Selection of Firm—FOIA Request

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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. However, in order to avoid any appearance of impropriety, Engineer B should have made the FOIA request subsequent to Engineer B’s firm’s submitting its RFQ.

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The practice of engineering is a business as well as a profession. Engineers and engineering companies compete within the legal framework that exists at the local, state, and federal levels. While certain practices and activities are clearly beyond what is legally and ethically acceptable, it is also clear that free and open competition is a basic rule that generally exists under local, state, and federal laws and regulations. At one time, the NSPE Code of Ethics contained provisions (e.g., prohibiting advertising, prohibiting competitive bidding) that were deemed to conflict with the notion of free and open competition by government regulators and those provisions were eventually removed by NSPE. The NSPE Board of Ethical Review’s purpose here is not to reevaluate any of those issues, but instead to place the important and serious issue of free and open competition in the context of engineering practice. Conflicts between engineering firms are not new, and over the years the Board has examined these issues. One example is BER Case No. 93-3. In that case, Engineer A was retained by a major franchiser to provide engineering design services for a chain of stores throughout the United States. After several years, the franchiser decided to terminate its relationship with Engineer A and provided a notice of its intent not to renew its contract with Engineer A's firm. In order to maintain continuity and before the contract expired, the franchiser began discussions with Engineer B and retained Engineer B to provide immediate review of design concerns that were pending in connection with the design of several franchise facilities throughout the U.S. Prior to the review, franchiser specifically told Engineer B not to disclose to their relationship to Engineer A. Nevertheless, Engineer B reviewed the design information the following week and following his review, notified Engineer A of his relationship with franchiser and the preliminary results of his review. Several week...

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In response to a public request for qualifications (RFQ), Engineer A submits his firm’s engineering qualifications to a state agency for a public project using the state’s public procurement procedures. Prior to the interview process, Engineer B, a competitor of Engineer A, whose firm also intends to respond to the same RFQ, submits 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 provides the information to Engineer B. Thereafter, Engineer B submits his firm’s engineering qualifications to the state agency for the same public project.

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Was it ethical for Engineer B to make the FOIA request in connection with the state’s procurement of engineering services?
Similar Cases

D-tuple Component Breakdown

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Roles R
w=0.12 384D
Confidentiality-Directed Replacement Design Engineer
A licensed professional engineering role in which an engineer is retained by a client to replace an incumbent...
Public Procurement Qualifications Reviewer Engineer
A licensed professional engineering role in which an engineer or competing firm obtains and reviews a rival firm's...
Engineer B FOIA-Requesting Competing Engineer
Engineer B, a competitor of Engineer A, submits a state FOIA request prior to the interview process to obtain...
Franchiser Client BER 93-3
Major franchiser who retained Engineer A for multi-year design services, then terminated the relationship and...
Engineer A Public RFQ Submitting Engineer
Engineer A submits his firm's engineering qualifications to a state agency in response to a public RFQ under state...
State Agency Public Procurement Authority
The state agency issues the public RFQ, receives qualifications submissions from competing engineering firms,...
Engineer A BER 93-3 Incumbent Design Engineer
Retained by franchiser for multi-year engineering design services for a chain of stores; contract terminated with...
Engineer B BER 93-3 Replacement Design Engineer
Retained by franchiser to replace Engineer A; explicitly instructed to keep the engagement confidential from...
Engineer B Present Case Public Procurement Competitor
Competing engineer in the present case who submitted qualifications to a public agency under public procurement...
Engineer A Present Case Incumbent Engineer
Incumbent engineer in the present case whose qualifications submission to a public agency was subject to review by...
Public Agency Client
The public entity administering the procurement process; the referenced public procurement system designed to...
11 entities
Principles P
w=0.2 384D
Procurement Integrity in Public Engineering Implicated By State Agency Disclosure
The state agency's disclosure of Engineer A's qualifications submission to Engineer B under FOIA, while legally...
Public Procurement Confidentiality Self-Protection Obligation
Professional virtue principle requiring engineers who submit qualifications or other materials to public agencies in...
