PROFESSIONAL ISSUES

Regardless of your familiarity with Quality Based Selection (QBS), there are certain basics of business that all engineers should understand, even if you are not in management. Structural engineering is a professional service business. The have to guard against losing the high ground and make sure they always hold the truth paramount, which means walking away from situations where deception is rewarded. The procurement of our services based on a comparison of prices alone, rather than in combination with qualifications Professional issues overwhelming majority of structural engineers are and a defined scope of work, fosters a climate compensated based on the amount of time spent on a client’s project. If you are a business owner, you know that each and every proposal starts out where dishonest behavior can flourish. Dishonesty in the form of excessive self-promotion, deceptive staffing of the project, both in issues affecting the structural engineering profession with the question “How much time will the project number and skill of personnel, the exclusionary take?” Complex projects involve project managers, language in proposals such as overly-limiting site design engineers, and CAD operators, plus others. visits, excessive use of performance specifications, To develop a proposal, hours are estimated and and reducing QA/QC are examples of what can multiplied by billing rates and a total fee is com- occur in competitive bid procurement systems. puted. The more definitive the scope of services, The owner is best served when the structural the greater the accuracy of the fee estimate. engineer provides all of the services necessary to Unfortunately, engineering businesses are being design the structure and observe its construction asked, more and more, to furnish lump-sum fees to the extent the engineer can attest that the intent based on very little information. This in and of of contract documents was generally followed. itself can lead to problems, but combine it with Alabama’s Board of Licensure for Professional the practice of clients requesting proposals from Engineers requires that its licensees respond multiple firms for price comparison, and it is easy only to solicitato see that the more uninformed or unscrupulous tions that employ can often be the more successful. Besides the fact that qualified firms that offer fair fees are often QBS, regardless of whether the client The Ethics of Procurement the immediate victims of the process, the long- is a public agency term ramifications of poor structural engineering or a private party. can result in jeopardizing the health, safety, and welfare of the public, not to mention the grief and headaches that accompany poor construction Engineers are forbidden from participating in a bidding process. Radical as it may seem to some, the Federal Government requires the use By Marc S. Barter, P.E., S.E., SECB documents during the construction phase. of QBS through the application of the Brooks Engineering is a think- Act, realizing that the ing profession. The client is purchasing the engi- Engineers have to guard best overall value for the public is the selection of neer’s ability to solve the against losing the high the most qualified firm problem using the brain. Drawings, specifications, ground and make sure paid a fair and reasonable fee. The Alabama and even calculations are they always hold the truth Board, together with the tools of conveyance of Federal Government, Marc S. Barter (mbarter@ what the engineer thinks paramount, which means believes that services barterse.com), is the President and how a solution was walking away from situations that directly deal with of Barter & Associates, Inc., a developed. Selecting the life and death should not structural engineering consulting best brains with the most where deception be subject to the same firm in Mobile, Alabama. He is a experience will result in the best solution. Does is rewarded. procurement rules that apply to the purchase of Past President of NCSEA and in his second term as a member of the it really make sense for pencils or butter. Alabama Board of Licensure for clients to select their engineers based on whether If the public selected their medical professionals Professional Engineers and Land the fee for the project is 1% of the construction through bidding for services, health care might be a Surveyors. cost, 0.9%, or even 0.5%? Unfortunately, the few dollars cheaper, but mortuaries would prosper. answer is often “no” if your client is the owner, Imagine you are on trial for a serious crime. Of but” yes” if the client is an architect or an inter- course, you are innocent, and your significant other mediary who sees the structural engineer’s fee brings in your attorney, the low bidder. What kind coming out of his or her pocket. Money can be of chance do you think you have to be home at a powerful motivator that obscures reality and Christmas? No society would want its health or blurs the vision. freedom jeopardized by such an absurd procureEngineers historically have enjoyed a high level ment system as applied to these professions. Well, of trustworthiness, as polled by Gallup, fourth how much sense does it make for the low bidder behind doctors and one position in front of to be the designer of an arena that seats 10,000 dentists. The fundamental canon of every set people, a high-rise building, a long span bridge, of ethics rules for engineers is truth. Engineers or even a child daycare facility or nursing home?

