CEO 03-8 – June 10, 2003

 

POST-EMPLOYMENT RESTRICTIONS

 

FORMER STATE TECHNOLOGY OFFICE EMPLOYEES EMPLOYED

BY VENDORS WHOSE INVITATION TO NEGOTIATE RESPONSES

WERE REVIEWED BY THE EMPLOYEES

 

To:      Name withheld at person's request

SUMMARY:


Section 112.3185(3), Florida Statutes, does not prohibit former State Technology Office ("STO") employees, who serve as technical evaluators of one of four categories of responses to prospective vendors' Invitation to Negotiate ("ITN"), from accepting subsequent employment with a vendor in connection with a contract awarded as a result of the ITN, inasmuch as their participation in the procurement of the contract would not be "substantial."

 

Under the circumstances presented, without additional information about the services and/or commodities provided under the specific ITN contract, about when the contract came into existence, and about the duties and responsibilities of the STO technical evaluator relative to the specific contract, no conclusion can be reached regarding the applicability of Section 112.3185(4), Florida Statutes.

 

QUESTION:

 

Would the Code of Ethics for Public Officers and Employees be violated were former employees of the State Technology Office ("STO") to become employed by vendors whose Invitation to Negotiate ("ITN") responses were evaluated by the former STO employees while they were employed by the STO where the evaluations were based on fixed criteria which required them to "objectively compare the vendors' technical responses?"

 

            Under the circumstances presented, your question is answered in the negative.

 

            In your letter of inquiry, you advise that the Legislature authorized the STO to implement the transition of the State's information and technology infrastructure through the MyFlorida Enterprise initiative.[1]  Consequently, on May 5, 2003 the STO issued an Invitation to Negotiate ("ITN") for the development and operation of "MyFloridaNet," "a critical component of MyFlorida Enterprise" designed to replace the State's "vast SUNCOM communication network" and provide the State with a "comprehensive, reliable and robust communication infrastructure," you write.[2]

 

            The ITN mechanism, you advise, was created by the Legislature as a tool to allow agencies to "obtain the ‘best value' for the State through a competitive process which involves negotiations for the procurement of commodities or contractual services.[3]  Unlike other competitive bid processes set forth in Chapter 287, Florida Statutes, where the respondent's bid scores alone determine the successful vendor, the ITN statute allows an agency to negotiate among several top respondents and select the successful vendor based on which vendor, after negotiation, offers the best value to the State, you write.  Therefore, you advise, the award under the ITN here will include the STO's evaluations of the respondents' ITN replies based on the ITN's fixed criteria, followed by negotiations with at least two of the top-ranked respondents.  Based on the negotiations, the STO then will choose one or more vendors with whom to enter into a contract for the service areas defined in the ITN.

 

            You advise further that each vendor's responses will be scored during the evaluation process on a "total scale of 0 to 100."  Points will be awarded for each ITN category, you advise, as follows: (1) 40% for "Business Relationship," which includes the vendor's history and experience, its "proposed strategic partnering plan" with the STO, and its proposed price structure; (2) 40% for "Technical Solutions," which is based on the technical requirements set forth in the ITN, including "functionality, customer service and daily operational management"; (3) 10% for "One Florida Initiative," which is based upon the respondent's use of  "diversity"  in performing services; and (4) 10% for "Company Qualifications," which relates to the "company's background and other information relevant to its qualifications."

 

            In order to assure that the best-qualified persons review the ITN responses, you write, the STO will designate "highly qualified and proficient" STO employees to serve as "technical evaluators" with respect to the Technical Solutions category of the replies.  The evaluations, you advise, will be based on "fixed criteria" which require the STO to objectively compare technical responses.  In order to perform these technical evaluations, STO employees ("STO technical evaluators") will be provided with a "pool of questions" relating to each requirement in the ITN against which to measure the responses, you write.

 

            However, beyond scoring vendor replies based upon fixed criteria, no STO technical evaluator will be making any decisions or participating in any decision-making relative to the awarding of a contract to a particular vendor, you write.  Nor will he or she otherwise approve, disapprove, recommend, render advice about, or investigate any prospective vendors in connection with the ITN contract award process.  His or her participation in the contract procurement process will be strictly limited, you advise, to applying a "subset of fixed criteria" to the vendors' Technical Solutions responses and submitting his or her scores to the STO.  Furthermore, none of the STO technical evaluators have participated in the development of the ITN.  Nor will they either be a part of the negotiation team or participate in any aspect of the negotiation phase of the process, you write.  Each STO technical evaluator also will be required to sign an affidavit indicating that he or she neither has a contract for employment or contractual services nor has entered into negotiations for such a contract with an entity that could be awarded a contract under the ITN, you advise.       