Procurement Integrity in Public Engineering
Domain-specific principle requiring engineers in public agency roles to ensure that engineering service contracts...
FOIA Competitor Intelligence Ethical Use Invoked By Engineer B
Engineer B obtained Engineer A's qualifications submission through a lawful FOIA request and subsequently submitted...
Fairness in Professional Competition Implicated By Engineer B FOIA Conduct
Engineer B's use of a FOIA request to obtain Engineer A's qualifications before submitting his own creates an...
Public Procurement Confidentiality Self-Protection Obligation Invoked By Engineer A
Engineer A submitted his firm's qualifications to a public agency under public procurement procedures, thereby...
Client Interest Primacy Over Personal Advantage Invoked in BER 93-3 Analysis
In BER Case No. 93-3, Engineer B disclosed his relationship with the franchiser client to incumbent Engineer A...
Faithful Agent Obligation Invoked as Analogical Bridge to Present Case
The Board invokes BER 93-3's faithful agent analysis as a relevant precedent for the present case, establishing that...
FOIA Procurement Timing Integrity Obligation Invoked for Engineer B Present Case
The Board expresses concern about the timing of Engineer B's FOIA request relative to the procurement process,...
Good Intent Does Not Cure Procedural Impropriety Invoked in BER 93-3 Analogy
The Board's analysis of BER 93-3 reinforces that Engineer B's disclosure to Engineer A - though not motivated by...
FOIA-Based Competitor Intelligence Ethical Use Constraint
Relational principle establishing that while a licensed engineer may lawfully submit a Freedom of Information Act...
FOIA Procurement Timing Integrity Obligation
Relational principle requiring engineers who intend to use Freedom of Information Act requests to obtain competitor...
Fairness in Professional Competition
Relational principle requiring engineers - particularly those in public agency roles - to ensure that procurement...
Good Intent Does Not Cure Procedural Impropriety
Professional virtue principle establishing that an engineer's benign or constructive motivation for taking an action...
FOIA Procurement Timing Integrity Invoked By Engineer B
Engineer B submitted a FOIA request to obtain Engineer A's qualifications submission prior to submitting his own...
Good Intent Does Not Cure Procedural Impropriety Invoked Against Engineer B
Engineer B's FOIA request may have been motivated by legitimate competitive curiosity or strategic awareness, but...
Free and Open Competition as Engineering Ethics Boundary Condition
Fundamental principle recognizing that free and open competition is a basic legal and ethical rule governing...
Client Interest Primacy Over Engineer Personal Advantage in Faithful Agent Role
Relational principle establishing that an engineer acting as a faithful agent and trustee of a client must carry out...
Public Procurement Transparency as Public Interest Protection Mechanism
Fundamental principle recognizing that the openness and transparency of public procurement processes - including...
Free and Open Competition Boundary Condition Invoked in Engineering Practice Context
The Board contextualizes the FOIA-based competitor intelligence dispute within the broader framework that...
Client Loyalty Violated by Unauthorized Disclosure in BER 93-3
Engineer B's disclosure of his relationship with the franchiser to incumbent Engineer A, in violation of the...
Benevolent Motive Non-Excuse Invoked in BER 93-3 Faithful Agent Analysis
The Board's finding in BER 93-3 that Engineer B's disclosure was ethically impermissible despite the absence of...
FOIA-Based Competitor Intelligence Ethical Use Constraint Invoked in Public Procurement Review
Engineer B's use of a FOIA request to obtain Engineer A's qualifications submission is evaluated against the...
Public Procurement Confidentiality Self-Protection Obligation Invoked as Caution to Engineers
The Board cautions engineers that they should avoid including confidential or proprietary information in public...
Public Procurement Transparency as Public Interest Protection Mechanism Invoked in FOIA Review Justification
The Board characterizes the openness of the public procurement process - including the availability of submitted...
Public Welfare Paramount Invoked as Rationale for Public Procurement System Design
The Board grounds its analysis of the public procurement system in the premise that the system was designed to...