With the exception of If so, the family better like Alabama, licensing boards beans and rice. Isn’t that have been largely mute how the structural engion the subject of procure- neer is selected on a large ment in the private sector. number of projects, some Many boards reinforce the rather complex? Given mini-Brooks laws that their that the client may know states have adopted, but are the engineer, understands very cautious in their pos- what the deliverables are, ture on procurement as it and hopes the services prorelates to private transac- vided keep everyone out of tions, for a good reason. court, are the services proIn 1978, the United States vided really appropriate or Supreme Court struck just minimal? down the NSPE ethics Ethical practice should rule that prohibited engi- not have to be mandated neers from bidding their by licensing boards or services. According to the professional societies. Any United States, the NSPE engineer should understand rule violated the Sherman that prior to providing a fee, Antitrust Act. NSPE, someone has to develop a through its attorneys, scope of services, and if fees unsuccessfully argued that from multiple firms are to the practice of engineering be compared, then every correlated closely with the participating firm should health and safety of the be basing their fee on the public and, therefore, its Engineering is a thinking profession. same scope of services and apparent violation of the Act should be permitted The client is purchasing the engineer’s assigning similarly qualified personnel. Procurement under the Rule of Reason ability to solve the problem using the brain. procedures that result in argument. In a split deci- price comparisons without sion, the court stated, measuring qualifications “Exceptions to the Sherman Antitrust Act to legislators the benefit of QBS, as a rule, and defining the scope of service invite for potentially dangerous goods and services state licensing boards, with one exception, unethical behavior. Even if the licensing law would be tantamount to repeal of the statute. do not opine on the application of QBS does not prohibit participation, the instinct In our complex economy, the number of in private transactions. Alabama’s licensing for self-preservation should dictate caution. items that may cause serious harm is endless board is alone in that regard. Too many times, in these situations, the – automobiles, drugs….” and ruled against In states without specific ethics rules low fee is the wrong fee provided by the NSPE. The Court stated that bidding was addressing procurement, is the practicing wrong firm. not required, but that it was unlawful to structural engineer bound by any ethical It is very difficult in some segments of the reduce competition. duty not to bid engineering services? Why structural engineering business community When viewing QBS through the licens- should it be unethical in some jurisdic- to adhere to QBS without the cover of a ing lens, an important distinction should tions to bid engineering, but not others? legal mandate. In fact, an engineering firm’s be understood. NSPE does not enjoy the What possible good can come from engi- refusal to participate in price comparisons same legal rights as a State. According to neers offering competitive prices without a will likely end any chance of working with the Cornell University Law School, Legal defined scope of work? In exercises where certain clients. The ethical engineer looking Information Institute, “Under the state- structural engineers were asked to provide a to play on a level playing field has a difficult action doctrine elucidated in Parker v. Brown, fee for a project where the only information time but must attempt to shape the process 317 U.S. 341 (1943), state and municipal provided is the location of the building, the such that all participants are treated fairly, authorities are immune from federal anti- size of the building, and cost of the build- including the owner. This may mean walking trust lawsuits for actions taken pursuant to ing, the proposed fees varied by over 200%. away from a project. Ethical behavior can a clearly expressed state policy that, when Is the owner’s interest served in this system; be expensive and good feelings cannot be legislated, had foreseeable anticompetitive if so, how? The client is purchasing a service deposited, but there is an indisputable beneffects. When a state approves and regulates he/she does not understand, in a quantity efit from practicing an honorable profession, certain conduct, even if it is anticompetitive they did not specify, furnished by individu- and an obligation to protect that profession under FTC or DOJ standards, the federal als they do not know anything about. The so that future practitioners are not viewed as government must respect the decision of the only metric that seems to matter is cost. a commodity. Therefore, the next time you state.” Given the litigious nature of society, Would anyone enter a grocery store and bid are asked to compete for a project based on the current attitudes regarding regula- their grocery needs with the only instruc- price, decide if you are offering engineering tion, and the difficulty in demonstrating tions being to feed my family for a week? or just butter.▪