| Advisory Opinion request of Joanna Redmond, on behalf of AECOM Technical Services Inc., regarding an upcoming Request for Proposal issued by the Office of Community Development. |
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The Office of Community Development ("OCD"), within the State's Division of Administration, is responsible for administering the Restore Louisiana Program, which allocates funding from the U.S. Department of Housing and Urban Development through community development block grants to support long-term recovery efforts from federally declared disasters, such as the floods of 2016, Hurricanes Laura and Delta in 2020, and Hurricane Ida in 2021. OCD is also responsible for administering the Louisiana Watershed Initiative, which was tasked to reduce flood risks in the state. To accomplish these tasks, OCD enters into contracts with third-party entities pursuant to the State's procurement laws and rules.
OCD - LOUISIANA WATERSHED INITIATIVE
In 2019, AECOM entered into Contract No. 2000436361 with OCD, to provide the following tasks in connection with the Watershed Initiative: (1) Watershed Council and Initiative Administrative Support; (2) policy and program development; (3) technical assistance and evaluation; (4) outreach and engagement; (5) regional planning and organization development and plans; and (6) statewide plan development. The term of this contract currently ends on October 13, 2022. The Contract contains an acknowledgment that the Ethics Code applies to AECOM in the performance of services called for in the contract. The Contract also provides that performance will be measured by a state program manager who is authorized on behalf of the state and that OCD will monitor the services provided by AECOM.
OCD - RESTORE LOUISIANA PROGRAM
Dynamic Group LLC ("Dynamic") has been selected by OCD as the prime contractor for RFP No. 107140-064 for building and construction management services to support the Restore Louisiana Program, and is in the process of finalizing the contract with OCD. AECOM has agreed to partner with Dynamic to act as a subcontractor on this contract. AECOM's expected duties include reviewing scope adjustments requested by builders, supporting the project team by reviewing draw requests from the builders and performing controller functions, and conducting progress inspections during construction. However, since the contracts have not been finalized, AECOM has not yet performed any building and construction management services. RFP No. 107140-064 contains a requirement that the contractor shall be responsible for determining that no conflict of interest exists in violation of the Code if the contractor is awarded the contract.
In 2019, OCD entered into Contract No. 2000462471 to provide implementation and administration services for the Restore Louisiana Program. That contract term ends on November 17, 2022. The contract's scope of services is for program management services and requires that the contractor shall be directly responsible for ensuring the accuracy, timelines, and completion of all tasks assigned under the scope of services. This contract's scope of services also includes oversight of the building/construction management services under the Restore Louisiana Program, which includes completing all reconstruction, rehabilitation, new construction, elevation, housing plans, permits and local fees, along with demolition activities for eligible homeowners. The scope of services under Contract No. 2000462471 contains supervision over many of the same services as the duties required in RFP No. 107140-64. This contract also contains an acknowledgement that the Contractor is subject to the Code in the performance of the services.
OCD - POTENTIAL NEW CONTRACT
It is anticipated that OCD will soon issue a new RFP for the procurement of these administrative services over the Restore Louisiana Program since Contract No. 2000462471 did not contain any provisions for the extension of its term. The new prime contractor will be responsible for implementing and completing tasks, such as processing applications, entering into agreements with subcontractors and third-party vendors, disbursing funds, monitoring compliance, and completing all other tasks assigned by OCD to close out the Restore Louisiana Program.
AECOM intends to submit a proposal as prime contractor in response to the anticipated RFP. Neither AECOM, nor Dynamic, were involved in the drafting of the details or specifications of the anticipated RFP. Additionally, neither AECOM, as subcontractor, nor Dynamic, as prime contractor, under RFP No. 107140-64, will have any supervision or jurisdiction over the services provided by the prime contractor under the new program management contract. However, there is a chance that AECOM, if selected as prime contractor, would be required to inspect and approve work performed by Dynamic and AECOM under the RFP No. 107140-64.
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La. R.S. 42:1102(19) defines "public servant" as a public employee or an elected official. La. R.S. 42:1102(18)(a)(iii) defines "public employee" as anyone, whether compensated or not, who is engaged in the performance of a governmental function or who is under the supervision or authority of an elected official or another employee of the governmental unit.
La. R.S. 42:1113A(1) provides:
No public servant, excluding any legislator and any appointed member of any board or commission and any member of a governing authority of a parish with a population of ten thousand or less, or member of such a public servant's immediate family, or legal entity in which he has a controlling interest shall bid on or enter into any contract, subcontract, or other transaction that is under the supervision or jurisdiction of the agency of such public servant.
La. R.S. 42:1111C(1)(a) provides:
No public servant shall receive any thing of economic value for any service, the subject matter of which is devoted substantially to the responsibilities, programs, or operations of the agency of the public servant and in which the public servant has participated;
La. R.S. 42:1112A provides:
No public servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity.
La. R.S. 42:1112B(5) provides:
No public servant, except as provided in R.S. 42:1120, shall participate in a transaction involving the governmental entity in which, to his actual knowledge, any of the following persons has a substantial economic interest: Any person who is a party to an existing contract with such public servant, or with any legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, or who owes any thing of economic value to such public servant, or to any legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, and who by reason thereof is in a position to affect directly the economic interests of such public servant.
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Adopt draft advisory opinion.
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| Assigned Attorney: |
David Bordelon |
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