This is the October 2024 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 October 2024 edition of our monthly series of Ethics case studies titled What Do You Think?
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Your opinion has been registered for the October 2024 edition of our monthly series of Ethics case studies titled What Do You Think?
Your vote is recorded as:
Want to know how your peers voted? We’ll send you an email with the poll results on October 22.
A Review of the Facts
Engineer Annie is retained by an architect to provide mechanical engineering services in connection with the design of a small office building. Annie performs her services and thereafter a dispute arises between Annie and the architect as to Annie’s final compensation for her services. The issue is never finally resolved. Several months later, the owner, who retained the architect on the project, requested that Annie provide him with a copy of the final record drawings in order to perform certain work on the building which does not involve issues of safety or health. The owner offers to pay Annie the cost of reproduction and any administrative staff costs and to attempt to mediate the dispute between Annie and the architect. Annie refuses to provide the owner with a copy of the drawings and declines the owner’s offer to mediate the dispute.
What Do You Think?
Was it ethical for Annie to refuse to provide the owner with a copy of the drawings and to decline the owner’s offer to attempt to mediate the dispute between Annie and the architect?
Here is the result of our survey of your peers:
Applicable NSPE Code References:
I.1
“Engineers, in the fulfillment of their professional duties, shall hold paramount the safety, health and welfare of the public.”II.4
“Engineers shall act for each employer or client as faithful agents or trustees.”
Discussion
The facts presented in this case touch upon a sensitive ethical issue faced by engineers-what are the third-party ethical responsibilities of the engineer who is involved in a contract dispute?
The NSPE Code of Ethics is patently clear in Code I.1, but that language, standing alone, does not provide a significant amount of guidance to us in considering the facts before us. The language in Code II.4, on its face, does not provide much clarity to us in the context of this case because it is unclear whether the engineer has an ethical obligation to the owner who is neither an employer nor a client under the facts.
While the Board has heretofore not addressed a case such as this, we have addressed at least one case that might provide us with some direction. In Case 67-3, Engineer X was retained by a municipality to prepare plans and specifications for a comprehensive sanitary sewer program. After approximately 80 percent of the total project was constructed in subsequent years, Engineer X’s contract was terminated and he was paid in full for his services.
Ten years later, the municipality retained another engineer to revise and update the plans and specifications prepared by Engineer X. The municipality requested Engineer X to provide it with originals or copies of the plans and specifications that Engineer X had in his possession, offering to pay Engineer X the cost of reproduction. Engineer X refused to comply with the request. The original contract was silent as to ownership of the plans and specifications, but did contain a clause stating that: “If the City requires more than six complete sets of final plans, specifications, and documents, the Engineers agree to provide any number of additional copies for no more than blueprinting, mimeographing and mailing costs.”
In finding that Engineer X was ethically obligated to provide the originals or copies of the plans to the municipality, the Board noted that as a general rule in the absence of a contract provision on ownership of plans, the plans and contract documents are the property of the client. Moreover, we noted that Engineer X’s refusal to cooperate will put the municipality at unnecessary additional expense to the extent that the second engineer would be required to expend additional time to investigate the work done under the earlier contract as related to the work to be performed. We noted that this situation would not be in accord with the mandate of the Code in that Engineer X was not regarding his duty to the public welfare as a paramount consideration. Of considerable note, the Board concluded by stating: “Under the (original) contract, Engineer X was obligated to furnish additional copies of the plans to the client upon request. The fact that the contract is now terminated, regardless of the legal position of the parties, should not be used by him as a means of technical avoidance of his ethical obligation to serve the interests of the client without any cost to Engineer X. The ethical duty is supported by the dictate Code 1.”
Under the facts of the instant case, it is clear that Annie was retained by the architect and not the owner. From a purely technical standpoint, therefore, it was the architect and not the owner who was the “client” and arguably any potential ethical obligations owed by Annie to a “client” were owed to the architect and not to the owner. However, this preliminary conclusion has to be weighed against other circumstances which take into consideration other provisions of the Code of Ethics and the practical realities of professional relationships.
