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Conflict of Interest Question 1

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landdev2018

landdev2018

Civil/Environmental
May 9, 2018
6
I'm wondering about other people's opinion on something that's been bugging for a while.

A private Civil Engineering firm has contracted with a local jurisdiction to provide technical advice for a code re-write. Along with the code re-write there is involvement by the general public. The general public has the opportunity to attend meetings discussing the changes, is provided paperwork of the code changes, and other associated distribution of preliminary work that the private firm has provided advice on developing. The private firm's company name is listed in title blocks and bodies of text throughout the code changes. As part of the private firm's contract, a representative of the firm is present, available for questions at the public meetings and provides contact information to the general public.

During the firm's contract period/code re-write the private firm is offering and performing engineering services to the general public. The engineering services offered and provided by the private firm to the general public are the same type of work that the code re-write is for. I have firsthand knowledge of at least a couple projects that the private firm has started from contact with clients at these public meetings. During the public meetings, a representative of the local jurisdiction praises the work of the private firm that they are currently doing for the general public, (just to clarify, not the work with the local jurisdiction's contact, but work for private individuals).

I question whether it is appropriate for a private firm to offer the same type of service that it is currently in contract with a local jurisdiction for a code re-write and expert advice at public meetings.
 
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I don't see any ethical issue here.

The firm was hired by a public entity to provide engineering consulting services associated with the entity's code.

A public official can always publicly acknowledge a private firm for its expertise (happens all the time)....provided the firm isn't paying off the public official to do so.

A private firm also has the freedom to legally and ethically pursue work for itself - it is what engineering firms do.

The fact that the firm is both working on a potential new code for the public entity, or jurisdiction, in their field of expertise, while offering engineering services to the public, in their field of expertise, seems OK to me.

The only thing I can see here is if the engineering firm is somehow swaying the re-write of the code in their specific and exclusive favor - which is highly doubtful as other firms can, and probably do, provide good quality services despite any type of code alteration....they all play on the same field so to speak.

I can't foresee a conflict of interest here. Everything is public - transparent, etc.


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The potential for conflict is in the ability of the firm to create a situation that excludes competitors or allows unsafe practices. This happened to ASME over boiler code a while back and with a company that had secretly patented a computer memory design while participating in guiding an industry standard for same that meant that all adopters would have to license the patents (see Rambus and RDRAM.)

Other than that, where else would expertise be found?
 
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Seems that representatives from other private, competing firms should attend the public hearing and bring up any items in the proposed code that appear to be unfair.

I used to count sand. Now I don't count at all.
 
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There is a little bit of conflict-of-interest here, but not anything beyond the normal and ordinary. That is, in various code rewrites, it is expected that consultants, suppliers, and contractors with expertise in the field at hand will all be working on the re-write. The alternative is to say that "nobody that regularly has any involvement in Industry X is allowed to write the rules which pertain to it", which would be considerably worse.

 
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landdev2018 said:
I question whether it is appropriate for a private firm to offer the same type of service that it is currently in contract with a local jurisdiction for a code re-write and expert advice at public meetings.
Click to expand...

They are not offering the same service.

The service they provide to the local jurisdiction is code writing.

A private business or individual has does not and cannot write and issue municipal code. Therefore they have no need to hire someone to provide that service.

No conflict at all here.

 
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The ethical consideration is if they are in a position to approve their own work. Assisting in code writing is an expected part of consulting....actually a necessary part of consulting. In my area, it is common for small municipalities to use consultants to review and assess engineering plans, particularly for civil engineering applications (usually drainage/stormwater management). When that happens, that firm or individual is precluded from offering the same services for which they would ultimately review and pass judgment on. Common sense tells you this is correct. If they violate such a condition, they are practicing in an unethical manner. Otherwise, no.
 
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I think the question about ethics needs to begin with how this firm got the job with the local jurisdiction. Was the job opened to the public and they were chosen due to experience, cost, etc.; or were they selectively picked for some other reasons.

Additionally, depending on the changes to the regulations, is this firm getting an unfair advantage due to these proposed changes. Are the changes legitimate or creating unfair competition? These are not necessarily ethical violations (e.g., if the current regulations are ineffective or too lenient, changing them to be more effective or closing loopholes is not an ethical violation).
 
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Given the OP's observations I dont see an ethical issue. It sounds like govt's doing things the proper, legal, and ethical way by having a public review period which I would imagine is followed by a decision and a compliance period allowing folks affected time to comply before an enforcement date. The OP's welcome to challenge the politicos and look for other potential issues, its always good to try and keep them honest, but nothing appears unethical or illegal yet.
 
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The only time something like this would concern me is if the contracting company were able to sway the rules/regulations in a particular direction where they were the only ones capable of doing the work (e.g., reliance on specs only testable by equipment they currently own, manufacture, etc.). This would lead to all further business heading in their direction. Unlikely to be the case, but they certainly do get the benefit of being more visible publicly.

Dan - Owner
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The jurisdiction would certainly be remiss if they were not to stipulate in the contract that no proprietary product or IP is allowed to be included in anything the company did for the jurisdiction. And that should be relatively obvious and addressable, unlike the case where a company might have a product that they desire to sell to a particular customer and provides the customer with a "lock out" specification that's carefully tailored to specify requirements that only the company's product(s) can meet.

From a practical perspective, I don't see how a jurisdiction could avoid using a private company for something like this. The private company has both experience and resources to address code questions that jurisdiction might not have.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert! faq731-376 forum1529 Entire Forum list
 
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Most apparent conflicts can be handled by disclosure. Since the meetings are open, it would seem disclosure was performed. Wouldn't hurt to let each client know, though. I see no problem with making contact at meetings, as long as the contact is brief and done during breaks so the firm representative is not distracted from the task at hand.

Absolutely unethical for the public official to be showing favoritism in the manner he did.
 
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Ron, would it be sufficient if the town has two Town Designated Engineer firms contracted to review developers' plans, and always assigns projects designed by one firm to the other for review? I think this would go a long way towards avoiding conflicts of interest, but some town residents disagree.
 
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AC...I agree that should be sufficient.
 
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