Appearance of Impropriety - Engineer A Prior Relationship Firm B QBS Decision
Engineer A has a documented prior positive professional experience with Firm B on City X projects and is the point of contact on the QBS review team, creating a structural risk of biased leniency in the procurement decision regarding Firm B's late submission
Appearance of Impropriety Avoidance in Public Procurement Constraint
Engineer A must avoid any action regarding Firm B's late submission that could create a reasonable appearance of favoritism arising from Firm B's prior favorable performance on City X projects, including any unilateral exercise of discretion to accept the late submission or to route it into the evaluation process.
NSPE Code of Ethics Sections II.4, III.6; BER Cases 82-2, 15-7, 16-3
Firm B had also performed well on several other engineering design projects for the city
Throughout the QBS evaluation process for the City X public building project
Engineer A is the point of contact on the City X QBS review team for this project
Engineer A returned to his office in the afternoon on January 30 and was intercepted by the city manager's administrative assistant, who had a large envelope bearing Engineer A's name and the letterhead of Firm B
The NSPE Board of Ethical Review has previously examined ethical issues relating to the selection of engineering services in the public arena. For example, in BER Case 10-8...
Turning to the facts of the present case, it is the Board's view, consistent with BER Case 10-8, that a balance needs to be struck between the objective of selecting the most qualified engineering firm and strict adherence to the relevant public procurement rules and policies.
NSPE Board of Ethical Review in analogical reasoning to the present case
Cited as controlling precedent establishing the balance between open public procurement objectives and strict adherence to procurement rules, including the ethical permissibility of FOIA requests in QBS procurement contexts and the importance of avoiding appearances of impropriety
BER Case 10-8 FOIA Competitor Intelligence Acquisition
From Engineer B's submission of the FOIA request through the Board's ethical review and determination
Engineer B, a competitor of Engineer A, whose firm also intended to respond to the same RFQ, submitted a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state.
FOIA-Based Competitor Intelligence Acquisition State
Engineer B's use of a state FOIA request to obtain Engineer A's submitted qualifications before Engineer B's own firm submitted its RFQ response
Board determination that the FOIA request was permissible but that timing (before own submission) created an appearance of impropriety
the NSPE Board of Ethical Review determined that it was ethical for Engineer B to make the FOIA request in connection with the state's procurement of engineering services, pursuant to the State's RFQ procedures, but that in order to avoid any appearance of impropriety, Engineer B should have made the FOIA request subsequent to and not before Engineer B's firm submitted its RFQ
Engineer B submitting a state FOIA request for Engineer A's qualifications prior to Engineer B's firm submitting its own RFQ response
CausalLink_City Establishes Submission Ru
CausalLink_Engineer A Decides on Late Sub
City Establishes Submission Rules → Deadline Passes Unmet
City Manager Administrative Assistant Non-Facilitation Misdirected Submittal
The city manager's administrative assistant received Firm B's envelope at the city manager's office at 2:05 pm on January 30 — after the deadline and at the wrong location — and then presented it to Engineer A; the Board found this action, however well-intentioned, did not cure the procedural defect.
City Manager Administrative Assistant (City X)
Honorable Professional Conduct in Procurement Obligation
The city manager's administrative assistant was obligated to refrain from receiving and forwarding Firm B's misdirected QBS submittal to Engineer A, recognizing that accepting a submittal at the wrong location — even with good intent — introduced a procedural irregularity into the procurement process that compromised its integrity.
the city manager's administrative assistant's act of receiving Firm B's misdirected envelope and presenting it to Engineer A — however well-intentioned
At the time Firm B's envelope was delivered to the city manager's office on January 30
while in this case there does not appear to be a nefarious cause for Firm B's failure to deliver the submittal to the correct city office by the required hour
City Manager Administrative Assistant Non-Facilitation Misdirected Submittal Constraint
Firm B delivered its SOQ to the city manager's office rather than the designated submission location, and the city manager's administrative assistant received and forwarded the submission to Engineer A, thereby introducing a non-compliant submission into the procurement process.
Wrong-Office Delivery Non-Acceptance Constraint
The city manager's administrative assistant was constrained from receiving and forwarding Firm B's misdirected QBS submittal to Engineer A — because accepting and routing a submission delivered to the wrong city office into the procurement process would facilitate non-compliance with published procurement rules and undermine procurement integrity.
City X QBS procurement rules; NSPE Code of Ethics principles applicable to procurement integrity
Firm B's SOQ was delivered to the city manager's office rather than the designated submission location
At the time Firm B's SOQ was delivered to the city manager's office
the Board is concerned that allowing Firm B's submittal to be considered would open the procurement to challenge or at the very least create a climate in which non-adherence to public procurement rules and policies are tolerated
City Manager Administrative Assistant Non-Facilitation Misdirected Submittal Honorable Conduct
Honorable Procurement Conduct Self-Regulation Capability
The city manager's administrative assistant needed to recognize that receiving and forwarding Firm B's misdirected QBS submittal to Engineer A — after the deadline had passed — was inconsistent with honorable conduct in the procurement process
The city manager's administrative assistant received Firm B's misdirected QBS submittal at the city manager's office at 2:05 pm on January 30 — after the 2:00 pm deadline — and forwarded it to Engineer A
The BER's identification that the administrative assistant was obligated to refrain from receiving and forwarding the misdirected submittal to Engineer A
Such a situation would not reflect well on that process, the city, or the engineering profession
City Manager Administrative Assistant Submittal Intermediary
{'role_type': 'Administrative assistant to city manager', 'licensure': 'Non-engineer', 'action': 'Received and routed misdirected submittal to Engineer A'}
The city manager's administrative assistant received Firm B's misdirected QBS submittal at the city manager's office at 2:05 pm on January 30 — after the published deadline and at the wrong location. The assistant intercepted Engineer A upon his return to the office and presented the envelope, creating the ethical dilemma about late submittal acceptance. The date- and time-stamp on the envelope establishes the evidentiary record of non-compliant receipt.
{'type': 'employer', 'target': 'City X Municipal Infrastructure Client'}
{'type': 'intermediary_to', 'target': 'Engineer A QBS Review Team Point of Contact'}
{'type': 'received_submittal_from', 'target': 'Firm B Late Submittal QBS Competitor'}
City Manager Administrative Staff Procurement Intermediary
intercepted by the city manager's administrative assistant, who had a large envelope bearing Engineer A's name and the letterhead of Firm B
the submittal was received on January 30 at 2:05 pm in the city manager's office
City Manager Administrative Assistant Submittal Intermediary Procurement Awareness
Procurement Fairness Appearance Management Capability
The city manager's administrative assistant possesses — or should possess — the capability to recognize that forwarding a misdirected QBS submittal to the designated point of contact engineer rather than to the city clerk's office creates an appearance of impropriety and informal preferential handling that could compromise procurement integrity.
The city manager's administrative assistant received Firm B's misdirected submittal and delivered it personally to Engineer A rather than routing it through proper procurement channels
The act of intercepting Engineer A and delivering Firm B's envelope to him personally rather than directing it to the city clerk's office or returning it to Firm B as non-compliant
Engineer A returned to his office in the afternoon on January 30 and was intercepted by the city manager's administrative assistant, who had a large envelope bearing Engineer A's name and the letterhead of Firm B.
{'procurement_method': 'Qualifications-Based Selection (QBS)', 'project_type': 'New public building design', 'initial_interest': '14 firms participated in pre-submittal meeting', 'published_requirements': "10:00 am deadline, city clerk's office submission location"}
City X is the procuring public agency seeking qualified engineering firm services for a new public building using QBS. Published submittal requirements including deadline (10:00 am, January 30), location (city clerk's office), and conducted a mandatory pre-submittal meeting. Bears obligations of fair and impartial procurement administration and equitable treatment of all competing firms.
{'type': 'employer', 'target': 'Engineer A QBS Review Team Point of Contact'}
{'type': 'procurement_authority_over', 'target': 'Firm B Late Submittal'}
The city is seeking the services of a qualified engineering firm and is using QBS for the design of the new public building
City X published the date, time, and location of the submittal
City X RFQ and Pre-Submittal Meeting Documentation
City X Request for Qualifications and Pre-Submittal Meeting Agenda
The date, time, and location were also listed in the city's RFQ webpage and appeared on the hard copy agenda that was distributed at the pre-submittal meeting
The city conducted a mandatory pre-submittal meeting and received initial interest from 14 different firms
All competing firms including Firm B; Engineer A in evaluating compliance
Establishes the published procedural requirements communicated to all 14 firms, including the specific deadline of 10:00 am on January 30 and the designated submission location of the city clerk's office, forming the evidentiary basis for assessing whether Firm B had adequate notice of requirements
Client Relationship Established - Engineer A and City X
Ongoing employment relationship active throughout the procurement process
Engineer A works for a public agency in City X
Engineer A's employment relationship with City X as public agency engineer and point of contact on QBS review team
Engineer A's employment with City X and assignment as QBS review team point of contact
Competitive Procurement Fairness - 14 Firm Equal Treatment QBS City X
14 firms participated in the mandatory pre-submittal meeting and received the same published deadline and delivery location requirements; accepting Firm B's late submission would create an unfair advantage over the 13 firms that complied with the published requirements
Competitive Procurement Fairness Constraint
Engineer A must ensure that all 14 firms that participated in the pre-submittal meeting are treated equally under the published QBS procurement rules, including uniform enforcement of the 10:00 am January 30 deadline and the city clerk's office delivery requirement, prohibiting any preferential treatment of Firm B that would disadvantage the 13 other competing firms.
QBS Law applicable to City X; NSPE Code of Ethics; Public Procurement Fairness Standard
Throughout the QBS procurement process for the City X public building project
City X published the date, time, and location of the submittal for the Statements of Qualifications (SOQs) indicating all submittals must be received by the city in the city clerk's office no later than 10:00 am on January 30
Engineer A should return the submittal to Firm B unopened with the explanation that the bid was received late.
The Board's sole explicit conclusion is a formal recommendation that Engineer A must reject Firm B's late submittal by returning it unopened, citing the submission's receipt after the deadline and at the wrong office location. This determination is grounded in procurement integrity obligations, equal treatment of all competing firms, and the principle that good intent or prior favorable relationships cannot cure procedural non-compliance with published QBS submission rules.
Beyond the Board's finding that Engineer A should return the submittal unopened, Engineer A's prior favorable relationship with Firm B creates an independent and unaddressed obligation to disclose that relationship to a supervisor or procurement authority before taking any action on the envelope — even the ministerial act of returning it. The structural conflict between Engineer A's role as an objective QBS evaluator and his documented positive history with Firm B means that any unilateral disposition of the envelope, however procedurally correct, carries an appearance of impropriety that disclosure alone can cure. The Board's conclusion addresses what Engineer A should do with the envelope but does not address whether Engineer A was the appropriate person to make that determination at all. Strict procurement integrity requires not only correct outcomes but demonstrably impartial processes, and Engineer A's failure to recuse or disclose before acting — even when acting correctly — leaves the procurement vulnerable to a legitimate challenge from any of the 13 other competing firms who might reasonably question whether the decision was made by a conflicted evaluator.
The Board's conclusion focuses exclusively on Engineer A's obligations but leaves unexamined a materially complicating factor: the city manager's administrative assistant accepted, held, and forwarded a misdirected procurement submittal for over four hours before it reached Engineer A. This chain of custody through a non-designated city office is not ethically or legally neutral. The administrative assistant's acceptance of the envelope — even passively — may constitute city-side facilitation of a procedurally defective submission, and that facilitation creates a factual record that Firm B could plausibly use to argue that the city bore partial responsibility for the submission's misdirection. The Board's recommendation to return the envelope unopened is correct as a substantive matter, but it does not address the documentation Engineer A must create to establish a clear, contemporaneous record of when the envelope was received by the city manager's office, when it reached Engineer A, what actions were taken, and on what basis. Without that formal record, the city's legal exposure from a Firm B challenge is substantially increased, and Engineer A's own professional conduct becomes difficult to verify after the fact. The absence of a documented record of these events would itself constitute a lapse in Engineer A's obligation to serve faithfully as a public procurement administrator.
