01.02

OPINION NO. 01-02

A consulting firm in commercial aviation has requested advice from us as to whether it may participate as a bidder on a contract with the Maryland Aviation Administration (MAA) in view of its employment of a former MAA senior management employee.1 We advise after a careful review of the information provided by the requestor, the MAA, and the former employee, that the former employee's actions while employed by MAA constituted assistance in the drafting of specifications and have the effect of disqualifying the requestor from involvement in the procurement as required by the procurement ethics limitations of §15-508 of the Public Ethics Law (State Government Article, §15-508, Annotated Code of Maryland, the Ethics Law).

The requestor is a consultant firm in the field of commercial aviation and has experience in providing services related to airfield facilities, operations planning, terminal planning, and financial planning and program implementation. The Maryland Aviation Administration (MAA, the Administration) is a modal unit of the Maryland Department of Transportation responsible for operation of Baltimore/Washington International (BWI) Airport, the State's major air carrier facility, as well as the operation of Martin State Airport in Baltimore County.

The MAA in carrying out its operational responsibilities for BWI Airport had entered into a long term agreement with the major airlines using the airport in the 1970's. This agreement, known as the Basic Use and Lease Agreement (BULA) sets forth the process whereby MAA can develop and levy rates and fees on the airlines for the use of various facilities at the airport. The signatory airlines have the right to operate a transportation system including activities necessary for the transport of passengers, property, and mail by aircraft. The BULA is set to expire on February 28, 2003.

The former MAA employee now employed by the requestor was a state employee for eighteen years, the last twelve as the Director of Aviation Financial Planning & Analysis in the Office of Finance and Administration. His duties related to the financial aspects of the MAA operations. His position description notes the purpose of the position was to analyze the financial aspects of existing, planned and proposed MAA construction activities and commercial ventures; to develop financial recommendations for use in negotiations with companies desiring to do business at the State owned airports; to develop and propose rates and charges for all facilities leased by MAA; and to make policy recommendations addressing financial issues. He also reviewed draft RFPs to ensure financial terms and conditions are consistent with MAA policy. He left MAA on March 9, 2001 to work for the requestor.

In 1999, in anticipation of the expiration of the BULA agreement in early 2003, the MAA Director of Commercial Management initiated a process to obtain consultant services to assist and advise MAA in the negotiation and development of a new BULA with the airlines. According to information provided by MAA, a draft request for proposals (RFP) was prepared by staff of the Commercial Management Office. This first draft of the RFP was circulated to various offices in September, 1999 for comment. The circulation included the offices of the MAA Deputy Administrator, MAA Counsel, Fair Practices, and Finance and Administration in addition to the Office of Commercial Management.

The former employee as the Director of Aviation Financial Planning and Analysis reviewed the first draft of the RFP and returned the draft with four comments. The MAA provided materials which indicate a series of meetings in October and November 1999 where the former employee was listed as attending and the topic of the meeting was the "BULA RFP Consultant." A second draft RFP was circulated in November 1999, and the former employee again made some comments and returned the draft on November 10, 1999. After that time, it appears that Commercial Management staff did not circulate the RFP any further but revised it and sent it to the Procurement Section to be put into the final format. The RFP was issued in its final form on June 5, 2001. The RFP included two attachments (Attachments A&E) which the Director of Commercial Management believes he asked the former employee to supply. Attachment A was a "Summary of the BULA at BWI Airport" and Attachment E was the "MAA's Policy in Setting Charges." According to the former employee, these documents had been prepared for some other purpose and were simply forwarded to the Director of Commercial Management at his request.

At our hearing, the requestor was represented by a Director of the firm and by the former MAA employee. They indicated their view that the MAA materials regarding the drafts of the RFP and the attendance at meetings in 1999 was unsubstantial participation and that the former employee's comments on the drafts were non-specification comments and not material and did not affect the scope and purpose of the RFP. Finally, they pointed to the fact that the former employee had no further role in review of the RFP after November, 1999; that he left State service in March 2001, and that the final RFP was not issued until June 6, 2001.

We have carefully considered all the information presented by MAA and the requestor, and the views expressed by the requestor. The present question arises under the procurement ethics provisions in §15-508 of the Public Ethics Law. This section prohibits an entity from bidding on or assisting with the bid for a procurement if that entity or an employee of the entity assisted the State in developing specifications, invitation for bid or requests for proposals in connection with the procurement. The Commission has addressed questions presented by this provision in several advice situations both formal and informal.

First we recognize that this section of the law has been primarily addressed in the context of an entity contracting with an agency to prepare certain planning documents. The results of the planning process become the definition of a project that subsequent bidders bid to implement. Our question then becomes whether the original work is viewed as assisting in the drafting of specifications to bar the entity from the subsequent procurements. We have addressed this kind of situation in Opinion Nos. 94-9, 95-13, 96-05, 98-01, 98-09, 99-01 and 00-01. Opinions 98-01 and 99-01 also address the architectural/engineering services exemption amendment to the law enacted in 1996.

We have also recognized from the enactment of this provision in the Law in 1994 that it would also apply to employers of former State employees who had assisted in the specifications drafting. The Commission has issued a general information memorandum on this section and noted that "...if a State employee or official assists in the specifications, that official or employee can not be in the employ of a bidder when the bid is submitted...." Opinion 99-5 noted that §15-508 while impacting primarily on private individuals and entities who are involved in defining an agency's needs in the context of a procurement, this provision also has implication for State employees who are involved in specification or RFP preparation tasks as employees and then leave the State to become employees of private entities that are or expect to be involved in submitting a bid or proposal on the procurement. Basically, the result of this provision is that if a State employee becomes an employee of a private company (whether or not he proposes to participate for the new employer in the proposal/bid), then the company is excluded from any involvement in bidding on a procurement in which the employee was involved as described in the Law.

We have also addressed what kinds of non-drafting actions would be viewed as assisting. We have noted that distinguishing between significant (but non-drafting assistance) consultation with the agency and functioning in a way that constitutes "assisting in drafting" is a factual determination to be judged by all of the surrounding circumstances. Considerations would include, but not be limited to, the nature of the input, the frequency and timing of the input, and the nature of the process, including whether, for example, there was access to draft specification documents.

In our view, the former MAA employee's review, comment, and participation activities while a senior level employee of the MAA constituted assistance in drafting specifications for the BULA consulting contract. He contributed to an agency effort designed at producing and issuing an RFP. As a senior official he was in a position to comment, question, or clarify any aspect of the RFP drafts both from his individual area of responsibility of financial management, and based on his experience with the basic use and lease agreement rates and charges. Had he remained an employee at MAA, he would have had a role and responsibility for the BULA implementation. Finally, he had access to the draft RFP documents themselves.

The Ethics Law directs the Commission to interpret its provisions liberally in order to accomplish the purposes of the Law. This circumstance is one in which we believe the law was intended to address and therefore conclude that the requestor's participation as a bidder in the current BULA advisory procurement is barred by §15-508 of the Public Ethics Law.

Charles Monk, Chairman
    Dorothy Fait
    Michael May D
    Bruce Poole
    April Sepulveda

Date: October 29, 2001

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1 The requestor has indicated that while it believes it should not be prohibited by the procurement ethics provisions from responding to the MAA subject request for proposal, it recognizes that the former senior employee of MAA is barred by the post-employment provision (§15-504(d)) from assisting it in the bid or carrying out the contract if successful.