Training Slides for Contract Administration Staff and Students of Construction Related Courses
A project engineer is employed by a chemical product manufacturer to supervise the engineering works performed by its contractors. Due to his job nature, he develops a close companionship with a contractor who has recently undertaken a gas tank repair project of the company.
Learning that the project engineer suffers from substantial loss in a recent stock investment, the contractor immediately offers to lend the project engineer $200,000 to help him overcome the financial difficulty.
When time comes for an inspection to be conducted for the gas tank repairing works, the contractor requests the project engineer to turn a blind eye to certain defects found in the finished works, saying that the defects can have little chance to pose a safety hazard. He also reminds the project engineer of his generosity to him in the past. The project engineer finds it difficult to require the contractor to rectify all the defects found in the works.
Besides breaching the Rules of Conduct of the Hong Kong Institution of Engineers, the project engineer may put his employer's interest and public safety at stake if he compromises his objectivity in professional judgment and turns a blind eye to substandard works.
The project engineer should not accept a loan from persons who have business dealings with the company, placing him into a position of obligation that may lead to a conflict of interest.
The project engineer and the contractor may be liable to the charge of a corruption offence under the Prevention of Bribery Ordinance (POBO) for offering and accepting a loan, an advantage under the POBO, in relation to the duties of the recipient's company without his employer's permission.
When receiving his company's instruction to design a computer software for a digital answering machine, a company's software engineer claimed that he was too busy to take up the job and recommended it to be contracted out to an outside software house which was owned solely by his former colleague.
The software house owner at first had no intention to undertake the job. But the software engineer persuaded him to secure the job first and then sub-contract it back to the software engineer. Using the software house as a disguise to deceive his own company, the software engineer could pocket $95,000 being 90% of the project fee while the rest would go to the owner.
The software engineer contravened the Rules of Conduct of the Hong Kong Institution of Engineers, which require an engineer to offer complete loyalty to his employer and avoid engaging in business, investments or activities which conflict with the interests of his employer.
An employment or contract could be considered as an advantage. As the software engineer's company neither approved the engineer to take up part-time job nor allowed him to accept any advantage in relation to his duties, the engineer had violated Section 9 of the Prevention of Bribery Ordinance for assisting the software house to get the job and accepting the project fee in return.
Eva was a clever and efficient staff member working on a fixed-term contract in a large firm. She could easily complete her assignments before the deadlines; but she preferred not letting other colleagues know about that because she did not want extra workload given to her and making other colleagues look less capable. Being a fixed-term contract staff member, she understood that she would leave the firm at the end of the contract. Hoping to make her mark one day and to secure future income, she was thinking the possibility of developing her side-business during the office hours by using the firm’s resources while pretending working on certain projects in the office.
Eva thought to herself: it was not her fault that she was more efficient and capable than other colleagues. She was only a fixed-term contract staff member and would leave the firm one day. She needed to prepare herself for the future.
Was that justified for Eva’s secret plan? What about the interest of the firm? What factors does Eva need to consider before taking her course of action?
Eva was facing an ethical dilemma that might put her personal values such as loyalty, responsibility and honesty to challenge. In handling the situation, Eva should identify the relevant facts and take stock of all stakeholders concerned. The following factors should be taken into consideration when identifying viable alternatives and choosing the best course of action:
The ETHICS PLUS ethical decision making model might be helpful for her in solving the dilemma.
Felix, a production manager of a large toy factory, had two assistants, Gigi and Gordon. Gigi was the favourite because she was a young charming lady and also a cousin of the General Manager while Gordon was not because he was brash and sometimes outright insolent. They were both responsible for handling the overtime claims for workers on the toy production. The Finance Department had complained to Felix a few times about Gigi and raised queries over some overtime claims forwarded by Gigi. There were widespread rumours that Gigi might have overstated the overtime hours and even forged claims by using ghost workers. Yet, Felix could not bring himself to ask Gigi for explanations but went easy on her by telling her to be more ‘prudent’ when handling the overtime claims in the future. On the other hand, the Finance Department contacted Felix again but this time was about Gordon. They had questions about some discrepancies on the hours of the overtime claims forwarded by Gordon. However, Felix treated Gordon more strictly and was much firmer on the occasion.
Was Felix being equally fair to his assistants when handling the queries from the Finance Department? Would it upset the General Manager if Felix was not kind to Gigi at work, which in return affected Felix’s work prospect? How would it affect his professional image in the eyes of other colleagues?
Felix was facing an ethical dilemma that might put his personal values such as fairness, responsibility and honesty to challenge. In handling the situation, Felix should identify the relevant facts and take stock of all stakeholders concerned. The following factors should be taken into consideration when identifying viable alternatives and choosing the best course of action:
The ETHICS PLUS ethical decision making model might be helpful for him in solving the dilemma.