The Board's recommendation correctly rejects any consequentialist rationale for accepting Firm B's late submittal — such as Firm B's demonstrated competence on prior City X projects — but the Board does not fully articulate why that rejection is ethically mandatory rather than merely procedurally convenient. The deeper principle is that QBS procurement integrity is itself a public welfare instrument: the entire QBS framework exists to ensure that public agencies select engineering firms through a process that is transparent, competitive, and resistant to favoritism. Allowing Engineer A to weigh Firm B's prior performance as a mitigating factor would not merely bend a procedural rule; it would fundamentally corrupt the mechanism by which public welfare is protected in engineering procurement. The 13 other competing firms that complied with the published deadline and location requirements would be materially disadvantaged by any exception granted to Firm B, regardless of Firm B's qualifications. Furthermore, accepting the submittal would establish a precedent that deadline and location requirements are negotiable when a firm has a favorable track record with the evaluating engineer — a precedent that would undermine every future QBS procurement administered by City X. The Board's conclusion is therefore not merely about this envelope; it is about the structural integrity of the public procurement system that Engineer A is obligated to protect as a faithful agent of City X and as a professional engineer serving the public interest.
In response to Q101: Engineer A's prior favorable relationship with Firm B creates a structural appearance-of-impropriety risk that, while not necessarily requiring full recusal from the entire QBS process, does obligate Engineer A to proactively disclose the relationship to a supervisor or procurement authority before taking any unilateral action on the late submittal envelope. The decision to return the envelope unopened — though substantively correct — carries greater institutional legitimacy and legal defensibility when made transparently through a supervisory chain rather than by Engineer A acting alone. The prior relationship does not disqualify Engineer A from making the correct procedural call, but the combination of a known favorable relationship and a discretionary procedural decision creates precisely the conditions under which disclosure is ethically mandatory, not merely advisable. Failure to disclose, even when the ultimate action taken is proper, leaves Engineer A and City X vulnerable to a credible appearance-of-favoritism challenge from any of the 13 other competing firms.
In response to Q102: The city manager's administrative assistant bears an independent procedural and quasi-ethical responsibility for the manner in which the misdirected envelope was handled. By accepting the envelope, retaining it for over four hours, and then routing it to Engineer A rather than immediately notifying Firm B of the delivery error or returning it to the courier, the administrative assistant became an inadvertent participant in a procurement irregularity. While the assistant is not a licensed engineer and is not directly bound by the NSPE Code of Ethics, public procurement integrity norms impose on all city employees handling procurement materials an obligation to avoid actions that could compromise the fairness of a competitive process. The correct action upon receiving a clearly procurement-related envelope addressed to a specific city official would have been to immediately contact the city clerk's office, notify Firm B of the misdirected delivery, and decline to hold the envelope in an unofficial location. The four-hour retention period in the city manager's office is itself a procedural irregularity that complicates the chain-of-custody record and could form the basis of a legal challenge by Firm B arguing city-side complicity in the late delivery.
In response to Q103: Engineer A does not have an affirmative ethical obligation to proactively notify all 13 other pre-submittal firms that Firm B's late submittal was received and returned unopened, but Engineer A does have an obligation to ensure that an accurate record of the disposition is created and maintained in a manner accessible through normal procurement transparency mechanisms. Proactive notification to all 13 firms could itself introduce a new procedural irregularity by drawing attention to a competitor's failure in a manner not contemplated by the QBS process rules. However, if any competing firm inquires about the number of SOQs received or the status of the procurement, Engineer A is obligated to respond truthfully and in accordance with applicable public records requirements. The transparency obligation is satisfied by accurate record-keeping and honest response to inquiry, not by unsolicited broadcast of Firm B's procedural failure to the competitive field.
In response to Q104: Engineer A has a clear and non-discretionary documentation obligation regarding the receipt, handling, and return of Firm B's late submittal. At minimum, Engineer A should create a contemporaneous written record establishing: the exact date and time the envelope was received by Engineer A, the date-time stamp already affixed by the city manager's office, the identity of the administrative assistant who transferred the envelope, the fact that the envelope was returned unopened, the method and date of return, and any communication made to Firm B regarding the rejection. Failure to create this formal record is itself an ethical lapse in public procurement administration because it leaves the city without a defensible evidentiary basis if Firm B challenges the rejection, and it undermines the transparency obligations that attach to all public procurement decisions. The documentation obligation is not merely administrative best practice — it is an extension of Engineer A's faithful agent duty to City X and of the broader public procurement integrity standard that requires all procurement actions to be fully accountable.
In response to Q201: The tension between Procurement Integrity and Public Welfare Paramount does not resolve in favor of accepting Firm B's late submittal, even in a public safety-critical building context. The public welfare is itself served by procurement integrity: a QBS process that enforces deadlines uniformly protects the public from favoritism, bid manipulation, and legal challenges that could delay or derail the project entirely. Accepting a late submittal on the grounds that the submitting firm is more qualified would require Engineer A to make a unilateral merit judgment before evaluating any of the 13 compliant submittals — a judgment that is both procedurally improper and substantively premature. Furthermore, the premise that strict rejection necessarily produces a less capable outcome is speculative; one or more of the 13 compliant firms may be equally or more qualified than Firm B. The public welfare argument for leniency is therefore both procedurally impermissible and factually unsupported at the time of Engineer A's decision.
In response to Q202: The tension between Fairness in Professional Competition and the principle that Good Intent Does Not Cure Procedural Impropriety is sharpened — but not resolved differently — by the possibility that city-side administrative failure contributed to Firm B's late delivery. Even if the city manager's administrative assistant's acceptance of the envelope created a misleading impression that the delivery was valid, the published submission rules were unambiguous: submittals were required at the city clerk's office by 10:00 am. Firm B bore the responsibility to ensure delivery to the correct location by the correct time. The administrative assistant's acceptance of the envelope does not constitute city ratification of a late or misdirected submittal. However, this city-side irregularity does create a legitimate basis for Firm B to seek administrative review or legal remedy, and it strengthens the argument that Engineer A must document the full chain of custody meticulously. The fairness obligation to the 13 compliant firms outweighs any equitable sympathy for Firm B arising from the administrative assistant's conduct.
In response to Q203: The apparent conflict between Engineer A's Faithful Agent Obligation to City X and the Prior Performance Non-Consideration principle dissolves upon closer analysis. City X's institutional interest in Firm B's continued participation, to the extent it exists, is properly expressed through the procurement process itself — by inviting Firm B to compete — not by waiving procedural requirements after a deadline violation. Engineer A's faithful agent duty requires serving City X's lawful procurement interests, which include maintaining a legally defensible QBS process. Accepting Firm B's late submittal in deference to the city's prior positive experience with Firm B would expose City X to legal challenge from the 13 compliant firms and could invalidate the entire procurement. The faithful agent obligation therefore aligns with, rather than conflicts with, strict deadline enforcement: both require Engineer A to protect City X's legal and institutional integrity by rejecting the late submittal.
In response to Q204: The tension between the Transparency Principle and the Misdirected Submittal Non-Acceptance Obligation does not justify concealing the full chain of custody of Firm B's envelope. While Engineer A and City X may be concerned that full transparency about the administrative assistant's four-hour retention of the envelope could expose the city to legal challenge, the ethical obligation of transparency is not contingent on whether disclosure is legally convenient. Engineer A's duty under the NSPE Code to be objective and truthful requires that any formal record of the submittal disposition accurately reflect the complete sequence of events, including the city manager's office receipt. Attempting to minimize or omit the administrative assistant's role in order to insulate the city from legal risk would itself constitute a form of deception that violates Engineer A's professional obligations. The appropriate response to the legal exposure risk is not concealment but rather consultation with City X's legal counsel about how to document and communicate the chain of custody accurately while managing the city's legal position.
In response to Q301: From a deontological perspective, Engineer A fulfilled the categorical duty of equal treatment by returning Firm B's late submittal unopened. The Kantian universalizability test is instructive: if Engineer A were to accept Firm B's late submittal on the basis of prior favorable performance, the maxim underlying that action — 'accept late submittals from firms with whom you have had positive prior experience' — could not be universalized without destroying the integrity of competitive procurement entirely. Every evaluator would then be entitled to apply personal relationship history as a criterion for procedural leniency, which would render published deadlines meaningless. The deontological analysis therefore strongly supports the Board's conclusion: the duty to treat all competing firms equally is categorical and is not overridden by consequentialist considerations about Firm B's relative competence or prior performance.
In response to Q302: From a virtue ethics perspective, Engineer A demonstrated the professional virtues of impartiality and integrity precisely by resisting the rationalization that Firm B's good intent or the administrative confusion surrounding the misdirected envelope justified acceptance. Virtue ethics asks what a person of good professional character would do, and the answer here is that a virtuous procurement official would recognize that the temptation to accommodate a known and trusted firm is exactly the kind of bias that procurement rules are designed to neutralize. The virtue of impartiality is not merely the absence of active favoritism — it includes the active resistance of sympathetic impulses that, however well-intentioned, would compromise the fairness of the competitive process. Engineer A's prior favorable relationship with Firm B makes the demonstration of impartiality more difficult and therefore more ethically significant, not less required.
In response to Q303: From a consequentialist perspective, the argument that accepting Firm B's late submittal would produce a better overall outcome for the public interest is both speculative and institutionally dangerous. The consequentialist calculus must account not only for the potential benefit of Firm B's participation but also for the systemic costs of deadline non-enforcement: erosion of procurement integrity, legal vulnerability for City X, unfairness to the 13 compliant firms who invested resources in meeting the deadline, and the precedent-setting effect of rewarding procedural non-compliance. When these systemic costs are properly weighted, the consequentialist analysis does not clearly favor acceptance. Moreover, Engineer A is not positioned at the time of the decision to make a reliable comparative quality judgment between Firm B and the 13 compliant submittals. The consequentialist calculus therefore has no legitimate weight in Engineer A's ethical decision-making at this procedural juncture, and reliance on it would constitute precisely the kind of rationalization that procurement rules are designed to prevent.
In response to Q304: From a deontological perspective, Engineer A's prior favorable relationship with Firm B does create an independent duty to disclose that relationship to City X procurement authorities before making any determination about Firm B's late submittal, separate from the substantive rejection decision itself. This duty arises from the categorical obligation of honesty and transparency that attaches to all public officials exercising discretionary procurement authority. Even if the substantive decision — returning the envelope unopened — is the only ethically permissible action, the process by which that decision is made must itself be transparent and accountable. A deontological framework does not permit Engineer A to rely on the correctness of the outcome to excuse the absence of procedural disclosure. The duty to disclose the prior relationship is therefore not contingent on whether Engineer A believes the relationship influenced the decision; it is triggered by the structural fact of the relationship itself in combination with the exercise of procurement authority.
In response to Q401: If Firm B's submittal had been delivered to the city clerk's office on time and Engineer A had personally received it rather than the clerk, Engineer A would have had no obligation to return it — the submittal would have been timely and properly directed. The chain of custody through the city manager's administrative assistant does materially change the ethical analysis in one important respect: it introduces a city-side procedural irregularity that complicates the factual record and creates a potential basis for Firm B to argue that the city's own conduct contributed to the late and misdirected delivery. However, this city-side irregularity does not change Engineer A's substantive obligation to reject the late submittal, because the published rules placed the burden of timely and correctly directed delivery entirely on the submitting firm. The chain of custody irregularity is ethically significant primarily for its documentation and legal implications, not for the substantive rejection decision.