 

            Because of the "highly technical nature" of the MyFloridaNet Enterprise, you write, the STO's use of the most qualified and experienced STO employees to evaluate and score ITN respondents' Technical Solutions replies is imperative.  However, if the application of the Code of Ethics will preclude them from future employment in connection with the ITN awarded contracts procuring MyFloridaNet services, they will not wish to serve as technical evaluators.  As a practical matter, due to the breadth in both geographic and technical scope and the significant duration of contracts awarded under the ITN, STO technical evaluators, upon leaving employment with the STO, will likely be pursuing private sector employment relating to communication technology services procured under the ITN.

 

            Relevant to your inquiry are the following provisions of the Code of Ethics for Public Officers and Employees, which provide as follows:

 

CONTRACTUAL SERVICES.—

 

(1)  For the purposes of this section:

            (a)  "Contractual services" shall be defined as set forth in chapter 287.

            (b)  "Agency" means any state officer, department, board, commission, or council of the executive or judicial branch of state government and includes the Public Service Commission.

 

*  *  *  *

 

(3)  No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an officer or employee.

 

(4)  No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his or her responsibility while an employee.

 

[Section 112.3185, Florida Statutes.]

 

 

            Section 112.3185(3), Florida Statutes, restricts the employment that the STO technical evaluators may seek after leaving employment with the STO by prohibiting them from becoming employed by a business entity in connection with a contract in which they participated personally and substantially through "decision, approval, disapproval, recommendation, rendering of advice, or investigation."  In CEO 83-8, we limited our interpretation of this list of activities to the procurement process.  Similarly, Section 112.3185(4) prohibits the technical evaluators from becoming employed in a non-agency capacity in connection with any contract for contractual services[4] which was within their responsibilities as STO employees during the two-year period following their vacating their positions.  Generally speaking, these provisions were adopted to prohibit State employees from being able to create a position with a private employer through influencing the award of a contract with that employer or mismanaging their responsibilities over that contract, and then leaving public employment to take that private position, and to prohibit the appearance of same.

 

            In CEO 82-67, we noted that Section 112.3185(4) differs from Section 112.3185(3) in three ways.  First, it is more limited as to the time period it governs--specifically, a two-year period following resignation or termination.  Secondly, it is more general as to what activities of a former agency employee are prohibited.  Thirdly, it applies only to contracts for contractual services.[5]

 

            In CEO 88-32 we also observed that Federal law provides a similar limitation on former officers and employees of the executive branch of the United States Government.  Under 18 U.S.C. Section 207(a), for example, a former Government employee is prohibited from representing any other person before, or with the intent to influence from making any oral or written communication on behalf of any other person to, the United States in connection with any particular Government matter involving a specific party in which matter such employee participated personally and substantially as a Government employee.  See 5 CFR Section 2637.201(a).  For purposes of implementing this prohibition, the Office of Government Ethics regulations state:

 

To participate ‘personally' means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter.  "Substantially," means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance.  It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue.  A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort.  While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial.  [5 C.F.R. Section 2637.201(d)] [E.S.]

 

Although we find that the STO technical evaluators' participation in the process would be "personal," we do not find that it would be "substantial" for purposes of finding that Section 112.3185(3) would prohibit their subsequent employment with a vendor in connection with a contract awarded as a result of the  ITN.  The STO technical evaluators did not conceive of the ITN.  They will not have the ability to target potential vendors for the contracts inasmuch as their roles in the process will be limited to scoring the vendors' Technical Solutions responses of the ITN by applying a "subset of fixed criteria" to those responses.  Furthermore, the scores that the STO technical evaluators give to the ITN potential vendors' Technical Solutions category of their ITN responses will be only equivalent to 40% of the total scores that the respondents' ITN responses receive, and those scores, rather than determining which vendor will receive a contract, only determine which vendor(s) will be invited to negotiate further with the STO. Moreover, no STO technical evaluator will be making any decisions or participating in any decision-making relative to the awarding of a contract to a particular vendor, including being part of the negotiation team or part of the negotiation process, you have advised.  Nor will he or she otherwise approve, disapprove, recommend, render advice about, or investigate any prospective vendors in connection with the ITN contract award process.

