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.

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...

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.

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