in BER Case 93-4, Engineer A was retained by an Owner to provide both design and construction-phase services
While the facts in the present case are somewhat different, it is this Board's view that the basic principles in BER Case 93-4 are the same
the NSPE Board of Ethical Review concluded that it would have been unethical for Engineer A to have found in the Owner's favor
NSPE Board of Ethical Review in analyzing Engineer A's constructability consultation conduct
Cited as precedent establishing that an engineer acting impartially as initial interpreter of contract documents fulfills rather than violates the duty of loyalty to the owner, and that the faithful agent/trustee obligation is consistent with objective, neutral dispute resolution in construction contract administration
BER Case 93-4 precedent before present case analysis
Project moves from standard design engagement to one with active procurement integrity risk; Engineer A's consultation choices are no longer purely technical but carry legal and ethical implications for the fairness of future bidding.
Throughout design phase, once Contractor B identified as likely bidder
By virtue of Contractor B's prospective bidder status and Engineer A's access to design information, a structural risk to competitive bidding integrity exists regardless of whether consultation occurs, requiring active management.
CausalLink_Choose Impartiality Over Owner
CausalLink_Conduct Public Constructabilit
CausalLink_Consider Consulting Contractor
Design and Construction-Phase Engineer, BER Case 93-4
Owner dissatisfaction and criticism of Engineer A for not finding in Owner's favor
Potential strain on the Engineer-Owner relationship
Risk of Owner perceiving Engineer A as disloyal
Duty to act as faithful agent and trustee to the Owner (correctly interpreted as requiring honest service, not blind advocacy)
Duty to act as impartial interpreter of contract documents per contractual role
Obligation to avoid collusion or the appearance of collusion against the Contractor
Obligation to hold public welfare paramount by ensuring fair contract administration
Obligation to provide candid and objective professional judgment
Avoidance of misrepresentation or distortion of facts
Faithful agency defined as honest service rather than partisan advocacy
Objectivity and impartiality in professional judgment
Provide an honest, objective interpretation of contract documents and render a fair judgment on the acceptability of the Contractor's work, consistent with the contractual role of initial interpreter
Post-construction commencement, during dispute resolution phase (BER Case 93-4 precedent)
No ethical obligations violated; the Board determined Engineer A acted ethically
In BER Case 93-4, Engineer A deliberately chooses to remain impartial when adjudicating a construction dispute between the Owner and Contractor, rendering an objective judgment in favor of the Contractor despite the Owner's expectation of loyalty-based support.
It is unethical (and perhaps illegal) for Engineer A to privately discuss constructability issues with Contractor B or any contractor who may bid on the water treatment facility construction contract following the design phase.
Beyond the Board's finding that private constructability consultation with Contractor B is unethical, the prior working relationship between Engineer A and Contractor B independently compounds the ethical violation by creating an appearance of favoritism that exists regardless of whether any competitively sensitive information is actually exchanged. Even a conversation limited to purely technical constructability matters would be tainted by this prior relationship, because other prospective bidders and the municipality itself could reasonably perceive that Engineer A's selection of Contractor B as a consultation partner was influenced by personal familiarity rather than objective professional judgment. The ethical prohibition therefore operates on two distinct levels: the structural unfairness of selective pre-bid information access, and the relational conflict of interest arising from the prior working history. Engineer A's obligation under the faithful agent standard required disclosure of this prior relationship to the municipality before any consultation was even contemplated, not merely avoidance of the consultation itself.
The Board's conclusion that the private consultation is unethical does not resolve the affirmative question of what Engineer A is obligated to do when genuine constructability input would benefit the public project. The ethical framework does not simply prohibit the improper channel; it simultaneously imposes a positive obligation to pursue constructability input through a publicly advertised, formally structured meeting open to all prospective bidders. This formal channel obligation is not merely a procedural nicety but a substantive ethical requirement that reconciles the competing principles of design quality through constructability input and equal competitive access. By convening a public constructability meeting, Engineer A can fulfill the duty to deliver a high-quality, constructable design for the municipality while preserving procurement integrity and ensuring that any informational advantage derived from constructability discussions is distributed equally among all prospective bidders. Failure to pursue this formal alternative, when it is available, would itself constitute a breach of Engineer A's faithful agent obligation to the municipality, because it would mean forgoing a legitimate mechanism for improving design quality without justification.
The Board's conclusion that the private consultation is unethical applies with equal or greater force even in the counterfactual scenario where Contractor B is the only local contractor possessing the specialized expertise needed to provide meaningful constructability input. The scarcity of qualified expertise does not dissolve the ethical prohibition; rather, it shifts Engineer A's obligation toward escalating the matter to the municipality for a formal decision about how to proceed. The municipality, as the client and the entity responsible for the public procurement, is the appropriate decision-maker when a genuine tension exists between design quality and competitive fairness. Engineer A acting unilaterally to resolve that tension by selecting a private consultation with a prospective bidder — even one uniquely qualified — substitutes Engineer A's individual judgment for the client's institutional authority over procurement integrity. If the municipality, after full disclosure, were to authorize a formal paid engagement of Contractor B as a constructability consultant under conditions that disqualify Contractor B from bidding, that arrangement would represent a structurally sounder resolution than informal private consultation, though it would raise its own questions about market fairness and the adequacy of the disqualification mechanism.
Engineering Firm X bears an independent institutional ethical obligation that the Board's conclusion, focused on Engineer A's individual conduct, does not fully address. Because Engineer A is acting within the scope of Firm X's engagement with the municipality, Firm X's failure to establish and enforce internal protocols prohibiting selective pre-bid contractor consultations on public procurement projects exposes the firm to both ethical and legal liability. The faithful agent obligation runs not only from Engineer A to the municipality but also from Firm X as the retained entity. A firm-level protocol requiring that all constructability consultations on public projects be conducted through formally advertised, documented processes would serve as a structural safeguard against the kind of individual-level ethical lapse that Engineer A's contemplated consultation represents. The absence of such protocols means that Firm X is relying entirely on individual engineer judgment to navigate a conflict-of-interest scenario that is predictable and recurring in public infrastructure design practice, which is itself an institutional ethical failure independent of Engineer A's specific conduct.
The deontological and virtue ethics frameworks converge on a conclusion that the Board's analysis implies but does not articulate: Engineer A's subjective good faith belief that the consultation would benefit the project is ethically irrelevant to the question of whether the consultation is permissible, but it is not irrelevant to the question of what Engineer A should do upon recognizing the conflict. A virtuous engineer who genuinely believes constructability input would serve the public interest is obligated to channel that belief into legitimate institutional action — specifically, advocating to the municipality for a formal constructability review process — rather than either proceeding with the improper private consultation or simply abandoning the constructability objective. The principle that good intent does not cure procedural impropriety means that Engineer A cannot justify the private consultation by reference to design quality benefits, but it does not mean that Engineer A's concern for design quality is itself misplaced. The ethical resolution requires Engineer A to preserve the legitimate professional objective while abandoning the illegitimate means of pursuing it.
In response to Q101: Engineer A bears an affirmative disclosure obligation that arises before any constructability consultation occurs, not after. The prior working relationship with Contractor B is a material fact that could reasonably affect the municipality's judgment about whether to authorize any consultation and with whom. Under the faithful agent obligation, Engineer A must surface this relationship at the earliest point of contemplating the consultation — ideally when the project assignment is made and certainly before any contact with Contractor B is initiated. Delayed disclosure, such as informing the municipality only after a consultation has already taken place, would compound the ethical violation by depriving the client of the opportunity to make an informed decision about procurement integrity. The disclosure obligation is not merely procedural; it is substantive, because the municipality's ability to protect the fairness of its own bidding process depends on timely and complete information from its design engineer.
In response to Q102: Engineer A's genuine belief that the project would benefit from constructability input does not create a unilateral license to seek that input through informal bilateral channels, but it does create a professional duty to pursue that input through legitimate means. The ethical obligation to serve the public welfare and deliver a quality design is real and non-trivial; it is not extinguished simply because the municipality has not explicitly authorized a constructability meeting. Rather, Engineer A's obligation is to proactively recommend to the municipality that a publicly advertised constructability meeting be convened, explain the design benefits of such input, and allow the client to authorize the process. The duty to serve public welfare is thus channeled through — not around — the faithful agent relationship. Engineer A cannot treat the absence of explicit authorization as permission to proceed informally, nor as an excuse to forgo constructability input entirely. The affirmative step is to request authorization for a formal process.
In response to Q103: A written agreement by Contractor B to forgo bidding on the construction contract would remove the most direct competitive harm — the informational advantage in the bidding process — but it would not fully resolve the ethical concerns. First, such an arrangement raises its own market fairness problem: it effectively excludes a qualified local contractor from a public procurement, potentially narrowing competition and harming the municipality's interest in obtaining the best price. Second, the enforceability and sincerity of such a commitment cannot be guaranteed, and Engineer A would bear responsibility if the commitment were later abandoned. Third, even with a no-bid agreement, the appearance of a private arrangement between the design engineer and a favored contractor on a public project remains ethically problematic and could undermine public confidence in the procurement process. The more defensible path remains the formal constructability meeting, which preserves both design quality and competitive integrity without requiring any contractor to sacrifice its right to bid.
In response to Q104: Engineering Firm X bears an independent institutional obligation to establish and enforce internal protocols that prevent individual engineers from engaging in selective pre-bid contractor consultations on public procurement projects. The ethical exposure is not limited to Engineer A as an individual; Firm X, as the entity retained by the municipality, is itself a faithful agent and trustee of the client's interests. If Firm X lacks internal controls — such as conflict-of-interest screening, pre-bid communication policies, or supervisory review of design-phase contractor contacts — and Engineer A proceeds with an informal consultation, Firm X faces both ethical exposure for enabling the violation and potential legal liability for compromising the integrity of a public procurement. The firm's institutional obligation includes training engineers to recognize these conflicts, creating escalation pathways for engineers who identify potential violations, and ensuring that client relationships on public projects are managed with procurement-grade oversight, not merely individual professional judgment.
In response to Q201: The tension between Design Quality Through Constructability Input and Equal Competitive Access is genuine but resolvable without sacrificing either value. The error in framing this as a binary conflict is the assumption that constructability input can only be obtained from a single contractor in a private setting. A publicly advertised constructability meeting allows Engineer A to obtain the design-quality benefits of contractor expertise while simultaneously preserving equal competitive access for all prospective bidders. The resolution therefore does not require Engineer A to choose between a better design and a fair procurement; it requires Engineer A to choose the process that achieves both. Where Engineer A cannot obtain meaningful constructability input through any open process — a narrow circumstance addressed separately in Q401 — the principle of Equal Competitive Access should prevail, because the harm of compromising public procurement integrity is systemic and affects all future projects, while the design quality benefit is project-specific and may be achievable through other means such as enhanced internal review or peer consultation with non-bidding firms.
In response to Q202: The apparent conflict between the Faithful Agent Obligation to the municipality and Fairness in Professional Competition dissolves upon closer analysis, because the municipality's genuine interest — properly understood — encompasses both a high-quality design and a fair competitive procurement. Engineer A's faithful agent duty is not simply to maximize technical design quality in isolation; it is to serve the municipality's full range of interests, which include obtaining the best value through competitive bidding, maintaining public trust in the procurement process, and avoiding legal exposure from compromised bid integrity. Consulting the most experienced local contractor privately would serve one narrow dimension of the client's interest while undermining others. A faithful agent who genuinely serves the client's complete interest will therefore pursue constructability input through channels that protect procurement integrity, even if that means forgoing the convenience or depth of a private consultation with the most experienced available contractor.
In response to Q203: The tension between Good Intent Does Not Cure Procedural Impropriety and Public Welfare Paramount is real, but the Board's conclusion correctly resolves it in favor of procedural integrity. The public welfare is not served exclusively — or even primarily — by the technical quality of a single project's design. It is also served by the systemic integrity of public procurement processes, which depend on all bidders having equal access to project information. An engineer who informally consults a favored contractor in good faith, believing the public will benefit from a superior design, is making a unilateral substitution of personal judgment for the procedural safeguards that exist precisely because individual good intentions are insufficient guarantees of fair outcomes. Moreover, the public welfare argument proves too much: if good intent and beneficial outcomes justified procedural shortcuts, virtually any pre-bid information sharing could be rationalized. The principle that good intent does not cure procedural impropriety is therefore not in fundamental conflict with public welfare; it is itself an expression of what public welfare requires at the systemic level.
In response to Q204: BER Case 93-4 provides a coherent but imperfect analogy for the present constructability consultation case. In BER 93-4, Engineer A faced a tension between loyalty to the Owner-client and the contractually designated obligation of impartiality as a dispute interpreter. The resolution — that Engineer A must fulfill the impartiality role faithfully because that is itself what loyal, role-faithful performance requires — maps onto the present case in the following way: Engineer A's loyalty to the municipality is best expressed not by maximizing design quality through any available means, but by performing the design role in a manner that protects the municipality's procurement integrity. Just as the engineer in BER 93-4 could not subordinate contractual impartiality to client preference, Engineer A in the present case cannot subordinate procurement fairness to design optimization preferences. The analogy is imperfect because BER 93-4 involved an explicit contractual impartiality obligation, whereas the present case involves an implicit procurement integrity obligation derived from the faithful agent standard. Nevertheless, the underlying principle — that role-faithful performance is itself the highest expression of client loyalty — applies with equal force in both contexts.
