Disgraceful behavior from an Engineer 3

[jasonpc]

I find myself in an unsettling position on a project and I am left searching for how to proceed. I work for a public entity that sought qualification-based proposals from engineering firms to study a drainage problem and design a solution for the neighborhood. The work actually hinged on recommendations from a previous study.

Let’s say Firm A was the selected firm and Firm B was the runner up firm that was not selected based on scores given by a proposal scoring committee.

As it turns out, an Engineer from Firm B actually lives in the neighborhood that was part of the study.

Firm A worked diligently and even worked with us to re-work their original proposal within the given budget when there were issues outside of their control related to major changes to the project location due to availability of property and willingness from property owners to sell.

One of the neighbors heard about the change in location and went on a NIMBY petition crusade to end the project even though the changes meant their neighborhood stood to see the biggest benefits.

The neighborhood then sought the input from the engineer from Firm B who lives in the neighborhood. Without formal public records request, he was able to obtain a copy of the report and proceeded to review and critique the work.

He sent me a list of concerns that I re-wrote in bullet point format and sent to Firm A to read and internally address. I kept the identity of the individual from Firm B and their firm anonymous and only told Firm A that the neighborhood had enlisted the help of an engineer who lived in the neighborhood who does in fact work for a competing firm and that he had some concerns.

Firm A addressed these concerns to our satisfaction and explained that there were some tables in the report that could have provided more complete data (it could have been presented better), but that the data was accurate and correct.

I explained to the engineer from Firm B that Firm A had addressed the concerns to our satisfaction and went into some detail of their explanation via a phone call when he had called me to follow up.

Many months go by and work on the project plans continues, and I find a public records request from the engineer at Firm B to obtain the model data. After he obtains it, he sends an email explaining that his employees have found terrible discrepancies in the report and model and all of the results must be invalidated and demands a meeting with Firm A.

Firm A agrees to meet with him to hear him out. At the meeting he is very light on details but acts extremely aggressive and condescending. He insinuates that if his concerns aren’t addressed to his satisfaction that he will recommend the neighborhood file an injunction to stop the project.

From the start, I believe this individual from Firm B should have recused himself from the neighborhood’s request to review this work since they were a competing firm that responded to the solicitation of qualifications. That is just my opinion but obviously they felt not to go that way. Then from a public health and safety perspective I find myself having the duty to review and take into consideration all concerns, especially one from a practicing engineer.

However, I am finding this behavior as unacceptable and likely unethical. I am trying to consider what my future options are to keep the project alive without being held hostage to vindictive behavior.

Any input or insight would be greatly appreciated.

 

[Settingsun]

Does your entity have a community engagement person/team? If so, hand Engineer B over to them to manage.

It doesn't sound as though Engineer B has gone beyond what he is allowed to do as a resident. Just handle him by the book from here out. Respond to queries in writing within the permitted timeframe. Don't bend over backwards to accommodate him, eg no more exceptional meetings.

Maybe there will be an injunction - do you need to run it past your legal person? Even if only for 15 minutes to understand the dos and don'ts.

 

[jasonpc]

There is a public information office, but they usually do not get involved in technical queries. We’re a fairly small organization even though we do represent a growing rural/suburban community with a population of about 250,000.

Once legal action is threatened, communication is usually severed without involvement of the legal department.

We have faced threats and attempts to file injunctions but they rarely are successful. But they also rarely happen in this early stage of project development.

 

[MotorCity]

If engineer B is creating all these ripples to improve the image of his firm compared to Firm A or if he is trying to win the work for his firm, then yes, I would agree that his tactics are not ethical.

However, if you give engineer B the benefit of the doubt, and he truly has concerns about this project since it affects where he lives, then I do not see it as malicious.

The question is, what is engineer B's ultimate motive.....give Firm A a black eye? steal the project from Firm A? voice legitimate concerns he has affecting his neighborhood?

 

[phamENG]

I also think there isn't quite enough to go on. "Condescending" would describe more than a few fellow engineers (and I'm sure it's been applied to me at times by others.) Aggressive, not as common...but certainly isn't unheard of. You could always reach out to the licensing board, inform that you have encountered behavior that you think may qualify as unethical, and run the situation by them in much the same way as you have done here. If they agree that there's cause to investigate, then you can give them details. If not, then just stick to the book with the rest of the work. And put Firm A on notice that their calcs and documentation will likely be subject of formal reviews...possible lawsuits.

