Organizational Conflicts of Interest

PURPOSE: This rule describes the conflict of interest policy applicable to design-build projects. PUBLISHER’S NOTE: The secretary of state has determined that the publication of the entire text of the material which is incorporated by reference as a portion of this rule would be unduly cumbersome or expensive. This material as incorporated by reference in this rule shall be maintained by the agency at its headquarters and shall be made available to the public for inspection and copying at no more than the actual cost of reproduction. This note applies only to the reference material. The entire text of the rule is printed here. (1) State statutes, regulations, or policies concerning organizational conflict of interest will be specified or referenced in the design-build Request for Qualification (RFQ) or Request for Proposal (RFP) document as well as any contract for engineering services, inspection, or technical support in the administration of the design-build contract. All design-build solicitations will address the following situations as appropriate: (A) Consultants and sub-consultants who assist the commission in the preparation of a RFP document will not be allowed to participate as a proposer or join a team submitting a proposal in response to the RFP. However, the commission may determine there is not an organizational conflict of interest for a consultant or sub-consultant where: 1. The role of the consultant or sub-consultant was limited to provision of preliminary design, reports, or similar “low-level” documents that will be incorporated into the RFP, and did not include assistance in development of instructions to proposers or evaluation criteria; or 2. Where all documents and reports delivered to the commission by the consultant or sub-consultant are made available to all offerors; (B) All solicitations for design-build contracts, including related contracts for inspection, administration, or auditing services, must include an organizational conflicts of interest provision which: 1. Directs proposers attention to this section; 2. States the nature of the potential conflict as seen by the commission; 3. States the nature of the proposed restraint or restrictions, and duration, upon future contracting activities, if appropriate; 4. Depending on the nature of the acquisition, states whether or not the terms of any proposed clause and the application of this section to the contract are subject to negotiation; and 5. Specifies the information concerning potential organizational conflicts of interest apparent successful proposers shall include in their proposals. The information may be in the form of a disclosure statement or a certification; and (C) Based upon a review of the information submitted, the commission will make a written determination of whether the proposer’s interests create an actual or potential organizational conflict of interest and identify any actions that must be taken to avoid, neutralize, or mitigate such conflict. There should be an award of the contract to the apparent successful proposer unless an organizational conflict of interest is determined to exist that cannot be avoided, neutralized, or mitigated, in the judgment of the commission. (2) State laws and procedures governing improper business practices and personal conflicts of interest will apply to the commission selection team members. In design-build projects funded with federal-aid highway funds, the requirements of Title 48, Code of Federal Regulations (CFR) Part 3, Improper Business Practices and Personal Conflicts of Interest, will apply to selection team members. Title 48 CFR Chapter 3, Subchapter A, Part 303, Improper Business Practices and Personal Conflicts of Interest, is incorporated by reference into and made a part of this rule as published by the United States Superintendent of Documents, 732 N Capitol Street NW, Washington, D.C. 20402-0001, website: http://bookstore.gpo.gov on January 1, 2012. This rule does not incorporate any subsequent amendments or additions to the Code of Federal Regulations in 48 CFR Chapter 3, Subchapter A, Part 303. AUTHORITY: sections 226.020, 226.030, and 227.107, RSMo 2016.* Original rule filed Aug. 15, 2005, effective Feb. 28, 2006. Amended: Filed Dec. 5, 2017, effective July 30, 2018. *Original authority: 226.020, RSMo 1939; 226.030, RSMo 1939, amended 1965, 2003, 2004, 2009; and 227.107, RSMo 2002, 2007, 2009, 2011, 2016.