safety, and welfare triggered the paramount obligation to protect the public, overriding the contractual confidentiality obligation assumed as peer reviewer
The public welfare obligation is paramount and cannot be contractually waived; when peer review reveals genuine safety risks, the engineer's duty to the public supersedes the duty to maintain confidentiality
Public welfare paramount overrides confidentiality; sequential escalation protocol provides structured path to disclosure while respecting the peer review relationship
Engineer A would be required to inform Engineer B that as a professional engineer, Engineer A's only alternative is to notify and inform the proper authorities as indicated above.
Would it be ethical for Engineer A and his firm, ABC Engineering, to participate in a design-build joint venture and submit a proposal for the major road transportation project?
Does the absence of a formal confidentiality agreement eliminate ABC Engineering's ethical obligation to avoid exploiting insider knowledge gained during the peer review, or does the ethical duty persist independently of any contractual arrangement?
Is a one-year gap between completion of the peer review and submission of a design-build proposal a sufficient cooling-off period to neutralize the competitive advantage ABC Engineering gained from its privileged access to the project's design details?
Should Engineer A have proactively disclosed to the state agency, at the time of accepting the peer review engagement, any foreseeable interest in future procurement opportunities related to the same project, rather than waiting until an RFP was issued?
Does the scope of the peer review — limited to clarifications and refinements that were directly incorporated into the design-build RFP — create a stronger or more durable conflict of interest than a broader, more general review would have, given that ABC Engineering's specific contributions shaped the very procurement documents it now seeks to compete under?
Does the principle of Fairness in Professional Competition — which supports allowing qualified firms to compete for public contracts — conflict with the principle of Independent Review Integrity Non-Exploitation, which holds that knowledge gained in a privileged advisory role must not be leveraged for subsequent competitive advantage?
How should the tension between the Agency Disclosure and Approval Obligation — which conditionally permits participation with agency consent — and the Peer Review Independence and Integrity principle — which may require categorical abstention regardless of agency approval — be resolved when the agency's own procurement interests may bias its approval decision?
Does the Dual Role Appearance of Impropriety Avoidance principle — which guards against the perception of unfair advantage from sequential roles — conflict with the Jurisdiction-Specific Compliance Obligation principle, given that state law may explicitly permit such participation and thereby legally sanction what ethics might otherwise prohibit?
Does the Peer Review Program Collegial Improvement Purpose principle — which frames peer review as a cooperative, trust-based professional activity — conflict with the Post-Review Conflict of Interest Avoidance principle when a firm uses the access afforded by that collegial trust to position itself competitively in a subsequent procurement, even after a cooling-off period?
From a deontological perspective, does ABC Engineering have a categorical duty to refrain from competing in a procurement process it helped shape through its peer review role, regardless of whether a confidentiality agreement was signed or whether the state agency grants approval?
From a consequentialist perspective, does the Board's conditional approval — contingent on state agency consent — adequately protect the long-term integrity of public peer review programs, or does permitting post-review competition create systemic incentives that undermine the independence of future peer reviewers?
From a virtue ethics perspective, does Engineer A's decision to accept the design-build joint venture invitation reflect the professional character of an engineer who genuinely prioritizes public trust and objectivity, or does it reveal a disposition to exploit an advisory role for competitive gain?
From a deontological perspective, does the absence of a confidentiality agreement eliminate ABC Engineering's ethical duty to treat insider knowledge gained during the peer review as privileged, or does the duty of faithful agency to the state client persist independently of any contractual instrument?
If ABC Engineering had proactively disclosed the potential conflict of interest to the state agency at the moment XYZ Construction extended the design-build invitation — rather than relying on the agency to discover and approve it — would the Board's ethical analysis have been more straightforwardly permissive, and would the appearance of impropriety have been substantially reduced?
If the peer review had been broader in scope — encompassing full design development rather than limited clarifications and refinements — would the Board have reached a different conclusion about ABC Engineering's eligibility to compete in the subsequent design-build procurement?
If the RFP had been issued immediately after the peer review was completed — rather than one year later — would the one-year cooling-off period analysis have been dispositive, and would the Board have concluded that participation was unethical absent a longer interval?
If a competing firm had formally challenged ABC Engineering's participation in the design-build RFP on the grounds of unfair informational advantage, would the state agency's approval of ABC Engineering's participation have been sufficient to resolve the ethical and legal conflict, or would additional remedial measures — such as information firewalls or recusal of Engineer A from proposal development — have been required?
State Agency Competitive Procurement Fairness Constraint Design-Build RFP
The state agency issued a design-build RFP for the same major road transportation project on which ABC Engineering had previously served as independent peer reviewer, creating a potential competitive fairness issue for other firms that did not have access to the non-public project information.
Competitive Procurement Fairness Constraint
The state agency was constrained to ensure that the design-build procurement process was conducted with integrity — including evaluating whether ABC Engineering's prior peer review role and access to non-public project information created an unfair competitive advantage that would compromise the equal opportunity of all qualified firms to compete for the design-build contract.