In response to Q301: From a deontological perspective, Engineer A's duty as a faithful agent to the municipality does create a near-absolute prohibition against private constructability consultations with prospective bidders, but the prohibition is grounded in the categorical nature of the duty rather than in a simple rule against all contractor contact. The Kantian formulation is instructive: if Engineer A were to universalize the maxim 'design engineers may privately consult preferred contractors during the design phase of public projects when they believe it will improve design quality,' the result would be a systematic erosion of competitive procurement integrity that would undermine the very public procurement system on which fair infrastructure development depends. The prohibition is therefore not merely a contingent rule that yields to sufficiently good consequences; it reflects a categorical duty to treat all prospective bidders as ends in themselves — as participants entitled to equal access — rather than as means to be selectively engaged when convenient. Engineer A's intent and the potential design benefits are deontologically irrelevant to the question of whether the duty is violated.
In response to Q302: From a consequentialist standpoint, the potential design quality improvement from a private constructability consultation with Contractor B is unlikely to outweigh the systemic harms of undermining competitive procurement fairness, even when analyzed purely on outcomes. The consequentialist calculus must account for: (1) the direct harm to other prospective bidders who are disadvantaged by the information asymmetry; (2) the harm to the municipality from potentially higher bid prices if competition is effectively reduced; (3) the systemic harm to public trust in engineering professionals and procurement processes if such consultations become normalized; (4) the legal and reputational harm to Engineering Firm X and the municipality if the consultation is later discovered; and (5) the availability of a formal constructability meeting as an alternative that captures most of the design quality benefit without the competitive harm. Against these harms, the marginal design quality benefit of a private versus public constructability consultation is modest. A rigorous consequentialist analysis therefore supports the Board's conclusion, not because consequences are irrelevant, but because the full range of consequences — including systemic and long-term effects — weighs against the private consultation.
In response to Q303: From a virtue ethics perspective, Engineer A's prior working relationship with Contractor B does compromise the professional integrity and impartiality that a virtuous engineer should embody, independent of Engineer A's subjective belief about the consultation's benefits. Virtue ethics asks not merely whether an action produces good outcomes or follows correct rules, but whether it reflects the character of a person of practical wisdom and professional integrity. A virtuous engineer in Engineer A's position would recognize that the prior relationship creates not only an appearance of favoritism but a genuine risk of unconscious bias — that Engineer A may overestimate Contractor B's constructability insights, underweight the concerns of other prospective bidders, or rationalize the consultation more readily than would be warranted with an unfamiliar contractor. The virtue of impartiality requires Engineer A to be especially cautious precisely because the prior relationship makes partiality more likely and less visible. A person of practical wisdom would therefore choose the formal channel not merely because rules require it, but because doing so reflects the kind of engineer — fair, transparent, and genuinely client-centered — that professional virtue demands.
In response to Q304: From a deontological perspective, Engineer A's duty to avoid even the appearance of impropriety is indeed independent of and potentially stronger than the duty to optimize design quality, and the formal channel requirement for constructability input is non-negotiable in the context of public procurement. The appearance of impropriety duty operates at a different level than the design quality duty: it protects not only the specific client relationship but the broader institutional legitimacy of the engineering profession and public procurement systems. An engineer who compromises the appearance of impartiality — even while acting with genuine good intent — damages the profession's credibility as a trustworthy intermediary in public projects. This reputational and institutional harm cannot be offset by project-specific design improvements. The formal channel requirement is therefore not merely a procedural preference that yields to compelling circumstances; it is a categorical expression of the engineer's duty to maintain the integrity of the professional role itself, which is a precondition for the profession's ability to serve the public at all.
In response to Q401: The ethical analysis would shift meaningfully but not completely if Contractor B were the only local contractor with the specialized expertise needed to provide meaningful constructability input, making a publicly advertised meeting practically ineffective. In this narrow circumstance, the formal channel alternative loses much of its ethical force as a remedy, because it would be a procedural gesture that fails to achieve the substantive goal of equal access. However, this does not automatically justify a private consultation with Contractor B. Instead, Engineer A's obligation would shift toward: (1) disclosing the situation fully to the municipality and seeking explicit client authorization; (2) exploring whether non-local contractors or specialty consultants could provide equivalent constructability input without bidding conflicts; (3) considering whether Contractor B could be engaged as a paid constructability consultant under a formal arrangement that disqualifies Contractor B from bidding; and (4) documenting all communications transparently. The ethical prohibition against private selective consultation is relaxed only to the extent that the formal channel alternative is genuinely unavailable, and even then, the municipality — not Engineer A unilaterally — must authorize the departure from standard procurement practice.
In response to Q402: If Engineer A had proactively disclosed the prior working relationship with Contractor B to the municipality before any consultation occurred, and the municipality had explicitly authorized a private constructability discussion, the ethical prohibition would be substantially — though not entirely — reduced. Client authorization following full disclosure is a meaningful ethical distinction: it transfers the decision-making authority to the party whose procurement interests are at stake, allows the municipality to weigh the tradeoffs with full information, and eliminates the element of concealment that makes unilateral informal consultations particularly problematic. However, residual ethical concerns would remain. The municipality's authorization does not bind other prospective bidders, who retain an independent interest in equal access to project information. If the authorized private consultation results in Contractor B gaining a material informational advantage, the fairness concern does not disappear simply because the client consented. Engineer A and the municipality would therefore need to consider whether the substance of the constructability discussion should be documented and made available to all prospective bidders, effectively converting the private consultation into a disclosed and equalized information event.
In response to Q403: Hiring Contractor B as a paid constructability consultant under a formal subcontract arrangement would represent a significant ethical improvement over an informal private consultation, but it introduces a distinct set of concerns that require careful analysis. On the positive side, a formal subcontract creates a documented professional relationship, establishes clear scope and compensation, and — if structured to include a bidding disqualification clause — removes the competitive advantage problem by preventing Contractor B from using the consultancy relationship to gain an edge in the construction bid. On the negative side, the arrangement may effectively exclude a qualified contractor from a public procurement, which itself raises fairness and market competition concerns. Additionally, the municipality would need to authorize the subcontract, and the selection of Contractor B as the constructability consultant — rather than through a competitive process — could itself be questioned if the prior relationship between Engineer A and Contractor B influenced the selection. The formal subcontract path is therefore ethically superior to informal consultation but is not automatically permissible; it requires client authorization, transparent contractor selection, and a clear disqualification mechanism to be fully defensible.
In response to Q404: If the constructability consultation with Contractor B had already occurred informally before Engineer A recognized the ethical conflict, Engineer A's obligation would shift toward immediate retroactive disclosure to the municipality, and the municipality would then bear primary responsibility for determining whether and how to restore procurement integrity. Retroactive disclosure is ethically mandatory — concealing a completed violation compounds the original wrong and violates the faithful agent obligation independently. However, disclosure alone is unlikely to be sufficient to fully restore procurement integrity. The municipality would need to assess whether the information shared with Contractor B was material to the bidding process, and if so, consider remedial measures such as: (1) providing all prospective bidders with a written summary of the constructability information discussed; (2) extending the bid period to allow other bidders to incorporate the information; or (3) in severe cases, restarting the procurement process. Engineer A and Firm X would also need to evaluate whether the violation triggers reporting obligations under applicable procurement law. The ethical lesson is that retroactive disclosure, while necessary, is a remedy of last resort that cannot fully substitute for the procedural integrity that should have been maintained from the outset.
The tension between Design Quality Through Constructability Input and Equal Competitive Access in Design-Phase Consultation is resolved not by subordinating design quality to procedural fairness in the abstract, but by recognizing that the formal channel mechanism — a publicly advertised constructability meeting — satisfies both principles simultaneously. The Board's conclusion does not treat these principles as genuinely irreconcilable; rather, it treats the informal bilateral consultation as an unnecessary choice between them. Because a formal mechanism exists that can yield constructability input without conferring selective advantage, Engineer A's preference for a private consultation with Contractor B cannot be justified by appeal to design quality. The existence of the formal channel collapses the apparent tension: an engineer who bypasses it in favor of a private consultation is not trading one legitimate value for another, but is instead sacrificing procurement integrity for convenience. This case therefore teaches that principle tensions in professional ethics are sometimes dissolved rather than resolved — the availability of a procedurally sound alternative eliminates the need to rank competing principles against each other.
The principle that Good Intent Does Not Cure Procedural Impropriety operates in this case as a lexically superior constraint over the principle of Public Welfare Paramount when the public welfare argument is used to justify a procedurally defective process rather than a substantively better outcome. Engineer A's genuine belief that the design would benefit from Contractor B's input is ethically relevant as a motivational fact but is legally and professionally insufficient to legitimize the consultation. This prioritization reflects a deeper structural insight: in public procurement contexts, the integrity of the process is itself a component of public welfare, not merely a constraint upon it. A municipality and its taxpayers have a direct interest in competitive bidding fairness that is independent of, and not automatically overridden by, the interest in optimal design quality. Accordingly, the Faithful Agent Obligation to the municipality encompasses both the duty to deliver a quality design and the duty to preserve the procurement process through which the construction contract will be awarded. Engineer A cannot invoke one dimension of the faithful agent role — design quality — to undermine the other dimension — procurement integrity — and claim to be acting in the client's interest. The case teaches that public welfare arguments must be evaluated against the full scope of client and public interests, not merely the technical design dimension.
The analogous structure of BER Case 93-4 illuminates how the NSPE framework resolves apparent conflicts between client loyalty and role-specific impartiality obligations by treating role-faithful performance as the highest expression of loyalty rather than its negation. In BER 93-4, Engineer A's contractual designation as an impartial dispute interpreter required objective findings even when those findings might disadvantage the owner-client; the Board resolved this by concluding that honoring the impartiality role was itself the most loyal act an engineer could perform, because the owner had contractually bargained for that impartiality. Transposed to the present constructability consultation case, the same logic applies: the municipality retained Engineering Firm X under an implicit expectation that the design process would be conducted in a manner consistent with public procurement law and competitive bidding fairness. Engineer A's most loyal act toward the municipality is therefore to protect the integrity of the bidding process, even if that means forgoing a potentially beneficial private consultation with Contractor B. Both cases thus demonstrate that the Faithful Agent Obligation and role-specific impartiality or procedural constraints are not in genuine tension — the faithful agent role, properly understood, incorporates those constraints as constitutive elements rather than external limitations. This synthesis teaches that Client Loyalty and Fairness in Professional Competition are reconciled not by balancing them against each other but by recognizing that a faithful agent serves the client's full legal and institutional interests, which include the client's interest in a defensible, fair procurement process.
Broader competitive information sharing among all potential bidders
Greater resource investment and logistical effort compared to consulting a single contractor
Potentially less targeted or specialized input compared to one-on-one consultation with a known contractor
Duty as faithful agent and trustee to the municipal client
Duty to improve design quality and serve the public welfare
Obligation to act in the client's best interest by protecting procurement integrity
Obligation to avoid conflicts of interest and appearances of favoritism
Obligation to preserve the integrity of the public competitive bidding process
Act as faithful agent and trustee for the client
Avoid conflicts of interest and appearances of impropriety
Hold public safety, health, and welfare paramount
Objectivity and impartiality in professional practice
Transparency and fairness in public procurement processes
Obtain constructability input from multiple contractors to improve design and construction outcomes, while avoiding any appearance of favoritism and maintaining the fairness and integrity of the upcoming public bidding process
Communication and stakeholder engagement skills
Design facilitation and constructability analysis
Knowledge of public procurement procedures and ethical requirements
Public meeting organization and management
Synthesis of multiple contractor inputs into design improvements
During design phase, as recommended future action
No ethical obligations violated; this action is the recommended ethical resolution
Rather than consulting solely with Contractor B, Engineer A is recommended to conduct a publicly advertised constructability meeting open to all interested contractors, thereby obtaining broad contractor input to improve design outcomes while preserving the integrity of the public bidding process.
Conduct Public Constructability Meeting → Design Outcome Improved
As a result of conducting the public constructability meeting, the water treatment facility design benefits from broad contractor input while preserving competitive bidding integrity, producing a superior design outcome
A private consultation with only Contractor B might have produced some design improvement but would have been narrower in scope and ethically compromised; no consultation at all would likely have produced an inferior, less constructable design
Decision to conduct a publicly advertised meeting rather than private consultation
Engineer A's capacity to synthesize and incorporate contractor feedback into design
Participation of multiple contractors with diverse constructability expertise
Sufficient time in the design phase to act on constructability input
Engineer A (primary); participating contractors (secondary, contributory)
Public meeting format + diverse contractor participation + Engineer A's design authority + adequate design timeline = sufficient to produce improved design outcome
Professional engineering ethics frameworks
Conflict of Interest Disclosure Standard
Conflict of Interest Disclosure Standard in Recommendation Contexts
a local contractor, Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract
Engineer A in assessing whether the prior relationship with Contractor B creates a conflict requiring disclosure or recusal
Implicated by Engineer A's prior working relationship with Contractor B, which may create a conflict of interest or appearance of favoritism when Engineer A considers sharing project information with Contractor B who may bid on the construction contract
Ethical risk state changes from latent to recognized; Engineer A is now on notice and cannot proceed with sole-source consultation without ethical justification; the scenario shifts from routine design work to an ethics decision point.
During design phase, concurrent with consideration of consulting Contractor B
Engineer A recognizes that consulting Contractor B during design could compromise Contractor B's future bidding impartiality, as Contractor B may later compete for the construction contract.