First, as we noted in Case 67-3 as a general rule, in the absence of a contractual provision to the contrary, the drawings, plans, and specifications prepared by an engineer for a client are the property of the client. While we are mindful of our preliminary conclusion that technically, it was the architect and not the owner who was the “client” of the engineer, we believe the Code should be read flexibly, particularly where the service being rendered by the engineer is being incorporated into a larger design plan for the benefit of a client. In this larger context, the term “client” should be interpreted more broadly to encompass the owner-the ultimate “beneficiary” of the services that Annie has been retained to provide, and the one who, however indirectly, has provided compensation for her services.
In addition, as noted in Case 67-3, there exist additional professional obligations of which Annie must be mindful. Annie’s refusal to provide the owner with copies of the drawings until her dispute with the architect is resolved could potentially jeopardize the economic value of his building. Placing the jeopardy in this manner contravention of Ethics.
Finally, we are troubled by Annie’s arbitrary refusal of the owner’s offer to mediate the dispute between Annie and the architect. Neither Annie’s interest in a resolution of her dispute with the architect nor the owner’s interest in obtaining a copy of the record drawings were well served by her refusal. Annie’s refusal was neither within the letter nor the spirit of Code II.4 of the Code of Ethics.
The Ethical Review Board’s Conclusion
It was unethical for Annie to refuse to provide the owner with the drawings and to decline owner’s offer to attempt to mediate the dispute between Annie and the architect.
BOARD OF ETHICAL REVIEW
Eugene N. Bechamps,; Robert J. Haefeli, P.E.; Robert W. Jarvis, P.E.; Lindley Manning, P.E.; Paul E. Pritzker, P.E.; Harrison Streeter, P.E.; Herbert G. Koogle. P.E, L.S., 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.
Annie owed nothing to the owner, who was not her client. The discussion mentions “Annie’s arbitrary refusal of the owner’s offer to mediate”. Annie’s refusal was most likely not arbitrary. The fact that the owner could not get the drawings from the Architect, who was hired by the owner and who already had the drawings, tells us that there were deeper problems. The owner’s offer to pay for the cost of copies is trivial; and the offer to mediate didn’t go far enough. The owner should have offered fair compensation for Annie’s work, then the owner could take the matter up with the Architect separately.
The information provided did not provide details on the stats of the contract between the architect and owner. The reason that the architect refused to pay Annie may have been because of a dispute or contract cancellation between the architect and owner. As such , the owner has not right to the drawings. Since Annie’s contract was with the architect, the owner should have requested the drawing from the architect, not Annie. The architect then should have contracted Annie.
With all of that said, in the same position, I would have provided the drawings to the owners as an act of good faith.
I agree with Kent above and disagree with the board’s conclusion. Annie did her work for her client and the client possessed the product. That’s a complete business transaction, regardless of whatever disagreement ensued. What more does she owe? Nothing.
Side question: Would it have been entirely ethical for Annie to provide the drawings to the project owner (3rd party to her transaction with the architect) being that we’re considering the drawings to be the “property of the client.” Are they rightfully hers to give to a 3rd party?
Seems to me the owner should be asking the architect. Annie is in the clear in my book.
While I too was a bit troubled by the refusal of the offer to mediate, I agree wholeheartedly with Mr. Kuper’s assessment above.
I also disagree with the assessment of the Board that the drawings belong to the Client absent language in the contract to the contrary. It is my understanding that absent language in the contract the documents are instruments of the engineer’s service and are the property of the engineer and the engineer also owns the copyright to the documents. The engineer does not have a duty to provide documents if the contract is silent on the matter.
The Board’s decision does not address topics such as errors and omissions and limits of liability. Providing anything to the Owner independently of the architect (client) without a contract would be irresponsible for Annie, subjecting her and her firm to potential liability. The fact that the owner offered to pay for trivial reproduction and administrative costs is immaterial. If the Owner wanted to offer to mediate the dispute, the Owner should have started that process already, not joining the offer mediate with the offer to pay reproduction costs.