26 entities
Obligations O
w=0.15 384D
Engineer A Present Case Public Procurement Qualifications Confidentiality Self-Protection
Engineer A was obligated to refrain from including confidential or proprietary information in his qualifications...
FOIA Pre-Submission Competitor Intelligence Abstention Obligation
Duty of a licensed professional engineer who has submitted or intends to submit qualifications to a public agency in...
Engineer B FOIA Pre-Submission Timing Violation Obligation
Engineer B was obligated to refrain from submitting a FOIA request to obtain Engineer A's qualifications until after...
Engineer B FOIA Content Non-Exploitation Obligation
Engineer B was obligated to use Engineer A's qualifications submission obtained through FOIA only for legitimate...
Engineer A Public Procurement Qualifications Confidentiality Self-Protection Obligation
Engineer A was obligated to recognize that submitting qualifications to a public agency under public procurement...
Engineer B BER 93-3 Client Confidentiality Instruction Faithful Agent Compliance
Engineer B was obligated, as faithful agent and trustee of the franchiser client, to comply with the client's...
Engineer B BER 93-3 Faithful Agent Client Interest Primacy Over Altruistic Disclosure
Engineer B was obligated to prioritize the franchiser client's interests over his altruistic or collegial impulse to...
Engineer B Present Case FOIA Pre-Submission Competitor Intelligence Abstention
Engineer B was obligated to refrain from submitting a FOIA request to obtain Engineer A's qualifications submission...
Engineer B Competitive Procurement Fairness Obligation
Engineer B was obligated to ensure that his participation in the public procurement process provided all competing...
Competitor Qualifications Content Non-Exploitation Obligation
Duty of a licensed professional engineer who has lawfully obtained a competitor's qualifications submission through...
Public Procurement FOIA Timing Appearance of Impropriety Avoidance Obligation
Duty of a licensed professional engineer competing in a public procurement to structure any FOIA requests for...
Engineer B Good Intent Non-Justification Procurement Obligation
Engineer B was obligated to recognize that any legitimate competitive curiosity or strategic awareness motivation...
Engineer B Honorable Procurement Conduct Obligation
Engineer B was obligated to conduct himself honorably and fairly in the public procurement process, which required...
Public Procurement Regulatory Deference Obligation
Duty of a licensed professional engineer competing in a public procurement process to act in conformance with...
Public Procurement Misrepresentation Check Transparency Recognition Obligation
Duty of a licensed professional engineer participating in a public procurement process to recognize that the...
Client Confidentiality Instruction Faithful Agent Compliance Obligation
Duty of a licensed professional engineer retained by a client to replace an incumbent engineer to comply with the...
Faithful Agent Client Interest Primacy Over Altruistic Disclosure Obligation
Duty of a licensed professional engineer acting as a faithful agent and trustee for a client to refrain from...
Engineer B Present Case Public Procurement Regulatory Deference
Engineer B was obligated to act in conformance with applicable FOIA and public procurement laws and regulations, and...
Engineer B Present Case Public Procurement FOIA Timing Appearance of Impropriety Avoidance
Engineer B was obligated to structure his FOIA request so that its timing could not create an appearance of...
Engineer B Present Case Competitor Qualifications Content Non-Exploitation
Engineer B was obligated to refrain from using the substantive content of Engineer A's qualifications submission -...
Engineer B Present Case Public Procurement Misrepresentation Check Transparency Recognition
Engineer B was obligated to recognize that the openness of the public procurement process - including FOIA...
21 entities
States S
w=0.1 384D
Engineer A Qualifications Submitted to Public RFQ
Engineer A's firm qualifications submitted in response to state RFQ
Engineer B FOIA-Based Acquisition of Competitor Qualifications
Engineer B's use of FOIA to obtain Engineer A's submitted qualifications prior to Engineer B's own submission
Engineer B Asymmetric Competitive Advantage Post-FOIA
Engineer B's informational advantage over Engineer A in the same procurement competition, derived from reviewing...