 

As in CEO 02-17, where we found that a former employee of the Florida Department of Transportation ("FDOT") was not prohibited by Section 112.3185(3) from working with a firm contracting with FDOT, under these circumstances we also find that the STO technical evaluators' proposed "limited involvement in the procurement process, the multi-stage [or faceted] nature of the process, [and] the subordinate nature of [their] [prospective] roles in the process to that of others" would render Section 112.3185(3) not applicable.  See CEO 87-8 (former FDOT employee's limited involvement in a contract with an engineering firm through his distribution of an "advanced notification" for the project study was not so "substantial" as to preclude his subsequent employment with the firm), CEO 95-19 (former AHCA employee's role in reviewing language in Medicaid prepaid health plan provider applications, comparing the language in the applications to the required language, and requesting supplementation when necessary, was not "substantial" so as to prohibit her employment with a health management company), and CEO 00-6 (former Governor's Office and FDOT employee's participation in the first phase of the Fast Track Grant process was not "substantial," that is, it was not of much significance in the Fast Track Selection Committee's recommendation of the Consortium's proposal to the FDOT Secretary for funding or in that of the FDOT Secretary or the Governor's Office or in the Legislature's approval of the Consortium's proposed Cross-State Rail Study project, so as to prohibit his employment as Executive Director of the Consortium.  His role was limited to acting as a facilitator, at most, in the first phase in the process.)

 

Section 112.3185(4) also would prohibit the STO technical evaluators from becoming employed in a non-agency capacity in connection with any contract for contractual services which was within their responsibilities as STO employees during the two-year period following their vacating their positions with the STO.  At this time, we do not have sufficient information regarding the ITN contracts or the duties and responsibilities of the STO technical evaluators to definitively opine on the applicability of this provision to their post-STO employment with a possible vendor.

 

In CEO 94-40, we responded to an inquiry from a  former Department of Management Services' Telecommunications Systems Consultant concerning the applicability of Sections 112.3185(3) and (4) to his acceptance of a position as an Area Tele-Link Representative with a "world-wide company involved in providing telephone and communications systems" to the State.  There, we opined that the Department's electronic key telephone contract was not a contract for "contractual services," as that term is defined at Section 287.012(9), Florida Statutes.  Similarly, it is possible that the contracts awarded here as a result of the ITN may not be contracts for "contractual services," the existence of which is necessary for Section 112.3185(4) to apply.

 

We also have indicated that the non-existence of a contract for contractual services or the award of a contract after an employee terminates his or her employment with an agency would negate the existence of a possible Section 112.3185(4) violation because the contract could not possibly be within an employee's responsibilities if it did not exist.  See CEO 00-6.  Thus, this would be a factor in determining whether an STO technical evaluator's future employment were to be prohibited by Section 112.3185(4).

 

Finally, while we have concluded that a contract would be within one's responsibility where one's duties involved monitoring the services provided under the contract, we also have found that incidental contact with the contractor as part of one's public duties does not make the contract within the employee's "responsibility."  See CEO 93-2, CEO 87-8 and CEO 85-57.  Consequently, additional information about the services and/or commodities provided under the specific contract, about when the contract came into existence, and about the duties and responsibilities of the STO technical evaluator relative to the specific contract would be required before we could opine on how or if Section 112.3185(4), Florida Statutes, applies.

 

Accordingly, while we are unable to opine on the applicability of Section 112.3185(4) at this time, we find that the participation of former STO employees who serve as technical evaluators of only the technical category of prospective vendors' ITN responses, would not be "substantial" and therefore find that Section 112.3185(3) would not prohibit their subsequent employment with a vendor in connection with a contract awarded as a result of the ITN.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 5, 2003 and RENDERED this 10th day of June, 2003.

 

 

 __________________________

Patrick K. Neal

Chair

 


[1]You write that MyFlorida Enterprise is a "comprehensive communications system" intended "to provide a robust enterprise communication structure for the State of Florida."

 

[2] Pursuant to the ITN, the STO will award contracts to one or more vendors for implementation and operation of the MyFloridaNet system, you write.

 

[3] See Sections 287.012(17) (definition of "Invitation to negotiate") and 287.057(3)(a), Florida Statutes (2002).

 

[4] For purposes of Section 112.3185(4), "contractual services" is defined as set forth in Section 287.012(9), Florida Statutes, to mean

 

the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports of findings of consultants engaged thereunder; and professional, technical, and social services.  "Contractual service" does not include any contract for the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of any facility, building, portion of building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to chapter 255 and rules adopted thereunder.

 

[5]The subject of CEO 82-67 was a former District Grants Specialist for DHRS who was employed as a fiscal manager by a corporation which was under contract with the Department.  Because the former employee's private employment was not in connection with any contract in which he "substantially participated" while employed by the Department, and because the former employee’s private employment was not "in connection with" any contract for contractual services which was within his responsibility while a State employee, we found that no prohibited conflict of interest existed.