This article is an excerpt from the 2023 edition of The Art of Tendering: A Global Due Diligence Guide.
In its April 2022 decision in Re: David N. Tolces, the Florida Division of Administrative Hearings determined that an incumbent lawyer breached statutory conflict of interest rules by improperly interfering with a contract award decision during a legal services Request for Proposal (RFP) process.
The case considered whether the respondent violated Florida statute “by using his official position in an attempt to secure a special privilege or benefit for himself and/or his law firm.” The respondent worked as general counsel for the Broward County Housing Authority (BCHA) for approximately 15 years as the designated lawyer from his law firm. That retainer was extended on an interim basis while he submitted a proposal on behalf of his firm in response to a new legal services RFP. The RFP terms included cone of silence provisions prohibiting proponents from communicating with agency staff, other than the official contact person, about the bidding process.
However, after the RFP evaluation committee recommended another law firm for the contract award, the respondent interrupted BCHA Board proceedings during an online meeting to make submissions on behalf of his firm. The Board terminated that meeting without making an award decision, but later reconvened and unanimously approved a motion to begin contract award negotiations with the competing law firm originally recommended by the evaluation committee.
The respondent was subsequently charged by Florida’s Commission of Ethics with violating section 112.313(6) Misuse of Public Position of the Florida Statutes, which states that:
No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.
As the judge summarized, section 112.312(9) of the Florida Statutes defines “corruptly” as “done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.”
In his testimony the respondent confirmed that he had been speaking on behalf of himself and his law firm at the meeting, was aware that the final award had not been made, and was aware of the cone of silence protocols in effect at the time. However, he maintained that the relevant statutory provisions allowed him to speak at the public board meeting as a member of the public when the contract award recommendation was being considered by the Board.
The judge disagreed, noting that the public meeting provisions in the statute were subject to the rules or policies adopted by a board or commission. Further, the respondent had already been given two opportunities to speak to the RFP on behalf of his firm during the evaluation process. As the judge concluded, this meant that the respondent “had a full and fair opportunity to be heard and advocate for himself and his firm as a member of the public and as a proposer under the RFP.” The judge found that the respondent took improper advantage of his position to interject himself into the RFP contract award decision-making process.
Turning to the specific elements of the statutory offence, the judge ruled that the first element was met since the respondent was at the time acting as a local government attorney. With respect to the second element, the judge ruled that the respondent “initiated improper contact between himself and the BCHA Board during a period when the cone of silence was in effect” and “during a portion of the meeting when public comments were not permitted.” In support of the conclusion on the second element, the judge stated that the respondent “could not lawfully step away from his role as the Board’s attorney, with its attendant duties and responsibilities, and advocate on behalf of his law firm during the portion of the May 19, 2020, meeting he chose.” Turning to the third element of the statutory violation, the judge determined that the respondent’s actions were taken to secure a special privilege or benefit for himself or others since he had attempted to influence the contract award decision under the RFP on behalf of his firm. Finally, turning to the fourth element of the violation, the judge found that the respondent used his position “corruptly” as defined by the statute, stating that the respondent had “interrupted the meeting with prepared notes for the purpose of improperly influencing the process in an unfair manner” and that his “violation was an attempt to subvert and compromise the integrity of the process and was contrary to fair competition.”
Noting that the public nature of the proceedings had already served as a form of censure, the judge limited the penalty for the statutory violation to a fine of $2,500.
This case serves as a useful reminder to all public institutions to adopt clear contract award procedures and shield their award decisions from improper influence.
