By Tara Hoke
The ethics of competition among engineers has been a subject of consideration since the inception of ASCE's Code of Ethics. This case from ASCE's archives demonstrates the ethical perils of a “win at any cost” approach to contract procurement.
Situation
ASCE’s Committee on Professional Conduct receives a complaint from an individual who is the principal of a small engineering practice, accusing a member of unethical conduct in connection with a project solicitation.
The complainant explains that he was approached with an offer of work by an architect, based on a referral from a mutual acquaintance. The architect’s firm had been contracted to design and manage construction of a new community college campus in a mid-sized New England city, and it was looking for someone to provide soil engineering services at the proposed location.
The complainant prepared a proposal summarizing his background research and investigation plan, and the two parties promptly reached an agreement on the scope and cost of the engineer’s involvement. The final step required was approval from the state, whose contract with the architect required prior notice and authorization of all subcontractors. The architect forwarded his recommendation to the state building authority, and shortly thereafter his contact at the building authority gave him informal approval to hire the engineer, with formal approval expected in the coming days.
Unfortunately, the architect’s next communication was not nearly as encouraging. The architect revealed that the project’s start had been delayed, and he advised the complainant to consider his final approval on hold until further notice.
Over the next few months, the complainant made periodic checks on the status of the contract, but no update was offered. Finally, however, the architect contacted the engineer to inform him that the firm was seeking additional proposals to conduct the soil investigation and that the complainant’s proposal would be considered along with other firms in making a final selection.
When pressed by the complainant to explain the change in direction, the architect admits that the firm’s decision was not made entirely on its own. He explains that the principal of another engineering firm had contacted the architecture firm some months earlier to express interest in competing for the soil engineering contract. Though he was told that the firm had already approved a proposal and was awaiting the building authority’s authorization to proceed, the second principal had nevertheless submitted his own proposal for the work — and he made regular calls to the architect’s firm to request a decision on this competing proposal.
The principal of this competing firm — an ASCE member and the subject of the complainant’s case — is well-connected in local and state political circles, and he is known to have made generous donations to the campaigns of more than one elected official. Though the architect does not directly identify his source, he alludes that at least one public official has linked the hold on the project to the architect’s unwillingness to consider the other firm’s proposal for the engineering work.
After months of fruitless conversations with the building authority, the architect had concluded that the project “would never get off the ground” if he did not seek additional proposals for the soil investigation.
The architecture firm solicits proposals from other firms in the locality, and at least three other firms provide a response. The complainant notes that it is perhaps a surprise to no one when the firm with the well-connected and politically active principal is ultimately awarded the work.
Question
What does the ASCE Code of Ethics have to say about the actions of the member in this case?
Discussion
This case was considered by the CPC in the early 1980s, following a period of significant change in the realm of ethics enforcement. For more than 60 years, ASCE’s Code of Ethics had made its position on competitive tactics evident, with article 4 of the original code banning price competition and article 3 declaring it “unprofessional and inconsistent with honorable and dignified conduct and contrary to the public interest for any member ... to attempt to supplant another engineer after definite steps have been taken toward his employment.”
This approach changed in the 1970s following a series of administrative actions by the Federal Trade Commission that argued that professional societies’ attempts to put ethical constraints on price competition were in violation of federal antitrust law. In 1972, ASCE executed a consent decree with the FTC in which it removed article 4 from its Code of Ethics and agreed to refrain from “adopting any plan, program, or course of action which prohibits members ... from at any time submitting price quotations for engineering services.”
While the supplanting language in article 3 did not expressly exclude price competition, the FTC warned that such provisions could not be used unlawfully to penalize engineers for submitting price information to underbid competitors. When a district court ruled in 1979 that supplanting language in a sister society’s code violated federal law, ASCE quietly removed all reference to supplanting from its code of ethics.
What remained after these changes was a simple statement in the code not prohibiting competition, but only “unfair” competition. Today, this language can be found in section 3d, which instructs engineers to “reject practices of unfair competition.”
With this language in mind, the CPC focused its attention on determining whether the member’s actions constituted unfair competition, which it loosely defined to include deception, fraud, corruption, or the misuse of access or influence to harm a competitor or to gain a competitive advantage. From that perspective, the CPC believed that if it could be established that the member had indeed induced his political connections to withhold government action and pressure a potential client into using his services, then this would be a clear violation of ASCE’s ethical standards.
Unfortunately for the CPC, evidence of that connection proved hard to come by. When contacted by the CPC, the member flatly denied any knowledge or involvement in the alleged political pressure. He confirmed calling the architect to express interest in the project but claimed that the architect had never indicated its decision on the subcontract was final, nor had the architect asked the member to stop contacting him. While the member was aware that the architectural firm was negotiating with a competitor, he stated that “if he backed off every time a competitor thought they’d locked down a job, his firm would be out of business.”
Requests for interviews with the architect and the state building authority proved unsuccessful, and the complainant himself was forced to acknowledge that he had no written confirmation of approval from the state agency and only “conditional” approval from the architect. With no external corroboration of the complaint, the CPC felt that it had no choice but to dismiss the case for lack of evidence.
The CPC contacted the member to inform him of the decision, but they nevertheless took the opportunity to caution him about his conduct, noting that his account seemed “less than credible” and raised concern about his acting “within the spirit, if not the letter, of the ASCE Code of Ethics.”
As a footnote, some five years after this case was concluded, an independent commission issued a scathing review of public procurement practices in the state, noting a pattern of corruption and waste wherein connected firms “won an inordinate amount of contracts through various forms of political influence.” While no direct reference to the member was made, the report cited the community college project as an illustration of the need to overhaul the state’s procurement system, noting that nearly $500,000 was spent on studies and planning for a project that never broke ground.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the January/February 2026 issue of Civil Engineering as “Competitive Disadvantage.”