Conflict Potential Recognized → Bidding Integrity Risk Created
By virtue of Contractor B's prospective bidder status and Engineer A's access to design information, the structural conditions for a bidding integrity violation are established the moment Engineer A contemplates sharing design-sensitive constructability questions with Contractor B
If Contractor B were not a prospective bidder, or if all consultation were conducted publicly, the bidding integrity risk would not materialize even if constructability discussions occurred
Contractor B's status as a prospective competitive bidder
Engineer A's deliberation about a private consultation with Contractor B
Engineer A's possession of non-public design information
The absence of a publicly advertised, open consultation process
Engineer A (primary); Engineering Firm X (secondary)
Prospective bidder status + access to privileged design information + private consultation context = sufficient to create material bidding integrity risk
Possible compromise of the municipality's interest in a fair and open bidding process
Potential appearance of favoritism toward Contractor B
Providing Contractor B with an unfair competitive advantage in the upcoming public bidding process
Proactive concern for design quality and public welfare
Self-awareness of potential ethical conflict before acting
Maintain objectivity and impartiality in professional dealings
Improve design documents and overall project outcomes through targeted contractor constructability input
Duty as faithful agent and trustee to the municipal client (if exclusive consultation proceeded)
Obligation to avoid actions that give unfair advantage to one party
Obligation to protect the integrity of the public bidding process
Ethical reasoning and conflict-of-interest identification
During design phase, before any consultation occurs
Engineer A deliberates whether to consult Contractor B about constructability issues during the design phase, recognizing the potential benefit to design quality but also the risk of conferring an unfair bidding advantage.
Constructability Review and Contractor Consultation Ethics Standard
Constructability Review and Contractor Consultation Standard
Engineer A would like to also discuss constructability issues with a local contractor, Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract following the design phase
Engineer A is concerned that by discussing technical and other aspects of the project with the contractor, Engineer A may be providing the contractor with an unfair advantage during the public bidding process
Engineer A in evaluating whether and how to engage Contractor B during the design phase
Governs the ethical constraints on Engineer A's proposed consultation with Contractor B, specifically addressing the tension between the professional benefit of constructability input and the obligation to avoid conferring unfair competitive advantage on a prospective bidder in a public procurement
Engineer A believes that the design documents and the overall project would benefit from discussions with Contractor B
Engineer A in justifying the potential benefit of consulting Contractor B
Provides professional norms governing the use of constructability reviews during the design phase; Engineer A believes discussions with Contractor B would benefit the design documents and overall project, invoking the recognized professional value of constructability input
Contractor B Prospective Bidder Constructability Consultant
{'type': 'Construction contractor', 'prior_relationship': 'Has worked with Engineer A previously', 'bidding_status': 'Potential future bidder on construction contract'}
A local contractor with a prior working relationship with Engineer A who is sought for informal constructability consultation during the design phase and who may subsequently bid on the construction contract, creating procurement fairness concerns.
{'type': 'prior_collaborator_with', 'target': 'Engineer A'}
{'type': 'prospective_bidder_for', 'target': 'Municipality'}
Prospective Bidder Constructability Consultant
a local contractor, Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract following the design phase
Engineer A would like to also discuss constructability issues with a local contractor, Contractor B
Contractor B Prospective Bidder Constructability Consultant Present Case
{'entity_type': 'Construction contractor', 'status': 'Prospective bidder and informal constructability consultant'}
A contractor with whom Engineer A had a prior working relationship, informally consulted by Engineer A on constructability issues during the design phase of the public water treatment facility project, while simultaneously being a potential bidder on the construction contract, generating procurement fairness concerns.
{'type': 'informally_consulted_by', 'target': 'Engineer A Water Treatment Facility Design Engineer Present Case'}
{'type': 'potential_bidder_on', 'target': 'Municipal Client water treatment facility project'}
Rather than consulting solely with Contractor B, Engineer A could have conducted a publically advertised constructability meeting
Should Engineer A consult informally and bilaterally with Contractor B on constructability issues, or should Engineer A obtain constructability input exclusively through a formal, publicly advertised process open to all prospective bidders?
Engineer A is designing a public water treatment facility and recognizes that constructability input from an experienced contractor would improve the design documents. Engineer A has a prior working relationship with Contractor B, who possesses relevant expertise and may bid on the subsequent construction contract. Engineer A must decide how — and through what channel — to obtain constructability input during the design phase.
Formally advertise and convene a publicly open constructability meeting — or issue formal addenda incorporating constructability information — so that all prospective bidders, including Contractor B, receive equal access to the same technical information, simultaneously fulfilling the faithful agent duty to improve design quality and the competitive procurement fairness obligation.
Privately contact Contractor B based on the prior working relationship and informally discuss constructability issues during the design phase, relying on good intent and the belief that the design will benefit, without disclosing the consultation to other prospective bidders or the municipality.
Decline to seek any contractor constructability input during the design phase in order to avoid any risk of procurement impropriety, accepting the potential reduction in design quality as the cost of preserving strict competitive neutrality.
Engineer A (Design-Phase Engineer, Public Infrastructure Project)
Is Engineer A obligated to disclose the prior working relationship with Contractor B to the Municipality before any constructability consultation occurs, and if so, must that disclosure happen at the moment the consultation is being considered rather than after the fact?
Before any constructability consultation occurs — whether formal or informal — Engineer A must decide whether to proactively disclose to the Municipality the prior working relationship with Contractor B. This relationship creates a structural conflict of interest that could compromise the integrity of both the design phase and the subsequent bidding process, regardless of Engineer A's subjective intent.
Immediately and affirmatively inform the Municipality of the prior working relationship with Contractor B at the moment the constructability consultation is being considered — before any contact with Contractor B occurs — so that the Municipality can make an informed decision about how to structure the constructability process and whether to impose additional safeguards.
Proceed with planning the constructability process without volunteering information about the prior relationship with Contractor B, disclosing only if the Municipality or another party raises a direct inquiry, on the assumption that the relationship is not inherently disqualifying.
Refrain from disclosing the prior relationship to the Municipality but also unilaterally avoid any contact with Contractor B during the design phase, treating the self-imposed recusal as a sufficient substitute for formal disclosure and institutional oversight.
Engineer A (Licensed Professional Engineer, Faithful Agent to Municipality)
Does a written non-bid commitment from Contractor B render informal bilateral constructability consultation ethically permissible, or does the obligation to use formal institutional channels persist regardless of Contractor B's agreement to forgo bidding?
Contractor B approaches Engineer A and proposes that, in exchange for being permitted to provide informal constructability input during the design phase, Contractor B will sign a written agreement formally committing not to bid on the water treatment facility construction contract. Engineer A must evaluate whether this arrangement removes the ethical objection to informal bilateral consultation.
Treat Contractor B's written commitment not to bid as a sufficient cure for the competitive fairness concern, proceed with informal bilateral constructability consultation, and document the non-bid agreement in the project file without convening a public meeting or notifying other prospective bidders.
Decline the non-bid arrangement on the grounds that the formal channel obligation is not merely about preventing bidding advantage but about preserving the structural integrity of public procurement, and instead convene a public constructability meeting open to all interested contractors — including Contractor B if it chooses to attend without bidding.
Disclose the proposed non-bid arrangement to the Municipality and request an institutional ruling on whether the arrangement is legally and ethically sufficient before taking any further action, recognizing that the decision exceeds the individual engineer's authority to make unilaterally.
Does Engineering Firm X bear an independent institutional obligation to establish internal protocols governing design-phase contractor consultations on public projects, and must those protocols be enforced even when an individual engineer like Engineer A acts with genuine good intent?
Engineering Firm X, as the institutional employer of Engineer A, must decide whether to establish and enforce internal protocols that prevent individual engineers from engaging in selective pre-bid contractor consultations on public infrastructure projects. The question arises whether the firm's institutional obligation is independent of — and broader than — Engineer A's individual ethical obligation.
Adopt and enforce written internal protocols requiring that all design-phase constructability consultations on public infrastructure projects be conducted exclusively through formal, institutionally sanctioned channels — such as public pre-bid meetings or formal addenda — with mandatory supervisory review before any contractor contact occurs, regardless of the individual engineer's intent or prior relationships.
Decline to establish firm-specific protocols on the grounds that individual engineers are licensed professionals bound by their own ethical codes, and that imposing additional institutional layers would be redundant and administratively burdensome, trusting Engineer A and colleagues to self-regulate.
Require engineers to disclose any prior relationships with prospective bidders to firm leadership before initiating constructability consultations, but permit informal bilateral consultations to proceed at the engineer's discretion once the disclosure has been logged, treating disclosure as a sufficient institutional safeguard.
Engineering Firm X (Institutional Employer, Public Infrastructure Design Firm)
When the contract documents and facts support the Contractor's position but the Owner demands a client-favoring finding, must Engineer A render an impartial determination that goes against the Owner's expressed preference, or does the duty of loyalty to the Owner require finding in the Owner's favor?
In the analogous BER Case 93-4 context, Engineer A has been contractually designated as the initial interpreter of contract documents and judge of the acceptability of work in a dispute between an Owner and a Contractor over a concrete pour. The Owner — Engineer A's client — demands that Engineer A find in the Owner's favor. Engineer A's objective review of the contract documents and facts supports the Contractor's position.
Issue an objective, technically grounded determination that finds in the Contractor's favor based solely on the contract documents and the facts of the dispute, recognizing that impartial role-faithful performance constitutes the highest form of faithful agency to the Owner and fulfills the engineer's contractual and ethical obligations, even though the finding contradicts the Owner's expressed preference.
Issue a determination favorable to the Owner on the grounds that the duty of loyalty to the client requires supporting the client's position in a dispute, treating the contractually designated role as subordinate to the general faithful agent obligation and the Owner's immediate interest in a favorable outcome.
Decline to render a determination in the dispute on the grounds that the conflict between the contractually designated impartiality requirement and the duty of loyalty to the Owner creates an irresolvable ethical tension, and recommend that the parties appoint a neutral third-party engineer to serve as dispute resolver.
Engineer A (Contractually Designated Dispute Resolver, BER Case 93-4 Context)
Design quality improves; procurement integrity is preserved; Engineer A's ethical obligations are satisfied; the tension between practical design improvement and bidding fairness is resolved simultaneously.
Following Conduct Public Constructability Meeting action
As a result of conducting the public constructability meeting, the water treatment facility design benefits from contractor expertise while maintaining procurement fairness, achieving a better technical outcome than either ignoring constructability concerns or consulting a single contractor privately.
Engineer A Appearance of Favoritism Avoidance Constructability Consultation Present Case
Engineer A had prior working relationship with Contractor B who was likely to bid on the water treatment facility construction contract; informal bilateral consultation would create appearance of preferential treatment
Appearance of Impropriety Avoidance in Public Procurement Constraint
Engineer A was constrained from engaging in bilateral informal constructability consultations with Contractor B — a single prospective bidder with whom Engineer A had a prior working relationship — because such consultations would create an appearance of favoritism toward Contractor B in the public bidding process, even if Engineer A's intent was genuinely to improve design quality.
NSPE Code of Ethics; BER Cases 82-2, 15-7, 16-3
Rather than consulting solely with Contractor B, Engineer A could have conducted a publically advertised constructability meeting, inviting all interested contractors to provide Engineer A with the input necessary to achieve a better design and construction outcome.
During the design phase of the municipal water treatment facility project
Such a process would avoid any appearance of favoritism toward one particular contractor, serve the client's interests, and gain the benefit of broader input to improve the design and construction process.
Engineer A moves from general staff member to named responsible professional; personal ethical accountability attaches; Engineer A's subsequent decisions now carry individual professional weight.
Early design phase, immediately following firm retention
Engineer A is designated as the responsible design engineer for the water treatment facility project, placing professional and ethical obligations directly on an individual.
Engineer A Assigned to Project → Conflict Potential Recognized
Engineer A recognizes that consulting Contractor B during design could compromise Contractor B's future participation in competitive bidding, a recognition made possible only by virtue of Engineer A's role as responsible design engineer
Without Engineer A's specific assignment, a different engineer might not have recognized or flagged the conflict, or the conflict might not have materialized in the same form
Contractor B's status as a prospective future bidder
Engineer A's formal assignment as responsible design engineer
Engineer A's professional awareness of competitive bidding integrity requirements
The existence of constructability questions requiring external input
Assignment of Engineer A + Contractor B's prospective bidder status + Engineer A's ethical awareness of NSPE Code obligations
Engineer A BER Precedent Application Constructability Dispute Resolution Present Case
BER Precedent Application to Competitive Critique Ethics Capability
Engineer A and the BER demonstrated the capability to identify and apply the principles from BER Case 93-4 — concerning faithful agent obligations and impartial dispute resolution — to the analogous present case involving faithful agent obligations and competitive procurement integrity in constructability consultation.
BER applied principles from BER Case 93-4 (construction dispute impartiality) to the present case (constructability consultation procurement integrity), identifying the shared faithful agent and trustee obligation structure.
The BER's explicit analogical transfer of BER Case 93-4 principles to the present case, identifying the shared normative structure of serving client interests consistent with faithful agent and trustee obligations.
Engineer A (Present Case - Water Treatment Facility)
While the facts in the present case are somewhat different, it is this Board's view that the basic principles in BER Case 93-4 are the same: the need to serve the client's interest consistent with the engineer's obligation to act as a faithful agent and trustee.
Engineer A Client Loyalty Impartiality Paradox Recognition BER 93-4
Client Loyalty Impartiality Paradox Recognition Capability
Engineer A demonstrated the capability to recognize that the duty of loyalty to the Owner did not require finding in the Owner's favor in the concrete pour dispute, and that acting impartially as the contractually designated dispute resolver constituted the highest fulfillment of the loyalty obligation.
BER Case 93-4: Owner criticized Engineer A claiming that loyalty required finding in Owner's favor; Engineer A maintained impartial position; BER confirmed that impartiality fulfilled the loyalty obligation.
Maintaining impartial position despite Owner's criticism that loyalty required finding in Owner's favor; providing candid interpretation that expedited the claim and avoided collusion charges.
the Owner accepted Engineer A's interpretation, but also criticized Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor
Engineer A's action also complied with the terms of the agreement and avoided a charge that the Owner and Engineer A may have 'colluded' against the Contractor.
