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RULE §10.6Conflict of Interest

(a) For the purposes of this chapter, a conflict of interest is a circumstance arising out of existing or past activities, business interests, contractual relationships, or organizational structure of an entity, in which:

  (1) the entity is or may be unable to give impartial assistance or advice to the department;

  (2) the entity's objectivity in performing the scope of work sought by the department is or may be otherwise impaired;

  (3) the entity has an unfair competitive advantage;

  (4) the entity's performance of services on behalf of the department or participation in an agreement with the department provides or may provide an unfair competitive advantage to a third party; or

  (5) there is a reasonable perception or appearance of impropriety or unfair competitive advantage benefiting the entity or a third party as a result of the entity's participation in an agreement with the department.

(b) A for-profit entity, including a sole proprietorship, has a conflict of interest if:

  (1) an individual who held a position at or above the level of district engineer, division director, or office director solicits business from or attempts to influence a decision of the commission or department on behalf of that entity within one year after the date of the individual's separation from the department;

  (2) a former department employee whose last salary from the department was at or above the minimum amount prescribed for salary group A17 of the state position classification salary schedule performs work on behalf of that entity regarding a specific investigation, application, request for ruling or determination, contract, claim, or judicial or other proceeding in which the former employee participated, whether through personal involvement or within the former employee's official responsibility, while employed by the department; or

  (3) the entity employs a former department employee who participated on behalf of the department in the procurement or negotiation of an awarded contract, for which the entity was the prime contractor or an equity partner of the prime contractor, unless more than two years have elapsed since the date that the contract was signed.

(c) Subsection (b)(1) of this section does not apply to a position that is designated as an interim position.

(d) For the purpose of subsection (b)(2) of this section, an individual participated in a matter if the individual made a decision or recommendation on the matter, approved, disapproved, or gave advice on the matter, conducted an investigation related to the matter, or took a similar action related to the matter.

(e) Before submitting a bid or undertaking some other interaction with the department, a for-profit entity or a former employee of the department to whom subsection (b) of this section applies may request from the department a determination of whether the interaction would constitute a conflict of interest under subsection (b) of this section. Such a request must be made in writing and must contain a concise explanation of the relevant facts. The department will not respond to a request under this subsection before consulting with the General Counsel Division. The department will issue a written determination in response to a valid request made under this subsection as soon as practicable.

(f) Subsection (b)(3) of this section applies only to an entity's employment of an individual whose participation in a procurement or contract negotiation occurs on or after September 1, 2015. Subsection (b)(3) does not apply to a contract awarded under a low-bid process.

(g) For purposes of subsection (b)(3) of this section, a person participated in the procurement or negotiation of an awarded contract only if the person played an active part in the original procurement or contract negotiation with the prime contractor or equity partner of the prime contractor by personally approving or performing a step that was materially relevant in the original procurement or contract negotiation process. An action is materially relevant if the action provides an opportunity to steer a contract toward a particular vendor, or involves the negotiation of price or contract terms with a vendor or the approval of negotiated prices or terms. Handling administrative matters and performing ministerial duties are not materially relevant steps.

Source Note: The provisions of this §10.6 adopted to be effective January 6, 2011, 35 TexReg 11951; amended to be effective May 17, 2012, 37 TexReg 3606; amended to be effective February 20, 2014, 39 TexReg 999; amended to be effective November 19, 2015, 40 TexReg 8032; amended to be effective December 6, 2017, 42 TexReg 6815

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