How Competitive Bidding Impacts Engineering Ethics and Project Quality

by Jeff Babineaux, PE on Oct 9, 2025 10:30:00 AM

Competitive bidding for engineering services has a complicated legal and ethical history. This blog explores how qualifications-based selection (QBS) helps ensure public safety and quality while also raising questions about access and fairness, particularly for small or underrepresented firms.Is competitive bidding unethical? Until a 1978 ruling by the Supreme Court, national societies of professionals had adopted statements that said just that. If I’m at the store and I see three different labels of marshmallows and one is half the price of the other two, then the lowest price wins! But can we commoditize engineering this way?

The National Society of Professional Engineers (NSPE), American Society of Civil Engineers (ASCE), and the American Institute of Architects (AIA) each had stipulations against soliciting work on the basis of price, each contending that price-based awards of work lead to substandard, unsafe design. In 1978 The Supreme Court decision ruled against NSPE, stating that these practices, as set by a society of engineers were illegal. Engineers in NSPE are, after all, competitors with each other.

How We Got Here: The Brooks Act and the Legal Landscape

In 1972, the Brooks Act laid out a framework for selection of architects and engineers based on qualifications, and not on price. This typically includes reviews of Requests for Qualifications (RFQs) to determine the most qualified firm before negotiating a fair price. Since this was enacted by the federal government and not a society of professionals in competition with each other, this was not affected by the 1978 Supreme Court ruling.

The Brooks Act, as well as legislation at state and local levels modeled after it, are still followed by firms providing Requests for Qualifications (RFQs not to be confused with requests for quotation). One variation on this process includes North Carolina’s own “Mini-Brooks Act” which provides exemptions for local governments and NC DOT projects less than $50,000.

Post-1978: Ethics, Law, and Competitive Bidding

It's allowed—and affirmed by the Supreme Court—that private companies seeking professional engineering services can send out requests for bid, compare the numbers, and just pick the lowest one. Remember when I said that this was in the code of ethics for these professional organizations until 1978? After AIA, NSPE, and ASCE modified their code of ethics to comply with the Supreme Court decision, state licensing boards as societies of professional members were required to follow suit. While some still mention a restriction in the code of ethics on competitive bidding, they should all point back to the state or federal laws. We don’t get to control that discussion as a collection of engineering professionals when we think of it from the perspective of anti-trust law (also known as the Sherman Act).

Neither the NSPE nor my local state board of engineering can require in their code of ethics that I can’t propose work based solely on cost. Do I still get to decide if I don’t want to? Should I still weigh the ethics of submitting a price-based proposal to a company who might be only concerned with cost and not safety? Absolutely, on both points.

Why QBS Still Matters

So which method is better for us as engineers, and for the public? Ethics is a big gray pool of no perfect answers, but I’ll argue this, if governments are so worried about the lowest bidder producing substandard work that they codified QBS into law, that’s a pretty strong case.

A Qualifications package is one way for engineering firms to make their introduction and talk about their experience. We can use them to assert our value beyond dollar figures with conversations about how a safe and complete design protects them from hidden costs of damages, bad schedules, and inefficient systems.

At the same time, we have to accept the consideration of cost as a factor. Budgeting time to document experience at the personnel and organization level is important to keep current and be ready when opportunities like this come along, but how much time is too much? Would a company that always uses qualifications-based selection still go through this effort for a small contract?

Equity and Access in Qualifications-Based Selection

On the other side, it would be great to see a more open playing field in government and public projects that makes room for underrepresented firms who can’t shoulder the costs of upfront qualifications packages, where days are spent putting the best foot forward and no income is realized from it. Established firms who can work efficiently within the framework of the qualifications-based selection process have an advantage over these underrepresented firms, admittedly hard-won through their own time invested in previous work. The process isn’t free, and it can be a tough change from estimating for private projects.

The Bottom Line

I’m not saying private companies should adopt a qualifications-based procurement procedure for engineering services, and I’m not advocating for a rescinding of the Brooks Act, or the legislation modeled after it. I see why a transparent pricing model for engineering services might turn into a race to the bottom, and how that can lead to cutting corners for shrewd engineers to game the system and win projects. Maybe in a perfect world there would be grant funding for underrepresented firms to get caught up with the biggest players in government and public projects.

Maybe in a safer world there would be a better way for private companies to screen out the lowest-cost firms, but only when the end product of those firms directly conflicts with the professional ethical obligation to hold paramount the safety, health, and welfare of the public.

Meanwhile, we the engineers have a role to play. The NSPE Executive Committee’s statement encourages us as professionals (within or without our professional organization) to actively seek legislation for professional selection and negotiation procedures by public agencies,