Engineer A's action provided the Owner with a candid and straightforward interpretation of the issues involved in the claim, expedited the claim, and avoided further delays and a potential for further misunderstandings between the parties.
it would have been unethical for Engineer A to have found in the Owner's favor and Engineer A owed a general duty of loyalty to the Owner. However, in acting impartially under the terms of the contract, the Board of Ethical Review determined that Engineer A fulfilled that ethical obligation to the Owner.
Engineer A Client Loyalty Impartiality Reconciliation BER 93-4
Owner claimed Engineer A's loyalty obligation required finding in Owner's favor; Board determined impartial finding fulfilled rather than violated the loyalty obligation
Client Loyalty Faithful Agent Impartiality Reconciliation Constraint
Engineer A's general duty of loyalty to the Owner did not require — and in fact prohibited — finding in the Owner's favor in the concrete pour dispute; the faithful agent obligation was fulfilled through candid, objective, contractually compliant determination rather than through partisan advocacy.
Engineer A owed a general duty of loyalty to the Owner. However, in acting impartially under the terms of the contract, the Board of Ethical Review determined that Engineer A fulfilled that ethical obligation to the Owner.
During the construction-phase dispute resolution process
Engineer A Client Relationship - Municipality
From retention of Firm X by the municipality through completion of design services
Firm X is retained by a municipality to design a water treatment facility
Engineering Firm X's active professional relationship with the municipality for design of the water treatment facility, within which Engineer A operates
Completion of design services and conclusion of the engagement
Engineer A is assigned work on the design of the water treatment facility
Municipality's retention of Engineering Firm X to design the water treatment facility
Engineer A Competitive Procurement Fairness Assessment Instance
Competitive Procurement Fairness Assessment Capability
Engineer A must evaluate whether informal bilateral consultation with Contractor B during the design phase of a public project provides a fair and open competitive opportunity to all qualified bidders, and correctly determine that such informal consultation violates competitive procurement fairness obligations by conferring an informational advantage on Contractor B.
Engineer A is designing a public water treatment facility subject to competitive bidding and is considering informal consultation with a contractor who may bid on the construction contract.
Concern that discussing technical and other aspects of the project with Contractor B may provide the contractor with an unfair advantage during the public bidding process.
Engineer A is concerned that by discussing technical and other aspects of the project with the contractor, Engineer A may be providing the contractor with an unfair advantage during the public bidding process.
Engineer A Constructability Information Equal Access Design Instance
Constructability Information Equitable Access Design Capability
Engineer A must design and implement a process for obtaining constructability input that provides equal access to all interested contractors — such as a publicly advertised constructability meeting — rather than consulting selectively with Contractor B, thereby gaining the benefit of broader input while avoiding favoritism and appearance of impropriety.
Engineer A has a prior working relationship with Contractor B and seeks constructability input during the design phase of a public water treatment facility project subject to competitive bidding.
Recognition that the desire to consult Contractor B must be channeled through an equitable, publicly accessible process rather than a bilateral informal arrangement.
Engineer A would like to also discuss constructability issues with a local contractor, Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract following the design phase.
Engineer A Faithful Agent Boundary — Constructability Consultation
During design phase, when Engineer A is considering consulting with Contractor B
the need to serve the client's interest consistent with the engineer's obligation to act as a faithful agent and trustee
Engineer A's obligation to serve the client's interest in procurement integrity while obtaining constructability input
Adoption of a publicly advertised constructability meeting process or conclusion of design phase
this objective could be achieved in a manner that not only permits Engineer A to gain the necessary contractor input, but also honors the client's interest in maintaining the integrity of the public bidding process
Engineer A's desire to consult with a contractor for constructability input while the project is subject to public bidding
Engineer A Faithful Agent Design Quality Procurement Integrity Reconciliation Present Case
Engineer A wished to consult with Contractor B on constructability issues during design phase; Contractor B had prior working relationship with Engineer A and was likely to bid on the resulting construction contract
Publicly Advertised Constructability Meeting Sole Permissible Contractor Input Mechanism Constraint
Engineer A was constrained from consulting bilaterally and informally with Contractor B alone to obtain constructability input — the sole ethically permissible mechanism for obtaining contractor input was a publicly advertised constructability meeting open to all interested contractors, which simultaneously satisfied the design quality obligation and the competitive procurement fairness obligation.
NSPE Code of Ethics; BER Case 93-4 (analogical application); public procurement fairness principles
this objective could be achieved in a manner that not only permits Engineer A to gain the necessary contractor input, but also honors the client's interest in maintaining the integrity of the public bidding process.
Engineer A Faithful Agent Design Quality Within Procurement Integrity Limits Instance
Faithful Agent Sustainability Harmonization Capability
Engineer A must simultaneously fulfill mandatory faithful agent obligations to the Municipality — producing the best possible design documents for the water treatment facility — and competitive procurement fairness obligations, correctly identifying the path that best serves both obligations rather than treating them as irreconcilable opposites, specifically by channeling constructability input through a formal public meeting process.
Engineer A seeks to serve the Municipality faithfully by producing the best possible design documents while also ensuring that the public bidding process is conducted fairly.
Recognition that the desire to improve design quality through constructability consultation must be harmonized with procurement integrity obligations rather than pursued through informal channels that violate those obligations.
While Engineer A believes that the design documents and the overall project would benefit from discussions with Contractor B, Engineer A is concerned that by discussing technical and other aspects of the project with the contractor, Engineer A may be providing the contractor with an unfair advantage during the public bidding process.
Engineer A Formal Constructability Meeting Convening Capability Instance
Constructability and Construction Safety Input Solicitation Capability
Engineer A must fulfill the design quality objective of obtaining constructability input by convening a formal public constructability meeting open to all interested contractors — rather than consulting selectively with Contractor B — thereby gaining the benefit of broader constructability input while avoiding favoritism and appearance of impropriety.
Engineer A seeks constructability input to improve design documents for the water treatment facility and must channel that effort through a process that provides equal access to all interested contractors.
Identification of the formal public constructability meeting as the ethically permissible mechanism for obtaining contractor input on constructability issues during the design phase of a public project.
While Engineer A believes that the design documents and the overall project would benefit from discussions with Contractor B...
Engineer A Good Intent Non-Justification Informal Consultation Recognition
Good Intent Non-Justification for Procedural Impropriety Recognition Capability
Engineer A must recognize that the genuine belief that informal consultation with Contractor B would improve the design documents does not render the informal consultation ethically permissible, because good intentions do not override the competitive fairness obligations arising from the public bidding process.
Engineer A believes the project would benefit from discussions with Contractor B but is concerned about providing an unfair advantage during the public bidding process.
Recognition that benign motivation to improve design quality cannot justify providing Contractor B with an unfair competitive advantage through informal bilateral consultation during the design phase.
Engineer A Good Intent Non-Justification Informal Consultation Recognition Present Case
Engineer A was required to recognize that the genuine belief that informal consultation with Contractor B would improve the design documents did not render the informal bilateral consultation ethically permissible, and that good intentions must be channeled through proper institutional processes such as a publicly advertised constructability meeting.
Present case: Engineer A sought to consult Contractor B informally to improve design quality; BER found that good intent did not justify the procedurally improper informal consultation.
The BER's determination that Engineer A's good-faith design quality objective did not justify the informal bilateral consultation with a single prospective bidder.
it is this Board's view that the basic principles in BER Case 93-4 are the same: the need to serve the client's interest consistent with the engineer's obligation to act as a faithful agent and trustee.
Engineer A Improper Competitive Advantage Recognition Instance
Improper Competitive Advantage Recognition Capability
Engineer A must recognize that informal bilateral consultation with Contractor B during the design phase of a public project creates an opportunity for improper competitive advantage — specifically that Contractor B would gain technical knowledge and familiarity with the project that other prospective bidders would not have — and that exploiting such an opportunity constitutes conduct that is improper under professional ethics codes.
Engineer A recognizes the potential for Contractor B to gain an unfair advantage through informal constructability consultation during the design phase of a public project.
Engineer A's own concern that the informal consultation may be providing Contractor B with an unfair advantage during the public bidding process demonstrates awareness of the improper competitive advantage dynamic.
Engineer A Informal Constructability Consultation Prohibition Recognition
Informal Information Sharing Restraint Capability
Engineer A must recognize that sharing constructability information or technical project details with Contractor B through informal, personal-initiative channels — rather than through formal institutional processes — creates an appearance of impropriety, favoritism, or selective competitive advantage, and must refrain from such informal sharing by directing constructability input through formal institutional channels.
Engineer A seeks to consult Contractor B on constructability issues during the design phase of a public water treatment facility, while Contractor B may potentially bid on the construction contract.
Awareness that informal bilateral consultation with a prospective bidder during the design phase of a public project violates competitive procurement fairness obligations, even when the engineer's intent is to improve design quality.
Engineer A Informal Information Sharing Restraint Constructability Present Case
Engineer A was required to refrain from sharing constructability information and technical project details with Contractor B through informal, personal-initiative channels, recognizing that such sharing creates an appearance of favoritism and undermines competitive procurement integrity regardless of the engineer's benign intent.
Present case: Engineer A sought to consult Contractor B informally on constructability issues during the design phase of a public water treatment facility procurement.
The BER's determination that informal bilateral consultation with Contractor B was ethically impermissible and that formal channels were required.
Such a process would avoid any appearance of favoritism toward one particular contractor
Engineer A Informal Mechanism Public Project Impropriety Appearance — Constructability Consultation Water Treatment
Engineer A's contemplated informal constructability consultation with Contractor B — even if motivated by genuine design-improvement intent — creates an appearance of impropriety in the public procurement process that is independently ethically impermissible.
Informal Mechanism Public Project Impropriety Appearance Constraint
Engineer A is prohibited from sharing project-relevant technical information or engaging in constructability consultations with Contractor B through informal, personally initiated mechanisms on the public water treatment facility project — even when acting without ulterior motive and with the genuine intent to improve design quality — when such informal consultation creates an appearance of impropriety or favoritism among competing contractors, establishing that the appearance of improper conduct is itself ethically impermissible regardless of Engineer A's benign subjective intent.
NSPE Code of Ethics — Sections II.4, III.6, III.7; BER Case 82-2; public procurement fairness principles
Engineer A would like to also discuss constructability issues with a local contractor, Contractor B, with whom Engineer A has worked
Throughout the design phase and public bidding process for the water treatment facility
Engineer A Pre-Bid Selective Information Sharing Prohibition Awareness Instance
Pre-Bid Selective Information Sharing Prohibition Awareness Capability
Engineer A must recognize that sharing material technical and constructability information with Contractor B selectively during the design phase — while other prospective bidders do not have access to the same information — constitutes an impermissible competitive advantage that undermines procurement integrity, regardless of Engineer A's intent to improve design quality.
Engineer A is considering informal consultation with Contractor B on constructability issues during the design phase of a public water treatment facility project subject to competitive bidding.
Concern that discussing technical and other aspects of the project with Contractor B may provide that contractor with an unfair advantage during the public bidding process, which is precisely the type of selective information sharing this capability addresses.
Engineer A Procurement Fairness Appearance Management Instance
Procurement Fairness Appearance Management Capability
Engineer A must recognize that informal consultation with Contractor B — even when well-intentioned and potentially technically beneficial — creates an appearance of favoritism, impropriety, or unfair competitive advantage in the public procurement context, and must manage that appearance by ensuring that all procurement-related conduct is structured to withstand scrutiny for fairness.
Engineer A recognizes the concern that informal consultation with a prospective bidder may be providing that contractor with an unfair advantage during the public bidding process.
Awareness that the appearance of providing an unfair advantage to Contractor B is as ethically problematic as actual impropriety, regardless of Engineer A's benign intent.
Engineer A Procurement Fairness Appearance Management Water Treatment Present Case
Engineer A was required to recognize that informal bilateral consultation with Contractor B — even when well-intentioned and technically beneficial — created an appearance of favoritism in the public procurement context, and to manage that appearance by ensuring all constructability consultation was conducted through publicly advertised formal channels.
Present case: Engineer A's informal consultation with Contractor B created an appearance of favoritism in the public bidding process for the water treatment facility construction contract.
The BER's emphasis that the publicly advertised constructability meeting would 'avoid any appearance of favoritism toward one particular contractor.'
Engineer A Standard Project Process Information Channeling — Constructability Input Water Treatment
Engineer A seeks constructability input to improve design documents but must obtain that input through formally equitable mechanisms — such as a publicly advertised constructability meeting — rather than through informal bilateral consultation with Contractor B.
Standard Project Process Information Channeling Constraint
Engineer A must channel any constructability input sought from contractors through the agency's standard project process — specifically a publicly advertised constructability meeting open to all interested contractors — rather than through personal initiative or informal direct consultation with Contractor B, prohibiting Engineer A from acting as an informal conduit for project information outside of formally authorized, equitable disclosure mechanisms.
NSPE Code of Ethics — Sections II.4, III.6; Publicly Advertised Constructability Meeting Framework; Constructability-Review-Standard-Design-Phase
Throughout the design phase of the water treatment facility, prior to public advertisement of the construction contract
Engineer A Water Treatment Facility Constructability Meeting Convening Present Case
Engineer A was required to possess the capability to design and convene a publicly advertised constructability meeting open to all interested contractors, rather than consulting informally and bilaterally with Contractor B, in order to obtain constructability input while maintaining competitive procurement fairness and avoiding the appearance of favoritism.
Present case: Engineer A designing a municipal water treatment facility sought to consult Contractor B informally on constructability issues; BER identified the publicly advertised constructability meeting as the correct approach.
