| 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 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.
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