CEO 75-203 -- November 6, 1975

CONFLICT OF INTEREST

PROFESSOR PREPARING BID SPECIFICATIONS ON A PROJECT UPON WHICH HIS UNIVERSITY MAY BID

To: Walter R. Courtenay, Jr., Florida Atlantic University, Boca Raton

Prepared by: Gene Rhodes

SUMMARY:

A university professor who is hired by a county to write specifications for an ecological monitoring project may not then bid on the project on behalf of his university. The Code of Ethics stipulates that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." In the instant situation, the possibility for fair competition in bidding is threatened, presenting a conflict of interest.

QUESTION:

Does a prohibited conflict of interest exist where I, as a professor at Florida Atlantic University, contract in a private capacity to prepare bid specifications on a project upon which F.A.U. may bid?

This question is answered in the affirmative.

You have advised us that the Administrator of the Erosion Prevention District Advisory Committee of Broward County has asked you to prepare research guidelines (bid specifications) for an ecological monitoring project for the Broward County Environmental Control Board. You would prepare this project outline as a private consultant and would be compensated for your work by Broward County. Once the guidelines are prepared, you may submit a bid for the project in your capacity as Professor of Zoology at Florida Atlantic University. You would be bidding as an agent of F.A.U., and should the university be granted the project, you will receive no personal remuneration for your work thereon other than your usual salary from the university. Firms from the private sector will be competing for the contract.

The conflict of interest question which you wish resolved falls within the scope of s. 112.311(1), F. S. (1974 Supp.), which provides in pertinent part that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." As stated in a previous opinion of this commission, CEO 75-171, it is our view that one who prepares bid specifications in effect shapes the project in such a manner that some potential bidders will be well-suited to undertake the work while others will be unable to comply with the requirements. Where the person who prepares the guidelines is himself a potential bidder, the possibility for fair competition in bidding is greatly diminished, for, in drawing on his own experience and resources, he will almost surely be in a better position to meet the specifications than will other interested bidders. Further, his possessing the opportunity to actually manipulate requirements in his own favor would present, at minimum, the appearance of impropriety. In either case, the Environmental Quality Control Board will be less able to impartially judge the bids presented.

Therefore, should you contract to prepare research guidelines for the Port Everglades project and subsequently submit a bid on behalf of F.A.U. for undertaking the research, we believe that a conflict of interest would exist.