| (a) Purpose. This section prescribes ethical standards
of conduct applicable to private entities, including consultants and
subconsultants, participating in the department's design-build 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 Chapter 10 of this title
(relating to Ethical Conduct by Entities Doing Business with the Department).
(b) Gifts and benefits. A proposer, design-build contractor,
consultant, or subconsultant participating in the design-build 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 design-build contract.
Notwithstanding this prohibition, a consultant or subconsultant, unless
a member of a proposer or design-build contractor 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 design-build 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 design-build contractor 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 projects
undertaken by the department under this subchapter. 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, both for the private entity and any individual
that is an employee of or was employed by the private entity and participated
in the performance of services for the department, 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, provided that,
for a private entity or individual performing procurement services,
the resulting prohibition or restriction shall end no earlier than
the execution of the design-build contract or cancellation of the
procurement for the project for which the private entity or individual
is performing services.
(4) Application to new firm. If a conflict of interest
is determined to apply to an individual under paragraph (3) of this
subsection and the individual changes employers, the conflict of interest
and prohibition with respect to the individual will not apply to the
individual's new employer. 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 that 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 C.F.R. §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, a consultant that
is providing consultant services to the department with respect to
a design-build project may not 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. Subject to the
requirements of paragraph (8) of this subsection, a consultant that
is performing consultant services for a design-build project will
not be prohibited from participating on a different design-build 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 design-build project,
or that performed and completed environmental or traffic and revenue
services for a design-build 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 final 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; and
(iv) with respect to environmental services, a record
of decision or finding of no significant impact has been issued for
the project.
(8) Procurement and financial services. A consultant
actively engaged and performing procurement services or financial
services with respect to a design-build project may be a proposer
or participate as an equity owner, team member, consultant, or subconsultant
of or to a proposer for another design-build project, or may have
a financial interest in any of the foregoing entities with respect
to another design-build project, provided that, beginning at the time
that the consultant becomes a proposer or participates as part of
or acquires a financial interest in a proposer with respect to the
other design-build project, as described by this paragraph, the consultant
is prohibited from reviewing alternative technical concepts and proposals
for the project for which the consultant is providing services to
the department until a contract for the project is entered into, and
the consultant must institute ethical walls or other safeguards required
by the department.
(9) Requests for determinations or exceptions. A consultant,
proposer, or design-build contractor may submit a request to the executive
director for a determination whether participation in a design-build
project or the performance of particular services with respect to
a design-build project would constitute a conflict of interest, or
for approval of an exception to the applicability of this subsection
to those services. A request for approval of an exception may be made
if a consultant, proposer, or design-build contractor desires to appeal
a previous determination that a conflict of interest exists. The executive
director will forward a request to the department's Office of General
Counsel for analysis and recommendation prior to issuing a decision.
In determining whether a conflict of interest exists, or whether to
approve an exception, the executive director shall consider:
(A) the extent to which the firm or individual employee
obtained access to or the ability to gain knowledge of confidential
or sensitive information, procedures, policies, and processes concerning
the design-build program or a particular project or procurement that
could provide an unfair competitive advantage with respect to the
procurement or project at issue;
(B) the type of consulting services at issue;
(C) the particular circumstances of each procurement;
(D) the specialized expertise needed by the department
and proposers to implement the procurement;
(E) the past, current, or future working relationship
between the consultant and the department;
(F) the period of time between the potential conflict
situation and the project at issue; and
(G) the potential impact on the procurement and project
at issue, including competition.
(10) Multiple services. If a consultant is providing
more than one category of consultant services to the department and
there are differences in the standards, restrictions, and limitations
applicable to those categories, the standards, restrictions, and limitations
applicable to a category that are more stringent apply.
(11) Participation on proposer or design-build contractor
team. A consultant participating with respect to a design-build project
as a proposer or design-build contractor, or as an equity owner, team
member, consultant, or subconsultant of or to a proposer or design-build
contractor, or having a financial interest in any of the foregoing
entities, is eligible to provide consultant services to the department
for another design-build project, provided that, when the consultant
is retained to perform consultant services for the department, the
restrictions in this subsection shall apply.
(12) Restriction of services and conditions to approvals
and exceptions. In instances where a written determination under
paragraph (9) of this subsection that a conflict of interest does
not exist, including, in particular, where the conditions prescribed
in paragraph (7) of this subsection have been met, or that grants
an exception to the application of this subsection, the department
may still, in its discretion:
(A) restrict the scope of services the consultant or
subconsultant may be eligible to perform for the department in order
to further the intent and goals of this subsection; and
(B) condition an approval, determination, or exception
as the executive director determines appropriate to further the intent
and goals of this subsection, including by requiring the consultant,
subconsultant, proposer, or design-build contractor to execute confidentiality
agreements, institute ethical walls, or segregate certain personnel
from participation in a project or the performance of consultant services.
(13) Provisions are nonexclusive. The provisions in
this subsection do not address every situation that may arise in the
context of the department's design-build program nor require a particular
decision or determination when faced with facts similar to those described
in this subsection. The department retains the ultimate and sole discretion
to determine on a case-by-case basis whether a conflict of interest
exists and what actions may be appropriate to avoid, neutralize, or
mitigate any actual or potential conflict, or the appearance of any
conflict. Except as provided in paragraph (14) of this subsection,
the provisions of this subsection shall not be construed to preclude
or condone any conduct with regard to projects other than projects
under a design-build contract. The department will continue to Cont'd... |