Engineering Procurement Free Competition Legal Framework
The legal and regulatory environment governing engineering firm competition at local, state, and federal levels
BER 93-3 Franchiser-Engineer B Covert Transition Engagement
Engineer B's engagement by franchiser to review design concerns while Engineer A's contract was still active, under...
BER 93-3 Faithful Agent Duty Activation
Engineer B's obligation as faithful agent and trustee to the franchiser, constraining disclosure of the new client...
Public Procurement System Public Interest Alignment
The public procurement system within which Engineer B submitted qualifications and obtained competitor...
Engineer B Competitor Qualification FOIA Acquisition
Engineer B's acquisition and review of competitor qualifications submitted to the public agency via public records...
Confidential Information in Public Procurement Submission Risk
The condition of engineering firms that include confidential or proprietary information in qualification statements...
Free and Open Competition Legal Framework Active State
State in which the governing legal and regulatory environment at local, state, and/or federal levels affirmatively...
Competitor Qualification Visibility Advantage State
State in which a competing professional, participating in the same public procurement process, has obtained and...
Confidential Information Submitted to Public Disclosure-Eligible Repository State
State in which a professional engineer or firm has included confidential, proprietary, or sensitive information...
Competitive Procurement Public Interest Alignment State
State in which a public procurement system has been designed and legally structured to advance the public interest...
Client Transition Overlap Engagement State
State in which a client has initiated engagement with a new engineer (Engineer B) for services overlapping with or...
14 entities
Resources Rs
w=0.1 384D
Qualification-Based Selection Procurement Law - State RFQ Procedures
Establishes the public RFQ process through which both Engineer A and Engineer B are submitting qualifications to the...
Competitor Conduct in Procurement Standard - FOIA Use Context
Governs whether Engineer B's use of a FOIA request to access Engineer A's submitted qualifications during an active...
Engineer Solicitation and Competition Ethics Standard - Competitive Advantage Limits
Provides the ethical framework for evaluating whether Engineer B's FOIA-based intelligence gathering crosses the...
Agent-Trustee Loyal Dealing Doctrine
Applied as an authoritative interpretive standard to define the scope of an engineer's loyalty obligation to a...
Public Procurement Regulatory Framework (Free and Open Competition)
Referenced as the governing legal and regulatory framework within which engineering firms compete, establishing that...
State FOIA Statute
Legal mechanism invoked by Engineer B to obtain Engineer A's submitted qualifications from the state agency prior to...
NSPE Code of Ethics
Referenced as the primary normative authority governing engineer conduct in competitive procurement situations,...
BER Case No. 93-3
Cited as analogical precedent establishing the engineer's duty of loyalty as faithful agent and trustee to a client...
Freedom of Information Act Legal Framework
State and federal statutory provisions granting the public and private parties the right to request and obtain...
Public Procurement Fairness Standard - RFQ Informational Equity
Addresses whether the asymmetric access to competitor qualification information - obtained via FOIA by Engineer B...
10 entities
Actions A
w=0.1 384D
Engineer A Submits RFQ Qualifications
Engineer B Files FOIA Request
Engineer B Submits Own Qualifications
BER Case 93-3: Engineer B Reviews Design Information
BER Case 93-3: Engineer B Discloses Relationship to Engineer A
5 entities
Events E
w=0.08 384D
State Provides FOIA Documents
Competitive Information Asymmetry Created
Interview Process Ongoing During Disclosure
BER 93-3 Precedent Established
Engineer A's Qualifications Exposed to Competitor
5 entities
Capabilities Ca
w=0.07 384D
Engineer B FOIA Competitive Ethics Assessment
Engineer B required the capability to assess whether submitting a FOIA request to obtain Engineer A's qualifications...
Engineer B FOIA Timing Ethics Compliance
Engineer B required the capability to recognize that a FOIA request for a competitor's qualifications must be...
Engineer B Honorable Procurement Self-Regulation
Engineer B required the capability to self-regulate his competitive conduct to meet the standard of honorable,...
