95.13

OPINION NO. 95-13

An advisory opinion has been requested on behalf of two private business entities (the Requestors) regarding application of the procurement ethics provisions of the Public Ethics Law (State Government Article, §15-508 (formerly Article 40A, §3-110), Annotated Code of Maryland) to the selection of an A/E contractor for the renovation of the Eastern Correctional Institution (ECI) kitchen. We advise, based on the information provided, particularly as to the timing of these activities, that these vendors are not barred by §15-508 from bidding on subsequent phases of the renovation project.

Section 15-508 of the Ethics Law bars an individual or entity who assists in the drafting of specifications for a procurement from subsequently participating as a bidder in the procurement. This provision grew out of the activities of a 1993 legislative task force that addressed several aspects of the procurement process, including the potential for conflict of interest when nongovernment participants in the development of specifications and requests for proposals are not precluded from participating in the procurement and may thus be in a position to benefit their own interests. In a previous Opinion (No. 94-41) applying this provision, we advised that contractual work developing design documents for a project would constitute assisting in the development of specifications, and that if such activities occurred after the Law's October 1, 1994 effective date then the vendor would be barred from participating as a bidder after October 1, 1994 in a contract to implement the next phase of the project.

The particular situation involving the Eastern Correctional Institution involves application of this provision to various stages of a capital improvement project. Such projects tend to proceed within a certain structural framework under which fiscal and program justification documents are prepared for legislative review. These documents become the basis of legislative funding, and are used, in varying degrees, in developing subsequent procurement documents for purchasing of design and construction services for implementing the project. The program document for the ECI project was generated by the Requestors as the primary and subcontractors to the Department of Public Safety and Correctional Services, and the agency is in the process of bidding the design part of the project. Though we believe that as a general matter development of a program document of this type would constitute assisting in the specifications for subsequent phases of the project, an initial question presented in this situation is whether the work in the program phase was actually completed by the Requestors prior to October 1, 1994. If this is the case, then §15-508 would not prohibit their later participation in the project.

The Requestors were selected by a competitive process in 1993 to perform the program services in connection with this renovation project. According to representatives of the Requestors, this work was completed and submitted to the agency for comment in July 1994. It was revised and finally submitted on September 24, 1994. The Requestors indicate that an invoice was submitted on November 9, 1994 for work done, which was paid in February 1995. Both the Requestors and the agency advise that the contract has thus been paid in full and that there are no subsequent billings or payments due for the program aspect of the project. The agency did contact the Requestor for clarification of the program document during 1995, particularly as to cost information included in the document, and representatives of both vendors responded to these requests. The Requestors and the agency, however, indicate that these clarifications did not involve development or provision of any new information or new cost figures for the project and there was no involvement in the development of specifications. As noted above, there were no subsequent billings for these informational activities and no payment is owed to the Requestors in connection with these activities.

Under all of these circumstances, and based on the information provided by the Requestors and the agency, we conclude that the actions of the Requestors after the effective date of §15-508 did not constitute assistance in drafting the specifications for the design procurement currently in process. This provision would therefore not apply to bar their participation as bidders or subcontractors in this phase of the project. We reiterate, however, that this advice relates to the narrow question of the activities after the effective date of §15-508. As a general matter, we believe that where an individual or entity has been involved in developing program documents as described here, participation as a bidder in the subsequent procurement is intended to be prohibited by this provision of the Law.

Mark C. Medairy, Jr., Chairman
   Michael L. May
   Charles O. Monk, II
   Robert J. Romadka
   April E. Sepulveda

Date: December 13, 1995

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1 Opinions published at COMAR, Title 19A.