The BER's identification of the publicly advertised constructability meeting as the ethically permissible alternative to informal bilateral consultation with Contractor B.
Engineer A's review of dispute after dispute arising between Owner and Contractor
The Owner and the Contractor asked Engineer A to review the dispute. Following his review, Engineer A agreed with the Contractor's position
dispute arising between Owner and Contractor
Engineering Firm X Procurement Integrity Oversight Constraint — Constructability Consultation Water Treatment
Engineering Firm X, as the entity retained by the municipality to design the water treatment facility, bears institutional responsibility for ensuring that its engineers' conduct does not compromise the integrity of the public bidding process.
Competitive Procurement Fairness Constraint
Engineering Firm X is constrained to ensure that its engineers — including Engineer A — do not engage in informal bilateral constructability consultations with prospective bidders during the design phase of the water treatment facility, and must establish and enforce internal protocols requiring that all constructability input be obtained through formally equitable, publicly accessible mechanisms that provide equal access to all interested contractors.
NSPE Code of Ethics — Sections II.4, III.6; public procurement fairness principles; faithful agent obligation to the municipality client
Engineer A works for Engineering Firm X.
Throughout the design phase and public bidding process for the water treatment facility construction contract
Firm X is retained by a municipality to design a water treatment facility.
Engineering Firm X Procurement Integrity Oversight Instance
Honorable Procurement Conduct Self-Regulation Capability
Engineering Firm X must ensure that its engineers — including Engineer A — do not engage in informal bilateral consultations with prospective bidders during the design phase of public projects, recognizing that such consultations violate competitive procurement fairness obligations and that the firm bears institutional responsibility for the procurement conduct of its assigned engineers.
Engineering Firm X is retained by the municipality to design the water treatment facility and employs Engineer A, bearing institutional obligations for the procurement integrity of the overall project.
Institutional obligation to oversee and prevent Engineer A from providing Contractor B with an unfair competitive advantage through informal constructability consultation during the design phase.
Engineer A is assigned work on the design of the water treatment facility.
Engineering Firm X transitions from unengaged party to retained professional; municipality becomes client; public interest obligations attach immediately.
Project inception, before design phase begins
Engineering Firm X is formally engaged by the municipality to design a water treatment facility, establishing a contractual and professional relationship with a public client.
Firm Retained by Municipality → Engineer A Assigned to Project
Engineering Firm X is formally engaged by the municipality to design a water treatment facility, establishing the professional context within which Engineer A is designated as the responsible design engineer
Without the municipal retention of Firm X, Engineer A would not have been assigned to this specific project and the subsequent ethical dilemmas would not have arisen
Engineer A's availability and qualifications within the firm
Existence of a water treatment facility project requiring design
Formal municipal engagement of Engineering Firm X
Municipal contract award + firm's internal staffing decision + project scope definition
{'type': 'Municipal government', 'procurement': 'Public competitive bidding for construction contract'}
Public municipal client that retains Firm X to design a water treatment facility and will subsequently conduct a public bidding process for construction, bearing interests in procurement integrity and equitable treatment of all prospective bidders.
{'type': 'client_of', 'target': 'Engineering Firm X'}
{'type': 'future_contracting_authority_over', 'target': 'Contractor B'}
the water treatment facility construction contract following the design phase
National Society of Professional Engineers
Engineer A in deliberating whether to consult Contractor B
Primary normative authority governing Engineer A's obligations regarding fairness to bidders, public interest, and conflicts of interest when considering contractor consultations during the design phase of a publicly procured water treatment facility
NSPE Code of Ethics - Faithful Agent and Trustee Obligation
Engineers have an ethical obligation to act as faithful agents or trustees for the benefit of their employers or clients.
NSPE Board of Ethical Review in framing the ethical analysis of Engineer A's conduct
Referenced as the foundational source of the engineer's ethical obligation to act as a faithful agent or trustee for the benefit of employers or clients, and as the normative framework within which the constructability consultation question is analyzed
{'entity_type': 'Project owner', 'project': 'Construction project (BER Case 93-4)'}
Retained Engineer A for design and construction-phase services; party to a dispute with the General Contractor over acceptability of a concrete pour; accepted Engineer A's impartial interpretation but criticized Engineer A for not finding in Owner's favor on grounds of loyalty; cited as precedent illustrating the limits of the faithful agent duty.
{'type': 'dispute_party', 'target': 'General Contractor (BER Case 93-4)'}
{'type': 'retained', 'target': 'Engineer A Construction Dispute Impartial Interpreter'}
Engineer A was retained by an Owner to provide both design and construction-phase services.
The Owner accepted Engineer A's interpretation, but also criticized Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor.
Owner's acceptance of Engineer A's interpretation after Engineer A's review and finding
The Owner accepted Engineer A's interpretation, but also criticized Engineer A
Owner's acceptance of Engineer A's interpretation
Ethical analysis shifts from open-ended deliberation to precedent-guided reasoning; the solution space narrows toward established principles; Engineer A's situation is reframed within a known ethical framework.
Discussion section, after facts are established
BER Case 93-4 is introduced as a precedent establishing principles about loyalty-versus-impartiality tension in engineering practice, providing an analogical framework for resolving Engineer A's dilemma.
Precedent Case Introduced → Choose Impartiality Over Owner Loyalty
BER Case 93-4 is introduced as a precedent establishing principles about loyalty-versus-impartiality, directly informing Engineer A's deliberate choice to remain impartial when adjudicating the constructability consultation question
Without the precedent, Engineer A might have defaulted to owner loyalty or made a less principled decision; however, the underlying NSPE Code obligations would still exist independently of the specific case citation
Engineer A's awareness of and access to the precedent
Engineer A's professional commitment to NSPE Code compliance
Existence of BER Case 93-4 as an applicable ethical precedent
The active ethical dilemma requiring resolution
Applicable precedent + Engineer A's ethical awareness + active dilemma = sufficient normative basis for choosing impartiality
Professional engineering ethics frameworks and public procurement law
Engineer A when assessing the fairness implications of pre-bid contractor consultation
Governs the obligation to provide all prospective bidders with equal access to project information, implicated by Engineer A's potential disclosure of technical design details to Contractor B prior to the public bidding process for the water treatment facility construction contract
Publicly Advertised Constructability Meeting Framework
NSPE Board of Ethical Review (derived from this case analysis)
Publicly Advertised Constructability Meeting as Ethical Alternative to Single-Contractor Consultation
Engineer A could have conducted a publically advertised constructability meeting, inviting all interested contractors to provide Engineer A with the input necessary to achieve a better design and construction outcome.
NSPE Board of Ethical Review in recommending an ethical alternative approach for Engineer A
Identified by the Board as the ethically appropriate mechanism for obtaining contractor input during design — inviting all interested contractors to a public constructability meeting rather than consulting solely with one contractor — to avoid favoritism, preserve public bidding integrity, and serve the client's interests while gaining broader design input
Would it be ethical for Engineer A to also discuss constructability issues with a local contractor, Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract following the design phase?
Does Engineer A have an affirmative obligation to disclose to the municipality the prior working relationship with Contractor B before any constructability consultation occurs, and if so, at what point does that disclosure obligation arise?
If Engineer A genuinely believes the project design would benefit from constructability input, does the ethical obligation to serve the public welfare and deliver a quality design create any duty to seek that input through formal channels even when Engineer A has not been explicitly authorized by the municipality to convene a public constructability meeting?
Would it be ethically permissible for Engineer A to consult with Contractor B on constructability issues if Contractor B formally agreed in writing not to bid on the water treatment facility construction contract, and does such an arrangement raise its own ethical concerns regarding market fairness?
Does Engineering Firm X bear an independent institutional obligation to establish internal protocols that prevent individual engineers from engaging in selective pre-bid contractor consultations, and what liability or ethical exposure does Firm X face if Engineer A proceeds with the informal consultation without firm-level oversight?
Does the principle of Design Quality Through Constructability Input conflict with the principle of Equal Competitive Access in Design-Phase Consultation, and how should Engineer A resolve a situation where achieving the best possible design outcome for the public may require engaging a contractor who will later have a competitive advantage in bidding?
Does the principle of Faithful Agent Obligation to the municipality conflict with the principle of Fairness in Professional Competition when the municipality's interest in a high-quality, constructable design might be best served by consulting the most experienced local contractor, who is also a prospective bidder?
Does the principle that Good Intent Does Not Cure Procedural Impropriety stand in tension with the principle of Public Welfare Paramount, such that an engineer who informally consults a contractor in good faith to improve a public water treatment facility's design is nonetheless acting unethically even if the public ultimately benefits from a superior design?
In the analogous BER Case 93-4 context, does the principle of Loyalty Fulfillment Through Role-Faithful Objective Performance conflict with the principle of Impartiality in Contractually Designated Dispute Resolution, and does the resolution of that tension in BER 93-4 provide a coherent framework for resolving the tension between Client Loyalty and Equal Competitive Access in the present constructability consultation case?
From a deontological perspective, does Engineer A's duty as a faithful agent to the municipality create an absolute prohibition against private constructability consultations with any prospective bidder, regardless of the engineer's intent or the potential design benefits that might result?
From a consequentialist standpoint, does the potential improvement in design quality and public safety outcomes from a private constructability consultation with Contractor B ever outweigh the harm caused by undermining competitive procurement fairness and equal bidder access?
From a virtue ethics perspective, does Engineer A's prior working relationship with Contractor B compromise the professional integrity and impartiality that a virtuous engineer should embody when managing design-phase consultations on a public procurement project, even if Engineer A subjectively believes the consultation would benefit the project?
From a deontological perspective, does Engineer A's duty to avoid even the appearance of impropriety impose an obligation that is independent of and potentially stronger than the duty to optimize design quality, such that the formal channel requirement for constructability input is non-negotiable regardless of project circumstances?
Would the ethical analysis change if Contractor B were the only local contractor with the specialized expertise needed to provide meaningful constructability input, making a publicly advertised constructability meeting practically ineffective at attracting qualified participants?
If Engineer A had proactively disclosed the prior working relationship with Contractor B to the municipality before any consultation occurred, and the municipality had explicitly authorized a private constructability discussion, would the ethical prohibition against selective pre-bid consultation still apply with equal force?
Would the ethical outcome differ if Engineer A had instead hired Contractor B as a paid constructability consultant under a formal subcontract arrangement, thereby creating a documented professional relationship that might simultaneously disqualify Contractor B from bidding on the construction contract?
If the constructability consultation with Contractor B had already occurred informally before Engineer A recognized the ethical conflict, would Engineer A's obligation shift toward retroactive disclosure to the municipality and all other prospective bidders, and would such disclosure be sufficient to restore procurement integrity?
constructability discussions with Contractor B during design phase
Engineer A would like to also discuss constructability issues with a local contractor, Contractor B...While Engineer A believes that the design documents and the overall project would benefit from discussions
constructability discussions with Contractor B
Entity1 occurs entirely within the duration of Entity2
constructability meeting during design phase
Engineer A could have conducted a publically advertised constructability meeting, inviting all interested contractors to provide Engineer A with the input necessary to achieve a better design and construction outcome
source_field=balancingwith; confidence=0.95
Impartiality in Contractually Designated Dispute Resolution Role Invoked By Engineer A BER Case 93-4
Defeasibility edge from constraintstatement
source_field=constraintstatement; confidence=0.96
Engineer A was constrained from finding in the Owner's favor in the concrete pour dispute solely on the basis of loyalty — the contractual designation as initial interpreter of contract documents required an impartial, objective determination based solely on the contract documents and technical facts, prohibiting partisan advocacy for the client's preferred outcome.
Defeasibility edge from tensionresolution
source_field=tensionresolution; confidence=0.95
The Board determined that impartial role performance and loyalty are reconcilable — faithful execution of the impartial adjudicatory role itself constitutes fulfillment of the loyalty obligation
source_field=tensionresolution; confidence=0.88
The publicly advertised constructability meeting satisfies both the design quality obligation (by inviting all contractors to contribute expertise) and the procurement fairness obligation (by ensuring no contractor receives exclusive access to design information)
source_field=tensionresolution; confidence=0.9
The tension is resolved by identifying a formal channel — a public constructability meeting convened by Engineer A and open to all prospective bidders — that allows constructability expertise to be obtained without conferring selective advantage on Contractor B
Client loyalty and procurement integrity are harmonized by the public constructability meeting approach, which serves both the client's design quality interest and the client's interest in a legally defensible procurement
source_field=constraintstatement; confidence=0.95
Engineer A's faithful agent obligation to produce the best possible design documents for the Municipality was constrained by the obligation to maintain the integrity of the public bidding process — prohibiting the use of informal bilateral contractor consultations as a design quality mechanism when those consultations would compromise competitive procurement fairness.
source_field=constraintstatement; confidence=0.92
Engineer A's genuine belief that informal consultation with Contractor B would improve the design documents did not justify the informal bilateral consultation — good intent does not excuse the appearance of favoritism or the information asymmetry created by selective pre-bid contractor engagement outside of formally equitable procurement channels.
source_field=tensionresolution; confidence=0.97
Impartiality prevails over partisan client preference because the client's genuine interest — candid interpretation, expedited claim, avoidance of collusion — is served by objectivity, not advocacy
source_field=tensionresolution; confidence=0.93
The publicly advertised constructability meeting resolves the tension by simultaneously achieving design quality improvement (through broader contractor input) and procurement fairness (through equal access), serving both the engineer's design obligations and the client's interest in bidding integrity
source_field=constraintstatement; confidence=0.9
Engineer A's prior working relationship with Contractor B creates a potential conflict of interest and appearance of favoritism that constrains Engineer A from engaging in any informal bilateral consultation or preferential access arrangement with Contractor B during the design phase of the water treatment facility
source_field=tensionresolution; confidence=0.92
Equal access is achieved by convening a public constructability meeting at which all prospective bidders may attend and receive the same information simultaneously
The principle confirms that good intent is not a sufficient ethical justification for informal selective consultation, and that the appropriate resolution is to pursue the constructability goal through formal equal-access channels
The obligation to obtain constructability expertise is fulfilled through a public constructability meeting open to all prospective bidders, which simultaneously serves design quality and preserves procurement fairness
source_field=constraintstatement; confidence=0.93
Engineer A is prohibited from engaging in informal bilateral constructability consultations with Contractor B during the design phase of the water treatment facility, because Contractor B may bid on the resulting construction contract and such consultations would provide Contractor B with technical project knowledge and design insights not equally available to all other prospective bidders, creating an unfair competitive advantage in the public bidding process.
source_field=tensionresolution; confidence=0.91
Faithful agency is best served by proposing a formal constructability meeting that achieves design quality improvement without compromising procurement integrity
Engineer A's obligation to serve the Municipality faithfully — including by producing the best possible design documents — must be fulfilled within the ethical limits imposed by procurement fairness, meaning Engineer A cannot justify informal selective consultation with Contractor B on the grounds that it serves the client's design quality interests
source_field=constraintstatement; confidence=0.94
source_field=tensionresolution; confidence=0.87
Formal channels — specifically a public constructability meeting — satisfy both the information-sharing obligation and the formal channel requirement simultaneously
source_field=constraintstatement; confidence=0.91
Engineer A's genuine belief that informal consultation with Contractor B would improve the design documents does not render the informal consultation ethically permissible — the benign motivation to improve design quality does not cure the procedural impropriety of selectively sharing project information with a prospective bidder outside formal channels
Engineer A's genuine belief that informal consultation with Contractor B would improve the design documents did not render the informal bilateral consultation ethically permissible, and that good intent does not cure the structural harm to procurement integrity caused by selective pre-bid information sharing.
