| (B) condition an approval, determination, or exception
as the commission or executive director determines appropriate to
further the intent and goals of this subsection, including by requiring
the consultant, subconsultant, proposer, or developer 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 comprehensive development agreement 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. The provisions of this
subsection shall not be construed to preclude or condone any conduct
with regard to projects other than projects under a comprehensive
development agreement. The department will continue to evaluate other
projects based on its traditional conflict of interest standards.
(d) Rules of contact. In order to provide a fair and
unbiased procurement process, a request for qualifications, request
for proposals, or request for competing proposals and 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, request for proposals,
or request for competing proposals and qualifications. 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, request for proposals,
or request for competing proposals and qualifications, 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, request for proposals, or request for
competing proposals and qualifications 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, request for proposals, or
request for competing proposals and qualifications 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 comprehensive development
agreement, 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 such communications,
and providing that the restrictions on communications shall not preclude
or restrict communications with regard to matters unrelated to the
request for qualifications, request for proposals, or request for
competing proposals and qualifications, or participation in public
meetings of the commission or any public or proposer workshop related
to the project, request for qualifications, request for proposals,
or request for competing proposals and qualifications;
(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 §27.9 of this subchapter
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) 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, request for proposals, or request for competing proposals
and qualifications at any department sponsored informational meetings.
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