| (a) Purpose. This section prescribes ethical standards
of conduct applicable to private entities, including consultants and
subconsultants, participating in the department's comprehensive development
agreement program. A private entity's failure to comply with these
standards of conduct may result in the private entity's preclusion
from participation in a project or sanctions being imposed under §27.9
of this subchapter (relating to Sanctions).
(b) Gifts and benefits. A proposer, developer, consultant,
or subconsultant participating in the comprehensive development agreement
program, or an affiliate of any of those entities, may not offer,
give, or agree to give a gift or benefit to a member of the commission
or to a department employee whose work for the department includes
the performance of procurement services relating to a project under
this subchapter, or who participates in the administration of a comprehensive
development agreement. Notwithstanding this prohibition, a consultant
or subconsultant (unless a member of a proposer or developer team,
if authorized under subsection (c) of this section) may offer, give,
or agree to give a token item that does not exceed an estimated value
of $25 (excluding cash, checks, stocks, bonds, or similar items),
where the item is distributed generally as a normal means of advertising.
(c) Conflicts of interest.
(1) Purpose. This subsection prescribes department
policy on conflicts of interest relating to consultants and subconsultants
participating in the comprehensive development agreement program,
and thereby:
(A) protects the integrity and fairness of the program
and all procurements carried out by the department as part of the
program;
(B) avoids circumstances where a consultant, proposer,
or developer obtains, or appears to obtain, an unfair competitive
advantage as a result of work performed by a consultant or subconsultant;
(C) provides guidance to private entities so they may
assess, and make informed business decisions concerning their participation
in the program; and
(D) protects the department's interests and confidential
and sensitive project-specific and programmatic information.
(2) Applicability. This subsection applies to all comprehensive
development agreement projects undertaken by the department. This
subsection applies to consultants and subconsultants, and to individual
employees of consultants and subconsultants who participated in the
performance of services for the department. A reference in this subsection
to a consultant or subconsultant also means individual employees of
a consultant or subconsultant who participated in the performance
of services for the department. To the extent that the department
has previously consented in writing to a consultant's or subconsultant's
performance of services that are in conflict with this subsection,
participation on a proposer team as an equity owner or team member,
acting as a consultant or subconsultant to a proposer, or having a
financial interest in a proposer or an equity owner or team member
of a proposer, this subsection does not modify or alter the prior
consent. The foregoing does not prevent, however, the application
of this subsection to the consultant or subconsultant for other projects,
including taking into account the performance of services on the project
for which consent was obtained. This subsection may by extension prohibit
or restrict the ability of a proposer to have a consultant or subconsultant
participate on the proposer team as an equity owner or team member,
act as a consultant or subconsultant to the proposer, or have a financial
interest in the proposer or an equity owner or team member of the
proposer.
(3) Period in which a conflict of interest applies.
If a determination is made under this subsection that the performance
of services by a consultant or subconsultant raises a conflict of
interest, the resulting prohibition or restriction provided in this
subsection continues:
(A) for the private entity until the date the performance
of services ends and all work product prepared by the entity and other
information and data provided to the entity in the performance of
services is publicly available; and
(B) for an individual that is an employee of or was
employed by the consultant or subconsultant and who participated in
the performance of services for the department:
(i) until five years after the date the performance
of services ends for those projects for which the individual was materially
involved in providing services to the department; and
(ii) until one year from the date the performance of
services ends for projects for which the individual was not materially
involved in providing services to the department.
(4) Application to new firm. If a conflict of interest
is determined to apply to an individual pursuant to paragraph (3)(B)
of this subsection, the conflict of interest and prohibition with
respect to the individual will not apply to the individual's new place
of employment. If the new employer is otherwise eligible to perform
consultant services, the new employer will remain eligible despite
the employment of the individual. This paragraph does not apply to
an individual employed by an affiliate of its previous employer, and
the conflict of interest and prohibition with respect to the individual
will apply to such affiliate.
(5) Federal requirements. For federal-aid projects,
the department must comply with the Federal Highway Administration's
organizational conflict of interest regulations (found in 23 CFR §636.116).
The requirements of this subsection do not limit, modify, or otherwise
alter the effect of those regulations, and will be applied consistent
with those regulations.
(6) General conflict of interest standards. Except
as provided in paragraph (7) of this subsection, no consultant providing
consultant services to the department with respect to a comprehensive
development agreement project may be a proposer or participate as
an equity owner, team member, consultant, or subconsultant of or to
a proposer for that project, or have a financial interest in any of
the foregoing entities with respect to that project. Except as provided
in paragraph (8) of this subsection, a consultant performing consultant
services for a comprehensive development agreement project will not
be prohibited from participating on a different comprehensive development
agreement project as a proposer or participating as an equity owner,
team member, consultant, or subconsultant of or to a proposer for
the different project, or having a financial interest in any of the
foregoing entities with respect to the different project.
(7) Providing services for the same project. A consultant
that is actively providing preliminary engineering and architectural
services to the department with respect to a comprehensive development
agreement project, or that performed and completed environmental or
traffic and revenue services for a comprehensive development agreement
project, may be a proposer or participate as an equity owner, team
member, consultant, or subconsultant of or to a proposer for the same
project, or have a financial interest in any of the foregoing entities
with respect to that project, provided:
(A) with respect to a consultant providing preliminary
engineering and architectural services, all work product prepared
by the consultant and other information and data provided to the consultant
in the performance of services is made available to all proposers
prior to the issuance of the request for proposals for that project;
or
(B) the executive director issues a written determination
under paragraph (9) of this subsection that:
(i) the consultant will not, or in the case of the
previous performance of consultant services did not, have access to
or obtain knowledge of confidential or sensitive information, procedures,
policies and processes that could provide an unfair competitive advantage
with respect to the procurement for that project;
(ii) the data and information provided to the consultant
in the performance of the consultant services is either irrelevant
to the procurement for that project or is available on an equal and
timely basis to all proposers;
(iii) the work products from the consultant incorporated
into or relevant to the procurement for that project are generally
available on an equal and timely basis to all proposers;
(iv) with respect to environmental services, a record
of decision or finding of no significant impact has been issued for
the project; and
(v) with respect to traffic and revenue services, there
will be no impact on the project's plan of finance, including the
ability to obtain and close funding and potential sources of funding.
Cont'd... |