A mechanical engineering company in Hong Kong had operated a factory in the Mainland. Its production manager Mr. Wong was deployed to oversee the Mainland mechanical production process. Mr. Wong had worked in the company for eight years and won the praise and trust from his boss. Since some of the production procedures were subcontracted to other local manufacturers, Mr. Wong was also responsible for sourcing suitable factories and awarding the production orders. As such, Mr. Wong got acquainted with many other manufacturers, and was frequently invited to social activities after work. Two of them suggested offering him a kickback as a reward for placing more production orders and they would inflate the price of the orders to compensate the extra cost, i.e. the kickback to Mr. Wong. Succumbing to the temptations of monetary rewards, Mr. Wong accepted RMB575,000 in bribes and then deposited the bribe money into his bank account in Hong Kong
Would Mr Wong breach any laws? How could companies avoid such malpractices from happening?
Under Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence for Mr Wong (an employee), without the approval of his employer, to accept advantages (i.e. RMB575,000 illegal kickback from the two manufacturers) for placing more production orders with the two manufacturers. The offeror of the bribe would also be guilty of the offence. It shall be an offence under POBO if any act of bribery (includes promising, agreeing, soliciting or accepting advantages without permission) takes place in Hong Kong. By depositing the bribe money back into the bank account in Hong Kong, Mr. Wong might still violate the POBO.
Mr Wong’s close relationship with the manufacturers had affected his objectivity when discharging his official duties. Though entertainment is an acceptable form of business behaviour, many past cases have shown that small favours such as free meals and small gifts etc. always breed corruption. It is therefore important for business manager to remind their staff of the need to handle their relationships with care, and to avoid accepting excessively frequent or lavish entertainment from them.
Furthermore, business organisations should also establish clear policies on acceptance of advantage and declaration of conflicts of interest, and inform their suppliers or subcontractors of such policies. In the event that staff have violated the law or company policies, prompt action should be taken to report the case immediately.
Alexander was Manager of Planning in a real estate development firm and was responsible for recommending a contractor to conduct an environmental study. He was considering Gamble, a small firm which had done outstanding work for the firm in the past. Roy, a friend and representative of another larger environmental research firm, approached Alexander on the matter over a lunch appointment. Alexander clearly stated that Gamble would possibly get the contract because of its satisfactory past performance, whereas Roy’s firm had a dozen other contracts to keep them busy.
Roy seemed disappointed but Alexander was glad when conversation turned to other topics. Roy asked Alexander about the progress of his emigration plan. In fact, Alexander’s wife, Zoe, had already gone to Canada with two sons to settle down first while Alexander would work a few more years in Hong Kong before joining them. Roy mentioned casually that he had connections in Toronto and could help Alexander place his sons into the best local school though it might take some doing. The school enjoyed a reputation for good results and easy access to the University of Toronto. Alexander understood what Roy really meant. He desperately wanted to make a head-start for his children and pave a smooth path for them.
Would Alexander commit any offence if he recommended Roy’s company in return for Roy’s help for his sons? What factors should Alexander consider when making the decision?
It would be an offence of Section 9 of the Prevention of Bribery Ordinance (POBO) if Alexander, as an employee of the real estate development firm, without the approval from his employer, accepted advantages from Roy (i.e. Roy’s assistance in placing Alexander’s two sons into the best local school in Toronto) as a reward for helping Roy’s firm to get the business contract of environmental study. Roy would also violate POBO for offering bribes.
Also, Alexander might violate his company’s code of conduct if he did not disclose his relationship with Roy to the management when there was conflict of interest.
Apart from the aspects of compliance and company code of conduct, Alexander may also consider the following factors when identifying viable alternatives and choosing the best course of action:
The ETHICS PLUS ethical decision making model might be helpful for him in solving the dilemma.
Karson, the Chief Engineer of a hotel, was assigned to oversee a $5 million renovation project for the hotel’s main lobby. Kenneth, the proprietor of a construction company, was selected as the contractor for the renovation work.
During the traditional “God Worshipping” ceremony that marked the project’s commencement, Kenneth offered Karson a red packet of $30,000 as a token of gratitude for his assistance in awarding the contract. Karson gratefully accepted the offer.
One month later, while inspecting the project’s progress, Karson noticed that the quality of the marble used in the lobby was substandard and did not meet the tender specifications. Due to the tight schedule and cost implications, Kenneth was reluctant to replace the marble. To cover up the issue, he proposed giving Karson a rebate of 2% of the project sum in exchange for Karson turning a blind eye to the substandard work. Although bewildered by the offer, Karson verbally agreed to the arrangement to avoid damaging the harmonious working relationship with Kenneth.
According to Section 9 of the Prevention of Bribery Ordinance (POBO), it would be an offence if Karson, a hotel employee, without the permission of his employer, accepted an advantage, i.e., the red packet and the 2% rebate of the project sum, for awarding the renovation project to Kenneth and turning a blind eye to the substandard work. Kenneth might also violate POBO by offering bribes.