Engineer A Confidential Submission Self-Protection
Engineer A required the capability to recognize that qualifications submitted to a public agency under public...
Engineer B Good Intent Non-Justification Recognition
Engineer B required the capability to recognize that any legitimate competitive curiosity or strategic awareness...
Engineer B Improper Competitive Advantage Recognition
Engineer B required the capability to recognize that using a FOIA request to access Engineer A's qualifications...
State Agency Public Procurement Authority Procurement Integrity
The state agency required the capability to recognize when FOIA disclosures of competitor qualifications during an...
Engineer A Present Case Confidential Submission Self-Protection Capability Instance
Engineer A in the present case was required to possess the capability to recognize that qualifications submitted to...
Engineer B Present Case FOIA Timing Appearance of Impropriety Avoidance Capability Instance
Engineer B in the present case was required to possess the capability to recognize that submitting a FOIA request...
Engineer B BER 93-3 Good Intent Non-Justification Recognition Capability Instance
Engineer B in BER 93-3 was required to possess the capability to recognize that his benevolent, non-self-interested...
Engineer B Present Case Competitor Qualifications Content Non-Exploitation Capability Instance
Engineer B in the present case was required to possess the capability to recognize the ethical boundaries on using...
Engineer B Present Case Honorable Procurement Conduct Self-Regulation Capability Instance
Engineer B in the present case was required to possess the capability to conduct himself honorably and fairly in the...
Engineer B Competitor Qualifications Content Non-Exploitation
Engineer B required the capability to recognize the ethical boundaries on using Engineer A's qualifications content...
FOIA Request Competitive Ethics Assessment Capability
Capability of a licensed professional engineer who is a competitor for a public engineering contract to assess the...
FOIA Request Competitive Timing Ethics Compliance Capability
Capability of a licensed professional engineer who is a competitor for a public engineering contract to recognize...
Competitor Qualifications Content Non-Exploitation Capability
Capability of a licensed professional engineer who has lawfully obtained a competitor's qualifications submission...
Honorable Procurement Conduct Self-Regulation Capability
Capability of a licensed professional engineer competing for a public or private engineering contract to recognize...
Confidential Submission Self-Protection in Public Procurement Capability
Capability of a licensed professional engineer or engineering firm submitting qualifications or other materials to a...
Good Intent Non-Justification for Procedural Impropriety Recognition Capability
Capability of a licensed professional engineer to recognize that benign motivation - such as a genuine desire to...
Improper Competitive Advantage Recognition Capability
Capability of a licensed professional engineer to recognize when a situation creates an opportunity for improper...
Public Procurement Integrity Public Interest Articulation Capability
Capability of a licensed professional engineer to understand, internalize, and articulate the public interest...
Engineer B Public Procurement Integrity Articulation
Engineer B required the capability to understand and internalize the public interest rationale underlying strict...
Engineer B Present Case Public Procurement Integrity Public Interest Articulation Capability Instance
Engineer B in the present case was required to possess the capability to understand and internalize the public...
Engineering Profession Free Competition Legal Framework Recognition Capability
Capability of a licensed professional engineer to recognize that engineering practice operates within a legal...
Faithful Agent Client Benefit Primacy Over Personal Advantage Recognition Capability
Capability of a licensed professional engineer acting as faithful agent and trustee for a client to recognize that...
Public Procurement Open Process Misrepresentation Protection Recognition Capability
Capability of a licensed professional engineer to recognize that the openness and transparency of public procurement...
BER Precedent Faithful Agent Principle Cross-Context Application Capability
Capability of a licensed professional engineer or ethics reviewing body to recognize when the faithful agent and...
Engineer B BER 93-3 Faithful Agent Client Benefit Primacy Capability Instance
Engineer B in BER 93-3 was required to possess the capability to recognize that his duty as faithful agent and...
Engineer B Present Case Engineering Profession Free Competition Legal Framework Recognition
Engineer B in the present case was required to possess the capability to recognize that his competitive conduct -...
