Consultant Conflict of Interest and Disclosure Guidelines
The Department’s intent and goals are to (i) ensure the integrity and fairness of all procurements carried out by the Department; (ii) avoid circumstances where certain consultants or proposers obtain, or have the appearance of obtaining, an unfair competitive advantage as a result of work performed for the Department or the State; and (iii) protect the Department’s interests, and confidential and sensitive project-specific and programmatic information. In consideration thereof, the Department will expect the following with respect to your firm’s work for us and other entities:
- No Hostile Positions or Interests. A consultant will not knowingly support, advance or endorse any project, plan, position or initiative that is hostile to or incompatible with the Department’s known positions or interests.
- Confidentiality. Except as otherwise instructed by the Department, a consultant will maintain the confidentiality of all proprietary, trade secret, sensitive or other confidential or non-public information it receives as a result of its work.
- No Added Imposition. In addressing conflicts resulting from its work for the Department and another client of the consultant, the Department will not be required to expend more money or to work with different firms or representatives of the consultant than would be required if the conflict did not exist. In other words, the Department should not be required to separately retain a new firm in order for the consultant to support or represent another client.
- Incompatible Service. A consultant actively engaged and providing advisory services to the Department with respect to the its P3 program may not participate as an equity owner, team member, subconsultant or consultant of or to a proposer for any P3 project or have a financial interest in any of the foregoing entities with respect to such projects. Further, a consultant who serves as a financial advisor to the Department cannot serve as a financial underwriter for P3 projects.
- Previous Work. A consultant previously engaged to provide services to the Department may be a proposer or participate as an equity owner, team member, consultant or subconsultant of, or to a proposer for a P3 project or have a financial interest in any of the foregoing entities with respect to that project provided that the Department is satisfied that (i) the consultant did not have access to or obtain knowledge of confidential or sensitive information, procedures, policies and processes that could provide an unfair competitive advantage with respect to the procurement for that project; (ii) the data and information provided to the consultant in the performance of the services is either irrelevant to the procurement or available on an equal and timely basis to all proposers; (iii) the work products from the consultant incorporated into or relevant to the procurement for that project are available on an equal and timely basis to all proposers; (iv) there will be no adverse impact on the Department’s project financing plans, including the ability to obtain and close funding and potential sources of funding; and (v) the Consultant has not been under contract for this RFP with the Department for a minimum of 12 months.
When a consultant identifies a potential conflict between its obligations to the Department and another client, the consultant shall promptly notify the Department’s designee of the potential conflict. The Department will make a determination of the existence and magnitude of the conflict. If the Department determines that no conflict exists, the Department will provide the consultant with a waiver or consent to undertake the applicable work for the other client. Thereafter, however, the consultant shall immediately notify the Department if the nature of that work changes in a manner that indicates a potential conflict.
If the Department determines that the potential conflict cannot be addressed solely with a waiver or consent, the Department will evaluate with the consultant the possible strategies to address the conflict. The Department hopes that if any conflicts arise, they can be resolved in a mutually acceptable and advantageous way. However, the Department’s decision as to how best to address the matter, up to and including enforcement of the Consultant’s duties under the contract, will be final.
Anyone who is required to sign a Confidentiality Agreement must also complete the following:
I have disclosed any potential conflicts of interest on the attached Disclosure Statement Form, or alternatively, I hereby certify that to the best of my knowledge, I do not have a conflict of interest, either real or apparent, as a result of a direct or indirect financial interest on my part or that of any member of my immediate family, nor of my employer, partner(s), or joint venture members, in any firm under consideration for the public-private agreement associated with the Project. I agree not to solicit or accept gratuities, unwarranted privileges or exemptions, favors, or anything of value from any firm under consideration for the public-private agreement associated with the Project, and I recognize that doing so may be contrary to statutes, ordinances and rules governing or applicable to THE DEPARTMENT or may otherwise be a violation of the law.