By Tara Hoke
Situation
An engineer works in a division of a U.S. federal agency whose role is to support and maintain the country’s military facilities. As project lead on many of the division’s procurement efforts, the engineer plays a significant part in the selection of contractors and vendors, including participation in pricing and budget analyses, development of project specifications, and technical review of proposals.
The engineer has grown dissatisfied with her job, and in her quest for new employment, she sets her sights on an equipment supplier in the private sector that routinely competes for business with the engineer’s agency. Well established and with offices throughout North America and Europe, this company seems to perfectly encapsulate the engineer’s goals of higher earning potential, a better career path, and more travel opportunities. She reaches out to her sales contact at the company, and from there is referred to a personnel manager, who tells her that no openings currently exist but encourages her to check back for updates.
Undaunted by the unsuccessful job inquiry, the engineer continues to pursue closer ties with the supplier. Shortly after her inquiry, the engineer is assigned as project lead on a large equipment purchase — equipment of the type produced by her would-be future employer. The engineer emails the company’s sales contact to express her “loyalty” to the supplier, and she vows to make sure that “the contract goes (its) way.”
To that end, she uses the supplier’s own technical documentation to draft specifications for the offer, thus ensuring their equipment is a near-perfect match for the contract requirements. She then highlights this similarity in an attempt to persuade her agency to pursue the purchase as a “sole source” contract — a designation that allows the agency to forgo competitive bidding when it deems that only one vendor is capable of meeting the contract requirements. When her supervisors decline to limit competition in this way, she texts the supplier’s contact to express confidence that she can “influence the final choice based on (her) technical review.”
Though the engineer’s tight technical specifications narrow the pool of prospective suppliers, a second equipment supplier submits a bid. Seeking more information about the competing supplier, the engineer contacts a colleague who recently purchased equipment from the company on a similar contract. The colleague offers a favorable impression of the competitor’s equipment and provides the engineer with a copy of its successful bid, which is marked for agency use only and contains proprietary information about the competitor’s cost and pricing data, manufacturing processes, and other information related to the bid.
Despite the marked restrictions, the engineer forwards the document to the contact from her preferred supplier. The supplier promptly submits a bid that is more favorable than that of its competitor, and the agency’s decision ultimately fulfills the engineer’s goal of seeing the multimillion-dollar equipment contract awarded to her preferred choice.
Unfortunately for the engineer, she has been far from subtle in speaking with work colleagues about her preference for the supplier and her desire to work for them one day. A member of the engineer’s team makes use of the agency’s confidential reporting process to express concerns about the engineer’s apparent conflict of interest. Investigators uncover hundreds of text and email communications between the engineer and the supplier that detail her desire to “work with them forever” and include her disclosure of the competitor’s bid submission. The engineer is indicted on a charge of unlawful disclosure of procurement information, a criminal charge carrying a potential sentence of up to five years.
Question
If this case had involved an ASCE member, would her actions have violated the ASCE Code of Ethics?
Discussion
Though ethical issues are inherent in almost every change of employer, perhaps no circumstance presents such a wide field of ethical land mines as the movement of professionals from the public to the private sector. Public sector engineers carry the weight of government authority in their actions; as regulators, owners, adjudicators, and policymakers, their decisions can be crucial to the success or failure of private sector engineers, employers, and clients.
And while this creates tremendous incentive for private sector employers to recruit engineers with insight into the gears and mechanisms of public service, it can also yield tremendous pressure for such engineers to push ethical boundaries in connection with that experience.
A former public employee may lean on friendships with past colleagues to seek special treatment or assistance; a new public employee may skirt some rules in an effort to maintain old links to a past client; or, as described in this column, a job seeker may step completely off the ethical path in hopes of demonstrating value to a prospective employer.
A review of the ASCE Code of Ethics finds no shortage of language applicable to the engineer’s bad conduct in this case. Perhaps first and foremost among the engineer’s ethical breaches was her failure to honor her obligations to her current employer. In service to her personal interest in seeking work, the engineer abused her position of trust to deceive her employers about the openness and transparency of their procurement process.
As such, her actions violated the Section 4a requirement for civil engineers to “act as faithful agents of their clients and employers with integrity and professionalism,” along with the obligations in sections 4b and e to disclose “any real, potential, or perceived conflicts of interest” and to keep “identified proprietary information confidential."
The engineer in this case also violated federal procurement laws in a way that undermined the rights of other potential contractors and bidders to participate in a fair procurement process. In so doing, her actions ran afoul of Section 3b’s directive to “practice engineering in compliance with all legal requirements in the jurisdiction of practice” and 3d’s instruction to “reject practices of unfair competition.”
Next, Section 1d of the code instructs engineers to “have zero tolerance for bribery, fraud, and corruption in all forms.” While this engineer’s conduct perhaps does not reflect the most common understanding of bribery, fraud, and corruption, she nevertheless offered a supplier preferential treatment in a contract, misled her employers about the neutrality of her technical specifications, and abused her official power in search of personal gain.
Finally, by undermining her employer’s objectives, failing to comply with legal obligations, and disregarding her role as a public servant, the engineer fell far short of 3a’s expectation that an engineer must “uphold the honor, integrity, and dignity of the profession.”
Recognizing the risks posed by the so-called “revolving door” between public and private sector employees, the federal government and many state entities have adopted conflict of interest laws intended to limit the ability of certain public employees or officials to accept private employment opportunities that are too closely entwined with their public service.
Many of these rules take the form of “cooling off” periods during which former employees are barred from approaching their former agencies on behalf of private parties or even permanently banning employees from “switching sides” on matters in which they performed personal services as public employees.
While these legal measures set a helpful boundary on some types of misconduct by ex-government employees, engineers are best served by examining their efforts to seek and obtain employment in light of ASCE’s ethical maxims. While knowledge and experience are traits an engineer can freely market in the public and private sectors alike, it is never permissible to seek personal benefit by marketing one’s improper influence or access to confidential information or any other misuse of professional authority.
Tara Hoke is ASCE’s general counsel and a contributing editor to Civil Engineering.
This article first appeared in the January/February 2024 print issue of Civil Engineering as "Moving from Public to Private Sector? Be Aware of Potential for Conflict."
