98.01

OPINION NO. 98-01

An opinion has been requested as to whether the exception for architect and engineering services in the procurement ethics provisions of §15-508 of the Ethics Law can be applied to allow an architectural firm (the Requestor) that prepared program documents and the Request for Proposals (RFP) for a State facility to participate as a consultant to a design-build contractor bidding on the project. We advise based on the facts presented that involvement in the ongoing procurement by the Requestor is barred by this provision of the Law, as the architectural engineering exception to the prohibition was not intended to apply where the individual/entity actually prepared the bidding documents for a procurement, as was done here.

This request arises from a process under way by the Office of Employment and Training in the Department of Labor, Licensing, and Regulation (DLLR) for creation/replacement of workforce development centers around the State. The activity was begun in 1993 with development of a prototype program for these facilities by the Requestor. The work was done pursuant to an Indefinite Delivery Contract Agreement with Architects and Engineers dated July 22, 1993. Under this agreement the Requestor produced a program description and a Part II Project Description of Prototype Layouts for Three Office Configurations. This program document, submitted and accepted in Fall 1994, includes provisions regarding general requirements, consultant responsibilities, site requirements, architectural program information, building plans, architectural design, design guidelines, and Appendices including prototype descriptions and schematic drawings for three sizes of facilities. Subsequently, as required by the legislative authorization, site specific programs are being developed in order to adapt the prototype to specific spaces and buildings acquired or held by the agency for use for these facilities. The Requestor was retained to prepare site specific programs for two initial sites, and also to prepare a design-build solicitation package for these sites. The Requestor did not bid on implementation of these procurements.

The Towson Workforce Development Center is the third of the projects to be implemented. In November 1996 the Requestor submitted a proposal to perform the same Part II site specific program services for this site as it had done for the two previous sites, including preparation of the program and of the design-build RFP. The original indefinite services contract had been ended by this time and because DLLR wanted to use the same contractor who had prepared the prototype, DGS awarded the contract as a sole source, apparently as a purchase of services contract, not as an architect engineering procurement. The Requestor submitted the Project Description for the Towson facility on February 4, 1997 and the RFP on February 2, 1998. This document is the basis upon which bids are being made for the construction/renovation of the building under the design-build process. A review of the three documents—the prototype program, the Towson site specific program, and the Towson RFP—reveals that there are parts of the documents that are nearly identical, including general requirements sections, site requirements discussions, the building plans and design guidelines sections, and the program space requirements forms and schematic drawings. The Requestor indicates that he has been requested to serve as the architect for a team being put together by one contractor to bid on the design-build project.

This request involves application of §15-508 of the Public Ethics Law (State Government Article, §15-508, Annotated Code of Maryland). Added to the Law in 1994, this section prohibits 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. A general information memorandum was issued on August 30, 1994 addressing potential issues under this 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. This advice was further clarified in our Opinions No. 94-9 and 95-13, where we considered the types of documents and processes at issue here and suggested that participation in program documents in these types of situations would likely be viewed as participation in specifications drafting. The same approach to these types of documents was taken in connection with Advisory Opinion No. 96-5 involving a University of Maryland project, and in several informal advice situations.

In part, however, as result of concerns raised by procurement personnel and vendors in response to enactment of §15-508, amendments were proposed to the Law and enacted in the 1996 Session of the Legislature. These amendments added several exceptions to clarify application of the Law, as well as a specific provision addressing architectural and engineering activities. Specifically, subsection (b)(4) now provides that assisting in specification drafting for purposes of §15-508 does not include "providing architectural and engineering services for programming, master planning, or other project planning services." This exception was added to the legislation quite late in the legislative process, and according to our legislative records, the addition of the specific architectural and engineering reference during the conference committee review was intended to narrow the scope of the exception to some extent. In evaluating the language of the exception as part of implementing the Law, the Commission and staff considered a variety of potential issues with legislative staff personnel as well as representatives of the Attorney General's Office involved in procurement matters. The result of this review was amendment of the information memorandum to include a question relating to application of the architectural engineering exception, noting particularly that "the Law allows an exception for A&E services only as to those specific functions outlined in the Law."

It is our view that §15-508 applies to prohibit the Requestor's involvement in the ongoing procurement and that this exception language would not apply to overcome this bar. As an initial matter, the Requestor assisted in drafting the specifications for the Towson facility design-build procurement. The RFP includes materials identical to those included in the prototype and site specific programs created by the Requestor, and the process is identical to that followed for the prior two facilities, in both of which the Requestor prepared the RFP. The Requestor's proposal in November 1996 specifically included a program piece and an RFP drafting piece and a cost proposal for development of the RFP, and the letter contract from DGS refers to the whole proposal and is for the full amount for both pieces. Moreover, the Requestor has specifically stated that he prepared the RFP. It is thus clear that he assisted in drafting specifications for a procurement as contemplated in §15-508.

We recognize that subsection (b)(4) of §15-508 allows exception for architectural and engineering services for programming, that the Requestor is an architectural firm, and that these are substantially programming documents. In our view, however, subsection (b)(4) establishes an exception to a general rule and therefore must be applied narrowly and carefully, consistent with its intention. As noted in our prior memorandum, we believe this intention was to limit the exception to specific functions listed in the provision. It was intended to allow agencies to acquire certain technical and professional assistance in preliminary planning and programming activities from architectural and engineering firms who might otherwise avoid this work rather than lose the opportunity to participate in later stages of a project. The exception, however, was not intended to allow agencies to abrogate their responsibility as purchasing entities by contracting with a private entity to actually draft the RFP. The RFP is fundamentally a decision document reflecting a consideration of technical information acquired or developed in programming and planning work. It is therefore our view that preparing an RFP or similar procurement documents that define the agency's needs and establish the process by which bidders or offerors can participate in the process is not an architectural or engineering function related to planning or programming, and was not an activity intended to be allowed by this exception for those who expect to participate in the procurement.

We therefore advise that the Requestor's involvement in preparation of the RFP for the procurement of design-build services for the Towson project was not covered by the subsection (b)(4) exception and that the entity is thus barred by §15-508 from being included as part of a team that is bidding on this procurement.

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

Date: April 7, 1998