If this engineer has half a brain, he'd know that whatever action he takes his motives will be heavily scrutinized. So he's either trying to bully you (unethical) or he's got the data to back up his claim as unbiased (ethical). If he keeps hounding you, tell him to provide a detailed report explaining the problem for your office's consideration. If he can't, then he probably wouldn't have a case. If he can, but won't, then it suggests an ulterior motive (probably unethical). If he does, then you can work with Firm A to address the issues and avoid court. Obviously you should run this by your legal team since I'm sure there are potential ramifications in each case.

 

[dik]

If during the proposal time, before selection, I hope you made the information available to all parties bidding, else you may be in legal jeopardy. If after the selection process this is OK

So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[dik]

I've been in a similar situation, and have always informed the group of my other involvement. Nothing wrong with that, as long as I don't 'overreact' in a purposely harmful fashion. Are his concerns legitimate? and, maybe you just don't like them?

So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[CWB1]

From the start, I believe this individual from Firm B should have recused himself from the neighborhood’s request to review this work since they were a competing firm that responded to the solicitation of qualifications.

Why? Ultimately a design either functions, meets the internal and external performance requirements, AND meets the risk requirements laid out in a DFMEA created by a team of engineers...or it doesn't. If criticisms/disagreements are facts and data-driven then anybody is welcome to critique. If opinions of the work are given then anybody is welcome to critique. The only real limit on ethical speech is giving opinions of a firm or professional without citing facts.

 

[Guest102023]

Why?

Because of this thing known as Conflict of Interest. Engineer B should have declared that, and since it is a public project, it should have been made public. Is there a code of ethics for PEs in the state? Conflict of interest would be covered by it.

His behaviour was reprehensible. Firstly he should never contact you directly.

I trust the city lawyers are being kept apprised of events, and that you are documenting everything.



"If you don't have time to do the job right the first time, when are you going to find time to repair it?"

 

[jasonpc]

The changes to the location to the project happened well after the selection so no problem there. I am not saying that it is a conflict or unethical for him to review or critique this work, but I am saying that I personally would have recommended someone else that I know and have confidence in to review it rather than myself if I were in that position just to not give the appearance of conflict.

The majority of statements that they are making as I have said have either been responded to with a reasonable answer or are statements that I do in fact disagree with entirely. E.G. statement that FEMA would not accept a SWMM5 based approach for hydrology. This software is listed on FEMA’s website as meeting minimum requirement of the NFIP. However it’s a moot point as this work as it stands is not being submitted to FEMA although may contribute to the community rating system program.

I might also add there was a peer review QAQC component of this project reviewed by third party firm. Although because there were property availability issues there were some subsequent minor tweaks and amendments that occurred that weren’t part of the third party review. These types of adjustments aren’t uncommon in the development of projects as we are forced to live in reality and not the ideal. It may be worth having that third party review the subsequent changes (there was an internal QAQC for them).

 

[phamENG]

I'd call this no more than a potential conflict of interest since we only have one side of the story. And as for reaching out to the OP directly...250,000 is a pretty small jurisdiction. I wouldn't be surprised if the only less direct way to contact the OP would have been to email the secretary they probably have to share with 3 other departments.

On the one hand: If Engineer B is acting out of spite and trying to defame Engineering Firm A....sure, we can call that a conflict of interest, though there are probably more apt descriptions. Like defamation.

But on the other hand: If Engineer B has significant concerns about the development of this drainage improvement design and the impacts it may have that are based on facts, as a PE he has a duty to report them.

Perhaps the OP's description of Engineer B at the meeting was spot on...perhaps it was influenced by a suspected conflict of interest or malicious motive? Don't know. I wasn't there and haven't heard the other guy's side of it. So I'll reserve judgement there.

 

[CWB1]

If during the proposal time, before selection, I hope you made the information available to all parties bidding, else you may be in legal jeopardy. If after the selection propcess this is OK

...major changes to the project location due to availability of property and willingness from property owners to sell.

Good catch but minor correction to the last bit. Whether/not to rebid due to major issues post-award is a very nuanced legal decision likely needing a public (officialdom) vote stateside, not an easy decision left to employees/engineering. In this instance rebidding is a no-brainer IMHO, if the govt didnt have tentative purchase agreements signed prior to the bid then the engineering office didnt give due-diligence and their EOR needs a formal reprimand or layoff for-cause. The fact that they chose to continue with the current contractor should trigger an investigation for fraud.