In response to Q402: If Engineer A had inadvertently opened the envelope before noticing the late timestamp, the ethical obligations would expand significantly. Engineer A would then possess knowledge of Firm B's qualifications that no other evaluator should have at that stage of the process, creating an informational asymmetry that compromises Engineer A's ability to serve as an objective evaluator. In that scenario, Engineer A would be obligated to: immediately disclose the inadvertent opening to procurement supervisors; recuse from any comparative evaluation of Firm B's qualifications against compliant submittals; and consider whether the inadvertent disclosure requires notification to all competing firms or formal documentation in the procurement record. The inadvertent opening would not change the obligation to reject Firm B's late submittal, but it would create a secondary ethical obligation to quarantine the improperly acquired information and prevent it from influencing the evaluation of compliant submittals.
In response to Q403: Engineer A's ethical obligations regarding Firm B's late submittal would not materially differ if none of the 13 other competing firms had attended the mandatory pre-submittal meeting, because the submission deadline and location were published through multiple independent channels — the pre-submittal meeting agenda, the city's RFQ webpage, and the published RFQ documentation. The pre-submittal meeting attendance is relevant to establishing notice, but it is not the sole or even primary mechanism by which submission requirements were communicated. All 14 firms, including Firm B, had constructive notice of the deadline and location through the publicly available RFQ documentation. The equal notice question would only become ethically significant if Engineer A had reason to believe that the submission requirements had been communicated exclusively through the pre-submittal meeting and that some firms lacked access to that information — a factual scenario not present in this case.
In response to Q404: If Engineer A had proactively contacted Firm B before the January 30 deadline to informally remind them of the submission requirements, that action would constitute improper favoritism regardless of Engineer A's benign intent. Engineer A's role as QBS review team point of contact carries an obligation of strict impartiality in all pre-evaluation communications with competing firms. Selectively reminding one of 14 competing firms of submission requirements — even if motivated by genuine concern for procurement completeness rather than by a desire to advantage Firm B — would provide Firm B with a form of individualized attention and implicit assurance not available to the other 13 firms. The prior favorable relationship between Engineer A and Firm B makes such a proactive contact particularly problematic, because it would be indistinguishable from preferential treatment to any outside observer. Engineer A's informal information sharing restraint capability must be exercised to avoid exactly this kind of well-intentioned but structurally improper contact.
The central principle tension in this case — Procurement Integrity Over Qualification Merit Balancing versus Public Welfare Paramount — was resolved by recognizing that these two principles are not genuinely in conflict but are instead mutually reinforcing in the QBS context. The Board's conclusion that Engineer A must return the submittal unopened reflects the understanding that public welfare is best served by a procurement system whose integrity is structurally reliable, not by case-by-case merit assessments that invite favoritism and legal challenge. Allowing Firm B's late submittal on the grounds of demonstrated competence would undermine the very framework that protects the public from arbitrary or corrupt procurement decisions. The case teaches that when a principle appears to conflict with public welfare, the analyst must ask whether the principle itself exists to serve public welfare at a systemic level — and in public procurement, procedural integrity is precisely such a systemic public welfare mechanism. Qualification merit is properly evaluated only after procedural eligibility is established; it cannot be used to cure procedural non-compliance without collapsing the distinction between the two stages of QBS evaluation.
The tension between Fairness in Professional Competition for all 14 pre-submittal firms and the principle that Good Intent Does Not Cure Procedural Impropriety was resolved decisively in favor of equal treatment, but the case reveals an underexamined asymmetry: the city manager's administrative assistant's acceptance and four-hour retention of Firm B's envelope introduced a city-side procedural failure that complicates a clean assignment of fault solely to Firm B. Despite this complication, the Board's resolution is ethically sound because the Fairness in Professional Competition principle operates at the level of the competitive field as a whole — all 13 other firms that complied with the deadline and location requirements would be materially disadvantaged if a firm that failed both requirements were granted an exception, regardless of why that failure occurred. The principle that good intent does not cure procedural impropriety applies with equal force to city-side administrative confusion: the assistant's acceptance of the envelope did not transform a non-compliant submittal into a compliant one. This case teaches that procedural fairness principles are not merely formal rules but are the structural guarantees that make competitive procurement trustworthy, and they must be enforced even when doing so is uncomfortable and even when city-side conduct contributed to the ambiguity.
The case surfaces a largely unresolved tension between the Faithful Agent Obligation requiring Engineer A to serve City X's interests and the Prior Performance Non-Consideration principle, and it teaches an important lesson about how these principles interact with Engineer A's structural conflict of interest. City X has an institutional interest in obtaining the most qualified engineering services for a public building, and Firm B's strong track record on prior city projects is a documented fact. However, the Faithful Agent Obligation cannot be interpreted to authorize Engineer A to exercise discretionary leniency toward Firm B on the grounds that doing so serves City X's long-term interest in retaining a high-performing firm — because that interpretation would allow Engineer A's prior favorable relationship with Firm B to masquerade as faithful agency. The Prior Performance Non-Consideration principle exists precisely to prevent this rationalization. Furthermore, the Transparency Principle and the Appearance of Impropriety constraint together create an independent obligation: Engineer A's prior favorable relationship with Firm B should have been disclosed to a supervisor or procurement authority before Engineer A took any action on the envelope, not because the substantive rejection decision was wrong, but because the integrity of that decision — and City X's legal defensibility — required that it be made or ratified by someone without a prior relationship with Firm B. The case thus teaches that faithful agency in public procurement includes the duty to protect the agency from the appearance of biased decision-making, which may require disclosure or recusal even when the engineer is confident in their own impartiality.
Conflict of Interest - Engineer A Evaluator Prior Favorable Relationship Firm B
Engineer A's prior positive professional experience with Firm B creates a structural conflict of interest that must be managed through disclosure and recusal rather than individual self-assessment, particularly given that Engineer A is the point of contact with authority over the QBS review process
Prior Favorable Relationship Procurement Recusal or Disclosure Constraint
Engineer A must disclose to the city manager or procurement supervisor the prior favorable professional relationship with Firm B and must recuse from any unilateral decision regarding Firm B's submission, deferring to a neutral institutional decision-maker on whether the late submission can be accepted.
NSPE Code of Ethics conflict of interest provisions; Public Official Conflict of Interest Standard; City X procurement integrity obligations
Upon receipt of Firm B's envelope on January 30 and throughout any evaluation decision affecting Firm B
Conflict of Interest - Engineer A QBS Evaluator with Known Firm
From the moment Engineer A received the late envelope from Firm B through resolution of the procurement decision
Engineer A's structural conflict between role as objective QBS evaluator and prior favorable relationship with Firm B
Formal recusal, disclosure to governing authority, or conclusion of procurement
The envelope was date- and time-stamped to indicate that the submittal was received on January 30 at 2:05 pm
Engineer A being intercepted with Firm B's late submission while serving as QBS review team point of contact for a procurement in which Firm B is competing
Should Engineer A return Firm B's late and misdirected submittal unopened, or accept it into the QBS evaluation on the grounds that the procedural error was minor and Firm B has a strong prior performance record with City X?
Engineer A's obligation to strictly enforce the published QBS submittal deadline and location requirements by returning Firm B's misdirected and late submittal unopened, regardless of Firm B's prior satisfactory performance on City X projects or the apparent harmlessness of the procedural error.
Return Firm B's submittal unopened with written notice to Firm B that the SOQ was received after the published deadline and at the wrong location, and document the rejection in the procurement record
Accept Firm B's submittal into the evaluation pool on the grounds that the envelope arrived within the same governmental entity on the same day, treating the misdirection as a minor administrative irregularity that caused no demonstrable harm to other competing firms
Escalate the disposition decision to the city attorney or procurement officer rather than acting unilaterally, presenting the full chain-of-custody facts and requesting an official ruling on whether the city manager's office acceptance constitutes a valid city receipt that tolls the deadline
Before taking any action on Firm B's envelope, should Engineer A disclose his prior favorable relationship with Firm B to a supervisor or procurement authority, or is Engineer A's confidence in his own impartiality sufficient to proceed with the rejection decision unilaterally?
Engineer A's obligation to disclose his prior favorable professional relationship with Firm B to a supervisor or procurement authority before taking any unilateral action on the misdirected envelope — even the ministerial act of returning it — given that the structural conflict between Engineer A's role as an objective QBS evaluator and his documented positive history with Firm B creates an appearance of impropriety that disclosure alone can cure.
Immediately disclose the prior favorable relationship with Firm B to a procurement supervisor or the city attorney before taking any action on the envelope, and request supervisory ratification of the rejection decision
Proceed with returning the envelope unopened based on the unambiguous published rules, then document the prior relationship and the action taken in the procurement record as a contemporaneous disclosure, treating the correct substantive outcome as sufficient to demonstrate impartiality
Recuse entirely from any further involvement in the Firm B submittal disposition and all subsequent QBS evaluation steps involving Firm B, transferring the envelope and the rejection decision to another city official without taking any personal action on it
Engineer A - QBS Evaluator with Prior Relationship
What level of formal documentation must Engineer A create regarding the receipt, chain of custody, and return of Firm B's late submittal, and does the four-hour retention by the city manager's administrative assistant create additional documentation obligations beyond a standard rejection record?
Engineer A's obligation to create a formal, contemporaneous documentation record of the full chain of custody of Firm B's envelope — including the city manager's office receipt time, the administrative assistant's identity, the basis for rejection, the fact that the envelope was returned unopened, and communication to Firm B — so that the procurement record is transparent, defensible, and consistent with equal treatment of all competing firms.
Create a comprehensive contemporaneous written record documenting the full chain of custody — including the city manager's office receipt timestamp, the administrative assistant's identity and role, the basis for rejection, the unopened return, and written notification to Firm B — and consult City X's legal counsel about how to communicate the chain of custody accurately while managing the city's legal position
Create a standard rejection record documenting the deadline non-compliance and the return of the envelope unopened, without separately documenting the administrative assistant's four-hour retention on the grounds that the city manager's office conduct is an internal administrative matter outside the scope of the QBS procurement record
Document the rejection and return of the envelope, then proactively notify all 13 other pre-submittal firms in writing that one SOQ was received after the deadline and at the wrong location and was returned unopened, treating broad notification as the transparency mechanism that satisfies the equal treatment obligation
Engineer A - Public Procurement Administrator
Does the city manager's administrative assistant bear independent procedural responsibility for the manner in which Firm B's misdirected envelope was handled, and does the assistant's four-hour retention of the envelope constitute city-side facilitation of a procurement irregularity that complicates the clean assignment of fault solely to Firm B?
The city manager's administrative assistant's independent procedural and quasi-ethical responsibility for accepting, retaining for over four hours, and forwarding a misdirected procurement submittal to Engineer A rather than immediately notifying Firm B of the delivery error, returning the envelope, or contacting the city clerk's office — and whether that city-side conduct materially alters the ethical analysis of Firm B's non-compliance.
Upon receiving the procurement envelope, immediately contact the city clerk's office to report the misdirected delivery, notify Firm B's representative that the envelope was delivered to the wrong location and cannot be accepted at the city manager's office, and decline to retain or forward the envelope
Route the envelope to Engineer A as the named recipient on the envelope, treating the delivery as internal city mail routing and deferring any procurement compliance determination to Engineer A as the designated QBS point of contact with authority over submittal handling
Physically transport the envelope to the city clerk's office immediately upon receipt, treating the delivery as a misdirected submittal that can be corrected by internal city transfer, on the grounds that delivery within the same governmental entity on the same day satisfies the spirit of the submission requirement
Does Engineer A's obligation to serve the public interest permit him to weigh Firm B's prior strong performance on City X projects as a factor in deciding whether to accept the late submittal, or does the QBS framework categorically exclude prior performance from the procedural compliance determination?
