Engineer's Duty As Interpreter Of Contract Documents
Case 176
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It would be unethical for Engineer A to have found in the Owner's favor, contrary to his considered professional findings in this matter.
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Code Section II.3.a. imposes upon engineers the ethical obligation to be objective and truthful in professional reports, statements or testimony. In BER Case 85-5, the Board said it was unethical for an engineer to fail to include certain unsubstantiative data in a report. There, the engineer was performing graduate research. Engineer compiled a vast amount of data pertaining to the subject of his report. The majority of the data as well as prior conclusions strongly supported the engineers conclusions as well as prior research performed by others. However, a few of the aspects of the data were at variance and not fully consistent with the conclusions contained in the engineer's report. Convinced of the soundness of his report and concerned that inclusion of the ambiguous data would detract from and distort the essential thrust of the report, the engineer decided to omit reference to the ambiguous report. While the facts in BER Case 85-5 are quite different than those in this case, the Board's discussion of the issues are quite relevant. Said the Board in BER Case 85-5, "the challenge...is not to develop consistent or precise findings that one can identify and categorize neatly, nor is it to identify results that are in accord with one's basic premise. The real challenge...is to wrestle head-on with the difficult and sometimes insoluble issues that surface and try to gain some understanding of why they are at variance with other results." The Board's discussion in BER Case 85-5 was therefore largely focused on the need for engineers to overcome bias, attempting to be objective and seeking resolution of issues through careful analysis and evaluation of the available information and data. Clearly, that discussion is pertinent to the Board's inquiry in the present case.
We believe Engineer A owed a general duty of loyalty to the Owner and we also believe that in acting impartially under the terms of the contract, Engineer A fulfilled that ethical obligation to the Own...
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Engineer A is retained by an Owner to provide both design and construction phase services. Following the commencement of construction, a dispute arises between the Owner and the General Contractor concerning the acceptability of a concrete pour by the Contractor. Engineer A, seeks to remain impartial in the dispute, citing a provision in his contract with the Owner stating that the engineer is the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work. The Owner and the Contractor ask Engineer A to review the dispute. Following his review, Engineer A agrees with the Contractor's position, noting that the Owner had approved certain changes in the work and that the Contractor complied with those changes. Owner accepts Engineer A's interpretation, but also criticizes Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner, Engineer A should have found in Owner's favor.
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Did Engineer A owe an ethical duty to the Owner to find in the Owner's favor?
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Find Similar CasesD-tuple Component Breakdown
42
Total Entities9/9
Components Populated9/9
With EmbeddingsCombined Embedding
Roles
R
w=0.12
384D
Owner Project Owner
Retained Engineer A for design and construction phase services, disputed the acceptability of the Contractor's...
Engineer A Design Engineer
Retained by the Owner to provide both design and construction phase services on the project on which the concrete...
Engineer A Contract Interpreter
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General Contractor
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Board of Ethical Review
Adjudicates the present-case inquiry, applies Code Section II.3.a and the discussion of BER Case 85-5, and concludes...
5 entities
Principles
P
w=0.2
384D
Loyalty Claimed by Owner
The Owner criticizes Engineer A, claiming that because of Engineer A's ethical duty of loyalty to the Owner,...
Objectivity in Concrete Pour Dispute
Engineer A seeks to remain impartial in the concrete pour dispute, reviews the dispute at the request of both the...
Objectivity in Contract Dispute
Engineer A acted in an impartial, neutral and objective manner as the initial interpreter of the requirements of the...
Loyalty to Owner via Impartiality
The Board finds that Engineer A owed a general duty of loyalty to the Owner and that Engineer A fulfilled that...
4 entities
Obligations
O
w=0.15
384D
Engineer A Contract Interpretation Duty
Engineer A must serve as the initial interpreter of the requirements of the contract documents and judge of the...
Engineer A Faithful Agent Duty
Engineer A must act as a faithful agent or trustee of the Owner who retained him for design and construction phase...
Engineer A Impartial Judgment Duty
Engineer A must judge the acceptability of the Contractor's concrete pour objectively and impartially, deciding the...
Engineer A Objectivity Duty
Engineer A must be objective and truthful in professional reports, statements or testimony when reviewing and...
Engineer A Loyalty Duty to Owner
Engineer A must act as a faithful agent of the Owner, a general duty of loyalty that the Board holds Engineer A...
5 entities
States
S
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Interpreter and Judge Contract Provision
Dual Loyalty and Judge Capacity
Concrete Pour Dispute Pending
Review Finding Favoring Contractor
Collusion Charge Exposure Avoided
Owner Informed Contract Assent
6 entities
Resources
Rs
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384D
BER Case 85-5
BER Case 85-5 (topic: omission of ambiguous data from an engineering report and the duty to be objective)
Engineer A Owner Contract
engineer as initial interpreter of contract documents and judge of acceptability of the work
NSPE Code of Ethics
NSPE Code of Ethics (topic: objectivity and truthfulness in professional reports, statements, and testimony)
3 entities
Actions
A
w=0.1
384D
Professional Services Retention
Work Change Approval
Impartiality Declaration
Dispute Review Undertaking
Impartial Dispute Finding
Interpretation Acceptance and Criticism
6 entities
Events
E
w=0.08
384D
Construction Commencement
Concrete Pour Dispute
Claim Expedited
3 entities
Capabilities
Ca
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384D
Board Precedent Reasoning
The Board of Ethical Review retrieves the prior BER Case 85-5 opinion, distinguishes its facts from the present...
Engineer A Design Services
Engineer A is retained by the Owner to provide design and construction phase services on the project on which the...
Engineer A Candid Interpretation Communication
Engineer A provided the Owner with a candid and straightforward interpretation of the issues involved in the claim,...
Board Code Application
The Board of Ethical Review identifies Code Section II.3.a as the governing provision and applies its objectivity...
Engineer A Objectivity Maintenance
Engineer A seeks to remain impartial in the concrete pour dispute and decides it on the merits, finding for the...
Engineer A Work Acceptability Judgment
Engineer A serves as judge of the acceptability of the work and, after review, judges the disputed concrete pour...
Engineer A Contract Interpretation
Engineer A exercises the contractually assigned competence to serve as the initial interpreter of the requirements...
Engineer A Dispute Review Diligence
Engineer A reviews the dispute at the request of both parties and grounds his conclusion in the facts that the Owner...
8 entities
Constraints
Cs
w=0.08
384D
Engineer A Loyalty Bias Limit
Engineer A must not allow his duty of loyalty to the Owner, who retained him, to determine his judgment of the...
Engineer A Loyalty Outer Limit
Engineer A must not allow his duty of loyalty to the Owner who retained him to dictate his decision when serving...
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