This is the August 2022 edition of our monthly series of Ethics case studies titled What Do You Think? This series is comprised of case studies from NSPE archives, involving both real and hypothetical matters submitted by engineers, public officials and members of the public.

Your peers and the NSPE Board of Ethical Review have reviewed the facts of the case as shown below. And, here are the results.

Your opinion has been registered for the August 2022 edition of our monthly series of Ethics case studies titled What Do You Think?

Your vote is recorded as:

It is ethical
Want to know how your peers voted? We’ll send you an email with the poll results on August 23.

Your opinion has been registered for the August 2022 edition of our monthly series of Ethics case studies titled What Do You Think?

Your vote is recorded as:

It is not ethical
Want to know how your peers voted? We’ll send you an email with the poll results on August 23.

A Review of the Facts

Engineer Nick is a licensed professional engineer and owner of a corporation providing engineering services. The engineering corporation performs building inspection services for a variety of clients in the public and private sectors. The services provided by the engineering corporation generally include the coordination of engineering services involving more than one engineering specialty.

Nick is asked by a client to coordinate multidisciplinary services to be provided by several engineering firms. Nick proposes to bill the client for the coordination services, and Nick will also charge each of the engineering firms a “referral fee” for selecting the firms on behalf of the client. Nick’s coordination and referral charges will be outlined in his agreements with the client and the engineering firms. The agreements will also assign professional liability insurance responsibility to the specific engineering firm providing the services. Nick is not providing any services directly to the other engineering firms other than the opportunity to perform the services for the client under the coordination of Nick.

Was it ethical for Nick to charge the other engineering firms a “referral fee” under the circumstances described?

Here is the result of our survey of your peers:

38% ethical; 62% not ethical

Applicable NSPE Code References:

Code II.2.c
Engineers may accept assignments and assume responsibility for coordination of an entire project and sign and seal the engineering documents for the entire project, provided that each technical segment is signed and sealed only by the qualified engineers who prepared the segment.
Code II.5.b
Engineers shall not offer, give, solicit, or receive, either directly or indirectly, any contribution to influence the award of a contract by public authority, or which may be reasonably construed by the public as having the effect or intent of influencing the awarding of a contract. They shall not offer any gift or other valuable consideration in order to secure work. They shall not pay a commission, percentage, or brokerage fee in order to secure work, except to a bona fide employee or bona fide established commercial or marketing agencies retained by them.
Code III.5.b
Engineers shall not accept commissions or allowances, directly or indirectly, from contractors or other parties dealing with clients or employers of the engineer in connection with work for which the engineer is responsible.

Discussion

Engineers provide a multitude of professional services in a variety of ways. In addition to their vast technical expertise, professional engineers are frequently called upon by their clients to offer project management, construction management, and other coordination and scheduling services as part of the design, renovation, and maintenance of constructed facilities (see Code II.2.c.). The education and experience of engineers make them uniquely qualified to perform these and other services for the benefit of their clients. However, it is important to distinguish the arrangements for the coordination of professional and other services for the benefit of a client and arrangements made between the engineering firm and the firms selected to perform the services being coordinated by the engineer.

The subject of a “referral fee” has been considered by the Board on other occasions. In BER Case No. 92-3, Engineer A, who performed building inspection services, was contacted by IJK, Inc., a firm that referred companies to professional engineers that perform building inspection services. IJK, Inc. and similar companies were involved in assisting relocating employees in the sale and purchase of residences. Typically, IJK, Inc. made contact with the client, took an order for a job, and passed the order on to the professional engineer available in the geographic area. Engineer A performed the services, prepared a report, and submitted the report to IJK, Inc. Engineer A invoiced IJK, Inc. for his services at half what he would normally charge to another client for the same services. IJK, Inc. invoiced the client for its services, twice the amount that is charged by Engineer A, a fact later learned by Engineer A. IJK, Inc. had no exclusive contractual or business relationship with Engineer A, and IJK, Inc. possessed no engineering expertise.

In determining that it was unethical for Engineer A to continue association with the referral firm after learning that IJK, Inc. was indicating a fee for Engineer A’s services to the IJK, Inc. client that was different from the fee charged by Engineer A, the Board noted that the fact that IJK, Inc. typically makes contact with the employer, takes an order for a job, and passes the order on to the professional engineer available in the geographic area suggests that IJK, Inc. was acting purely as a broker under the facts, and that Engineer A’s forbearance of his full fee constitutes payment for valuable consideration in order to secure work, prohibited by Code II.5.b.

In addition, under the facts, it was clear that Engineer A performed all necessary services and prepared the report for the actual client. IJK, Inc. provided no benefit to the client other than simply passing the professional report prepared by Engineer A to the client. IJK, Inc. appeared to be acting purely as a “go-between” and did not appear to be adding any value to the services purchased by clients even though such clients are paying a significant fee for the involvement of IJK, Inc. The Board was particularly disturbed by Engineer A’s continued association with IJK, Inc. after learning that IJK, Inc. had indicated a fee for Engineer A’s services on the IJK, Inc. invoice to its client that was different from the fee charged by Engineer A. On the face of it, IJK’s practice misrepresented Engineer A’s actual fee and was judged a deceptive practice.

Turning to the facts of this case, while there are similarities between this case and Case No. 92-3, there also are some differences. For example, unlike the situation in Case No. 92-3, in the present case, Nick is providing a service—coordination of services—for the benefit of the client. In Case No. 92-3, it is clear that IJK acted purely as a “go-between” and did not appear to be adding any value to the services purchased by clients.

Nonetheless, a key point in the present case is that Nick appears to be creating an arrangement that would force the other engineering firms to violate Code II.5.b. by requiring those firms to pay a “referral fee,” thereby paying what amounts to a commission and offering valuable consideration in order to secure work. It is clear that Nick is not a “bona fide employee or bona fide established commercial or marketing agency retained by those firms,” but instead is acting as the coordinating engineer for the benefit of a client. Nick is being compensated directly for the coordination service by the client, and the Board can see no basis to justify Nick’s requirement of a “referral fee” to be paid by the other engineering firms. There is nothing to indicate any basis for such a payment to Nick. In addition to being a violation of Code II.5.b., Nick’s actions create the appearance of an engineer exerting undue pressure on other engineers in order for the engineers to gain access to work. There also appears to be a not so subtle message being conveyed to the other engineers: Future work for your firm is based upon an understanding that you will pay a referral fee to me.” We believe that this amounts to a “kickback,” is unethical, and cannot be condoned under the language of the NSPE Code of Ethics.

The Ethical Review Board’s Conclusion

It is not ethical

It was not ethical for Nick to charge the other engineering firms a “referral fee” under the circumstances described.

BOARD OF ETHICAL REVIEW

James G. Fuller, P.E.; William E. Norris, P.E.; Paul E. Pritzker, P.E.; Richard Simberg, P.E.; Jimmy H. Smith, P.E., Ph.D.; C. Allen Wortley, P.E.; Donald L. Hiatte, P.E., Chairman

Note – In regard to the question of application of the Code to corporations vis-a-vis real persons, business form or type should not negate nor influence conformance of individuals to the Code. The Code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. The Code is clearly written to apply to the Engineer and it is incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of the Code. This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.