Independence of Peer Reviewer
Case 15
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Engineer B is ethically required to make certain that Engineer A is advised of the planned peer review. It is not necessary for Engineer B to provide that notice personally, but Engineer B must know either that Engineer A has been advised or that Engineer A has been terminated from the project. Owner and Engineer B are not required to obtain Engineer A’s consent to the peer review, merely to assure that Engineer A has been informed of the peer review. Especially in the face of known design defects in the first tower, Engineer A may not ethically object to the peer review.
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Peer review issues are arising with increasing frequency. In many cases, the possibility that the client will obtain a peer review is specified in design-build bid or contract documents to the effect that any party who bids or contracts with the client has, by participating, consented to the peer review. Frequently that disclosure is accompanied by an agreement that the client will require the peer reviewer to keep the results of the peer review confidential or, at the very least, the original designer will be provided with an opportunity to explain (and defend) the design decisions. Such confidentiality agreements encourage the firm being reviewed to cooperate fully, build trust, and support a collegial atmosphere. However, that is not always the case and it is not the case here.
It is helpful to consider how the BER has addressed peer review issues in the past. For example, in BER Case 18-10 , Engineer A was the lead engineer on an independent external review of an agency-prepared project. The review’s scope was limited to clarifications and refinements, and there was no confidentiality agreement. (Of course, as a public project, there would not be.) About a year later, Engineer A’s firm is invited to be part of a joint venture responding to a design-build RFP for the project. In Case 18-10 , the Board concluded that, so long as the agency approves and the work complies with applicable state laws and regulations regarding conflicts of interest, it would not be unethical for Engineer A’s firm to participate in a design-build joint venture submitting a proposal for the project.
In BER Case 96-8 , Engineer A was a peer reviewer serving as part of an organized peer-review program. When selected as a reviewer for the program, Engineer A contractually agreed not to disclose confidential information acquired in the review. Engineer A was assigned to review the design work of Engineer B’s firm on several projects. In the course of the review, Engineer A determined th...
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wner is developing a site with two mirror-image towers to be built two years apart. As the first tower is built, several significant design errors are discovered in the plans and design of Engineer A. Owner decides to obtain a peer review of the plans and design of Engineer A for the second tower and retains Engineer B. Owner instructs Engineer B to conduct the peer review without letting Engineer A know. Engineer B objects to conducting the peer review without advising Engineer A. When Owner reluctantly consents to notifying Engineer A, Engineer A objects and refused to consent to the peer review.
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Is Engineer B ethically required to make certain that Engineer A is advised of the planned peer review? Is Engineer A ethically required to cooperate with the peer review of Engineer B?
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I.1.
Hold paramount the safety, health, and welfare of the public.
Subject Reference
Duty to the Public
I.4.
Act for each employer or client as faithful agents or trustees.
Subject Reference
Employer
Faithful Agents and Trustees
I.6.
Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession.
II.1.c.
Engineers shall not reveal facts, data, or information without the prior consent of the client or employer except as authorized or required by law or this Code.
Subject Reference
Confidential Information
III.1.a.
Engineers shall acknowledge their errors and shall not distort or alter the facts.
Subject Reference
Errors
III.1.f.
Engineers shall treat all persons with dignity, respect, fairness and without discrimination.
Subject Reference
Harassment and Anti-Discrimination
III.4.
Engineers shall not disclose, without consent, confidential information concerning the business affairs or technical processes of any present or former client or employer, or public body on which they serve.
Subject Reference
Confidential Information
III.7.a.
Engineers in private practice shall not review the work of another engineer for the same client, except with the knowledge of such engineer, or unless the connection of such engineer with the work has been terminated.
Subject Reference
Reviewing the Work of Other Engineers
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Find Similar CasesD-tuple Component Breakdown
38
Total Entities9/9
Components Populated9/9
With EmbeddingsCombined Embedding
Roles
R
w=0.12
384D
Engineer A Design Engineer
Prepared the plans and design for the two mirror-image towers; significant design errors were discovered in the...
