96.05

OPINION NO. 96-05

An opinion has been requested by the University of Maryland College Park (UMCP) as to whether the procurement ethics provision of the Maryland Public Ethics Law (State Government Article, §15-508, Annotated Code of Maryland) applies to bar the eligibility of an architect and two consultant firms who developed a program document for renovation of UMCP's Stamp Student Union from bidding for the design award for the project. Based on our previous interpretations of this provision, and the information provided by the State agencies and the parties, we believe that the involvement by these entities in the design procurement was inconsistent with §15-508, and that their further participation in this procurement is prohibited.

This request involves a $40M project to renovate the Stamp Student Union at the UMCP campus. The project was begun with a competitively bid contract between UMCP and an architectural/engineering firm (the Architect) to develop a program document for the project. The contract was awarded in November 1993 with a completion date of June 27, 1994 and had a value of $76,470. The Architect worked on the program during 1993 and 1994 and on October 7, 1994, well beyond the contract completion date, a draft document was submitted. Subsequent comments were provided, meetings were held, changes were made and the final document was submitted in March 1995. We are advised by the University that this document is being utilized as the specification vehicle to procure design services for renovation of the Student Union. Proposals were requested in February 1996 for the design phase of the project and the records show 97 firms having expressed an interest in the project. Eleven submissions were received by the April 3, 1996 response date. The Architect submitted a proposal that included one of its consultants, and the consultants were each included in the submission of one other proposer, thus impacting on three of the 11 submissions.

The Ethics Law was amended effective October 1, 1994 to include a provision at §15-508 prohibiting an individual who assists an executive unit in the drafting of specifications, an invitation for bids, or a request for proposals for a procurement, or a person who employs the individual, from submitting a bid or proposal for that procurement, or assisting or representing another person, directly or indirectly, who is submitting a bid or proposal for that procurement. The Commission issued a general memo on August 30, 1994 addressing potential issues under the provision, including an indication that individuals who are paid by the State to assist in covered activities are barred from bidding on the later procurement, and an indication that the law would not apply to bar procurement activity on a procurement taking place after the Law's October 1, 1994 effective date if the assisting activity occurred entirely prior to the effective date.

Subsequently, we issued two opinions dealing with this provision. Opinion No. 94-9 involved an effective date question where work was clearly done by the entity after the October 1, 1994 effective date in preparing specification documents for a computer system purchase that was to occur in 1995. In that opinion we advised that the bar applied if work was done after the effective date despite the fact that the work was pursuant to a contract entered into between the entity and the agency prior to the effective date. Opinion No. 95-13 also involved effective date issues, where the question was whether the vendor's activities after the effective date actually constituted assisting in specification drafting. This opinion involved a program document development process very similar to the situation here. In that situation, the Commission considered information provided by the vendors and the agency and concluded that the work done after the effective date was minimal, and the bar was found not to apply, as the vendors did not perform any of the requisite assisting activities after the Law's effective date. We did in that opinion, however, suggest that participation in program documents in these types of situations would likely be viewed as participation in specifications drafting.

In considering the situation here, we believe that the legal reasoning of Opinion No. 94-9 applies, and the existence of a prior contract and its language would not preserve a vendor's right to participate in a later procurement, based on the law in effect at the time of that procurement. Moreover, it is our view that the program development activities undertaken by the entities here constitute assisting in specification drafting by all of the entities at issue. We are advised in this regard that the program document is the basis for the procurement of design services. The RFP issued by the Department of General Services references the availability of the program documents specifically. Also, University staff indicate that the budget information developed by the program contractor is the basis for basic cost and price information also included as part of the specification materials. We therefore believe that assisting in developing this document is assisting in specification drafting as contemplated by the §15-508. This is the approach taken by the Commission in Opinion No. 95-13, and to take a narrower approach viewing only part of the procurement package as the specifications in this matter would, we believe, be inconsistent with the purpose and intent of this Law.

The question presented in this situation is therefore whether as a factual matter any assistance activities occurred after the October 1, 1994 effective date. A review of the information provided suggests that there was significantly more substantive activity here than was the case in Opinion No. 95-13. After submission of the draft document, which was after the effective date, the University provided 13 pages with 114 numbered comments to the Architect and its consultants. In addition to editorial and technical comments, a large number were substantive comments. These included discussion of the exterior facade, directions that one of the consultants write more on conditions relating to the kitchens and food court, required corrections to diagrams, identified a major component as missing from the document addressing the link between the facility assessment and the proposed construction phasing, and expressed concerns about the location and sizing of restrooms. Meetings were held including representatives of all three entities and adjustments were directed to be made regarding the dining services area. Cost estimates were submitted in January and the final document submitted in March 1995. This document shows a variety of adjustments, including expansion of some discussions and reconfiguration of space allocation forms (in which the other consultant apparently played a major role), and there were major reconfigurations of the space organization and requirements in some of the program offices.

Moreover, the records indicate that payments were made to the Architect after October 1, 1994 (primarily in January 1995 and later) that represent 25 percent of the contract price. Apparently some of these payments reflect retained compensation that was held up until January 1995 based on the University view that the project was not substantially completed. Also, records provided by the Architect suggest that of the total of 3100 hours devoted to the project, over 500, or approximately 17 percent, were after the October 1, 1994 effective date of §15-508. Under the circumstances, we must conclude that the Architect and the two consultants provided assistance to the University after the law's October 1, 1994 effective date in developing the program document that became a significant part of the specifications materials relied upon in the subsequent procurement for design services, and that their submission of or participation in the preparation of proposals was inconsistent with the provisions of §15-508.

Amendments made to the Law in the 1996 legislative session add several exceptions to §15-508, including a provision that "assisting" does not include "providing architectural and engineering services for programming, master planning, or other project planning services." We believe that this Commission's mandate under the Law is to apply it as it existed at the time of the conduct. Based on the existence of the Law, and our previous advice and substantial information distribution regarding this provision, we believe that the submission of proposals here involved conduct that could have and should have been avoided. The Law bars submission of a proposal or assistance in development of a proposal, both activities that were completed here at a time when the participation prohibition was in effect and prior to the enactment of any specific language allowing for an exception for this particular type of conduct. Under the circumstances, we believe that §15-508 applies to this situation, and that since the Architect and its consultants engaged in activity that constituted assistance in specifications drafting, their participation in the currently pending procurement is inconsistent with the Law.

Mark C. Medairy, Jr., Chairman,
   Robert J. Romadka,
   April E. Sepulveda

Date: June 27, 1996