Pre-Submission Access and a Request to Bury a Geotechnical Hazard
Your firm is shortlisted for the design of a $220 million light-rail interchange for a metropolitan transit authority. Technical proposals are scored by a five-member panel that includes the authority's chief structures engineer, a former partner of your firm who still holds a 4% equity interest in it - a fact in the annual returns but not in the panel's conflict register. Two weeks before submission, the authority's project director asks your principal to 'walk him through' the draft technical approach over dinner, alone. Separately, he suggests that your geotechnical chapter omit the 6 m of uncontrolled fill and the liquefaction susceptibility recorded in the borehole log, because 'the estimate is already at the funding ceiling and that will kill it'. Your fee would be 6% of construction cost, and award represents 18% of this year's revenue.
1. Identify the ethical and legal issues raised by the panel member and the private dinner, and state what you would do and in what order.
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The 4% equity is an actual financial interest held by a person who will score your proposal. It is the authority's duty to manage its own panel, but your firm cannot hold that information and stay silent. First action: a written, dated disclosure to the procurement lead and the authority's probity or ethics officer, stating the relationship, confirming that you have not discussed the procurement with the individual, and asking for confirmation of the recusal arrangement. Do not route it through the project director, who is himself creating a problem.
Why silence is not an option: an award made without managing the conflict can be challenged by an unsuccessful proponent; many procurement regimes require conflict disclosure and permit disqualification or set-aside; the individual may be in breach of their own employment obligations. The reputational cost of a set-aside exceeds the value of the win.
The dinner: a pre-submission, one-to-one briefing with the person who will evaluate you is unequal access, off the record and unverifiable. Other proponents cannot get it. Decline the format, not the relationship: offer to present the technical approach to the full panel with the procurement officer present and minutes taken, or to answer questions in writing through the official clarification channel before the deadline. Put that offer in a short email, so the alternative is documented.
Order of operations: (1) internal escalation to the firm's principal or ethics lead; (2) the disclosure to procurement and probity; (3) the written counter-offer on the briefing; (4) check the gifts and hospitality register and whether any marketing contact with the former partner is now improper. If the authority will not manage the conflict, decide whether to bid at all - a win that can be overturned is worse than a loss.
2. The project director asks you to drop the uncontrolled fill and liquefaction findings to protect the funding ceiling. How do you respond, and what alternatives would you put on the table?
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Refuse, in writing, and then solve the real problem. The fill and the liquefaction susceptibility are material geotechnical facts, not presentation choices. A chapter that omits them misrepresents the ground model on which the foundation design, the estimate and every contractor's price depend. Sealing that document is attesting to its accuracy - that is the line, and the liability is personal as well as corporate.
Consequences of complying: the risk reappears at tender (contractors price it or qualify), in construction (unforeseen ground conditions, claims, delay), or in an earthquake (settlement, bearing failure, safety consequences), and it may be uninsurable precisely because it was knowingly concealed. There are also disclosure duties to the client and to the funding body, and potential misrepresentation.
Alternatives that answer the funding ceiling honestly:
- Value-engineer elsewhere in the scheme and show the trade-offs.
- Compare ground improvement against piled foundations on a whole-life cost basis.
- Phase the works or reduce scope - surface parking instead of a basement, for example.
- Carry the geotechnical risk explicitly as a client risk allowance or provisional sum with a defined trigger.
- Bring a contractor in early for a guaranteed maximum price against a fully disclosed ground model.
- Take the borehole evidence to the funding body and argue for a revised estimate. A contested increase now is far cheaper than an underpriced scheme with a concealed hazard.
If the client insists: escalate to the authority's executive and your own principal, record the instruction and your advice in writing, and be prepared to withdraw. Eighteen percent of revenue does not justify the licence, the insurance position and the safety exposure - and two integrity issues in one pursuit is a governance signal, not a coincidence.