[Code of Federal Regulations]
[Title 23, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 23CFR636.116]

[Page 189-190]
 
                           TITLE 23--HIGHWAYS
 
 CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
 
PART 636_DESIGN-BUILD CONTRACTING--Table of Contents
 
                            Subpart A_General
 
Sec. 636.116  What organizational conflict of interest requirements 
apply to design-build projects?

    (a) State statutes or policies concerning organizational conflict of 
interest should be specified or referenced in the design-build RFQ or 
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 should address the 
following situations as appropriate:
    (1) Consultants and/or sub-consultants who assist the owner in the 
preparation of a RFP document will not be allowed to participate as an 
offeror or join a team submitting a proposal in response to the RFP. 
However, a contracting agency may determine there is not an 
organizational conflict of interest for a consultant or sub-consultant 
where:

[[Page 190]]

    (i) 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 offerors or evaluation 
criteria, or
    (ii) Where all documents and reports delivered to the agency by the 
consultant or sub-consultant are made available to all offerors.
    (2) All solicitations for design-build contracts, including related 
contracts for inspection, administration or auditing services, must 
include a provision which:
    (i) Directs offerors attention to this subpart;
    (ii) States the nature of the potential conflict as seen by the 
owner;
    (iii) States the nature of the proposed restraint or restrictions 
(and duration) upon future contracting activities, if appropriate;
    (iv) Depending on the nature of the acquisition, states whether or 
not the terms of any proposed clause and the application of this subpart 
to the contract are subject to negotiation; and
    (v) Requires offerors to provide information concerning potential 
organizational conflicts of interest in their proposals. The apparent 
successful offerors must disclose all relevant facts concerning any 
past, present or currently planned interests which may present an 
organizational conflict of interest. Such firms must state how their 
interests, or those of their chief executives, directors, key project 
personnel, or any proposed consultant, contractor or subcontractor may 
result, or could be viewed as, an organizational conflict of interest. 
The information may be in the form of a disclosure statement or a 
certification.
    (3) Based upon a review of the information submitted, the owner 
should make a written determination of whether the offeror'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. The owner should award the contract to the 
apparent successful offeror unless an organizational conflict of 
interest is determined to exist that cannot be avoided, neutralized, or 
mitigated.
    (b) The organizational conflict of interest provisions in this 
subpart provide minimum standards for STDs to identify, mitigate or 
eliminate apparent or actual organizational conflicts of interest. To 
the extent that State-developed organizational conflict of interest 
standards are more stringent than that contained in this subpart, the 
State standards prevail.