Legal/ Ethical question 6

[vlad1981]

Howdy everybody
I got a question, is more related to the legality/ ethical aspect of the profession.
I wok for a company, whose main line is shoring and reshoring of concrete, many contractors can choose to stamp their own drawings, many have their own technical department. As a general rule, I stamp all drawings we provide, shoring & formwork, and the contractor hires an engineer for the reshoring drawings (all comes down to liability, and what part of the process my company wants to be involved with).
Now, I got this project, in which we are using a fairly new system, I've stamped all the drawings and calculations, and send over to contractor, generally contractor will use this same drawings so the reshoring engineer can produce his part (reshoring).
Turns out, I just discovered the reshoring engineer is removing my stamp (don't know how) and putting his own stamp on it.
There are two main things to it:
1. He is not familiar with the system, as such he should not stamp it.
2. He may claim is his "work" and add it to his portfolio, when in reality is not.
Thoughts?
Is the above legal?? Ethical, I know for a fact is not, but what can I do?
Should I try to contact said engineer or just go straight to the FBPE and file some claim?
Please, advise.
Location: Florida.

 

[LittleInch]

Probably a better forum for this, but you're not allowed two posts the same.

chose one and delete the other please.

Before some one reports you.

Remember - More details = better answers
Also: If you get a response it's polite to respond to it.

 

[vlad1981]

will do, thanks

 

[phamENG]

If they are not the engineer in responsible charge, they have no business stamping it. They also have no business removing your seal from something. (Claiming it in their portfolio would be the least of my worries.) I would reach out to them and get their side of the story. If they won't respond, give you an attitude, or refuse to correct it, I would contact the board.

 

[CWB1]

Legality and ethics comes down to the contracts signed between your employer, their customer, and any third-parties (this engineer's employer?) bc that controls ownership of the IP. Engineering services providers rarely retain ownership of IP and commonly have their names replaced on all documentation with an independent reviewer's. Personally, I wouldn't challenge the technical competency of another engineer without solid evidence of their incompetence. I definitely wouldn't file a professional complaint on behalf of my employer without their permission. Both of those scenarios are highly unethical. I also wouldn't care if a reviewing/supervising/other engineer claimed my work on their resume, its happened and there's no legal recourse so no reason to get upset.

 

[JAE]

CWB1 - I might take a slight exception to your statement.
Legality certainly comes down to the contracts and agreements.

But the ethics (based on US state engineering boards and the NSPE ethics guidance) typically isn't predicated by any contracts.

In fact, many of the ethical guidelines specifically indicate that DESPITE any contracts, engineers many times are ethically compelled to take action if another engineer does some act in violation of the state board engineering laws.

Filing a complaint to a state board is done on an individual basis typically - not "on behalf" of any employer. At least that's what I've seen throughout the 27 states in which I've been licensed and based on numerous ethics classes, etc.

I think the first order of business would be what phamENG states - call them and ask what the hell they were doing - taking responsibility for your design. Ask them if they've gone back and thoroughly re-calculated and checked all your work, etc. If you get a feeling they just stamped it then suggest to them that they review the applicable state board rules on the practice of engineering.

I want to give them the benefit of the doubt but in this case I'd guess that the suspect engineer probably just stamped the work without the proper technical review.

 

[dik]

Which is the other forum? Before filing a complaint, I'd give them a phone call. Things can be legally, morally and ethically correct, but not necessarily all three, sometimes. What you've outlined likely breaches all three, I would suggest.

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

-Dik

 

[IRstuff]

Stamping someone else's work is unethical, on the face of it. Getting paid for someone else's work is illegal

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

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[CWB1]

JAE, I'm not suggesting that contracts usurp law, simply that the OP may not understand who owns the IP or the other engineer's background/competence. There's nothing unethical about an employer selling their IP nor a qualified engineer reviewing and doing whatever they're contractually allowed.

I dont foresee how the OP could separate themselves as an independent third-party while making allegations involving their employer's IP and projects but regardless....I advise speaking with management and the legal dept before doing anything. The other engineer could be working entirely within both the law and applicable contracts, in which case a false accusation by the OP could cost customers, money, reputation, and the OP's professional license.

 

[JAE]

CWB1 - points taken. Thanks.

But just to clarify - the issue here is not really about who owns the IP, or has authority over it.

The issue is a professional ethics concern.
The other engineer has apparently taken responsibility for the engineering design by removing the EOR designation of a previously designed system/structure.
The concern, and I would definitely have concern here, is that the engineer may have assumed responsibility for a design they know nothing about. That is a risk to public safety/welfare should later changes be requested during construction.
 