The resolution of the apparent tension between the Procurement Integrity Over Qualification Merit Balancing Principle and the Public Welfare Paramount principle — specifically whether Engineer A may weigh Firm B's demonstrated competence on prior City X projects as a mitigating factor in the compliance determination, and whether the consequentialist argument for acceptance has any legitimate weight in Engineer A's ethical decision-making at the procedural stage.
Reject Firm B's submittal as procedurally non-compliant without considering Firm B's prior performance record, treating the compliance determination as categorically separate from the merit evaluation stage and returning the envelope unopened
Accept Firm B's submittal into the evaluation pool while documenting the procedural irregularity, treating Firm B's demonstrated competence on prior City X projects as a mitigating factor that, in combination with the apparent harmlessness of the error, justifies a public-interest exception to strict deadline enforcement for this safety-critical building project
Reject Firm B's submittal as procedurally non-compliant but simultaneously recommend to City X procurement authorities that the RFQ be re-issued with an extended deadline to allow all interested firms — including Firm B — to resubmit, on the grounds that the city manager's office acceptance of the envelope created a city-side irregularity that compromises the fairness of proceeding solely on the 13 compliant submittals
Engineer A - QBS Administrator Balancing Procurement Integrity and Public Welfare
Does Engineer A's transparency obligation require proactive notification to all 13 other pre-submittal firms that Firm B's late submittal was received and returned unopened, or is the obligation satisfied by accurate procurement record-keeping and truthful response to direct inquiry — and how should Engineer A handle the tension between full transparency and City X's legal exposure from the chain-of-custody irregularity?
Engineer A's transparency obligation regarding the disposition of Firm B's submittal — specifically whether Engineer A must proactively notify all 13 other pre-submittal firms of the rejection, or whether the transparency obligation is satisfied by accurate record-keeping and honest response to direct inquiry — and how this obligation interacts with the risk that full transparency about the city manager's office chain of custody could expose City X to legal challenge from Firm B.
Create an accurate and complete procurement record documenting the full chain of custody including the city manager's office receipt, consult City X's legal counsel about communication strategy, and respond truthfully to any direct inquiry from competing firms or public records requestors — without proactively broadcasting Firm B's procedural failure to the competitive field
Proactively notify all 13 other pre-submittal firms in writing that one SOQ was received after the deadline and at the wrong location and was returned unopened, treating broad notification as the mechanism that best satisfies the equal treatment and transparency obligations owed to the full competitive field
Document the rejection and return of the envelope in the procurement record without separately documenting the city manager's office chain of custody, on the grounds that the administrative assistant's conduct is an internal city matter outside the scope of the QBS procurement record and that full disclosure of the four-hour retention period would unnecessarily expose City X to legal challenge from Firm B without serving any legitimate procurement transparency purpose
Engineer A - Transparency and Equal Treatment Obligor
Engineer A Competitive Procurement Fairness Assessment
Competitive Procurement Fairness Assessment Capability
Engineer A possesses the capability to assess whether accepting Firm B's late and misdirected submittal would undermine the fairness and integrity of the QBS process for the 13 other firms that participated in the pre-submittal meeting and submitted compliant qualifications on time.
City X received initial interest from 14 different firms; accepting Firm B's late submittal would affect the competitive fairness of the process for all other participating firms
Recognition that accepting a late submittal would disadvantage the other 13 firms that complied with published requirements and create an unfair competitive advantage for Firm B
Engineer A QBS Review Team Point of Contact
The city conducted a mandatory pre-submittal meeting and received initial interest from 14 different firms.
The envelope was date- and time-stamped to indicate that the submittal was received on January 30 at 2:05 pm in the city manager's office.
Engineer A Competitive Procurement Fairness Assessment City X QBS
Engineer A needed to assess whether accepting Firm B's misdirected submittal would provide Firm B with an unfair competitive advantage over other firms that complied with the published submittal requirements
Engineer A administered the City X QBS process and was required to evaluate the fairness implications of accepting a submittal that did not comply with published location and deadline requirements
Recognition that accepting the non-compliant submittal would undermine the fairness of the QBS process for all competing firms
any effort on the part of Engineer A to fail to follow the strict rules and policies of the public procurement process could call the integrity of the process into question
The integrity of the professional engineering selection process is critically important in assuring that the public receives high-quality engineering services at a fair and reasonable cost
Engineer A Confidential Information Self-Exclusion Public Procurement Submission
Engineer A submitted firm qualifications to a state agency in response to a public RFQ, and the BER cautioned that engineers should avoid including confidential or proprietary information in such submissions given FOIA exposure.
Public Procurement Qualifications Confidentiality Self-Protection Obligation
Engineer A was constrained from including confidential or proprietary information in the firm's qualifications submission to the state agency, because such information could be subject to public disclosure under applicable FOIA laws and regulations, and the engineer bears responsibility for ensuring that public procurement submissions do not contain information the engineer would not wish to be publicly disclosed.
NSPE Code of Ethics; BER Case 10-8; State FOIA Law
The Board would caution engineers that, in situations such as the one represented by the facts of this case, an engineer may wish to avoid including any confidential or proprietary information in this type of submission to a public agency since such information could be subject to public disclosure under applicable laws and regulations
At the time of preparing and submitting qualifications to the state agency
Engineer A Confidential Submission Self-Protection State RFQ
Confidential Submission Self-Protection in Public Procurement Capability
Engineer A, as a firm that submitted qualifications to a state agency in response to a public RFQ, needed to recognize that those qualifications could be subject to FOIA disclosure and to exercise judgment about what confidential or proprietary information to include
Engineer A submitted firm qualifications to a state agency in response to a public RFQ; Engineer B subsequently obtained those qualifications via FOIA request before submitting his own firm's qualifications
Engineer A's qualifications were obtained by Engineer B through a FOIA request — illustrating the need for self-protective judgment about submission content
Engineer A Discovers Submittal → QBS Evaluation Period Affected
Engineer A Good Intent Non-Justification Firm B Sympathy Procurement
Engineer A may have been sympathetic to Firm B's situation and mindful of Firm B's prior satisfactory performance; the Board found that good intent and sympathy cannot cure a procedural impropriety in public procurement.
Engineer A (QBS Review Team Point of Contact, City X)
Good Intent Non-Justification for Policy Violation Obligation
Engineer A was obligated to recognize that sympathy for Firm B's situation and awareness of Firm B's prior good performance — however well-intentioned — did not ethically justify accepting Firm B's non-compliant submittal or deviating from strict procurement rules.
While Engineer A may have been mindful of the past performance of Firm B and may have viewed Firm B's failure to deliver the submittal to the correct city office by the required hour a harmless error, any effort on the part of Engineer A to fail to follow the strict rules and policies of the public procurement process could call the integrity of the process into question
At the time of evaluating Firm B's non-compliant submittal
Engineer A Harmless Error Non-Exception Firm B Submittal
The Board found no nefarious cause for Firm B's failure to deliver to the correct office by the required time, but nonetheless concluded that accepting the submittal would undermine procurement integrity.
Harmless Error Non-Exception in QBS Procurement Compliance Obligation
Engineer A was obligated to reject Firm B's submittal notwithstanding the apparent absence of nefarious intent or actual harm to the procurement process, recognizing that accepting a harmless-appearing procedural error would create a climate tolerating non-adherence to procurement rules and expose the process to challenge.
while in this case there does not appear to be a nefarious cause for Firm B's failure to deliver the submittal to the correct city office by the required hour, the Board is concerned that allowing Firm B's submittal to be considered would open the procurement to challenge or at the very least create a climate in which non-adherence to public procurement rules and policies are tolerated
Upon receipt and evaluation of Firm B's non-compliant submittal
Engineer A Harmless Error Non-Waiver Firm B Late Submission
Engineer A, as point of contact on the QBS review team for City X's new public building project, received Firm B's SOQ delivered to the city manager's office 4 hours and 5 minutes after the 10:00 am deadline, and was constrained from accepting it despite Firm B's prior satisfactory performance on other city contracts.
Engineer A was constrained from accepting or treating as validly submitted Firm B's Statement of Qualifications delivered to the wrong city office after the deadline, even though the non-compliance appeared to be a harmless error without nefarious cause — because accepting the submission would open the procurement to challenge and create a climate of tolerated non-adherence to public procurement rules.
NSPE Code of Ethics; BER Case 10-8; City X QBS procurement rules
At the time of the procurement deadline and submission evaluation
Engineer A may have viewed Firm B's failure to deliver the submittal to the correct city office by the required hour a harmless error
Engineer A Informal Information Sharing Restraint
Informal Information Sharing Restraint Capability
Engineer A possesses the capability to recognize that informally accepting or processing Firm B's misdirected submittal — rather than directing it through formal institutional channels — creates an appearance of impropriety and selective advantage, and to restrain from such informal handling by directing the matter to proper procurement channels.
Engineer A was personally intercepted with Firm B's envelope, creating a situation where informal handling of the submittal was possible but would be ethically problematic
Recognition that personally receiving and processing a competing firm's submittal outside of the designated city clerk's office process would constitute informal handling that undermines procurement integrity
Engineer A Misdirected Submittal Procedural Triage
Misdirected Submittal Procedural Triage Capability
Engineer A possesses the capability to recognize that Firm B's submittal was misdirected to the city manager's office rather than the designated city clerk's office, and to correctly determine that this misdirection — combined with the late receipt time — renders the submittal procedurally non-compliant regardless of whether the envelope eventually reached an agency employee.
Engineer A was intercepted by the city manager's administrative assistant with Firm B's misdirected envelope after returning to his office in the afternoon on January 30
Assessment of the procedural implications of a submittal received at the city manager's office rather than the city clerk's office, after the published deadline
City X published the date, time, and location of the submittal for the Statements of Qualifications (SOQs) indicating all submittals must be received by the city in the city clerk's office no later than 10:00 am on January 30.
Engineer A Prior Favorable Relationship Firm B Procurement Recusal Disclosure Constraint
Engineer A had a documented prior positive professional experience with Firm B on City X projects while serving as QBS review team point of contact, creating a structural conflict of interest that required recusal or disclosure rather than individual self-assessment of the procurement decision.
Engineer A was constrained, by virtue of the prior favorable professional relationship with Firm B, to either recuse from evaluation decisions affecting Firm B or make full disclosure of the relationship to procurement supervisors — prohibiting Engineer A from exercising unilateral discretion over the procedural decision of whether to accept Firm B's late, misdirected submission without institutional oversight.
NSPE Code of Ethics; Conflict of Interest Avoidance provisions; BER Case 10-8
Engineer A may have been mindful of the past performance of Firm B
At the time of the procurement decision regarding Firm B's non-compliant submission
Engineer A Prior Favorable Relationship with Firm B
Throughout Engineer A's evaluation of the procurement submissions, including the decision on Firm B's late submission
Engineer A may have been mindful of the past performance of Firm B and may have viewed Firm B's failure to deliver the submittal to the correct city office by the required hour a harmless error
Prior Favorable Relationship with Competing Firm State
Engineer A's documented positive professional experience with Firm B creating structural risk of biased leniency in the procurement decision
Engineer A's awareness of Firm B's past performance and favorable view of that firm at the time of the procurement decision
Engineer A Prior Performance Non-Consideration Firm B Compliance Determination
Engineer A was aware of Firm B's prior good performance on several other engineering design projects for the city; the Board found this awareness could not ethically justify accepting Firm B's non-compliant submittal.
Prior Performance Non-Consideration in QBS Compliance Determination Obligation
Engineer A was obligated to refrain from allowing Firm B's prior satisfactory performance on other city engineering contracts to influence the determination that Firm B's submittal was non-compliant with the published deadline and location requirements.