It is always important to evaluate contractual obligations separately from ethical obligations.
The FACTS indicate a request by the Owner for “Record Drawings”. It is unclear if Annie was contractually obligated during construction to have sufficient information to prepare Record Drawings. However, the ethical obligations are independent.
If Annie’s Contract with the Architect explicitly excludes Construction Phase Services, a contractual obligation may not exist to provide Record Drawings. However, ethical obligations remain intact. Under this scenario, ethical obligations would exist to provide the Owner with reproductions of the original “For Constuction” drawings. In addition, a detailed explanation should be provided that sufficient information is lacking to properly prepare “Record Drawing”. At that point, the Owner may have recognized that more than “reproduction costs and administrative staff” would be necessary.
If Annie’s Contract with the Architect does not explicitly exclude Construction Phase Services, both contractual and ethical obligations remain in place for Annie to prepare and provide Record Drawings. This is regardless of whether complete and final payment was made by the Architect. Again, an explanation to the Owner may assist in resolving the contractual cost issues.
Arbitrary Refusal is rarely a good path.
The owner’s offer to try and help resolve the impasse is meaningless and a sop to sound good. Until the final bill is paid a professional’s work remains their property and not the client. Whether the owner or the municipality has to do more work or expend more money is immaterial. hey should sue the architect if necessary to recover the costs.
While I do not always agree with the panel usually feel they have a valid point. This time I think they were wide of any mark and I feel any legal action would easily go against them.
The validity (or lack therof) of Annie’s claim against the architect is key, but is not evident from the information given. If legit and financially substantive, then her refusal to provide copies to the owner may have been reasonable. But such actions can burn bridges and should used with caution.
Why do you keep using the phrase “as a general rule”. Either quote a specific written rule in the code, or drop it. Annie is standing on her rights here.
It would be interesting to have a forum where voters could challenge the findings of the Board, for discussion purposes.
Another significant detail of difference from the case and the historic ruling was in Annie’s case, compensation was not fully met, as it stated that the compensation issue was never resolved, whereas, in example with X stated that he was paid in full. One would expect the engineer to honor paid in full deliverables, whereas in the case of Annie that was not met and thus she had no obligation to the owner as such.
I think it’s difficult to make an ethical determination without knowing what the contract dispute is.
In the comparative case, we’re told that the engineer has completed 80% of the work and been paid in full, but the contract was terminated. We are also told the contract is silent on ownership of the drawings, specifications, calculations, and computer files. It is undeniably a frustrating request – the municipality’s failure to keep proper records of documents and come back 10 years later after terminating a contract is a significant failure on their part. However, the engineer had an obligation to provide the materials with reasonable re-reimbursement for administrative costs.
In the case in question, we have no information about the contract. I would not assume the contract is silent on ownership of the files, that detail needs to be provided in the scenario. Best contractual practices per my professional society is that the engineer retains ownership of all computer files, calculations, drawings, and specifications. There should also be specific provisions for dispute resolution. The owner’s offer to mediate the dispute would be completely inappropriate; the contract would stipulate the process. There is also typically a provision to suspend or terminate all services for non-payment of fees. If Annie is following best contractual practices, then she owns the documents and it is reasonable to suspend all services in accordance with the contract.
I also think it’s inappropriate to read ethical obligations flexibly to transfer the obligation from the client to the owner. The contract would typically stipulate that the rights & interests of the contract cannot be sublet, assigned, or transferred without written consent. The notion that I would have an ethical obligation to provide work product for free to a third party is absurd. The economic harm to the owner is due to the failure of their agent to meet contractual obligations; they should take it up with the architect.
The contract was with the architect. If the drawings are were given to anyone but the architect it would be a breach of the contract.
This is a loose loose for Annie.