Engineer A must avoid not only actual favoritism toward Contractor B but also the appearance of favoritism created by informal bilateral constructability consultations with a contractor who has a prior working relationship with Engineer A and who may bid on the resulting construction contract
source_field=constraintstatement; confidence=0.89
Engineer A is constrained to ensure that all qualified contractors have equal opportunity to compete for the water treatment facility construction contract through open, advertised processes — prohibiting any design-phase consultation arrangement with Contractor B that would provide that contractor with technical project knowledge, design insights, or constructability information not equally available to all other prospective bidders.
Engineer A's prior working relationship with Contractor B creates a potential conflict of interest and appearance of favoritism that constrains Engineer A from engaging in any informal bilateral consultation or preferential access arrangement with Contractor B during the design phase of the water treatment facility, and requires disclosure of the prior relationship to the municipality and use of formally equitable, publicly accessible mechanisms for any constructability input.
Engineer A is prohibited from sharing constructability information, technical project details, or design insights with Contractor B through informal, personally initiated consultation channels during the design phase of the water treatment facility, because such informal sharing creates information asymmetry among prospective bidders and violates the procurement integrity obligations of a public agency design engineer.
design phase before construction bidding process
Contractor B...may potentially also bid on the water treatment facility construction contract following the design phase
dispute between Owner and General Contractor after commencement of construction
Following the commencement of construction, a dispute arose between the Owner and the General Contractor concerning the acceptability of a concrete pour
dispute between Owner and General Contractor
publicly advertised constructability meeting before construction bidding process
Rather than consulting solely with Contractor B, Engineer A could have conducted a publically advertised constructability meeting...Such a process would avoid any appearance of favoritism toward one particular contractor
publicly advertised constructability meeting
Engineer A's informal selective consultation with Contractor B during the design phase — without equivalent access for other prospective bidders — creates an unfair competitive advantage for Contractor B in the subsequent public bidding pro
The public bidding process for the water treatment facility construction contract requires that Engineer A refrain from actions — including informal pre-bid consultations with prospective bidders — that would compromise the integrity of the
All prospective bidders for the water treatment facility construction contract are entitled to equal access to the constructability information and technical insights that Engineer A seeks to obtain from Contractor B — the principle require
Engineer A recognizes that informal bilateral consultation with Contractor B — a prospective bidder — on technical and constructability aspects of the water treatment facility design would provide Contractor B with information and insight u
Rather than consulting solely with Contractor B on constructability issues during the design phase, Engineer A should conduct a publicly advertised constructability meeting open to all interested contractors, ensuring equal access to design
Engineer A's obligation to serve the Municipality's interests requires honoring the integrity of the public bidding process — the client's interest in a fair, legally defensible procurement is served by avoiding informal selective consultat
Engineering Firm X and Engineer A owe loyalty to the Municipality as client, which includes serving the Municipality's interest in both a high-quality design and a legally defensible, fair competitive procurement process — loyalty to the cl
The public's interest in a well-designed, constructible water treatment facility — a critical public health infrastructure asset — provides the underlying justification for Engineer A's desire to obtain constructability input, while the pub
Engineer A must share any constructability information or technical project details through formal, institutionally sanctioned processes — such as a public constructability meeting or bid addendum — rather than through informal personal con
Engineer A's obligation to serve the Municipality faithfully — including by producing the best possible design documents — must be fulfilled within the ethical limits imposed by procurement fairness, meaning Engineer A cannot justify inform
Engineer A's genuine belief that informal consultation with Contractor B would improve the design documents does not render the informal consultation ethically permissible — the benign motivation to improve design quality does not cure the
Engineer A sought constructability input from Contractor B to improve the design of the municipal water treatment facility, recognizing that contractor expertise could produce a better design and construction outcome — an obligation that is
Engineer A's professional judgment that the design documents and overall project would benefit from constructability discussions reflects the affirmative obligation to seek expert construction input during design — an obligation that must b
All contractors who may bid on the water treatment facility construction contract — not only Contractor B — are entitled to compete on equal terms, without any single contractor having received advance technical briefings, constructability
Engineer A applied objective technical and contractual analysis to the concrete pour dispute, finding in favor of the Contractor based on the merits — that the Owner had approved certain changes and the Contractor complied with those change
Engineer A, designated by contract as the initial interpreter of contract documents and judge of work acceptability, rendered an impartial finding in favor of the Contractor based on the merits, resisting the Owner's claim that loyalty requ
Engineer A fulfilled the faithful agent obligation to the Owner by acting impartially as the contractually designated interpreter of contract documents, serving the Owner's genuine interest in candid, expeditious, and defensible dispute res
Engineer A's impartial finding in favor of the Contractor — though contrary to the Owner's expressed preference — served the Owner's genuine interests by providing candid interpretation, expediting the claim, avoiding further delays and mis
Engineer A was obligated to share constructability information and technical project details with prospective bidders exclusively through formal, institutionally sanctioned processes — such as a publicly advertised constructability meeting
Engineer A was obligated to refrain from consulting informally and bilaterally with Contractor B — a single prospective bidder — on constructability issues during the design phase, and instead to share constructability information through f
Engineer A is obligated to recognize that the genuine belief that informal consultation with Contractor B would improve the design documents does not render the informal consultation ethically permissible, because good intent does not cure
Engineer A is obligated to conduct themselves honorably, responsibly, and fairly in all procurement-related matters connected to the water treatment facility project, including refraining from informal bilateral constructability consultatio
Engineer A was obligated to render an impartial, objective determination in the concrete pour dispute based solely on the contract documents and the facts, refraining from finding in the Owner's favor merely because the Owner was the client
Engineer A was obligated to recognize that the duty of loyalty to the Owner did not require — and in fact prohibited — finding in the Owner's favor when the contract documents and facts supported the Contractor's position, and that impartia
Engineering Firm X is obligated to ensure that its engineers — including Engineer A — do not engage in informal bilateral consultations with prospective bidders during the design phase of the water treatment facility project, and to establi
Engineer A was obligated to fulfill the design quality objective of obtaining constructability input through a publicly advertised constructability meeting open to all interested contractors, rather than through informal bilateral consultat
Engineer A was obligated to recognize that the genuine belief that informal consultation with Contractor B would improve the design documents did not render the informal bilateral consultation ethically permissible, and that good intent doe
Engineer A was obligated to serve the Municipality's interests faithfully — including by producing the best possible design documents for the water treatment facility — within the ethical limits imposed by the obligation to preserve the int
Engineer A is obligated to refrain from informally consulting Contractor B on constructability issues during the design phase of the water treatment facility, because Contractor B may bid on the subsequent construction contract and such inf
Engineer A is obligated to ensure that the public bidding process for the water treatment facility construction contract is conducted fairly, including by refraining from providing Contractor B — or any other prospective bidder — with techn
Engineer A is obligated to refrain from sharing constructability information or technical project details with Contractor B through informal, personally initiated channels, and instead to direct any constructability information sharing thro
Engineer A is obligated to fulfill the design quality objective of obtaining constructability input by convening a formal public constructability meeting open to all prospective bidders on equal terms, or by issuing formal addenda incorpora
Engineer A is obligated to serve the Municipality faithfully by producing the best possible design documents for the water treatment facility — including by seeking constructability input — but must fulfill this faithful agent duty within t
Engineer A Appearance of Impropriety Avoidance — Contractor B Pre-Bid Consultation Water Treatment
Engineer A's prior working relationship with Contractor B and the contemplated informal constructability consultation create an appearance of impropriety in the public procurement process for the water treatment facility construction contract.
Engineer A must avoid not only actual favoritism toward Contractor B but also the appearance of favoritism created by informal bilateral constructability consultations with a contractor who has a prior working relationship with Engineer A and who may bid on the resulting construction contract — establishing that even well-intentioned informal consultation mechanisms are ethically impermissible when they create a reasonable appearance of preferential treatment among competing bidders.
NSPE Code of Ethics — Sections II.4, III.6, III.7; BER Cases 82-2, 15-7, 16-3; Public-Procurement-Fairness-Standard-Water-Treatment
Engineer A Competitive Procurement Fairness Constraint — Equal Bidder Access Water Treatment
Engineer A's contemplated informal consultation with Contractor B during the design phase of the water treatment facility would provide Contractor B with information advantages over other prospective bidders, violating the competitive procurement fairness obligation.
NSPE Code of Ethics — Sections II.4, III.6; Public-Procurement-Fairness-Standard-Water-Treatment; NSPE-Code-of-Ethics-Primary
Engineer A Contractual Impartiality Non-Partisan Finding BER 93-4
Engineer A retained by Owner for design and construction-phase services; dispute arose between Owner and General Contractor over acceptability of concrete pour; Owner criticized Engineer A for finding in Contractor's favor despite loyalty obligation
Contractually Designated Dispute Resolver Impartiality Constraint
NSPE Code of Ethics; BER Case 93-4; contractual provision designating engineer as initial interpreter of contract documents
Engineer A, sought to remain impartial in the dispute, citing a provision in his contract with the Owner stating that the engineer is the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work.
Engineer A Design Phase Bilateral Constructability Consultation Prohibition — Contractor B Water Treatment
Engineer A works for Engineering Firm X, retained by a municipality to design a water treatment facility. Engineer A wishes to consult with Contractor B — a contractor with whom Engineer A has a prior working relationship — on constructability issues, but recognizes that Contractor B may bid on the construction contract and that such consultation could provide an unfair advantage.
Design-Phase Bilateral Contractor Consultation Prohibition Constraint
NSPE Code of Ethics — Sections II.4 (faithful agent), III.6 (honorable procurement conduct), III.7 (competitor fairness); public procurement fairness principles; BER Case precedent on informal information sharing in public procurement contexts
Throughout the design phase of the water treatment facility, until the construction contract is publicly awarded through a fair competitive bidding process
Engineer A Good Intent Non-Justification for Informal Consultation — Water Treatment Constructability
Engineer A believes that discussions with Contractor B would benefit the design documents and the overall project, but this good-faith design-improvement motivation does not justify the informal selective information sharing that would result from bilateral constructability consultations with a prospective bidder.
Good Intention Non-Exculpation for Confidentiality Breach Constraint
Engineer A's genuine belief that informal constructability consultations with Contractor B would improve the design documents and benefit the overall project does not exculpate or justify the ethical violation arising from the selective, informal sharing of technical project information with a prospective bidder — establishing that benevolent design-improvement motivation does not substitute for formal, equitable procurement information-sharing processes.
NSPE Code of Ethics — Sections II.4, III.6, III.7; BER Case 82-2 (engineer acting without ulterior motive nonetheless acted unethically by sharing client information without authorization through informal channels)
While Engineer A believes that the design documents and the overall project would benefit from discussions with Contractor B
Throughout the design phase of the water treatment facility
Engineer A Informal Information Sharing Prohibition — Constructability Consultation Water Treatment
Engineer A wishes to consult informally with Contractor B on constructability issues during the design phase, but such informal consultation would share technical project information not equally available to all prospective bidders, creating an unfair competitive advantage.
Informal Selective Document Sharing Prohibition Constraint
NSPE Code of Ethics — Sections II.4, III.6, III.7; BER Case 82-2 (good intentions do not justify informal information sharing); public procurement fairness principles; Constructability-Contractor-Consultation-Ethics-Standard
{'type': 'Engineering consulting firm', 'contract': 'Municipal water treatment facility design'}
Retained by the municipality to design the water treatment facility; employs Engineer A and assigns them to the project, bearing institutional obligations of faithful agency to the municipal client and compliance with public procurement standards.