While Engineer A may have been mindful of the past performance of Firm B and may have viewed Firm B's failure to deliver the submittal to the correct city office by the required hour a harmless error
At the time of making the compliance determination regarding Firm B's submittal
Engineer A Prior Performance Non-Consideration Firm B Procurement Decision
Engineer A had prior positive professional experience with Firm B on City X projects, creating a structural risk that this relationship could improperly influence the decision to accept or reject Firm B's non-compliant submission.
Engineer A was constrained from allowing Firm B's prior satisfactory performance on other City X engineering contracts to influence the determination of whether Firm B's late, misdirected SOQ submission should be accepted — because permitting prior performance to override procedural compliance requirements would create an appearance of favoritism and undermine procurement integrity.
NSPE Code of Ethics; City X QBS procurement rules; BER Case 10-8
During the QBS evaluation process for City X's new public building project
{'license': 'Professional Engineer', 'context': 'BER Case 10-8 referenced precedent', 'procurement_type': 'State public RFQ'}
Submitted firm's engineering qualifications to a state agency in response to a public RFQ; the submitted qualifications were subsequently obtained by competitor Engineer B via a FOIA request prior to Engineer B's own submission.
{'type': 'competitor_of', 'target': 'Engineer B FOIA Requesting Competitor'}
Engineer A submitted his firm's engineering qualifications for a public project to a state agency using the state's public procurement procedures.
the state then provided the information to Engineer B
Engineer A Prior Relationship Non-Favoritism Assessment
Prior Relationship Non-Favoritism in QBS Evaluation Capability
Engineer A possesses the capability to recognize that Firm B's favorable prior performance history with City X does not justify making an exception to the published submittal deadline requirements, and to apply procurement rules consistently regardless of Firm B's established relationship with the agency.
Firm B had performed well on several other engineering design projects for City X, creating potential pressure on Engineer A to accommodate the late submittal
Recognition that Firm B's prior good performance on city engineering projects creates pressure toward favoritism that must be resisted in applying deadline requirements
Firm B had also performed well on several other engineering design projects for the city.
Engineer A Procurement Challenge Vulnerability Assessment City X QBS
Procurement Process Challenge Vulnerability Assessment Capability
Engineer A needed to assess that accepting Firm B's misdirected submittal would expose the City X procurement to legal challenge and create a climate of non-adherence to procurement rules
Engineer A administered the City X QBS process and was required to evaluate the consequences of accepting a procedurally non-compliant submittal
Recognition that accepting the late submittal would open the procurement to challenge and reflect negatively on the city and the engineering profession
Engineer A Procurement Fairness Appearance Management
Engineer A possesses the capability to recognize that his personal receipt of Firm B's envelope — delivered to him by name rather than to the city clerk's office — creates an appearance of impropriety that must be managed by ensuring the submittal is handled through proper institutional channels rather than through informal personal action.
The envelope bore Engineer A's name and was delivered to him personally by the city manager's administrative assistant, creating an appearance of informal preferential handling
Recognition that the envelope was addressed to Engineer A personally and delivered through informal channels, creating an appearance concern that requires formal procedural handling
Engineer A Procurement Integrity Balance Judgment City X QBS
Procurement Integrity Balance Judgment Capability
Engineer A was required to balance sympathy for Firm B's prior good performance and the apparent harmlessness of the misdirected submittal against the obligation to strictly enforce QBS procurement rules to preserve process integrity
Engineer A served as QBS review team point of contact for City X's new public building project and was required to determine whether to accept Firm B's misdirected, late submittal
Decision to reject Firm B's Statement of Qualifications delivered to the city manager's office rather than the designated point of contact by the required deadline
it is the Board's view, consistent with BER Case 10-8, that a balance needs to be struck between the objective of selecting the most qualified engineering firm and strict adherence to the relevant public procurement rules and policies
Engineer A Procurement Integrity Public Interest QBS Administration
Engineer A served as the point of contact on City X's QBS review team for a new public building project; 14 firms participated in the mandatory pre-submittal meeting and received identical notice of requirements; the Board grounded its analysis in the public interest served by QBS integrity.
Competitive Procurement Fairness Obligation
Engineer A was obligated to administer the City X QBS process in a manner that preserved the integrity of the public procurement system — ensuring equal treatment of all 14 competing firms, strict adherence to published requirements, and protection of the public's interest in obtaining high-quality engineering services through a fair and open competitive process.
Throughout the administration of the QBS process, from pre-submittal meeting through submittal evaluation
The public QBS system seeks to advance this goal, establishing procedures and policies that provide appropriate protections for the public while at the same time recognizing the rights and responsibilities of the professional engineers and engineering firms that participate in the procurement processes
Engineer A Procurement Law Knowledge Application
Engineer A possesses the capability to understand, interpret, and apply the QBS procurement requirements applicable to City X's public building project — including knowledge of the published deadline, location, and procedural requirements — and to correctly determine the legal and ethical implications of a late and misdirected submittal.
Engineer A served as the point of contact on City X's QBS review team and administered the pre-submittal meeting, demonstrating knowledge of applicable procurement requirements
Administration of the pre-submittal meeting and management of the QBS process for City X's new public building project, including knowledge of the published submittal requirements
Engineer A is the point of contact on the City X QBS review team for this project.
Engineer A Procurement Process Integrity Preservation
Procurement Process Integrity Preservation Capability
Engineer A possesses the capability to recognize that accepting Firm B's late and misdirected submittal — even informally or with good intentions — would compromise the integrity, fairness, and objectivity of the QBS process, and to refrain from such acceptance to ensure the selection process is conducted on the basis of qualifications and merit under equal procedural conditions.
Engineer A must decide how to handle the envelope received from the city manager's administrative assistant without compromising the QBS process integrity
Recognition that the integrity of the QBS process requires consistent application of published submittal requirements to all competing firms
Engineer A Procurement Rationalization Resistance
Procurement Rationalization Resistance Capability
Engineer A possesses the capability to recognize and resist rationalization of accepting Firm B's non-compliant submittal — including arguments based on Firm B's prior good performance, the administrative nature of the misdirection, or the desire to have a larger pool of qualified firms — and to maintain ethical and legal standards in the face of such rationalizations.
The combination of Firm B's prior good performance and the seemingly innocent administrative misdirection creates conditions for rationalization that Engineer A must resist
Recognition that Firm B's prior good performance and the administrative nature of the misdirection do not justify accepting a non-compliant late submittal
Engineer A Procurement Rationalization Resistance Firm B Sympathy
Engineer A needed to resist rationalizing acceptance of Firm B's non-compliant submittal based on sympathy for Firm B's situation, awareness of Firm B's prior good performance, and the apparent harmlessness of the procedural error
Engineer A administered the City X QBS process and faced pressure to overlook Firm B's procedural non-compliance based on prior relationship and apparent harmlessness
The BER's determination that Engineer A was obligated to reject Firm B's submittal notwithstanding sympathetic circumstances and apparent absence of nefarious intent
while in this case there does not appear to be a nefarious cause for Firm B's failure to deliver the submittal to the correct city office by the required hour, the Board is concerned that allowing Firm B's submittal to be considered would open the procurement to challenge
Engineer A Public Procurement Integrity Public Interest Articulation City X
Public Procurement Integrity Public Interest Articulation Capability
Engineer A needed to understand and apply the public interest rationale for strict QBS enforcement — that the procurement system exists to assure the public receives high-quality engineering services at fair cost and that non-adherence undermines public confidence
Engineer A administered the City X QBS process and was required to enforce procurement rules in a manner consistent with their public interest purpose
Application of strict QBS rules to reject Firm B's submittal, grounded in the understanding that procurement integrity serves the public interest
The public QBS system seeks to advance this goal, establishing procedures and policies that provide appropriate protections for the public
Engineer A Public Procurement Qualifications Confidentiality Self-Protection State RFQ
Engineer A submitted firm qualifications to a state agency in response to a public RFQ; Engineer B subsequently obtained those qualifications through a FOIA request before submitting the competing firm's own qualifications; the Board cautioned engineers to avoid including confidential information in such submissions.
Engineer A (Public RFQ Submitting Engineer)
Engineer A was obligated to avoid including confidential or proprietary information in the firm's qualifications submission to the state agency, recognizing that such submissions are subject to public disclosure under applicable FOIA laws and that Engineer B was able to obtain the submission through a FOIA request.
the Board would caution engineers that, in situations such as the one represented by the facts of this case, an engineer may wish to avoid including any confidential or proprietary information in this type of submission to a public agency since such information could be subject to public disclosure under applicable laws and regulations
At the time of preparing and submitting qualifications to the public agency
Engineer A QBS Balance Strict Adherence Qualification Objective City X
Engineer A administered the City X QBS process for a new public building design contract, with 14 competing firms, and was required to balance procurement integrity against the goal of selecting the most qualified firm when Firm B submitted a late, misdirected SOQ.
Engineer A was constrained to strike the appropriate balance between the objective of selecting the most qualified engineering firm and strict adherence to City X's public procurement rules — with the balance resolving in favor of strict rule adherence when Firm B's non-compliance would open the process to challenge, regardless of Firm B's qualifications.
NSPE Code of Ethics; BER Case 10-8; City X QBS procurement law
Throughout administration of the City X QBS procurement process
Engineer A QBS Deadline Strict Enforcement Firm B Rejection
City X QBS procurement for a new public building; Firm B delivered its submittal to the city manager's office at 2:05 pm on January 30, after the 10:00 am deadline and at the wrong location; Engineer A served as the point of contact on the QBS review team.
QBS Submittal Deadline Strict Enforcement Obligation
Engineer A was obligated to reject Firm B's Statement of Qualifications because it was delivered to the city manager's office rather than the designated city clerk's office, and was received at 2:05 pm rather than by the 10:00 am deadline — regardless of Firm B's prior satisfactory performance or the apparent harmlessness of the error.
Upon receipt of Firm B's misdirected and late submittal on January 30
a balance needs to be struck between the objective of selecting the most qualified engineering firm and strict adherence to the relevant public procurement rules and policies
{'employer': 'City X public agency', 'role_type': 'QBS review team point of contact', 'licensure': 'Licensed professional engineer (implied by public agency engineering role)', 'procurement_authority': 'Administers QBS process and submittal review'}
Serves as the designated point of contact on City X's QBS review team for the new public building project. Administered the pre-submittal meeting process and published submission requirements. Confronted with a late, misdirected submittal from Firm B received at 2:05 pm in the city manager's office rather than by 10:00 am in the city clerk's office, generating an ethical dilemma about whether to accept or reject the submittal given Firm B's prior successful project history.
{'type': 'colleague', 'target': 'City Manager Administrative Assistant'}
{'type': 'employer', 'target': 'City X'}
{'type': 'procurement_administrator', 'target': 'Firm B Late Submittal'}
QBS Review Team Point of Contact Engineer
Engineer A returned to his office in the afternoon on January 30 and was intercepted by the city manager's administrative assistant
Engineer A QBS Submittal Deadline Enforcement
QBS Submittal Deadline Enforcement Capability
Engineer A, as the designated point of contact on City X's QBS review team, possesses the capability to recognize that Firm B's submittal received at 2:05 pm on January 30 — more than four hours after the published 10:00 am deadline — is non-compliant and must be rejected to preserve procurement fairness.
Engineer A must determine how to handle Firm B's late-received submittal in the City X QBS process for the new public building
Recognition that the date- and time-stamped envelope showing 2:05 pm receipt at the city manager's office is procedurally non-compliant with the published 10:00 am deadline at the city clerk's office
Engineer B FOIA Post-Submission Timing Obligation State RFQ
Engineer B submitted a FOIA request to obtain Engineer A's qualifications before Engineer B's own firm submitted its qualifications to the same state agency for the same public project; the Board found this timing created an appearance of impropriety.
Engineer B (FOIA-Requesting Competing Engineer)
FOIA Competitor Intelligence Post-Submission Timing Obligation
Engineer B was obligated to submit the FOIA request to obtain Engineer A's qualifications only after Engineer B's own firm had submitted its qualifications to the state agency for the same RFQ, so as to avoid any appearance of impropriety arising from using competitor intelligence to inform the firm's own submission.