Engineer B Present Case Public Procurement Open Process Misrepresentation Protection Recognition
Engineer B in the present case was required to possess the capability to recognize that the openness of the public...
NSPE BER Board BER 93-3 to Present Case Faithful Agent Principle Cross-Context Application
The NSPE Board of Ethical Review demonstrated the capability to recognize that BER Case No. 93-3 - involving a...
31 entities
Constraints Cs
w=0.08 384D
Public Procurement Submission FOIA Exposure Self-Protection Constraint
Procedural and ethical constraint requiring that a licensed professional engineer or engineering firm submitting...
Engineer B FOIA Pre-Submission Timing Constraint Instance
Engineer B was constrained from submitting a FOIA request to obtain Engineer A's qualifications prior to Engineer...
Engineer A Public Procurement Submission FOIA Exposure Self-Protection Constraint Instance
Engineer A was constrained to recognize that submitting qualifications to a state agency under public procurement...
Engineer B Free and Open Competition Regulatory Deference BER 10-8
Engineer B was constrained to act within the legal framework governing free and open competition at local, state,...
Engineer B FOIA-Acquired Competitor Intelligence Ethical Use BER 10-8
Engineer B was constrained to use Engineer A's qualifications submission obtained through FOIA only for legitimate...
Engineer B BER 93-3 Faithful Agent Client Non-Disclosure Instruction Compliance
Engineer B was constrained by his duty as faithful agent and trustee to the franchiser client to comply with the...
Engineer B Public Procurement Misrepresentation Check Transparency Recognition BER 10-8
Engineer B was constrained to recognize that the openness of the public procurement process - including FOIA...
Engineer A Public Procurement Qualifications Confidentiality Self-Protection BER 10-8
Engineer A was constrained to refrain from including confidential or proprietary information in his qualifications...
Engineer B Competitive Procurement Honorable Conduct Constraint Instance
Engineer B was constrained to conduct all competitive activities in the public RFQ process honorably, responsibly,...
Public Procurement FOIA Timing Sequencing Constraint
Procedural and ethical constraint establishing that a licensed professional engineer competing in a public...
Engineer B FOIA-Acquired Competitor Intelligence Ethical Use Constraint Instance
Engineer B was constrained from using Engineer A's qualifications submission - obtained through FOIA - to tailor,...
Engineer B Appearance of Impropriety Avoidance in Public Procurement Constraint Instance
Engineer B was constrained to avoid not only actual unfair competitive advantage but also the appearance of...
Engineer B Competitive Procurement Fairness Constraint Instance
Engineer B was constrained to ensure that his participation in the public procurement process preserved equal...
Engineer B Improper Competitive Method Prohibition Constraint Instance
Engineer B was constrained from attempting to obtain the public procurement engagement through improper or...
Free and Open Competition Regulatory Deference Constraint
Ethical and legal constraint establishing that a licensed professional engineer competing in a public procurement...
Public Procurement Misrepresentation Check Transparency Constraint
Ethical constraint establishing that the openness of a public procurement process - including the availability of...
Faithful Agent Client Instruction Non-Disclosure Constraint
Ethical constraint establishing that a licensed professional engineer retained by a client who has given an explicit...
Altruistic Motive Faithful Agent Duty Non-Override Constraint
Ethical constraint establishing that a licensed professional engineer's altruistic or collegial motivation -...
Engineer B FOIA Pre-Submission Timing Appearance of Impropriety BER 10-8
Engineer B was constrained to submit any FOIA request for competitor qualifications only after - not before - his...
Engineer B BER 93-3 Altruistic Motive Faithful Agent Duty Non-Override
Engineer B was constrained from treating his altruistic or collegial motivation - the desire to inform Engineer A of...
Engineer B Present Case Procurement Honorable Conduct Constraint Instance
Engineer B was constrained to conduct all competitive activities in the public procurement process honorably,...
Engineer B Present Case Appearance of Impropriety Avoidance Public Procurement
Engineer B was constrained to avoid not only actual impropriety but also the appearance of impropriety in the public...
22 entities
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