{'type': 'employer_of', 'target': 'Engineer A'}
{'type': 'retained_by', 'target': 'Municipality'}
Engineer A Construction Phase Contractual Impartiality Obligation
From commencement of construction through resolution of the concrete pour dispute
Engineer A sought to remain impartial in the dispute, citing a provision in his contract with the Owner stating that the engineer is the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work
Contractual Impartiality Obligation State
Engineer A's role as initial interpreter of contract documents in the Owner-Contractor dispute
Owner's acceptance of Engineer A's interpretation (though with criticism)
Engineer A agreed with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes
it would have been unethical for Engineer A to have found in the Owner's favor
Dispute arising between Owner and General Contractor concerning acceptability of a concrete pour, with both parties requesting Engineer A's review under the contractual interpreter provision
Engineer A Faithful Agent Design Quality Within Procurement Integrity Limits Present Case
Engineer A sought to improve design quality through contractor constructability input but was constrained from doing so through informal bilateral channels that would compromise procurement integrity
NSPE Code of Ethics; public procurement fairness principles
the need to serve the client's interest consistent with the engineer's obligation to act as a faithful agent and trustee.
Engineer A Good Intent Non-Justification Informal Bilateral Consultation Present Case
Engineer A's motivation for consulting Contractor B was genuine design quality improvement, not competitive favoritism — but good intent does not cure the procurement integrity violation
NSPE Code of Ethics; BER Case 82-2 (good intent non-exculpation principle)
Fairness In Professional Competition Invoked Contractor B Bidding
All prospective bidders for water treatment facility construction contract
Design Quality Through Constructability Input Obligation
All contractors who may bid on the water treatment facility construction contract — not only Contractor B — are entitled to compete on equal terms, without any single contractor having received advance technical briefings, constructability insights, or project information through a private channel unavailable to competitors
Fairness in competition requires that Engineer A's prior working relationship with Contractor B not translate into a competitive informational advantage — the professional relationship creates a risk of unfairness that must be managed through formal equal-access mechanisms
Engineer A Water Treatment Facility Design Engineer Present Case
Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract following the design phase
Competitive fairness is preserved by ensuring that any constructability input obtained from Contractor B or others is disseminated to all prospective bidders through a public meeting or formal addendum
Engineer A may be providing the contractor with an unfair advantage during the public bidding process
Owner-Contractor Dispute Requiring Engineer Adjudication
From dispute arising over concrete pour acceptability through Owner's acceptance of Engineer A's interpretation
the Owner had approved certain changes in the work and that the Contractor complied with those changes
Engineer A's simultaneous obligations of loyalty to Owner and contractual impartiality as dispute interpreter
Engineer A owed a general duty of loyalty to the Owner. However, in acting impartially under the terms of the contract, the Board of Ethical Review determined that Engineer A fulfilled that ethical obligation
Dispute between Owner and General Contractor over acceptability of concrete pour, with both parties requesting Engineer A's review
Public Welfare Paramount Invoked Water Treatment Facility Design Quality
Water treatment facility design for Municipality
Equal Competitive Access in Design-Phase Consultation
The public's interest in a well-designed, constructible water treatment facility — a critical public health infrastructure asset — provides the underlying justification for Engineer A's desire to obtain constructability input, while the public's interest in fair and uncorrupted procurement processes provides the constraint on how that input may be obtained
Public welfare in this context encompasses both the quality and safety of the water treatment facility design and the integrity of the public procurement process — both dimensions of public welfare must be served simultaneously
Both dimensions of public welfare are served by the public constructability meeting approach, which improves design quality while preserving procurement integrity
Engineer A Prior Relationship Contractor B Appearance of Favoritism Constraint — Water Treatment Procurement
Engineer A has a prior working relationship with Contractor B, who may potentially bid on the water treatment facility construction contract. This prior relationship creates an appearance of favoritism that constrains Engineer A's ability to consult informally with Contractor B on constructability issues during the design phase.
Prior Contractor Relationship Procurement Appearance of Favoritism Constraint
NSPE Code of Ethics — Sections II.4 (conflict of interest avoidance), III.6 (honorable procurement conduct); Conflict-of-Interest-Disclosure-Standard-Contractor-Relationship; public procurement fairness principles
Throughout the design phase and the public bidding process for the water treatment facility construction contract
Client Loyalty Invoked By Engineer A Present Case Bidding Integrity
Municipality Water Treatment Client's interest in maintaining integrity of public bidding process
Engineer A's obligation to serve the Municipality's interests requires honoring the integrity of the public bidding process — the client's interest in a fair, legally defensible procurement is served by avoiding informal selective consultation that could expose the bidding process to legal challenge or the appearance of favoritism
Client loyalty in a public procurement context encompasses the client's institutional interest in a legally defensible and publicly credible bidding process, not merely the client's interest in a well-designed facility
The publicly advertised constructability meeting serves client loyalty by simultaneously improving design quality and protecting the client's procurement integrity interest
Engineering Firm X Procurement Integrity Oversight Obligation Water Treatment
Engineering Firm X, as the entity retained by the Municipality to design the water treatment facility, bears institutional responsibility for ensuring that its engineers' conduct during the design phase does not compromise the integrity of the subsequent public bidding process.
Competitive Procurement Fairness Obligation
Engineering Firm X is obligated to ensure that its engineers — including Engineer A — do not engage in informal bilateral consultations with prospective bidders during the design phase of the water treatment facility project, and to establish institutional protocols for sharing constructability information through formal equal-access channels consistent with public procurement integrity requirements.
Throughout the design phase of the water treatment facility project
Loyalty Fulfillment Through Role-Faithful Objective Performance Invoked By Engineer A BER Case 93-4
Owner BER Case 93-4 Client's claim that loyalty required a finding in Owner's favor
Engineer A's impartial finding in favor of the Contractor — though contrary to the Owner's expressed preference — served the Owner's genuine interests by providing candid interpretation, expediting the claim, avoiding further delays and misunderstandings, and preventing collusion allegations
Loyalty to a client who has contractually designated the engineer as an impartial adjudicator is fulfilled through objective role performance, not through partisan advocacy — the client's long-term interest in a credible and defensible process supersedes the short-term preference for a favorable finding
Engineer A Construction Dispute Impartial Interpreter
Loyalty Fulfillment Through Role-Faithful Objective Performance
The Board resolved the apparent tension between loyalty and impartiality by recognizing that genuine service to client welfare — not mere compliance with client preference — is the operative standard of loyalty
Objectivity Invoked By Engineer A BER Case 93-4 Dispute Resolution
Technical and contractual evaluation of concrete pour acceptability dispute
Engineer A applied objective technical and contractual analysis to the concrete pour dispute, finding in favor of the Contractor based on the merits — that the Owner had approved certain changes and the Contractor complied with those changes — without allowing the client relationship to bias the determination
Objectivity in a contractually designated adjudicatory role requires applying technical and contractual standards without regard to which party retained the engineer, and resisting pressure to skew findings toward the retaining party
By acting in an impartial, neutral, and objective manner as the initial interpreter of the contract documents' requirements and judge of the acceptability of the work, Engineer A fulfilled his legal and ethical responsibility under the terms of the agreement.
Objectivity and loyalty are reconciled by recognizing that the client's genuine interest is served by objective findings, not partisan advocacy
Engineer A agreed with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes.
Pre-Bid Constructability Consultation Conflict — Engineer A and Contractor B
During design phase prior to public bid opening
Pre-Bid Constructability Consultation Conflict State
Engineer A's consideration of consulting solely with Contractor B during design phase
Decision to hold publicly advertised constructability meeting or conclusion of design phase
Engineer A's recognition that contractor input would improve design and construction outcomes, combined with Contractor B's status as a potential bidder
Publicly Advertised Constructability Meeting Available — Engineer A Design Phase
During design phase, concurrent with the Pre-Bid Constructability Consultation Conflict State
Publicly Advertised Constructability Meeting Available State
Engineer A's access to a public constructability meeting mechanism as an alternative to selective consultation
Constructability meeting held, or design phase concluded
Such a process would avoid any appearance of favoritism toward one particular contractor, serve the client's interests, and gain the benefit of broader input to improve the design and construction process
Board of Ethical Review's identification of the publicly advertised constructability meeting as a viable resolution pathway
Equal Competitive Access Invoked By Engineer A Water Treatment Design
Informal constructability consultation with Contractor B during design phase of public water treatment facility
Faithful Agent Obligation Within Ethical Limits
Engineer A recognizes that informal bilateral consultation with Contractor B — a prospective bidder — on technical and constructability aspects of the water treatment facility design would provide Contractor B with information and insight unavailable to other prospective bidders, creating an unfair competitive advantage in the subsequent public bidding process
In this context, the principle prohibits Engineer A from conducting private informal consultations with Contractor B and requires that any constructability input be obtained through mechanisms — such as a public constructability meeting open to all prospective bidders — that preserve equal competitive access
Faithful Agent Obligation Invoked By Engineer A BER Case 93-4
Concrete pour acceptability dispute between Owner and General Contractor
Impartiality in Contractually Designated Dispute Resolution Role
Engineer A fulfilled the faithful agent obligation to the Owner by acting impartially as the contractually designated interpreter of contract documents, serving the Owner's genuine interest in candid, expeditious, and defensible dispute resolution rather than partisan advocacy
In this context, faithful agency does not require finding in the client's favor; it requires honest, role-faithful performance that serves the client's genuine long-term interests, including avoidance of collusion allegations and expeditious claim resolution
the NSPE Board of Ethical Review concluded that it would have been unethical for Engineer A to have found in the Owner's favor and Engineer A owed a general duty of loyalty to the Owner. However, in acting impartially under the terms of the contract, the Board of Ethical Review determined that Engineer A fulfilled that ethical obligation to the Owner.
Client Loyalty Invoked Firm X Municipality Water Treatment
Public bidding process for construction contract
Procurement Integrity in Public Engineering
Engineering Firm X and Engineer A owe loyalty to the Municipality as client, which includes serving the Municipality's interest in both a high-quality design and a legally defensible, fair competitive procurement process — loyalty to the client requires protecting the client from procurement integrity risks created by informal selective contractor consultations
Client loyalty in the public procurement context encompasses protection of the client's procurement process integrity, not merely technical design quality — serving the client's immediate design preferences at the cost of procurement fairness is a failure of loyalty, not an expression of it
Design Quality Constructability Obligation Invoked By Engineer A
Design phase of public water treatment facility for Municipality
Engineer A's professional judgment that the design documents and overall project would benefit from constructability discussions reflects the affirmative obligation to seek expert construction input during design — an obligation that must be fulfilled through formal channels rather than abandoned due to procurement concerns
Engineer A's belief that the project would benefit from constructability input is not merely a personal preference but reflects a professional obligation to produce a constructible, cost-effective design for the public client — the ethical challenge is to fulfill this obligation through appropriate formal mechanisms
Design Quality Through Constructability Input Obligation Invoked By Engineer A Present Case
Municipal water treatment facility design for Municipality Water Treatment Client
Engineer A sought constructability input from Contractor B to improve the design of the municipal water treatment facility, recognizing that contractor expertise could produce a better design and construction outcome — an obligation that is properly fulfilled through a publicly advertised constructability meeting rather than informal selective consultation
The obligation to seek constructability expertise is legitimate and serves the client's and public's interest in a successfully constructed facility, but must be discharged through channels that preserve equal competitive access
inviting all interested contractors to provide Engineer A with the input necessary to achieve a better design and construction outcome
{'license': 'Professional Engineer', 'specialty': 'Design and construction administration', 'contractual_role': 'Initial interpreter of contract documents and judge of work acceptability'}
Retained by Owner for design and construction-phase services; designated as initial interpreter of contract documents and judge of work acceptability; acted impartially in a dispute between Owner and Contractor, finding in favor of the Contractor's technically correct position despite Owner's claim that loyalty required finding in Owner's favor; cited as the precedent case (BER Case 93-4) illustrating faithful agent obligations fulfilled through impartiality.
{'type': 'client', 'target': 'Owner (BER Case 93-4)'}
{'type': 'dispute_parties', 'target': 'General Contractor (BER Case 93-4)'}
Construction Dispute Impartial Interpreter Engineer
Engineer A Honorable Procurement Conduct Water Treatment Facility
Engineer A's role as design engineer for a public municipal water treatment facility carries procurement integrity obligations that require honorable conduct in all interactions with prospective bidders during the design phase.
Honorable Professional Conduct in Procurement Obligation
Engineer A is obligated to conduct themselves honorably, responsibly, and fairly in all procurement-related matters connected to the water treatment facility project, including refraining from informal bilateral constructability consultations with Contractor B that would compromise the fairness of the subsequent public bidding process.
Throughout the design phase and the public bidding process
Engineer A Informal Information Sharing Restraint Constructability Consultation
Engineer A possesses technical project information by virtue of the design role and must not share that information informally with a single prospective bidder, even when the intent is to improve design quality.
Informal Information Sharing Restraint Obligation
Engineer A is obligated to refrain from sharing constructability information or technical project details with Contractor B through informal, personally initiated channels, and instead to direct any constructability information sharing through formal, agency-sanctioned processes that provide equal access to all prospective bidders.
During the design phase, prior to the public bidding process
Engineer A Pre-Bid Constructability Consultation Conflict
From the point Engineer A considers consulting Contractor B through the conclusion of the public bidding process or adoption of an equitable disclosure mechanism
General public as beneficiary of fair procurement
Other potential bidders on the construction contract
Engineer A's contemplated consultation with Contractor B during design phase of municipal water treatment facility
Conclusion of public bidding process, or establishment of a formal open process making consultation information available to all potential bidders
While Engineer A believes that the design documents and the overall project would benefit from discussions with Contractor B, Engineer A is concerned that by discussing technical and other aspects of the project with the contractor, Engineer A may be providing the contractor with an unfair advantage during the public bidding process
Engineer A's desire to discuss constructability issues with Contractor B, who is a potential bidder on the construction contract
Engineer A Good Intent Non-Justification for Procedural Impropriety Present Case
Engineer A's motivation for consulting Contractor B was to improve the design quality of the water treatment facility — a constructive and professionally sound objective. However, the NSPE Board determined that this benign motivation did not justify the procedurally improper informal bilateral consultation with a single prospective bidder.
