Best Practice in Responding to Inquiries from State Agencies
A recent trend in the rise of inquiries from state agencies has been observed in 2018 and 2019. These “inquiries” are not formal complaints, but rather informal investigations into projects. Often, state investigators will contact an engineer or design professional directly via email or phone to “respond to a few questions.”
When an engineer is contacted by any state agency, it is best practice to consult an attorney before responding. Do not be fooled by the familiarity and informal nature of these inquiries. As with any investigation involving a state agency, anything an engineer or design professional says or does in response can and will be used against them. Follow best practice for both formal and informal inquiries to address the situation with less chance of a claim.
The first issue to discuss with an attorney with respect to any contact from a state agency is whether a response is even necessary. Many times, the state may not be entitled to the information sought without initiating more formal proceedings.
There are also concerns about whether the information sought is subject to disclosure. Commonly, contracts will limit or completely bar disclosure of contract documents. This is especially true of design drawings, blueprints, and engineering plans, which may be subject to copyright and other intellectual property protections. Thus, engineers/design professionals should consult with an attorney before deciding whether to respond to the state agency.
Once the decision to respond has been made, there is still the issue of how to respond. Again, any response should be limited to the question asked. No assumptions should be made about what information the state agency is seeking. Providing more information than is necessary and/or responding to different questions than those posed by the state agency may lead to further inquiries or the initiation of a more formal investigation. Obviously, any engineer or design professional would rather avoid additional, unwanted attention from state agencies.
For all these reasons, it is best practice for engineers and design professionals to consult an attorney before responding to inquiries and/or investigations initiated by state agencies. The ASCE Professional Liability Program includes access to professional legal guidance. The ASCE Hotline offers every ASCE insured one free hour annually of legal advice for issues involving agency investigations and contract review.
