By Tara Hoke
This article presents a recent case reported in the news media involving the common problem of construction testing fraud. While an engineering professional plays only a minor role in this case, his actions nevertheless demonstrate the need for engineers to strike a proper balance between service to clients or employers and other ethical duties.
Situation
The owner of a small materials testing company is contacted by a client, the principal of a construction company whose volume and frequency of contracts make it an important source of revenue for the testing company.
The client explains that his company has been contracted to do construction work on a port expansion project for a major Atlantic Coast city. The work requires a sizable amount of precast concrete blocks and, given the importance of the concrete in the overall project, the port authority has included language in its contract mandating the construction company ensure that an independent testing company is present to conduct inspection and testing throughout the process of mixing, placing, and curing the concrete.
Unfortunately, due to what the client describes as an “oversight” by his team, the company has failed to make arrangements for this independent verification. As most of the precast blocks have already been completed, the client is concerned that addressing this contract deficiency with the port authority would entail a substantial cost to his company. The client reminds the testing company’s owner of their longstanding business relationship and asks the owner what he can do to “help make this right.”
The testing company owner agrees to provide his client with falsified paperwork indicating that his company has performed the necessary inspections. Working with the client and its concrete supplier to ensure alignment with the concrete design mix, timing, and other specifics of the work, the owner creates a series of reports purporting to document his company’s inspection and testing of the precast concrete. In exchange, the client pays the testing company an amount equal to what it would have received if its staff had actually performed the work.
The final point of noncompliance under the port contract is a requirement for certification under seal by a licensed professional engineer, attesting that all the necessary inspections were completed by the professional engineer or by inspectors under his supervision. For this, the company owner turns to a senior employee, who is the only licensed professional engineer on staff. The engineer agrees to permit the use of his seal on the necessary form, and the illusion of an independent inspection of the concrete production process is complete.
But there is a hitch: The co-conspirators are not the only individuals with an in-depth knowledge of their dealings. Some months earlier, a whistleblower employed by the construction company contacted federal authorities to report concerns about widespread fraud on the port project. With the whistleblower’s assistance, investigators have quietly been working to collect evidence of wrongdoing by the construction company — evidence that includes telephone recordings and correspondence detailing dozens of falsified reports, invoices, and other documents prepared or solicited by the construction company.
Nine individuals are indicted on charges of mail fraud, wire fraud, and conspiracy, including principals from the construction company and two other subcontractors, as well as the material testing company’s owner and its professional engineer. Most of the conspirators plead guilty to lesser charges in exchange for a reduced sentence; the professional engineer and his employer plead guilty to one count of mail fraud and are sentenced to three and five years of probation, respectively.
Facing a lengthy ban from competing on public projects, the materials testing company shutters its doors completely. Likewise, following notice of a pending investigation by his state licensing board, the professional engineer surrenders his P.E. license and retires from the practice.
Question
If the engineer in this case had been an ASCE member, would his actions have violated the ASCE Code of Ethics?
Discussion
It has been noted before in this column that “faithful service” to a client or employer does not excuse mindless obedience to a request for actions that violate legal, professional, or ethical standards.
This limitation is made clear in the language of section 4a of the ASCE Code of Ethics, which directs engineers to “act as faithful agents of their clients and employers with integrity and professionalism” (emphasis added). It is also reflected in the code’s hierarchical structure of obligations, which places duty to clients and employers fourth in precedence, behind dozens of ethical provisions outlining the engineer’s duties to society, to the natural and built environment, and to the civil engineering profession.
Several of these superseding provisions touch directly on the engineer’s actions. Section 1d of the code directs engineers to “have zero tolerance for bribery, fraud, and corruption in all forms,” while 1c adds that engineers must “express professional opinions truthfully and only when founded on adequate knowledge and honest conviction.” Neither of these provisions is satisfied by the engineer’s agreement to place his name on a report that he knows to be false, claiming oversight of inspections that never occurred, nor making assurances of quality that he was unable to verify.
In addition, under the laws of every U.S. jurisdiction, an engineer’s seal indicates that the professional has knowledge and understanding of the work and has ensured its conformity with professional standards of care. Given the falsity of the sealed document, it is unlikely that the engineer has met the section 3b obligation to “practice engineering in compliance with all legal requirements in the jurisdiction of practice.”
Above all, while subsequent testing by the port authority found no significant deficiencies in the untested concrete, the professional engineer appears to have made no effort to ensure that the precast concrete blocks did not represent a threat to the lives or safety of persons impacted by their use. His actions were thus clearly inconsistent with the engineer’s paramount duty as articulated in section 1a of the code: Engineers “first and foremost, protect the health, safety, and welfare of the public.”
For these reasons, if this case had involved an ASCE member, it is likely that the Committee on Professional Conduct would have had no difficulty finding that his actions violated the ASCE Code of Ethics.
It is clear that the construction company in this case engaged in myriad fraudulent transactions, and the testing company staff’s easy agreement to collude in one such transaction might suggest that they too were no stranger to breaching ethical norms. Nevertheless, it is worth reflecting on ethical lessons to be learned if the facts were just as originally presented — that is, if an otherwise reputable company crossed a line into unlawful behavior due to external pressure and the desire to please an important client.
Many of the engineering community’s most notorious ethical failures began with a professional who succumbed to pressure or to a sense that there was no other choice. As this case illustrates, it is wise to remember that an unethical action taken to alleviate short-term pain or to provide a short-term benefit can inflict harms that are far more painful and long-lasting to all parties involved than those that first prompted the action.
The essence of serving as a faithful agent with integrity and professionalism is having the perspective to recognize the presence of an ethical pitfall and the conviction to stand firm against questionable directives from a client or employer whose vision is clouded by other needs, fears, or ambitions.
Tara Hoke is ASCE's general counsel and a contributing editor to Civil Engineering.
This article first appeared in the July/August 2025 issue of Civil Engineering as “Who Tests the Testers?”
