| (a) For the purposes of this chapter, a conflict of
interest is a circumstance arising out of existing or past activities,
business interests, contractual relationships, or organizational structure
of an entity, in which:
(1) the entity is or may be unable to give impartial
assistance or advice to the department;
(2) the entity's objectivity in performing the scope
of work sought by the department is or may be otherwise impaired;
(3) the entity has an unfair competitive advantage;
(4) the entity's performance of services on behalf
of the department or participation in an agreement with the department
provides or may provide an unfair competitive advantage to a third
party; or
(5) there is a reasonable perception or appearance
of impropriety or unfair competitive advantage benefiting the entity
or a third party as a result of the entity's participation in an agreement
with the department.
(b) A for-profit entity, including a sole proprietorship,
has a conflict of interest if:
(1) an individual who held a position at or above the
level of district engineer, division director, or office director
solicits business from or attempts to influence a decision of the
commission or department on behalf of that entity within one year
after the date of the individual's separation from the department;
(2) a former department employee whose last salary
from the department was at or above the minimum amount prescribed
for salary group A17 of the state position classification salary schedule
performs work on behalf of that entity regarding a specific investigation,
application, request for ruling or determination, contract, claim,
or judicial or other proceeding in which the former employee participated,
whether through personal involvement or within the former employee's
official responsibility, while employed by the department; or
(3) the entity employs a former department employee
who participated on behalf of the department in the procurement or
negotiation of an awarded contract, for which the entity was the prime
contractor or an equity partner of the prime contractor, unless more
than two years have elapsed since the date that the contract was signed.
(c) Subsection (b)(1) of this section does not apply
to a position that is designated as an interim position.
(d) For the purpose of subsection (b)(2) of this section,
an individual participated in a matter if the individual made a decision
or recommendation on the matter, approved, disapproved, or gave advice
on the matter, conducted an investigation related to the matter, or
took a similar action related to the matter.
(e) Before submitting a bid or undertaking some other
interaction with the department, a for-profit entity or a former employee
of the department to whom subsection (b) of this section applies may
request from the department a determination of whether the interaction
would constitute a conflict of interest under subsection (b) of this
section. Such a request must be made in writing and must contain a
concise explanation of the relevant facts. The department will not
respond to a request under this subsection before consulting with
the General Counsel Division. The department will issue a written
determination in response to a valid request made under this subsection
as soon as practicable.
(f) Subsection (b)(3) of this section applies only
to an entity's employment of an individual whose participation in
a procurement or contract negotiation occurs on or after September
1, 2015. Subsection (b)(3) does not apply to a contract awarded under
a low-bid process.
(g) For purposes of subsection (b)(3) of this section,
a person participated in the procurement or negotiation of an awarded
contract only if the person played an active part in the original
procurement or contract negotiation with the prime contractor or equity
partner of the prime contractor by personally approving or performing
a step that was materially relevant in the original procurement or
contract negotiation process. An action is materially relevant if
the action provides an opportunity to steer a contract toward a particular
vendor, or involves the negotiation of price or contract terms with
a vendor or the approval of negotiated prices or terms. Handling administrative
matters and performing ministerial duties are not materially relevant
steps.
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| Source Note: The provisions of this §10.6 adopted to be effective January 6, 2011, 35 TexReg 11951; amended to be effective May 17, 2012, 37 TexReg 3606; amended to be effective February 20, 2014, 39 TexReg 999; amended to be effective November 19, 2015, 40 TexReg 8032; amended to be effective December 6, 2017, 42 TexReg 6815 |