NSPE Code of Ethics; public procurement fairness standards; applicable state procurement laws
State Agency Procurement Fairness Obligation Regarding ABC Engineering Design-Build Participation
The state agency issued the design-build RFP for the same project on which ABC Engineering served as peer reviewer. The agency must assess whether ABC Engineering's participation would compromise procurement fairness by giving it access to non-public design information not available to other competing teams.
The state agency is constrained to evaluate whether ABC Engineering's prior peer review role creates an informational asymmetry that compromises the fairness of the design-build procurement, and must take appropriate action — including potential disqualification or imposition of additional disclosure requirements — to ensure all competing design-build teams have equal opportunity to compete on the merits.
Public Procurement Law; NSPE Code of Ethics; BER Case 18-10
From issuance of the design-build RFP through contract award
State Agency Procurement Integrity Preservation in Design-Build RFP
The state agency issued an open RFP for design-build services for the same project on which ABC Engineering served as independent external peer reviewer. The agency's procurement integrity obligations require it to address the potential conflict created by a prior reviewer's participation in the competitive procurement.
Competitive Procurement Fairness Obligation
The state agency is obligated to ensure that the design-build procurement process is conducted with integrity — including evaluating whether ABC Engineering's prior peer review role creates an unfair informational advantage that would compromise the fairness of the competitive procurement — and to establish clear rules or guidance regarding the eligibility of prior peer reviewers to compete in subsequent design-build procurements for the same project.
At the time of issuing the design-build RFP and throughout the proposal evaluation process
{'entity_type': 'State Government Agency', 'project_type': 'Major State-Funded Transportation Project'}
The state agency retains ABC Engineering for an independent external peer review of its major transportation project design, then approximately one year later issues a design-build RFP for the same project, creating the procurement context in which ABC Engineering's prior reviewer role generates a conflict-of-interest concern.
{'type': 'client_of', 'target': 'ABC Engineering External Peer Review Lead Engineer'}
{'type': 'procurement_authority', 'target': 'ABC Engineering Design-Build Joint Venture Engineer'}
State Transportation Agency Peer Review Client
State Agency Transportation Project Procurement Fairness Assessment
Competitive Procurement Fairness Assessment Capability
The state agency must assess whether ABC Engineering's participation in the design-build RFP — given its prior peer review role and privileged access to construction plans and specifications — would compromise the fairness and integrity of the design-build procurement process.
The state agency issued a design-build RFP approximately one year after ABC Engineering completed a peer review of the same project's construction plans and specifications, which were incorporated into the RFP.
Evaluation of whether ABC Engineering's prior peer review access to construction plans, specifications, clarifications, and refinements incorporated into the RFP creates an unfair competitive advantage over other design-build competitors.
The state agency is obligated to ensure that the design-build procurement process is conducted with integrity — including evaluating whether ABC Engineering's participation creates an unfair competitive advantage.
State Agency Transportation Project Procurement Integrity Preservation
The state agency was required to possess the capability to evaluate whether ABC Engineering's prior peer review role created a conflict of interest that would compromise the integrity of the design-build procurement, and to ensure that the procurement process provided fair and open competitive opportunity to all qualified firms.
The state agency retained ABC Engineering for an independent external peer review and subsequently issued a design-build RFP for the same project, creating procurement integrity considerations regarding ABC Engineering's participation.
The state agency's role as commissioning party for both the peer review and the design-build RFP required it to assess whether ABC Engineering's participation in the subsequent procurement was consistent with procurement integrity obligations.
XYZ Construction Design-Build Inviting Contractor
{'firm_type': 'Construction contractor', 'joint_venture_role': 'Inviting party in design-build joint venture'}
XYZ Construction invited ABC Engineering — a firm that previously conducted an independent external peer review — to join a design-build joint venture, leveraging the engineering firm's prior project familiarity while generating ethical obligations for ABC Engineering regarding conflict-of-interest disclosure and agency approval.
{'type': 'joint_venture_with', 'target': 'ABC Engineering Design-Build Joint Venture Participant'}
Design-Build Joint Venture Inviting Contractor
ABC Engineering's participation with XYZ Construction in the design-build joint venture
{'entity_type': 'Construction Contractor', 'procurement_role': 'Design-Build Joint Venture Lead'}
XYZ Construction invites ABC Engineering to participate in a design-build joint venture and submit a proposal for the major road transportation project for which ABC Engineering previously served as independent external peer reviewer, triggering the conflict-of-interest analysis.
{'type': 'joint_venture_inviter', 'target': 'ABC Engineering Design-Build Joint Venture Engineer'}
confidentiality agreement signing (BER 96-8) before peer-review visit to Engineer B's firm (BER 96-8)
peer-review visit to Engineer B's firm (BER 96-8) before discovery of potential safety violations (BER 96-8)
peer review scope (clarifications and refinements) before incorporation into RFP
state agency RFP issuance before XYZ Construction invitation to ABC Engineering