As a licensed engineer, many states require engineers to report to the board things that they see might be in violation of the engineering practice acts/laws. This isn't engineer A trying to fight IP rights over engineer B. This is an ethical issue that takes precedence over contracts, employee status, job security, you name it. Even if you feel like you might lose your job, or your employer would get a bad rep from your actions, you MUST respond if you see a violation of engineering laws. At least this is what I've seen in the numerous states I've been licensed in.

The ethics rules and guidelines never say you first must check with your firm's lawyers, or your supervisor, etc. before acting.
You can, and probably should, consult with another engineer friend who you trust.

Just my 2 cents.

 

[IRstuff]

The concern, and I would definitely have concern here, is that the engineer may have assumed responsibility for a design they know nothing about. That is a risk to public safety/welfare should later changes be requested during construction.

Since the reshoring engineer is claiming the product as his own and selling as such, I think that's fraud, which is a criminal issue.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

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[LittleInch]

First action I think should be a "cease and desist" letter?

Remember - More details = better answers
Also: If you get a response it's polite to respond to it.

 

[phamENG]

It's also important to make the distinction between the architectural/structural world and, well, most other facets of engineering - especially product design. In our world, the IP (or what there is to call IP, anyway) is almost always retained by the design firm. There are exceptions - some government agencies or mega corporations will strong arm firms into giving it up, but all 'standard' industry contract templates and common practices are that the design firm holds the IP. We don't typically get paid for the design itself, but for the license to use the design a specified number of times (usually once). So if an architect hires me to design an apartment building that will be used 15 times in a large complex, I charge them what amounts to a licensing fee for using my design for buildings 2-15.

Regardless of who owns the IP, though, the engineer sealing the drawings is the engineer sealing the drawings. If the design is governed by professional practice acts and requires a professional engineer, then the handling of those drawings and the seal affixed to them is also governed by professional practice acts. I'm not licensed in as many states as JAE, but I'm also not aware of any that allow the removal of another engineer's seal and replacing it with my own outside of cases of death/retirement of the original engineer AND me taking the necessary steps to qualify to affix my seal in the first place (essentially redoing their work to ensure my depth of knowledge is equivalent to what the original EOR's should have been.) So it isn't a question of professional competence, it's a question of both ethics and the other engineer following the professional practice regulations.

 

[MTNClimber]

CWB1 - My experience mirrors phamENG's. The engineer retains the ownership and property interest in the "instruments of service" (reports, plans, specifications field data, field notes, etc, prepared by the engineer), and the client retains copies solely for information and record reference purposes only. This language is typically further laid out in the contract terms, explaining that the engineer isn't liable for using the "instruments of service" for anything but its intended use. It is no longer relevant for extensions of the project or any other project. Any reuse without written consent is at the client's sole risk. But as JAE pointed out, this isn't OP's question.

I would consult with the board in non-specific terms to see if this potential violation should be reported to the board and what would be done if the violation was true.

To CWB1's point, I would also talk to my boss and the company owner to see if this would jeopardize my job since this doesn't appear to be a serious danger to the public since OP (hopefully) designed it correctly, and nothing changed. I would hate to make waves and capsize my life over a weasel.

 

[CWB1]

As a licensed engineer, many states require engineers to report to the board things that they see might be in violation of the engineering practice acts/laws.

Very wrong. Professionals signing a complaint, lawsuit, or other legal action stateside are legally attesting that they know the facts to be truthful and know the complaint to have merit. Folks who file empty accusations and frivolous lawsuits are disciplined according to the later. Filing a complaint based on suspicion when there's reasonable likelihood that no law was broken, with no attempt to determine that a law was actually broken is professional misconduct and can cost the OP their license or worse. Moreover, with rare exception for imminent loss of life, regulators cannot investigate suspicion alone.

You're correct in that there's no requirement for the OP to discuss every accusation with their employer, but they do need to give due-diligence before filing a complaint which IMHO involves discussing with the employer.

 

[phamENG]

I just double checked the Florida regs, and there is a little bit of gray area here. I'd say it's worth following MTNClimber's advice and contacting the board, describing the situation, and getting a feel for their thoughts and interpretation before making a formal accusation.

Here in Virginia, it's pretty cut and dry. If the document wasn't created by you or an employee (actual or contracted) of the firm that employs you, you can't seal it. Florida has no such prohibition. And the way I read the regs, it would actually be okay for the other engineer to seal the work after reviewing it if it weren't sealed in the first place. I don't agree with it, but that's not the question here.