Good Intent Non-Justification for Policy Violation Obligation
Engineer A was obligated to recognize that the genuine belief that informal consultation with Contractor B would improve the design documents did not render the informal bilateral consultation ethically permissible, and that good intent does not cure the structural harm to procurement integrity caused by selective pre-bid information sharing.
In the Board's view, this objective could be achieved in a manner that not only permits Engineer A to gain the necessary contractor input, but also honors the client's interest in maintaining the integrity of the public bidding process.
At the time Engineer A considered and pursued informal consultation with Contractor B
Engineer A Water Treatment Facility Design Engineer
{'license': 'Professional Engineer (implied)', 'employer': 'Engineering Firm X', 'specialty': 'Water treatment facility design'}
Assigned by Firm X to design a municipal water treatment facility; seeks to consult Contractor B on constructability issues but is concerned about conferring an unfair bidding advantage on a prospective construction contractor.
{'type': 'agent_for', 'target': 'Municipality Client'}
{'type': 'employee', 'target': 'Engineering Firm X'}
{'type': 'prospective_consultant', 'target': 'Contractor B'}
Water Treatment Facility Design Engineer
Equal Access To Bid Information Invoked Water Treatment Facility
Constructability information about water treatment facility design
All prospective bidders for the water treatment facility construction contract are entitled to equal access to the constructability information and technical insights that Engineer A seeks to obtain from Contractor B — the principle requires that such information be disseminated equally rather than shared selectively with one prospective bidder
Equal access requires that Engineer A not share technical project information with Contractor B in a private consultation, but instead make any constructability information available to all prospective bidders through formal mechanisms such as bid addenda or public pre-bid meetings
Equal Access to Bid Information in Public Procurement
Formal Channel Requirement Invoked Engineer A Design Phase Consultation
Constructability consultation during design phase
Engineer A must share any constructability information or technical project details through formal, institutionally sanctioned processes — such as a public constructability meeting or bid addendum — rather than through informal personal consultation with Contractor B, so that all prospective contractors receive equal access and no appearance of favoritism is created
The formal channel requirement applies not only to post-bid-document information sharing but also to design-phase constructability consultations when the consulted party is a prospective bidder — informal channels are impermissible regardless of the engineer's benign intent
Formal Channel Requirement for Information Sharing in Public Procurement
Engineer A would like to also discuss constructability issues with a local contractor, Contractor B, with whom Engineer A has worked and who may potentially also bid on the water treatment facility construction contract
Concrete pour acceptability dispute between Owner BER Case 93-4 Client and General Contractor
Engineer A, designated by contract as the initial interpreter of contract documents and judge of work acceptability, rendered an impartial finding in favor of the Contractor based on the merits, resisting the Owner's claim that loyalty required a finding in the Owner's favor
The contractual designation of the engineer as impartial adjudicator creates an obligation to apply technical and contractual standards objectively, and this impartial role performance fulfills rather than violates the duty of loyalty
Engineer A Competitive Procurement Constructability Information Formal Channel Present Case
Engineer A sought to consult informally with Contractor B on constructability aspects of the water treatment facility design, without providing equivalent access to other prospective bidders, compromising the integrity of the subsequent competitive procurement process.
Competitive Procurement Constructability Information Formal Channel Obligation
Engineer A was obligated to share constructability information and technical project details with prospective bidders exclusively through formal, institutionally sanctioned processes — such as a publicly advertised constructability meeting — refraining from informal bilateral information sharing with Contractor B.
During the design phase of the water treatment facility project
Engineer A Conflict of Interest State - Prior Relationship with Contractor B
From assignment of Engineer A to the water treatment facility design through conclusion of the public bidding process
Engineer A's prior working relationship with Contractor B creating potential bias or appearance of favoritism in the context of a public procurement
Conclusion of public bidding process or formal recusal of Engineer A from any procurement-influencing decisions
Engineer A's prior professional relationship with Contractor B, who is a potential bidder on the construction contract Engineer A is designing for
Engineer A Contractually Designated Dispute Resolver Impartiality BER 93-4
Engineer A was retained by an Owner for design and construction-phase services. A dispute arose between the Owner and the General Contractor over the acceptability of a concrete pour. Engineer A was contractually designated as the initial interpreter of contract documents and judge of work acceptability. The Owner demanded that Engineer A find in the Owner's favor based on loyalty.
Contractually Designated Dispute Resolver Impartiality Obligation
Engineer A was obligated to render an impartial, objective determination in the concrete pour dispute based solely on the contract documents and the facts, refraining from finding in the Owner's favor merely because the Owner was the client, even when the Owner demanded a client-favoring result.
Upon being asked by both the Owner and the Contractor to review the dispute
Following his review, Engineer A agreed with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes.
Engineer A Design Phase Constructability Informal Consultation Prohibition
Engineer A is designing a municipal water treatment facility for Firm X and wishes to consult Contractor B — a prospective bidder with whom Engineer A has a prior working relationship — on constructability issues during the design phase, while recognizing the potential for unfair competitive advantage.
Design-Phase Constructability Consultation Equal Access Obligation
Engineer A is obligated to refrain from informally consulting Contractor B on constructability issues during the design phase of the water treatment facility, because Contractor B may bid on the subsequent construction contract and such informal consultation would provide Contractor B with an unfair informational advantage over other prospective bidders in the public bidding process.
During the design phase, prior to the public bidding process for the construction contract
Engineer A Formal Constructability Meeting Convening Obligation Water Treatment
Engineer A believes the design documents and overall project would benefit from constructability discussions, but must achieve that design quality goal through formal equal-access channels rather than informal bilateral consultation with a single prospective bidder.
Public Constructability Meeting Convening Obligation
Engineer A is obligated to fulfill the design quality objective of obtaining constructability input by convening a formal public constructability meeting open to all prospective bidders on equal terms, or by issuing formal addenda incorporating constructability information, rather than consulting informally with Contractor B alone.
During the design phase, before the public bidding process is initiated
Engineer A Public Constructability Meeting Convening Present Case
Engineer A sought constructability input from Contractor B — a prospective bidder with a prior working relationship — during the design phase of a public water treatment facility. The NSPE Board determined that a publicly advertised constructability meeting would have achieved the design quality objective without compromising the competitive procurement process.
Engineer A was obligated to fulfill the design quality objective of obtaining constructability input through a publicly advertised constructability meeting open to all interested contractors, rather than through informal bilateral consultation with Contractor B alone, so that both the faithful agent duty to produce the best design and the obligation to preserve procurement integrity were simultaneously discharged.
During the design phase, before the public bidding process commenced
Engineer A Competitive Procurement Fairness Obligation Water Treatment Bidding
The water treatment facility construction contract will be awarded through a public bidding process, and Engineer A's role as design engineer creates a position of informational advantage that must not be exploited to benefit any single prospective bidder.
Engineer A is obligated to ensure that the public bidding process for the water treatment facility construction contract is conducted fairly, including by refraining from providing Contractor B — or any other prospective bidder — with technical or constructability information through informal channels that are not equally available to all prospective bidders.
During the design phase and prior to the public bidding process
Engineer A Faithful Agent Design Quality Within Procurement Integrity Limits
Engineer A's faithful agent duty to the Municipality client includes producing high-quality, constructible design documents, but this duty must be discharged without compromising the integrity of the subsequent public bidding process by providing informal advantages to a single prospective bidder.
Engineer A is obligated to serve the Municipality faithfully by producing the best possible design documents for the water treatment facility — including by seeking constructability input — but must fulfill this faithful agent duty within the ethical limits imposed by the equal competitive access requirement, using only formal institutional channels to obtain and disseminate constructability information.
While Engineer A believes that the design documents and the overall project would benefit from discussions with Contractor B.
Engineer A Good Intent Non-Justification Informal Consultation Water Treatment
Engineer A's motivation for consulting Contractor B is constructive — to improve design quality — but this benign intent does not justify bypassing the formal institutional processes required to preserve procurement integrity and equal competitive access.
Engineer A is obligated to recognize that the genuine belief that informal consultation with Contractor B would improve the design documents does not render the informal consultation ethically permissible, because good intent does not cure the procedural impropriety of providing a prospective bidder with an informational advantage in a public procurement process.
At the point of deciding whether to consult Contractor B informally during the design phase
Faithful Agent Obligation Invoked Engineer A Municipality Client
Decision whether to consult Contractor B informally
Design of water treatment facility for Municipality
Faithful agency to the Municipality encompasses both design quality and procurement integrity — a faithful agent does not improve design quality through means that would expose the client's procurement process to legal challenge or public criticism
Good Intent Does Not Cure Procedural Impropriety Invoked Engineer A Consultation
Proposed informal consultation with Contractor B on constructability issues
The principle applies directly: Engineer A's constructive intent to improve the project does not justify a process that creates unfair competitive advantage, regardless of how beneficial the design outcome might be
Good Intent Does Not Cure Procedural Impropriety
Engineer A Design Phase Constructability Consultation Equal Access Present Case
Engineer A had a prior working relationship with Contractor B and sought informal constructability consultation with Contractor B during the design phase of the public water treatment facility, creating an unfair informational advantage for Contractor B in the subsequent public bidding process.
Engineer A was obligated to refrain from consulting informally and bilaterally with Contractor B — a single prospective bidder — on constructability issues during the design phase, and instead to share constructability information through formal channels providing equal access to all prospective bidders.
Fairness in Professional Competition Invoked By Engineer A Present Case
Public bidding process for municipal water treatment facility construction
Engineer A's informal selective consultation with Contractor B during the design phase — without equivalent access for other prospective bidders — creates an unfair competitive advantage for Contractor B in the subsequent public bidding process, violating the principle of fair competitive access
Fairness in public procurement requires that no prospective bidder receive design-phase access to constructability information or influence over design decisions that is unavailable to competing bidders
The publicly advertised constructability meeting resolves the fairness concern by making equivalent access available to all prospective bidders simultaneously
Procurement Integrity Invoked In Water Treatment Bidding Process
Public bidding process for water treatment facility construction contract
The public bidding process for the water treatment facility construction contract requires that Engineer A refrain from actions — including informal pre-bid consultations with prospective bidders — that would compromise the integrity of the competitive selection process by conferring informational advantages on individual contractors
Procurement integrity in this context requires not only that the formal bid process be conducted fairly, but that the design engineer's pre-bid conduct — including design-phase consultations — not create conditions that distort competition before the formal process begins
Procurement integrity is preserved by channeling constructability input through a public meeting open to all prospective bidders, ensuring no single bidder gains informational advantage
Engineer A Client Loyalty Non-Partisan Dispute Finding Boundary BER 93-4
The Owner criticized Engineer A after Engineer A found in the Contractor's favor, claiming that Engineer A's duty of loyalty required a client-favoring result. The NSPE Board of Ethical Review determined that it would have been unethical for Engineer A to have found in the Owner's favor and that impartial performance fulfilled the loyalty obligation.
Client Loyalty Non-Partisan Dispute Finding Boundary Obligation
Engineer A was obligated to recognize that the duty of loyalty to the Owner did not require — and in fact prohibited — finding in the Owner's favor when the contract documents and facts supported the Contractor's position, and that impartial performance of the contractually designated role constituted fulfillment of the loyalty obligation.
At the time of rendering the dispute determination and in response to the Owner's criticism
Equal Competitive Access in Design-Phase Consultation Invoked By Engineer A Present Case
Constructability consultation for municipal water treatment facility design prior to public bidding
Rather than consulting solely with Contractor B on constructability issues during the design phase, Engineer A should conduct a publicly advertised constructability meeting open to all interested contractors, ensuring equal access to design input opportunities and avoiding the appearance of favoritism toward Contractor B
The equal competitive access principle requires that constructability input — which may confer competitive intelligence about the project — be solicited through open, publicly advertised channels rather than through selective informal consultation with a preferred contractor
Municipality Public Bidding Process - Equitable Access State
From the point Engineer A contemplates the consultation through the conclusion of the public bidding process
Selective Pre-Bid Information Sharing State
The risk that technical project information shared exclusively with Contractor B during design consultations would not be available to other potential bidders in the public procurement process
Adoption of a formal open disclosure mechanism making all shared information available to all potential bidders, or decision not to consult Contractor B
Engineer A's consideration of sharing technical and project-specific information with Contractor B prior to public bid solicitation
Engineer A Faithful Agent Obligation Present Case Municipality Client
Engineer A, employed by Firm X, was designing a municipal water treatment facility and sought constructability input from Contractor B, a prospective bidder with whom Engineer A had a prior working relationship. The faithful agent duty required serving the Municipality's design quality interests while honoring the Municipality's interest in a fair competitive procurement.
Engineer A was obligated to serve the Municipality's interests faithfully — including by producing the best possible design documents for the water treatment facility — within the ethical limits imposed by the obligation to preserve the integrity of the public bidding process.
This obligation is rooted in the notion that the engineer's actions must be aligned with the goals of the employer or client.
{'license': 'Professional Engineer', 'specialty': 'Water treatment facility design', 'project_phase': 'Design phase with constructability consultation'}
The design engineer in the present case who consulted informally with Contractor B on constructability issues during the design phase of a public water treatment facility project, raising procurement fairness concerns; the Board determined Engineer A should instead have convened a publicly advertised constructability meeting open to all interested contractors.
{'type': 'client', 'target': 'Municipal Client'}
{'type': 'informal_consultant', 'target': 'Contractor B'}