 

[CWB1]

Because of this thing known as Conflict of Interest.

Engineer B only bid on the project, they are not actively working on it therefore no conflict of interest can exist bc there is no quid-pro. Their possible motivations for raising concerns might affect how the OP responds to them, but legally those are speculative, defamatory, and irrelevant bc B might be doing this out of real concern. The bottom line is that you're welcome to suspicions but discussing them is hugely unethical.

 

[jasonpc]

Every state has different rules about soliciting this type of work. In this state engineering design is not allowed to go out to bid but must be a qualifications based approach where cost is not allowed to be a factor except that it must be “reasonable”. The way the scope was written allowed the area to be studied for options but ultimately had to make some assumptions on where improvements would be placed in order for the firm to provide a proposal for surveying. In this case the previous study proposed improvements on property 1 and 3 but it turned out property 2 directly between was the only one that could come to an agreement. A purchase agreement with many stipulations in it ahead of time likely could have resolved that issue, but again we are not a large agency. After the study and prior to start on work on the plans is the time when property owners were approached for a purchase agreement.

It is hard to approach property owners for a purchase agreement when you have no study or plans on hand to even be able to show them what you are proposing.

 

[dik]

Is the most important thing...

So strange to see the singularity approaching while the entire planet is rapidly turning into a hellscape. -John Coates

-Dik

 

[LuK13]

Many months go by and work on the project plans continues, and I find a public records request from the engineer at Firm B to obtain the model data. After he obtains it, he sends an email explaining that his employees have found terrible discrepancies in the report and model and all of the results must be invalidated and demands a meeting with Firm A.

Firm A agrees to meet with him to hear him out. At the meeting he is very light on details but acts extremely aggressive and condescending. He insinuates that if his concerns aren’t addressed to his satisfaction that he will recommend the neighborhood file an injunction to stop the project.

This is the part that jumps out at me. Is "terrible discrepancies" Engineer B's words or yours? Using words like terrible, significant, etc are a red flag for me. If there are discrepancies they should be quantifiable, this is off by 50%, results in non-compliance with xyz code, etc. I see qualitative words like terrible be used to try and bolster an argument when the numbers don't make the argument well enough on their own.

And in the meeting Engineer B was light on details? If he has serious concerns he should be straight forward with them so they can be addressed. I was at a home for an unrelated matter and I told the homeowner that the deck stair stringers were not connected properly, were deteriorated, were subject to disconnecting from the deck, were dangerous, and he shouldn't let anyone on those stairs until this is remedied. No beating around the bush, here is the problem so you can fix it. The way you have presented Engineer B's approach sounds more like the nightly news cliché of "what every day item in your house might be killing you? tune in at 6 to find out!" or a modern click-bait article. Engineer B needs to elaborate on their concerns, and if they refuse they are probably hiding the fact that their argument is mostly smoke and mirrors. If the discrepancies they are withholding details on turn into a safety issue, then they are definitely being unethical.

 

[CWB1]

It is hard to approach property owners for a purchase agreement when you have no study or plans on hand to even be able to show them what you are proposing.

Sure, and that's why every public works project seems endless, bc state ethics and public trust laws nationwide require them to be broken down into many separate and distinct contracts to limit lost public funds when issues arise. It sounds like someone either combined or otherwise screwed up pre-approval budgeting/planning studies with the detailed final design contract, which happens last with quite a few steps in-between. If you reach the point of deciding who completes the design before the land was purchased then somebody has screwed up biggly.

 

[Guest102023]

CWB1,
You not only must avoid conflict of interest, you must avoid the appearance of conflict of interest,

"If you don't have time to do the job right the first time, when are you going to find time to repair it?"

 

[Guest102023]

It’s easy for municipalities here in Canada. Slip a small notice on the back page of a local newspaper (either the big one no one buys any longer or the one that comes with flyers and is quickly throw out). Make sure to give very little notice, so it is more difficult to plan for and to appear at.

"If you don't have time to do the job right the first time, when are you going to find time to repair it?"

 

[jasonpc]

No I think you misunderstood me there. We weren’t even into preliminary design at that point but rather had only completed the drainage study and had a conceptual plan. It was just the proposal for the preliminary plans that had to be tweaked to fit the new location. The net change was zero because although there was a little more engineering involved to change the concept, there ended up being less surveying needed due to the parent parcel being smaller (but still large enough for the necessary improvements).

The word Engineer B used was actually alarming discrepancies, not terrible but actually that sounds even worse.