Engineer B should have made the FOIA request subsequent to and not before Engineer B's firm submitted its RFQ
Prior to submitting the FOIA request; the obligation required deferring the request until after the firm's own submission
Engineer B, a competitor of Engineer A, whose firm also intended to respond to the same RFQ, submitted a state Freedom of Information Act (FOIA) request in order to obtain a copy of the qualifications information Engineer A submitted to the state. The state then provided the information to Engineer B. Thereafter, Engineer B submitted his firm's engineering qualifications to the state agency for the same public project.
overlooking the timing of Engineer B's request, which was of concern to the Board
Engineer B FOIA Pre-Submission Timing Appearance of Impropriety State RFQ
Engineer B submitted a state FOIA request to obtain Engineer A's qualifications before Engineer B's own firm submitted its RFQ response for the same public project, which the BER determined created an appearance of impropriety even though the FOIA request itself was lawful.
FOIA-Acquired Competitor Intelligence Ethical Use Constraint
Engineer B was constrained from submitting a FOIA request to obtain Engineer A's qualification submission before Engineer B's own firm had submitted its RFQ response — because pre-submission FOIA requests create an appearance of impropriety suggesting that the requesting firm sought to tailor its own submission based on advance knowledge of a competitor's qualifications.
in order to avoid any appearance of impropriety, Engineer B should have made the FOIA request subsequent to and not before Engineer B's firm submitted its RFQ
Prior to Engineer B's firm's submission of its own RFQ response
Engineer B FOIA Request Competitive Ethics Assessment
FOIA Request Competitive Ethics Assessment Capability
Engineer B possesses — or should possess — the capability to assess whether submitting a FOIA request to obtain Engineer A's previously submitted qualifications constitutes an ethically permissible competitive practice, including recognizing when legal permissibility does not equal ethical permissibility and when access to a competitor's proprietary qualification materials creates an improper competitive advantage.
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission before submitting his own firm's qualifications to the same state agency
The act of submitting a FOIA request to obtain Engineer A's qualifications before submitting his own firm's qualifications to the same state agency
Engineer B FOIA Requesting Competitor -- Submitted a FOIA request to obtain Engineer A's qualifications submission before submitting his own firm's qualifications to the same state agency
{'license': 'Professional Engineer', 'context': 'BER Case 10-8 referenced precedent', 'ethical_finding': 'FOIA request ethical but timing was improper — should have submitted own qualifications first'}
Submitted a FOIA request to obtain Engineer A's qualifications submission before submitting his own firm's qualifications to the same state agency for the same RFQ; the Board found the FOIA request ethical but cautioned that it should have been made after Engineer B's own submission.
{'type': 'competitor_of', 'target': 'Engineer A Prior RFQ Submitter'}
Engineer B FOIA Timing Ethics Compliance State RFQ
FOIA Request Competitive Timing Ethics Compliance Capability
Engineer B was required to recognize that submitting a FOIA request to obtain Engineer A's qualifications before submitting his own firm's qualifications created an appearance of impropriety, and that the FOIA request should have been submitted only after his own firm's submittal
Engineer B, a competitor of Engineer A, submitted a FOIA request to obtain Engineer A's qualifications prior to submitting his own firm's qualifications to the same state agency RFQ
Engineer B submitted the FOIA request before his own firm submitted its qualifications to the state agency — a timing violation identified by the BER as creating an appearance of impropriety
Engineer B Honorable Procurement Conduct Self-Regulation
Engineer B possesses — or should possess — the capability to recognize and fulfill the obligation to conduct himself honorably in all matters related to procurement — including refraining from exploiting FOIA mechanisms to access competitor qualification materials before submitting his own qualifications — and to compete on the basis of his firm's own demonstrated technical competence rather than through access to competitor proprietary information.
Engineer B's FOIA request for Engineer A's qualifications before submitting his own raises questions about whether his competitive conduct was consistent with professional ethics obligations of honorable procurement conduct
The decision to submit a FOIA request for a competitor's qualifications before preparing his own submission, which raises questions about honorable procurement conduct
Engineer B Improper Competitive Advantage Recognition
Improper Competitive Advantage Recognition Capability
Engineer B possesses — or should possess — the capability to recognize that using a FOIA request to access a competitor's qualification submission before preparing his own submission creates an improper competitive advantage, and that exploiting such an advantage constitutes conduct that is improper under professional ethics codes prohibiting advancement through improper methods.
Engineer B submitted a FOIA request to obtain Engineer A's qualifications before submitting his own firm's qualifications to the same state agency, suggesting strategic use of the FOIA mechanism for competitive advantage
The strategic timing of the FOIA request — submitted before Engineer B's own qualifications were submitted to the same state agency — indicating awareness of the competitive advantage the information would provide
Engineer B's FOIA request (BER Case 10-8) before Engineer B's RFQ submission (BER Case 10-8)
Engineer B's FOIA request (BER Case 10-8) before interview process (BER Case 10-8)
Equal Access to Bid Information Invoked in QBS Deadline Enforcement
All 14 pre-submittal meeting participants
Faithful Agent Obligation Within Ethical Limits
The published submittal deadline and location requirements were equally and publicly communicated to all 14 firms that participated in the pre-submittal meeting, appearing on the RFQ webpage and the hard copy agenda — enforcement of these requirements equally for all firms is the corollary obligation to the equal access that was provided
Equal access to procurement information creates a corresponding obligation to apply procurement requirements equally — firms that received equal notice of the deadline are entitled to equal enforcement of that deadline against all competitors
Equal Access to Bid Information in Public Procurement
The date, time, and location were also listed in the city's RFQ webpage and appeared on the hard copy agenda that was distributed at the pre-submittal meeting.
Equal treatment of all competing firms requires uniform deadline enforcement; allowing Firm B's late submittal would disadvantage the other firms that complied with the published requirements
FOIA-Based Competitor Intelligence Ethical Use Constraint Invoked by Engineer B
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission before submitting his own firm's qualifications to the same state agency — while the FOIA request may be lawful, Engineer B must use the obtained qualifications only for legitimate competitive assessment and must not misappropriate Engineer A's proprietary methodologies, project descriptions, or other competitively sensitive content
The ethical constraint on FOIA-obtained competitor intelligence requires that Engineer B use the information only to understand the competitive landscape, not to copy or reverse-engineer Engineer A's qualifications content
FOIA-Based Competitor Intelligence Ethical Use Constraint
Submitted a FOIA request to obtain Engineer A's qualifications submission before submitting his own firm's qualifications to the same state agency
Lawful FOIA access does not confer ethical license to misappropriate competitor content; Engineer B must use the information within the bounds of fair competition
FOIA Competitor Intelligence Ethical Use - Engineer B RFQ Response
Engineer B used a state FOIA request to obtain Engineer A's submitted qualifications before Engineer B's own firm submitted its RFQ response, raising questions about the ethical use of publicly available procurement information in a competitive context
Engineer B's use of a state FOIA request to obtain Engineer A's submitted qualifications before submitting Engineer B's own firm's RFQ response must be limited to legitimate competitive intelligence purposes and must not be used to misrepresent Engineer B's qualifications or gain an unfair advantage that undermines QBS integrity.
State FOIA Law; NSPE Code of Ethics; BER Case 10-8
At the time of Engineer B's FOIA request and RFQ response submission
FOIA Procurement Timing Integrity — Engineer B Pre-Submission Request
Procurement Integrity in Public Engineering
Engineer B's submission of a FOIA request to obtain Engineer A's qualifications before Engineer B's own firm submitted its qualifications created an appearance of impropriety, even though the FOIA request itself was lawful — the Board held that the request should have been made after Engineer B's own submission
The timing of a FOIA request relative to the requesting engineer's own submission determines whether the request creates an appearance of impropriety; post-submission requests avoid the appearance of using competitor intelligence to tailor one's own submission
The Board held that the FOIA request was lawful but that its pre-submission timing created an appearance of impropriety that Engineer B should have avoided by waiting until after submitting
overlooking the timing of Engineer B's request, which was of concern to the Board, Engineer B appeared to have been acting in a manner consistent with those laws and regulations
Fairness in Professional Competition Invoked for All 14 Pre-Submittal Firms
All 14 firms that participated in the mandatory pre-submittal meeting received identical notice of the submittal deadline and location requirements; fairness to those firms — particularly any that may have submitted timely and to the correct location — requires that Engineer A enforce the published requirements uniformly and not accept Firm B's late, misdirected submittal
Accepting Firm B's late submittal would disadvantage all other firms that complied with the published requirements, creating an unfair competitive advantage for Firm B and undermining the integrity of the QBS process
Fairness to all competing firms requires uniform enforcement of published requirements; the competitive fairness obligation overrides any sympathy for Firm B's misdirection circumstances
Faithful Agent Obligation Invoked for Engineer A QBS Administration Role
Engineer A, as the point of contact on City X's QBS review team, bears a faithful agent obligation to administer the QBS process in accordance with the city's published requirements and applicable procurement law — including enforcing the published deadline and location requirements — while retaining the professional authority to flag the Firm B situation to appropriate city officials for a final institutional determination
The faithful agent obligation requires Engineer A to administer the process as published, but also to escalate the unusual misdirection situation to appropriate city officials — such as the city attorney or procurement officer — for a final determination, rather than making a unilateral discretionary decision to accept or reject
The faithful agent obligation is discharged by following published requirements and escalating the unusual situation to appropriate institutional authority for final determination
Firm B Late Submission Procurement Integrity Tension
From the moment Engineer A became aware that Firm B's SOQ was received late and at the wrong location through the procurement decision on whether to consider Firm B's submission
While Engineer A may have been mindful of the past performance of Firm B and may have viewed Firm B's failure to deliver the submittal to the correct city office by the required hour a harmless error, any effort on the part of Engineer A to fail to follow the strict rules and policies of the public procurement process could call the integrity of the process into question.
Procurement Rule Strict Adherence vs. Harmless Error Tension State
Engineer A's decision whether to accept or reject Firm B's late submission delivered to the wrong city office
Board determination that strict adherence to procurement rules was required and Firm B's submission should not be considered
allowing Firm B's submittal to be considered would open the procurement to challenge or at the very least create a climate in which non-adherence to public procurement rules and policies are tolerated
Firm B's failure to deliver its Statement of Qualifications to the correct city office by the required hour
{'submittal_receipt_time': '2:05 pm, January 30', 'submittal_receipt_location': "City manager's office (not city clerk's office as required)", 'deadline': '10:00 am, January 30', 'prior_relationship': 'Performed well on several other engineering design projects for City X', 'pre_submittal_participation': 'Participated in mandatory pre-submittal meeting'}
Firm B participated in the mandatory pre-submittal meeting and submitted a Statement of Qualifications for the City X public building QBS. The submittal was received at 2:05 pm on January 30 in the city manager's office — four hours and five minutes after the published 10:00 am deadline and at the wrong office. Firm B had previously performed well on several engineering design projects for the city, creating a prior relationship that heightens the ethical tension around preferential treatment.
{'type': 'competing_for_contract_with', 'target': 'City X Municipal Infrastructure Client'}
{'type': 'submittal_routed_by', 'target': 'City Manager Administrative Assistant Procurement Intermediary'}
Firm B, one of the firms that had participated in the pre-submittal meeting
Firm B QBS Submittal Location Requirement Compliance
QBS Submittal Location Requirement Compliance Capability
Firm B possessed — or should have possessed — the capability to correctly identify and comply with the published submittal location requirement specifying delivery to the city clerk's office no later than 10:00 am on January 30, and to recognize that delivery to the city manager's office at 2:05 pm does not constitute compliant submission.
