(8) Procurement and financial services. A consultant
actively engaged and performing procurement services or financial
services with respect to a comprehensive development agreement 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. A consultant actively engaged and performing
procurement services or financial services 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 another comprehensive development agreement project,
or may have a financial interest in any of the foregoing entities
with respect to another comprehensive development agreement project,
provided the consultant submits a request for a written determination
under paragraph (9) of this subsection that establishes to the commission's
satisfaction that such participation or interest would not constitute
a conflict of interest or create the appearance of a conflict of interest,
and the consultant institutes ethical walls or other safeguards required
by the department.
(9) Requests for determinations or exceptions. A consultant,
proposer, or developer may submit a request to the executive director
for a determination whether participation in a comprehensive development
agreement project or the performance of particular services with respect
to a comprehensive development agreement project would constitute
a conflict of interest, or to request 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 developer 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 commission
or executive director, as appropriate, shall consider the executive
director's recommendation and:
(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 comprehensive development agreement 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 will be applied.
(11) Participation on proposer or developer team. A
consultant participating with respect to a comprehensive development
agreement project as a proposer or developer, or as an equity owner,
team member, consultant, or subconsultant of or to a proposer or developer,
or having a financial interest in any of the foregoing entities, is
eligible to provide consultant services (other than procurement services)
to the department for another comprehensive development agreement
project, provided that, once 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 has been met), or grants an exception to the
application of this subsection under paragraph (9), 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 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
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