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RULE §9.155Conflict of Interest and Ethics Policies

evaluate other projects based on applicable rules and its traditional conflict of interest standards.

  (14) Comprehensive development agreement projects. A consultant providing procurement or financial services with respect to a comprehensive development agreement project described in Chapter 27, Subchapter A of this title (relating to Comprehensive Development Agreements) may be a proposer or participate as an equity owner, team member, consultant, or subconsultant of or to a proposer for a design-build project, or may have a financial interest in any of the foregoing entities with respect to a design-build project, under the conditions described in paragraph (8) of this subsection.

(d) Rules of contact. In order to provide a fair and unbiased procurement process, a request for qualifications will contain rules of contact regulating communications between proposers or any of its team members and the commission, the department, and third parties involved in the procurement. Communication includes face-to-face, telephone, facsimile, electronic-mail (e-mail), or formal written communication. The rules of contact become effective upon the issuance of the request for qualifications and may be modified in the request for proposals. The rules of contact will include provisions:

  (1) prohibiting a proposer or any of its team members from communicating with another proposer or its team members with regard to the project, request for qualifications, or request for proposals, or either team's qualifications submittal or proposal;

  (2) requiring each proposer to designate one or more representatives responsible for contact with the department, and requiring the proposer to correspond with the department regarding the project, request for qualifications, or request for proposals only through the department's authorized representatives and the proposer's designated representatives;

  (3) prohibiting any ex parte communication regarding the project, request for qualifications, or request for proposals or the procurement with any member of the commission or with any department staff, advisors, contractors, or consultants involved in the procurement until the earliest of the execution and delivery of the design-build contract, the rejection of all qualifications submittals or proposals by the department, or the cancellation of the procurement;

  (4) permitting communications in exceptional circumstances and designating department personnel authorized to approve those communications, and providing that the restrictions on communications shall not preclude or restrict communications with regard to matters unrelated to the project, request for qualifications or request for proposals, or participation in public meetings of the commission or any public or proposer workshop related to the project, request for qualifications, or request for proposals;

  (5) designating a department employee not involved in the procurement to act as an ombudsman who is authorized to receive confidential communications, including questions, comments, or complaints regarding the procurement and who, after removing, to the extent practicable, any information identifying the proposer, forwards the communications to the employees designated as the department's authorized representatives; and

  (6) authorizing the executive director to disqualify a proposer from the procurement and participation in the project at issue or to impose another sanction under Chapter 10 of this title if it is determined that a proposer has engaged in any improper communications in violation of the rules of contact.

(e) Exceptions to rules of contact. Notwithstanding subsection (d)(1) of this section:

  (1) minor or specialty subcontractors that are shared between two or more proposer teams may communicate with members of each of those teams so long as those proposers establish a protocol to ensure that the subcontractor will not act as a conduit of information between the teams; and

  (2) the prohibition provided by that subsection does not apply to public discussions regarding the project, request for qualifications, or request for proposals at any department sponsored informational meetings.

Source Note: The provisions of this §9.155 adopted to be effective March 15, 2012, 37 TexReg 1780; amended to be effective September 14, 2016, 41 TexReg 7134

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