So the only real question is the removal of the original engineer's seal. That still seems like a problem and, based on the limited information in the original post, does seem to at least violate this portion of the regs:

(1) A successor professional engineer seeking to reuse already sealed plans, prints, engineering specifications, and/or engineering calculations under the successor professional engineer's seal shall do so in compliance with Section 471.025(4), F.S. In other words, calculations, site visits, research and the like must be documented and producible upon demand. Plans, prints, engineering specifications, and/or engineering calculations need not be redrawn by the successor professional engineer; however, justification for such action must be available through well kept and complete documentation on the part of the successor professional engineer as to their having rethought and reworked the entire design process. A successor professional engineer must use their own title block, seal and signature and must remove the title block, seal and signature of the original professional engineer before reusing any sealed, prints, engineering specifications, and/or engineering calculations used for permitted works.
(2) Prior to sealing and signing such work a successor professional engineer shall be required to notify the original professional engineer, their successors, or assigns of the successor's intention to use or reuse the original professional engineer's work. Notification shall be by certified letter or other verifiable communication to the last known physical or electronic address of the original professional engineer.
(3) A professional engineer's reliance upon and legal use of another's engineering work, in the normal course of providing original service, is not reuse or adoption of such other engineer's work as contemplated by Section 471.025(4), F.S., and the professional engineer relying upon such work is not a "successor engineer" as used in that section. Such engineering work includes but is not limited to, geotechnical reports, soil investigation reports, legal surveys, and other works that may be sealed, but which are used to support the professional engineer's work and are not adopted as the professional engineer's original service or work product.

 

[LOTE]

So, I read this a little different than it seems others have. How I read the OP's statement was that the contractor's reshoring engineer is showing the OP's shoring drawings, and adding his reshoring design to it, and sealing the full drawing package (abet, not giving any credit to the OP). OP is still designing and getting paid for the shoring design. Am I misunderstanding this situation? Or is the contractor's engineer submitting the OP's drawings as shoring drawings?

I do retaining wall designs, and I routinely will include excerpts from the civil/roadway/bridge plans on my drawings (however, I clearly indicate which details were produced by others, give them credit, indicate the excerpts are shown for reference only, and that I am not taking any responsibility for their work). I started doing this after getting fielding far too many review comments to add a random drain pipe, that will be abandoned, and that is 500' from our wall, and has no impact whatsoever on our design, to our drawings for "completeness". For a while, I would try to just include the civil/roadway plan excerpts and leave the excerpt sheets unsealed (since they were for reference only), but the owners wanted me to seal these sheets (probably so they could check a box on their checklist that every drawing sheet was sealed...).

If I am understanding the OP's situation correctly, I would just contact the contractor's engineer and instruct him to give the OP credit for his shoring design, and clearly indicate what is the reshoring design that he is designing.

 

[IRstuff]

the reshoring engineer is removing my stamp (don't know how) and putting his own stamp on it.

That's neither incorporation, or excerpting. Were this a textual document, it would be plagiarism and grounds for being kicked out of school, or whatever.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

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[JAE]

There are hundreds of examples where engineers "suspect" there is a safety issue for the public and approach the relevant engineers, authorities or the state board of engineering, with their concerns. These are not lawsuits, complaints, or legal attestations that a crime has been committed. They are simply asking the board to investigate a suspicious situation - to inquire.

I know an engineering professor at a large state university that, going to work each day, he drove by a structure being erected and noticed a particular connection with no stiffeners. He wasn't "sure" that there was a problem, didn't know all the calculations, etc. but acted on his concerns, contacted both the engineer (who blew him off initially) and the state board. Eventually the design engineer was prompted to review the connection and found that indeed, stiffeners were absolutely required.

Just yesterday I sat in on a continuing education ethics presentation and asked the question - "how sure must an engineer be that an ethics violation has occurred before taking action (contacting authorities or the state board of engineering). The presenting lawyer stated that it is indeed a gray area (phamENG stated this too) and that the engineer should take all facts into account but ere on the safe side - i.e. at least inquire.

The NSPE code of ethics states:
"Engineers having knowledge of any alleged violation of this Code shall report thereon to appropriate professional bodies and, when relevant, also to public authorities, and cooperate with the proper authorities in furnishing such information or assistance as may be required."

In this case of an engineer removing a stamp, there is an alleged violation that needs to be acted on. Not a lawsuit, not a formal complaint, but a simple report to authorities that there is a concern.

 

[dik]

In some jurisdictions the engineer's seal provides copyright protection.

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

-Dik