Firm B delivered its SOQ to the city manager's office at 2:05 pm on January 30, rather than to the city clerk's office by 10:00 am as required by the published RFQ requirements
Firm B's failure to deliver its SOQ to the designated city clerk's office by the published deadline, instead delivering it to the city manager's office more than four hours after the deadline
Firm B Submits SOQ Late → Submittal Arrives Wrong Office
Firm B submittal receipt (2:05 PM, January 30) before Engineer A's return to office (afternoon, January 30)
Firm B's past engineering design projects for the city before current QBS process for new public building
Formal Channel Requirement Invoked for QBS Submittal Receipt
The city clerk's office is the formally designated and publicly announced channel for receiving QBS submittals; Firm B's delivery to the city manager's office bypassed this formal channel, and Engineer A must not treat the informal routing through the administrative assistant as equivalent to formal receipt through the designated channel
Formal channel requirements in public procurement exist to ensure equal treatment and process integrity; informal routing of submittals through non-designated offices undermines these purposes and must not be treated as compliant
Formal Channel Requirement for Information Sharing in Public Procurement
all submittals must be received by the city in the city clerk's office no later than 10:00 am on January 30
The formal channel requirement controls; Engineer A must reject the submittal and cannot treat informal delivery to a non-designated office as equivalent to formal delivery to the city clerk's office
Good Intent Does Not Cure Procedural Impropriety Invoked for Administrative Assistant Action
The city manager's administrative assistant's act of receiving Firm B's misdirected envelope and presenting it to Engineer A — however well-intentioned as an effort to ensure the submittal reached the right person — does not cure the procedural defect of the submittal having been delivered to the wrong office after the deadline
The administrative assistant's good-faith effort to route the envelope to Engineer A does not transform a non-compliant submittal into a compliant one; procedural integrity in public procurement must be maintained regardless of the subjective benign intent of the intermediary
Good Intent Does Not Cure Procedural Impropriety
Engineer A returned to his office in the afternoon on January 30 and was intercepted by the city manager's administrative assistant, who had a large envelope bearing Engineer A's name and the letterhead of Firm B, one of the firms that had participated in the pre-submittal meeting.
Procedural integrity controls; the administrative assistant should have declined to accept the envelope or immediately flagged it as non-compliant rather than routing it to Engineer A as if it were a valid submittal
Good Intent Does Not Cure Procedural Impropriety — Engineer A Sympathy for Firm B
Harmless Error Non-Exception in Public Procurement Compliance
Engineer A's possible sympathy for Firm B's situation and recognition of Firm B's prior good performance did not ethically justify accepting the non-compliant submittal, because benign intent cannot cure the procedural impropriety of accepting a late, misdirected submission
The absence of nefarious intent on Firm B's part, and Engineer A's constructive view of Firm B's prior performance, are irrelevant to the ethical analysis of whether the non-compliant submittal should be accepted
The Board held that the absence of nefarious cause does not justify accepting the non-compliant submittal, affirming that good intent cannot cure procedural impropriety
From 2:05 pm on January 30 when envelope was intercepted by city manager's administrative assistant, through Engineer A's determination of how to handle it
All other competing firms that submitted on time
The envelope was date- and time-stamped to indicate that the submittal was received on January 30 at 2:05 pm in the city manager's office
Late SOQ Submission Received Outside Formal Process State
Firm B's SOQ submission received 4 hours and 5 minutes after deadline at non-designated location
Formal procurement determination to accept or reject the late submission
City manager's administrative assistant intercepting envelope from Firm B bearing Engineer A's name, date-stamped 2:05 pm — 4 hours and 5 minutes after the 10:00 am deadline and delivered to city manager's office rather than city clerk's office
Late SOQ Submission Outside Formal Process
From receipt of Firm B's late submission through the procurement authority's decision on its eligibility
Firm B's failure to deliver the submittal to the correct city office by the required hour
Firm B's Statement of Qualifications received after the deadline and at the wrong city office location
Formal determination that the submission could not be considered under strict procurement rules
there does not appear to be a nefarious cause for Firm B's failure to deliver the submittal to the correct city office by the required hour
Firm B's failure to deliver its SOQ to the correct city office by the required hour
Misdirected Submittal Non-Acceptance Obligation Invoked by Engineer A
Firm B's envelope was delivered to the city manager's office rather than the city clerk's office as required, and was then presented to Engineer A by the city manager's administrative assistant — Engineer A must not treat this misdirected delivery as compliant with the published location requirement, even though the envelope ultimately reached a city employee
The city manager's office is not the designated submittal location; receipt there does not constitute receipt by the city clerk's office, and the subsequent physical transfer of the envelope to Engineer A does not cure the location defect or the time defect
Misdirected Submittal Non-Acceptance Obligation in Public Procurement
The non-acceptance obligation controls; Engineer A should not accept the submittal and should document the incident, notifying Firm B and the procurement record
Misdirected Submittal Non-Acceptance — City Manager Office Receipt
The city manager's administrative assistant received Firm B's submittal at the city manager's office at 2:05 pm — after the deadline and at the wrong location — creating an obligation on Engineer A not to treat this as a compliant submission even though it arrived within the same governmental entity
Delivery to the wrong office within the same governmental entity does not constitute compliance with the published submission location requirement; the designated submission location is a material procurement term
The Board confirmed that the misdirected submittal could not be accepted, notwithstanding the absence of nefarious intent
National Society of Professional Engineers
Engineer A in determining how to handle the late submittal from Firm B
Primary normative authority governing Engineer A's obligations as a public agency engineer administering a QBS procurement process, including duties of fairness, impartiality, and equitable treatment of all competing firms
Pre-Submittal Meeting Held → Engineer A Discovers Submittal
Prior Favorable Relationship - Engineer A and Firm B
Ongoing from prior project completions through current QBS procurement process
Engineer A's prior positive professional experience with Firm B on City X projects, while serving as QBS review team point of contact
Engineer A's recusal, disclosure, or conclusion of procurement process
Firm B's participation in the pre-submittal meeting and submission of SOQ in a procurement where Engineer A serves as point of contact on the review team
Prior Performance Non-Consideration Invoked in Firm B Compliance Determination
The fact that Firm B had performed well on several other engineering design projects for the city must not influence Engineer A's determination of whether Firm B's late and misdirected submittal complies with the published QBS requirements — the compliance determination must be made solely on the basis of the published requirements
Firm B's prior satisfactory performance is irrelevant to the compliance determination; allowing it to influence the decision would constitute favoritism and undermine the integrity of the competitive process
Prior Performance Non-Consideration in Procurement Compliance Determinations
The impartiality obligation in procurement compliance determinations overrides any sympathetic consideration of prior performance; all firms must be treated identically under the published requirements
Prior Performance Non-Consideration — Engineer A Awareness of Firm B History
Procurement Integrity Over Qualification Merit Balancing Principle
Engineer A's awareness of Firm B's prior satisfactory performance on other contracts could not ethically be used to justify accepting Firm B's non-compliant submittal in the current QBS process
Prior satisfactory performance is irrelevant to the determination of whether a current submittal complies with published procurement requirements; compliance determinations must be made solely on the basis of the current submittal's conformity with published rules
The Board implicitly rejected the use of prior performance as a basis for excusing procedural non-compliance by affirming that strict adherence to procurement rules is required
Procurement Honorable Conduct - Engineer A QBS Administration
Engineer A's dual role as QBS review team point of contact and as a professional with prior favorable experience with Firm B creates a structural tension requiring that all procurement administration be conducted through formally authorized channels rather than through personal discretion
Procurement Competition Honorable Conduct Constraint
Engineer A must administer the City X QBS procurement process honorably, responsibly, and fairly — prohibiting any exercise of discretion over Firm B's late submission that could be characterized as preferential treatment arising from prior favorable professional relationships, and requiring that all competitive activities be conducted through formally authorized institutional channels.
NSPE Code of Ethics Sections II.5, III.6, III.7; Public Official Conflict of Interest Standard
Procurement Integrity Invoked by Engineer A QBS Administration
City X QBS process for new public building
Engineer A, as point of contact on the City X QBS review team, bears an obligation to ensure that the QBS process is administered through lawful, fair, and qualification-based selection procedures — including enforcing the published submittal deadline and location requirements uniformly for all 14 firms that participated in the pre-submittal meeting
Procurement integrity in this context requires that the published deadline of 10:00 am on January 30 at the city clerk's office be treated as a binding requirement, and that Firm B's submittal received at 2:05 pm in the city manager's office be treated as non-compliant regardless of the firm's prior performance record
Procurement integrity and equal treatment of all competing firms overrides any discretionary consideration of Firm B's prior satisfactory performance or the sympathetic circumstances of misdirection
Procurement Integrity Over Qualification Merit Balancing — Engineer A QBS Administration
QBS Submittal Deadline Integrity and Equal Treatment Obligation
Engineer A, as the QBS review team point of contact, faced the obligation to balance the goal of selecting the most qualified engineering firm against strict adherence to published procurement rules when Firm B's submittal arrived late and at the wrong office
The principle requires Engineer A to recognize that procedural integrity and merit-based selection are co-equal values, and that accepting Firm B's non-compliant submittal — however qualified Firm B may be — would sacrifice procedural integrity for substantive merit in a manner the ethics code does not permit
The Board resolved the tension in favor of procedural integrity, holding that strict adherence to procurement rules must prevail even when the non-compliance appears harmless and the firm is otherwise qualified
Procurement Integrity in Public Engineering — QBS Process Administration
The QBS process administered by Engineer A for City X's public building project required lawful, competitive, qualification-based selection through fair procedures, and Engineer A's obligation to maintain that integrity was implicated by Firm B's non-compliant submittal
The integrity of the public engineering procurement process is a foundational professional obligation; Engineer A's role as the QBS point of contact created a direct responsibility to ensure the process was conducted lawfully and fairly
The Board affirmed that procurement integrity requires strict adherence to published rules, even when flexibility might appear to serve the goal of obtaining the most qualified firm
Public Official Conflict of Interest Standard - QBS Administration
Professional engineering societies and state licensing boards
Public Official Conflict of Interest Standard
Engineer A in evaluating whether prior positive experience with Firm B should influence handling of the late submittal
Governs Engineer A's obligation to act impartially as a public agency official administering the QBS process, particularly given that Firm B had performed well on prior city projects, creating a potential bias toward favorable treatment of a known and previously successful firm
Public Procurement Confidentiality Self-Protection — Engineer A Qualifications Submission
The Board cautioned that engineers submitting qualifications to public agencies should avoid including confidential or proprietary information in those submissions, since such information may be subject to mandatory public disclosure under applicable FOIA laws
Engineers bear responsibility for protecting their own confidential information by choosing not to include it in public procurement submissions that are subject to FOIA disclosure; the public character of the submission is a known risk that the engineer must manage through submission content decisions
Public Procurement Confidentiality Self-Protection Obligation
an engineer may wish to avoid including any confidential or proprietary information in this type of submission to a public agency since such information could be subject to public disclosure under applicable laws and regulations
The Board resolved the tension by placing the responsibility for confidentiality protection on the submitting engineer rather than on the public agency or the FOIA process
Public Procurement Fairness Standard - QBS Deadline Enforcement
Professional engineering societies and procurement regulatory bodies
Engineer A when deciding whether to accept, forward, or reject Firm B's late submittal
Establishes the obligation to treat all 14 competing firms equitably by enforcing the published SOQ deadline uniformly, prohibiting preferential treatment of Firm B whose late submittal arrived at the wrong office four hours after the deadline
Public Procurement Open Free Process Non-Deception Constraint City X QBS
The BER noted that the public procurement process's open and free character serves to prevent misleading or deceptive representations that could undermine the public interest, establishing a non-deception constraint applicable to all participating firms.