According to Section 19 of the POBO, it shall not be a defence to show that the acceptance of advantage is customary in any profession, trade, vocation or calling. Although the red packet was offered during the customary “God Worshipping” ceremony, the court shall determine the legality based on whether the recipient had obtained the permission from his principal.
Although Karson did not actively solicit advantages and might not have ultimately received any commission from Kenneth, the verbal agreement between the two parties to conceal the substantial work still constituted corruption. According to Section 11 of the POBO, once an agreement to offer and accept a bribe is reached, both the offeror and acceptor of the bribe shall commit an offence even if the acceptor claims that he did not actually carry out the act as agreed.
Karson might also breach the Rules of Conduct of the Hong Kong Institution of Engineers (HKIE) which states that a member of HKIE shall discharge his duties with integrity and in accordance with the highest standards of business ethics; and neither give nor accept any gift, entertainment, payment or service of more than nominal value, to or from those having a business relationship with his employer or client without the consent of the latter.
Construction company A was planning to carry out a large-scale residential development project on a piece of land in the North East of the New Territories that was owned by the company. The company decided to select a contractor by open tender.
Mr Lee, one of the supervising officers of Company A, was responsible for overseeing the project. By virtue of his position, Mr Lee had access to the business secrets, including the quotation prices offered by other tenderers and recommendations given by the consultancy company.
During the tendering process, Mr Lee arranged to have a meeting with Mr Ho, who was employed by one of the tendering companies. Mr Lee claimed that he could disclose business secrets concerning the project to Mr Ho on the condition that Mr Ho’s company, after winning the contract, would pay him 2.5% of the project construction cost, which would bring him an estimated reward of HK$2 million.
Following disclosure of the bribery scam, Mr Lee was arrested and found guilty of corruption crime.
By soliciting an advantage and leaking the quotation information to Mr Ho, Mr Lee might have committed an offence under Section 9 of the Prevention of Bribery Ordinance. Meanwhile, Mr Ho might also have committed an offence by offering bribes. The section (Section 9) states that:
A company should establish a good quotation and tendering system to enable the selection of the best contractor for the job required. A good quotation/tendering system should prevent tender and quotation information from leakage. Quotations or tenders received should not be opened before the deadline to reduce the likelihood of information leakage. Furthermore, the opening of the tenders and quotations should be carried out by at least two persons to prevent tampering with the prices submitted
Upon her return to Hong Kong after a few years in the States, Sandy worked in La Fonda, an architect firm. She had her first degree in Hong Kong but left for the US with her boyfriend soon after graduation. Her performance in the firm was brilliant and the portfolios she submitted were excellent. When her senior Kelly resigned, her unit head Antonio considered recommending Sandy for promotion to take up Kelly’s post. Sandy was full of hopes.
Antonio was about to nominate Sandy. One evening, he was talking to his cousin Gamma who just returned from a long stay in the States. Gamma had been doing a doctoral programme in Architecture in the University of Vermont. Antonio causally mentioned to Gamma that his prize staff, Sandy, also worked on a second degree at the University of Vermont too. Antonio thought that Gamma and Sandy might have met in the University because their years of study coincided. But, to Antonio’s astonishment, Gamma could not recall a Chinese lady studying Architecture during his seven years’ stay at the University, particularly as he worked part-time in the Registrar’s Office. If Sandy had studied there, Gamma would have remembered her.
Antonio was flabbergasted and determined to look into the matter. When he went back to the office the next day, he sent for Sandy at once. He asked Sandy if the credentials she submitted to the firm were in order. Sandy guessed what he was getting at and blurted out the truth.
It was a sad story. Sandy was about to be married to her boyfriend in US when she found out that he was dating another girl who could help him to get US citizenship. He tore her heart into pieces. After a few years of living only on the money sent from home, Sandy finally decided to turn over a new leaf and went back to Hong Kong. She built up a portfolio of her own work which was in fact copied from overseas designers and made up an academic and professional history for herself. Then she landed the job at La Fonda.
Antonio did not know what to do. Should he expose the fraudulent past of Sandy? Was it his duty to make sure that the firm was not cheated? Would this destroy the career of Sandy who had been a star in the firm?
Sandy had promised to work hard if Antonio kept her secret for her. Could Antonio do that with a clear conscience?
Sandy, who submitted forged academic certificates and false professional history, with the intention to deceive her employer, might have already committed fraud.
Antonio was facing an ethical dilemma that might put his personal values such as compassion, responsibility and honesty to challenge. On one hand, it seems right for him to keep the secret for Sandy in view of her good potential and the reasons behind her fraudulent act; but on the other hand, he had the responsibility to protect the interest of the company and report any staff misconduct or illegal behaviour. In handling the situation, Antonio should identify the relevant facts and take stock of all stakeholders concerned. The following factors should be taken into consideration when identifying viable alternatives and choosing the best course of action for himself:
The ETHICS PLUS ethical decision making model might be helpful for him in solving the dilemma.
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