Sticky Situation 2

[BobPE]

I can't think of a better place to ask for advice.

I have a client that is having problem with a facility that was designed and bid by a consultant, built by a contractor, placed into service, and failed.

The consultant has been involved in diagnosing the problem and I became involved through a casual conversation with someone from the cliect where we discussed the problem without my knowing there was another engineer involved. After being told that there was another engineer involved, I politely stopped talking about the problem and informed that client that I had an ethical concern on my behalf knowing there was another engineer involved.

I have subsequently been invited by the client to study their problem. This invite took care of my ethical problem with another engineer being involved since I did not invite myself to be involved.

Upon looking at the problem it is becoming evident that two things are happening.

1-the original design was wrong from a fundumental prespective where design calculations were missed or performed incorrectly.

2-There is an attempt by either the contractor or consultant or both to hide the faulty design by recommending the client rebuild the facility because of reasons other that the failure of the design.

My question is, how would you address this problem from a professional ethics point of view?

BobPE

 

[Hush]

Whether the client is compensating you or not shouldn't make a difference in my mind but you may want to charge an appropriate fee to be on the safe side.

Presumably you were retained by the client to recommend possible solutions to the problem. In order to recommend solutions you first have to identify the problem and the root cause of the problem, in this case bad design. If you feel confident that this is the case it should all go into your report to the client.

From your moniker I assume this is in the US. If the design work is bad enough to suggest negligence or incompetence then I would also forward a copy of that report to your licensing association (assuming the other engineer is a PE) along with a cover letter summarizing your concerns. If the other engineer isn't a PE then I would think any further action is up to the client.

 

[Ron]

BobPE...In my humble opinion, you need to inform the other professionals that you have been engaged by your client for the purpose of investigating the design of the structure. You need not go beyond that until such time as you have completed your investigation, paying close attention to compliance of the professional with the established standard of care for your area.

I would implore you to be thorough in your evaluation as the castigation of another professional, though sometimes necessary, should never be entered lightly. Having read some of your posts, I'm confident that you will do so, but this needs to be said for the benefit of others who might encounter similar situations.

As for notification of the licensing board, many states require that the individual "harmed" by the actions of the licensed professional notify and complain. The investigating engineer is then consulted in the ensuing due process, which may include a separate investigation of all activities, including yours.

 

[RDK]

Under the Manitoba (my home jurisdiction) Code of Ethics, if an engineer is engaged to review the work of another there is a responsibility to inform the other engineer as soon as practicable. Usually this simply takes the form of a letter or e-mail simply stating “This is to inform you, as required by our code of ethics, that I will be conducting a review of your work regarding such and such building built for so and so client.” I have sent and received several of these, usually when the results of an inspection result in lawyers getting involved. They seem to like the reports that they pay for more than others. No more notification is required, even after you submit your findings. (You may want to check if anyone on the contractor side is also a professional engineer and send them the same notification.)

If its not a requirement in your jurisdiction, it is simple courtesy to do so.

If you find incompetent practice of engineering, you have an obligation to report it to your association. I would believe that this would transcend any non disclosure requirement in your contract with the client. In Manitoba any non disclosure agreement would be superceded by a legal requirement to inform authorities. As a professional engineer, I am bound by law to follow the engineering act and any by-laws of the association. The Code of Ethics is a by-law of the association and therefore a legally binding regulation on my activities. I would be surprised if its different in any other North American jurisdiction.

If the other designer is not a professional engineer, you still have the responsibility to inform your association of the unlicensed practice of engineering.

I am surprised by the Ron’s statement that only the individual “harmed” can complain. In Manitoba this is definitely not the case. You may want to check with your association to be clear on this issue.

In my mind the way to proceed is clear. You must inform the other engineer that you are reviewing his work, if you find incompetence or at least reason to believe the work was incompetently performed you have a duty to inform your association. This duty would be a legal requirement and would trump any non disclosure clauses in your client contract. You also have no requirement to inform the other engineer of your findings.

As an aside you may want to word any non disclosure requirements to say that disclosure can be made for any reason required by law.

You may want to get case specific legal advice and/or guidance from your home association on this issue.

Good Luck
Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com

 

[Ron]

Rick,
I didn't mean to imply that the harmed person was the only one who could complain, but that is the typical first process to start an investigation. This allows an investigation by the board without incurring the expense of a separate engineer for the "harmed" party. In a case where the "harmed" party doesn't know he was harmed (in the context of a violation of code or statute), it is usually another professional who brings that to his attention. That professional may also complain (and as you stated is so obligated) in many jurisdictions if there is a breach of one of the statutory rules or laws.

Ron

 

[PM]

In my jurisdiction you have three obligations, namely:[ol][li]put the public interst ahead of all others by submitting a formal complaint about the other engineer to your engineering licensing body for possible discipline,[/li][li]provide the best possible engineering service you can to meet the conditions of your contract with your client[/li][li]protect the profession and the public by acting in an ethical and professional manner at all times.[/li][/ol]You do not need to consult with the other engineer unless he/she has critical information required by your client contract.

I'm sure every jurisdiction hs slightly different disciplinable grounds, but I'm sure gross or willfull negligence is one.
Regards,