All participating firms in City X QBS process
All firms participating in the City X QBS procurement process were constrained from making misleading or deceptive representations in their qualification submissions — because the public procurement process was intended to be free and open in order to, among other considerations, avoid misrepresentations by parties including consultants, and a review of party representations provides the public with assurance that deceptive representations undermining the public interest are not made.
in view of the fact that the public procurement process was intended to be free and open in order to, among other considerations, avoid misrepresentations by parties including consultants, a review of a party's representations provides the public with some degree of assurance that misleading or deceptive representations that could undermine the public interest are not made
Throughout the City X QBS procurement process
Public Procurement Procedural Compliance - City X QBS Statutory Requirements
City X is conducting a QBS procurement under applicable law that establishes procedural requirements including the RFQ advertisement, mandatory pre-submittal meeting, and published deadline and delivery location requirements
Public Procurement Procedural Compliance Constraint
City X and Engineer A must comply with all statutory QBS procurement procedures, including the published deadline and designated submission location, prohibiting acceptance of submissions that do not comply with these formally mandated requirements regardless of the submitting firm's qualifications or prior performance.
Qualification-Based Selection Procurement Law - City X; City X RFQ and Pre-Submittal Meeting Documentation
Public QBS Procurement Integrity Context
Throughout the procurement process from RFQ issuance through contract award
The integrity of the professional engineering selection process is critically important in assuring that the public receives high-quality engineering services at a fair and reasonable cost.
The public qualification-based selection system governing the engineering procurement at issue, establishing the procedural framework within which all parties' conduct is evaluated
Conclusion of the procurement and contract award
The public QBS system seeks to advance this goal, establishing procedures and policies that provide appropriate protections for the public while at the same time recognizing the rights and responsibilities of the professional engineers and engineering firms that participate in the procurement processes.
City's initiation of a public QBS procurement process for engineering services
Public Welfare Paramount — QBS Process Integrity Serves Public Interest
The Board grounded its analysis in the recognition that the QBS process exists to serve the public interest in obtaining high-quality engineering services at fair cost, and that compromising the integrity of that process — even for seemingly benign reasons — undermines the public welfare purpose the process is designed to serve
The public welfare obligation extends to protecting the integrity of the procurement processes through which engineering services are obtained for public projects; a compromised procurement process is itself a harm to public welfare
The Board affirmed that public welfare is served by strict procurement integrity, not by flexibility that might appear to serve individual fairness
QBS Law Applicable - City X Public Building Project
From initiation of procurement through contract award
All 14 firms that participated in pre-submittal meeting
City X procurement process for new public building engineering services
Completion of QBS selection process and contract award
City X decision to use QBS for selection of engineering firm for new public building design
State and local legislative and regulatory bodies
Qualification-Based Selection Public Procurement Rules and Policies
Qualification-Based Selection Procurement Law
the laws and regulations pertaining to that system were put into place to achieve that result
NSPE Board of Ethical Review as the governing framework for evaluating all parties' conduct
Legal and regulatory framework establishing the procedures, policies, and protections governing public QBS procurement of engineering services, including submittal requirements, open competition principles, and the public interest objectives of the selection process
QBS Submittal Deadline Integrity Invoked for Firm B Late Submittal
The published deadline of 10:00 am on January 30 at the city clerk's office is a material procurement requirement; Firm B's submittal received at 2:05 pm in the city manager's office is non-compliant on both the time dimension (4 hours and 5 minutes late) and the location dimension (wrong office), and Engineer A must treat it as such regardless of Firm B's prior performance
The deadline integrity obligation requires Engineer A to reject the late submittal and notify Firm B, without exercising discretion to accept it based on the sympathetic misdirection circumstances or Firm B's prior good performance
Deadline integrity and equal treatment of all competing firms is the controlling obligation; the misdirection to the city manager's office does not constitute delivery to the city clerk's office as required
QBS Submittal Deadline Integrity — Firm B Misdirected Submittal Rejection
Engineer A was obligated to reject Firm B's Statement of Qualifications because it was delivered to the city manager's office rather than the designated city engineer's office, and arrived after the 2:00 pm deadline, regardless of whether the error was intentional or harmless
The published deadline and submission location are material procurement requirements; uniform enforcement is required to preserve competitive equality and process integrity
The Board held that strict enforcement of the deadline and location requirements was required, notwithstanding Engineer A's possible sympathy for Firm B's prior performance record
Qualification-Based Selection Procurement Law - City X
State legislature and/or local government
Qualification-Based Selection Statutory and Regulatory Framework
City X published the date, time, and location of the submittal for the Statements of Qualifications (SOQs)
City X QBS review team including Engineer A
Governs the QBS process being administered by City X for the new public building design contract, establishing procedural requirements including RFQ publication, pre-submittal meetings, SOQ submission requirements, and deadline enforcement
What are Engineer A’s ethical responsibilities under the circumstances?
Given Engineer A's prior favorable relationship with Firm B and documented positive experience on City X projects, should Engineer A have proactively recused himself from handling the late submittal decision entirely, or at minimum disclosed the relationship to a supervisor before taking any action on the envelope?
Does the city manager's administrative assistant bear any independent ethical or procedural responsibility for accepting and forwarding a misdirected procurement submittal to Engineer A rather than immediately notifying Firm B of the error or returning the envelope?
Is Engineer A obligated to notify all 13 other pre-submittal firms that Firm B's late submittal was received, rejected, and returned unopened, in order to preserve transparency and equal treatment across the competitive field?
What documentation obligations does Engineer A have regarding the receipt, handling, and return of Firm B's late submittal, and does failure to create a formal record of these actions itself constitute an ethical lapse in public procurement administration?
Does the principle of Procurement Integrity Over Qualification Merit Balancing conflict with the principle of Public Welfare Paramount, in cases where the most qualified firm for a public safety-critical building project submitted late due to a minor procedural error, and strict rejection may result in a less capable firm being selected?
Does the principle of Fairness in Professional Competition for all 14 pre-submittal firms conflict with the principle of Good Intent Does Not Cure Procedural Impropriety when Firm B's late delivery may have resulted from a city-side administrative failure — specifically the city manager's office accepting and holding the envelope — rather than solely from Firm B's own negligence?
Does the Faithful Agent Obligation requiring Engineer A to serve City X's interests conflict with the Prior Performance Non-Consideration principle, given that City X itself has a documented institutional interest in Firm B's continued participation based on Firm B's strong track record on prior city projects?
Does the Transparency Principle requiring Engineer A to openly account for Firm B's submittal disposition conflict with the Misdirected Submittal Non-Acceptance Obligation, in that full transparency about the city manager's office having received and held the envelope for over four hours could expose the city to legal challenge from Firm B arguing city-side complicity in the procedural failure?
From a deontological perspective, did Engineer A fulfill their categorical duty to treat all competing firms equally by returning Firm B's late submittal unopened, regardless of Firm B's prior strong performance on City X projects?
From a virtue ethics perspective, did Engineer A demonstrate the professional virtues of impartiality and integrity by resisting the temptation to rationalize acceptance of Firm B's submittal on the grounds of good intent or administrative confusion, given Engineer A's prior favorable relationship with Firm B?
From a consequentialist perspective, would accepting Firm B's late submittal — given Firm B's demonstrated competence on prior City X projects — have produced a better overall outcome for the public interest than strict procedural rejection, and does that consequentialist calculus have any legitimate weight in Engineer A's ethical decision-making?
From a deontological perspective, does Engineer A's prior favorable relationship with Firm B create a duty to recuse or disclose that relationship to City X procurement authorities before making any determination about Firm B's late submittal, independent of the substantive rejection decision itself?
If Firm B's submittal had been delivered to the city clerk's office on time but Engineer A had personally received it rather than the clerk, would Engineer A have had the same obligation to return it, and does the chain of custody through the city manager's administrative assistant materially change the ethical analysis?
What if Engineer A had opened the envelope before noticing the late timestamp — would that inadvertent disclosure of Firm B's qualifications have created additional ethical obligations, such as recusal from the entire QBS evaluation or mandatory disclosure to all other competing firms?
Would Engineer A's ethical obligations have differed if none of the 13 other competing firms had attended the mandatory pre-submittal meeting where the deadline and location were explicitly communicated, thereby raising a question about whether all firms had equal notice of the submission requirements?
What if Engineer A had proactively contacted Firm B before the January 30 deadline to informally remind them of the submission requirements — would that constitute improper favoritism toward Firm B given Engineer A's prior positive relationship with the firm, even if well-intentioned?
Regulatory Compliance State - QBS Deadline Enforcement
From publication of RFQ through contract award
City X's obligation to enforce published SOQ submission deadline and designated submission location under QBS procurement rules
Formal procurement determination and contract award
Receipt of late submission from Firm B requiring determination of whether to enforce or waive published deadline
Professional engineering procurement practice and public agency procurement rules
SOQ Submittal Deadline Compliance Standard
NSPE Board of Ethical Review in evaluating Engineer A's conduct
Professional norms governing strict enforcement of submittal deadlines and correct office delivery requirements in QBS procurement, applied to assess Engineer A's obligation to reject or forward Firm B's late/misdirected submittal
SOQ submission deadline (10:00 AM, January 30) before Firm B submittal receipt (2:05 PM, January 30)
the Board concluded that it was not in a position to second-guess or otherwise determine the appropriateness of those rules and regulations
Engineer B in BER Case 10-8 to obtain competitor qualifications; referenced by the Board as establishing the legal boundaries of open procurement
Legal framework governing public disclosure of qualification submissions made to state agencies in public procurement processes, establishing the legal basis for competitor access to submitted SOQ materials
Strict Deadline Enforcement - City X QBS January 30 10:00am
Engineer A received Firm B's SOQ envelope at 2:05 pm on January 30, four hours after the published deadline, delivered to the city manager's office rather than the designated city clerk's office
Late Submission Strict Deadline Enforcement Constraint
Engineer A is prohibited from accepting or treating as validly submitted Firm B's SOQ, which was received at 2:05 pm on January 30 — four hours and five minutes after the published 10:00 am deadline — and must enforce the deadline uniformly against all 14 competing firms regardless of Firm B's prior favorable performance history.
City X QBS Procurement Rules; NSPE Code of Ethics; QBS Law applicable to City X
At the time of receipt of Firm B's late submission on January 30 and throughout the evaluation process
Transparency Principle Invoked for Firm B Submittal Disposition
Engineer A's disposition of Firm B's late, misdirected submittal must be transparent — documented in the procurement record, communicated to Firm B, and reported to appropriate city officials — so that all parties understand the basis for the decision and the integrity of the QBS process is publicly demonstrable
Transparency in procurement administration requires that Engineer A document the receipt of the misdirected envelope, the time-stamp, and the basis for the rejection decision, creating a clear record that protects the integrity of the process and Engineer A's own professional conduct
Transparency and procurement integrity are mutually reinforcing in this context; full documentation of the incident serves both principles
Wrong Office Delivery Non-Acceptance - Firm B City Manager Office
Firm B's envelope was intercepted by the city manager's administrative assistant and delivered to Engineer A personally, rather than being submitted to the city clerk's office as required by the published RFQ and pre-submittal meeting agenda
Engineer A is prohibited from accepting Firm B's SOQ as validly submitted because it was delivered to the city manager's office rather than the designated city clerk's office, constituting an independent procedural defect separate from the deadline violation.
City X RFQ published requirements; Pre-submittal meeting agenda; NSPE Code of Ethics procurement integrity provisions
At the time of receipt of Firm B's misdirected submission on January 30
hard copy agenda distribution at pre-submittal meeting equals mandatory pre-submittal meeting
mandatory pre-submittal meeting before SOQ submission deadline (10:00 AM, January 30)
mandatory pre-submittal meeting before publication of SOQ deadline (date, time, location)
state providing FOIA information to Engineer B (BER Case 10-8) before Engineer B's RFQ submission (BER Case 10-8)