Engineer B Peer Reviewer
Retained by Owner to peer review Engineer A's plans and design for the second tower; instructed by Owner to conduct...
Owner Developer
Developing the site with two mirror-image towers; after design errors were discovered in Engineer A's plans, decided...
Board of Ethical Review Adjudicator
Adjudicates the ethics of the peer review situation, holds that Engineer B was correct in declining the undisclosed...
4 entities
Principles
P
w=0.2
384D
Peer Review Cooperation in Undisclosed Review
Engineer B declined the peer review assignment while instructed not to disclose the review to Engineer A, Owner...
Peer Review Notification by Engineer B
Engineer B objects to conducting the peer review without advising Engineer A, and after Owner reluctantly consents...
Public Welfare in Tower Design Review
The Board invokes the requirement to hold paramount the health, welfare, and safety of the public as a ground for...
Professional Accountability of Engineer A
The Board reasons that because engineers must take responsibility for their actions and acknowledge their errors,...
Client Loyalty in Peer Review
The Board invokes the requirement that engineers act in the best interests of their clients as one of the grounds...
5 entities
Obligations
O
w=0.15
384D
Engineer A Client Best Interest Duty
Engineer A must act in the best interests of his client, Owner, which the Board holds indicates full and cooperative...
Engineer A Public Safety Duty
Engineer A must at all times hold paramount the health, welfare, and safety of the public, which the Board holds...
Engineer B Peer Review Notification Duty
Engineer B must conduct the peer review of Engineer A's plans and design only with Engineer A's knowledge, and...
Engineer A Peer Review Cooperation Duty
Engineer A must participate fully and cooperatively in Engineer B's peer review of his plans and design, since the...
Engineer A Error Acknowledgment Duty
Engineer A must take responsibility for his actions and acknowledge the errors in his plans for the towers.
5 entities
States
S
w=0.1
384D
Defective Tower Design Plans
Covert Peer Review Instruction Conflict
Engineer A Review Awareness
Engineer A Refused Consent
Engineer B Peer Review Engagement
Peer Review Cooperation Dependency
Absent Contractual Peer Review Provision
7 entities
Resources
Rs
w=0.1
384D
NSPE Code of Ethics
NSPE Code of Ethics (topic: peer review of another engineer's work for the same client and cooperation duties)
BER Case 93-3
BER Case 93-3 (topic: owner refusing to advise the engineer of a planned peer review)
2 entities
Actions
A
w=0.1
384D
Consent to Notification
Peer Review Procurement
Secret Review Instruction
Objection to Secret Review
Refusal to Consent
5 entities
Events
E
w=0.08
384D
Design Errors Discovery
Engineer A Notification
2 entities
Capabilities
Ca
w=0.07
384D
Board Precedent Reasoning
The Board of Ethical Review exercises this competence by citing and distinguishing BER Case 93-3, where the owner...
Engineer B Work Refusal Judgment
Engineer B exercised the judgment that professional duty required declining to conduct the peer review as...
Engineer B Normative Framework Assessment
Engineer B recognized and applied the governing professional norm that a peer review of another engineer's work for...
Engineer B Disclosure
Engineer B's duty to conduct the review only with Engineer A's knowledge presupposes the competence to see that...
Engineer A Engineering Design
Engineer A exercised design competence by preparing the plans and design for the two mirror-image towers, although...
Engineer A Professional Accountability
The Board holds it would be unethical for Engineer A to fail to cooperate, and his duties to take responsibility for...
6 entities
Constraints
Cs
w=0.08
384D
Engineer B Covert Peer Review Prohibition
Engineer B, an engineer in private practice, shall not review the work of Engineer A for the same client, Owner,...
Engineer B Covert Review Instruction
Engineer B must not let Engineer A know that Engineer B has been retained to conduct a peer review of Engineer A's...
2 entities
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