The Association of Consulting Engineering Companies — Canada (ACEC) has published a new national Conflict of Interest Guideline to help consulting engineering firms and their clients manage and mitigate “unfair advantage” situations.
“It’s to fill a void,” explained John Gamble, president and CEO of ACEC. “With the increased interest and scrutiny of conflict of interest and unfair advantage, we find there is a lot of strong language…both in agreements and purchasing policies about conflict of interest and unfair advantage but very little in the way of specific guidelines and very little as it pertains to engineering and construction projects.
“There is a lot of reference to avoiding conflict of interest, but not a lot in the way of guidance in terms of what constitutes a conflict of interest.”
The document provides consistent interpretations of these situations.
For situations that are not contemplated, it would give some framework on which to have an informed discussion
— John Gamble
Association of Consulting Engineering Companies — Canada
“The intent of the document is to provide a framework to facilitate informed, constructive discussion so that owners, consultants, contractors and all parties on a project can make informed decisions on whether to proceed, whether to be part of a consortia or whether to partner with another firm,” explained Gamble.
“I think people are looking for accountability and transparency when significant investments are made, whether it’s by taxpayers on public sector projects or by investors on private sector projects. Furthermore, we’ve seen that the new trade agreements have certainly made it very clear that procurements must be clear of conflict of interest.
“Having said that, Canada is a very sophisticated jurisdiction when it comes to items like conflict of interest, more sophisticated than other jurisdictions, so in some respects, not all, some of these trade agreements actually level the playing field in our favour.”
Gamble said definitions of conflict of interest and unfair advantage can sometimes be inconsistent, especially with large, complex projects.
“We’re getting more and more multi-disciplinary teams, more and more consortia coming together and more complex projects. The more players, the possibility of conflict of interest or unfair advantage is likely to increase,” he said, adding one the main messages in the document is to consider conflict of interest at the outset of the project.
The idea of the guideline is to make sure all parties involved in a project are on the same page.
“In the absence of any specific guidance, we are concerned about a checkerboard approach by clients and procurement departments that were making their own definitions which was leading to inconsistency and confusion in the industry,” said Gamble. “The intent here is to give a baseline to allow both consulting engineering firms, other professional consultants and their clients a basis by which to assess whether there is or is not conflict of interest or unfair advantage and facilitate the appropriate discussions before a project begins.”
Since every project is different, the document addresses the most common situations.
“It’s not realistic to have the guidelines anticipate every conceivable eventuality, but what we have tried to do is address the ones that commonly come up on projects that will give some guidance to owners and consultants,” said Gamble. “For situations that are not contemplated, it would give some framework on which to have an informed discussion.”
Perceptions of conflict of interest occurs by the very nature of megaprojects today, Gamble noted, using the example of consultants or subconsultants who have been involved at early or previous stages of a project who can be unfairly prohibited from participating in subsequent phases or may inadvertently find themselves in a genuine conflict of interest because of previous or existing relationships.
“Too rigid of an interpretation can also act as a barrier and might even preclude firms with unique capabilities from participating on projects,” said Gamble. “There is a saying in our industry about procurement: ‘sometimes if you know too much about the clients’ needs it’s the kiss of death of winning the job.’ We don’t want anyone needlessly disqualified from a job when there is no real conflict of interest or unfair advantage. Conversely, we want to make sure procurement decisions are fair and transparent.”
The document, Gamble explained, is based on a guideline produced in 2015 by Consulting Engineers of Ontario. The new guideline has been revised and updated to address the national context and has been expanded to address concerns arising from recent inter-provincial and international trade agreements, states an ACEC release.
For more information visit www.acec.ca.