February 3, 1988

FACTS:

You are a state official and oversee the procurement process. You state that it is common practice for the commonwealth, as part of the request for proposal (RFP) for some high-technology procurements, to reserve the right to have the bidder demonstrate the operation of the product. The bidder agrees, by responding to the RFP, to bear all costs of transporting state employees who comprise the selection committee, or a designated subgroup thereof, to the demonstration site. You indicate that the bidders usually pay for all transportation, meals and lodging associated with the demonstration. The selection committee visits only those bidders who have been determined to be within the competitive range. Those bidders who do not meet the technical specifications of the RFP and those who do not rank high in the combined cost and technical ranking are eliminated from the demonstration step.[1]

You have stated that certain high-technology products need to be demonstrated to be assessed intelligently. You have also stated that, as you understand it, the practice of bidder-subsidized selection committee visits is

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a common practice in the private sector for all procurements, not merely those that could be characterized as "high technology."

QUESTION:

Does G.L. c. 268A, s.3 permit state employees to use bidder-subsidized travel to visit demonstration sites?

ANSWER:

No, unless such permission is authorized by statute or regulation.

DISCUSSION:

Selection committee members, as employees of the procuring agency, are state employees as defined in the conflict of interest law. G.L. c. 268A, s.1(q). Section 3(b) of G.L. c. 268A prohibits state employees from, otherwise than as provided by law for the proper discharge of official duty, seeking or receiving anything of substantial value, for or because of any official act or acts within their official responsibility. A selection committee's work on behalf of a procuring agency of the commonwealth to evaluate prospective vendors would clearly constitute the performance of an official act. Receipt of anything "of substantial value~[2] for such travel would generally constitute a violation of s.3(b). EC-COI-87-29; 82-99. Commonwealth v. Famiglettu, 4 Mass. App. 584(176). This subsidized travel is available to selection committee members precisely for or because of their official acts. The fact that the commonwealth would be soliciting the subsidized travel does make this kind of bidder subsidized travel an open subsidy, but it does not make the subsidies lawful. Although the bidding process outlined above would eliminate many of the problems that would normally arise in a situation of bidder subsidized travel under G.L. c. 268A, s.23, see, EC-COI-87-37, travel expenses which are paid by the manufacturer would be of substantial value in most, if not all, situations and would violate s.3(b) of the statute.[3] While it may be contended that the privilege of substantial value accrues here to the state and not to the individual travelers, Commission precedent indicates that the privilege of substantial value here does not accrue to the state, but rather to the individual traveler. See, In the Matter of Carl D. Pitaro 1986 Ethics Commission, 271 (where the Commission held that the travel privilege of substantial value accrued to Mayor Pitaro and not to the City of Brockton). Section 3(b) clearly applies if the official received anything of substantial value for her or himself. See, EC-COI-87-23.[4]

There are no distinguishing characteristics about "high technology" procurements that persuade us that a narrow exception carved out solely for these kinds of procurements would be appropriate. The need for "user friendly" or "user sensitive"" equipment is not peculiar to high technology equipment and we are not convinced that the use of printed matter, manuals and shared reports are any less reasonable an alternative here. See, EC-COI- 82-99 at 2. An exception for particularly expensive procurements is similarly inadvisable.

Although gifts "provided by law for the proper discharge of official duty" are exempt from s.3, we find no express statutory language or duly promulgated regulation which authorizes state employees to accept travel expenses from an interested vendor. Were there any such statute or regulation, s.3(b) would not be implicated here.

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[1] No Commission advice was sought about the propriety of this practice before its initiation.

[2] It has been held that $50 in cash is "of substantial value".  Commonwealth v. Famigletti, 4 Mass. App. 584(1976).

[3] This Advisory Opinion in no way is meant to prohibit commonwealth subsidized visits by selection committee's to potential vendors.

[4] If the arrangement were structured such that the employee's expenses were reimbursed in the normal course by the Commonwealth, and the Commonwealth was subsequently reimbursed by the vendor, the employee would not be receiving anything of substantial value from the vendor.

End Of Decision