Date:  December 4, 2013

Disposition Agreement

The State Ethics Commission (“Commission”) and Delwin Dickinson (“Dickinson”) enter into this Disposition Agreement pursuant to Section 5 of the Commission’s Enforcement Procedures.  This Agreement constitutes a consented-to final order enforceable in the Superior Court, pursuant to G.L. c. 268B, § 4(j). 

On February 15, 2013, the Commission initiated, pursuant to G.L. c. 268B, § 4(a), a preliminary inquiry into possible violations of the conflict of interest law, G.L. c. 268A.  On May 17, 2013, the Commission concluded its inquiry and found reasonable cause to believe that Dickinson violated G.L. c. 268A, § 6.

The Commission and Dickinson now agree to the following findings of fact and conclusions of law:

Findings of Fact

  1. Delwin Dickinson, a resident of Woburn, was during the relevant time the Hosting Services Director for the Commonwealth of Massachusetts Information Technology Division (“ITD”)[1].  As such, Dickinson was a “state employee,” as that term is defined in G.L. c. 268A, § 1. 
  2. As Hosting Services Director, Dickinson’s duties included, but were not limited to:  (1) drafting requests for quotes (“RFQs”) for the procurement of goods and services; (2) posting RFQs and acting as the contact person to receive vendor responses; (3) selecting members of the procurement management teams to evaluate and score vendor responses to RFQs; (4) calculating procurement management team scores to select the winning vendor; (5) awarding contracts based on those scores; and (6) approving vendor payments.

RFQs 13-02 and 13-03

  1. In 2012, ITD had a contract with IBM, under which IBM provided maintenance services for Hewlett Packard (“HP”) and Intel brand products.  That contract was due to expire in June 2012.
  2. For business reasons, Dickinson, in early spring 2012, decided to put the HP and Intel product maintenance work performed by IBM out to bid through two separate requests for quotes. 
  3. On April 27, 2012, Dickinson applied online for a posted project manager position at Advizex, a reseller of computer hardware and software, and provider of related services, and a longtime ITD vendor.
  4. On May 9, 2012, Dickinson interviewed for the Advizex project manager position.
  5. Also on May 9, 2012, Dickinson sought information from Advizex about ITD obtaining HP software support. 
  6. Dickinson began negotiations with Advizex regarding prospective employment on May 9, 2012, which culminated in his hire in September 2012.
  7. On or about May 11, 2012, Dickinson completed drafting RFQ 13-02 for HP hardware and software maintenance services and RFQ 13-03 for Intel hardware maintenance, and forwarded those RFQs to the ITD Legal Department for its review.  According to Dickinson, he drafted the RFQs in a manner that would ensure the work would be performed at the best possible value.   
  8. Between May 11, 2012 and May 25, 2012, Dickinson worked on revisions to RFQs 13-02 and 13-03 with the ITD Legal Department.
  9. On May 25, 2012, Dickinson posted RFQs 13-02 and 13-03 on the ITD website.
  10. Dickinson knew Advizex would submit a quote for RFQ 13-02 because he had been in contact with Advizex about ITD obtaining HP software support. Additionally, Dickinson knew Advizex would submit quotes for RFQ 13-02 and 13-03 because computer hardware and software maintenance was part of its business and Advizex had an extensive history of doing business with ITD. 
  11. Between May 25, 2012 and June 26, 2012, Dickinson:  selected  procurement management teams (“PMT”) of Hosting Services staff to evaluate and score vendor responses to RFQ 13-02 and 13-03; acted as the contact person for vendor responses; answered vendor inquiries regarding the RFQs; and collected the PMT scores to calculate the winning vendors.  As to RFQ 13-03, Dickinson also responded to questions from PMT members regarding scoring.
  12. On June 19, 2012, Advizex submitted quotes to Dickinson in response to RFQs 13-02 and 13-03.
  13. On June 25, 2012, Dickinson requested Advizex’s best and final offers on RFQs 13-02 and 13-03, respectively, which Advizex provided on June 26, 2012.
  14. On or about June 26, 2012, based on the PMT scores and Advizex’s best and final offer, Dickinson awarded the contract for the services set forth in RFQ 13-02 to Advizex for $414,500 and awarded the contract for the services set forth in RFQ 13-03 to Advizex for $141,324.
  15. Advizex hired Dickinson in September 2012.

Conclusions of Law

  1. Except as otherwise permitted, § 6 of G.L. c. 268A prohibits a state employee from participating[2] as such an employee in a particular matter[3] in which, to his knowledge, an organization with which he is negotiating[4] or has any arrangement concerning prospective employment, has a financial interest.[5]
  2. The HP software and maintenance contract for the services set forth in RFQ 13-02 (the “13-02 Contract”) was a particular matter. 
  3. The Intel hardware maintenance contract for the services set forth in RFQ 13-03 (the “13-03” Contract) was also a particular matter.
  4. Dickinson began negotiating for prospective employment with Advizex on May 9, 2012, and those negotiations continued until his hire in September 2012. 
  5. After May 9, 2012, Dickinson participated in the 13-02 and 13-03  Contracts in his capacity as Hosting Services Director by: (1) drafting RFQ 13-02 and 13-03; (2) selecting the PMT members; (3) acting as the contact person for vendor RFQ responses; (4) responding to vendor inquiries regarding the RFQs; (5) collecting the PMT scores to calculate the winning vendors; (6) soliciting Advizex’s best and final offer; and (7) awarding the contracts.  Dickinson also responded to questions from PMT members regarding RFQ 13-03 scoring. 
  6. According to Dickinson, he knew that Advizex had a financial interest in the 13-02 and 13-03 Contracts because he knew Advizex would be bidding on the contracts.  In addition, Dickinson knew after Advizex had submitted quotes that Advizex had a financial interest in the 13-02 and 13-03 Contracts.
  7. Accordingly,  Dickinson repeatedly violated § 6 by participating in his capacity as the ITD Hosting Services Director in the 13-02 and 13-03 Contracts while negotiating for employment with Advizex, a company he knew would bid on the contracts.

Payment Approvals

Findings of Fact

  1. On May 15, 2012, Dickinson, in his capacity as the ITD Hosting Services Director, approved payment to Advizex for $5,162 under a pre-existing contract between ITD and Advizex for computer equipment and accessories.
  2. On May 22, 2012, Dickinson, in his capacity as the ITD Hosting Services Director, approved payment to Advizex for $2,175.77 under a pre-existing contract between ITD and Advizex, for computer equipment and accessories.
  3. On June 29, 2012, Dickinson, in his capacity as the ITD Hosting Services Director, approved payment to Advizex for $32,594.25 under a pre-existing contract between ITD and Advizex for computer equipment and accessories.
  4. On July 12, 2012, Dickinson, in his capacity as the ITD Hosting Services Director, approved payment to Advizex for $414,500 pursuant to the 13-02 Contract.

Conclusions of Law

  1. Dickinson’s decisions to approve payments to Advizex were particular matters. 
  2. Advizex had a financial interest in receiving payment for goods and services pursuant to its contracts with ITD.
  3. By approving payments to Advizex, Dickinson participated in his capacity as Hosting Services Director in those decisions.
  4. Dickinson began negotiating for prospective employment with Advizex on May 9, 2012, and those negotiations continued until his hire in September 2012.
  5. At the time of his participation, Dickinson knew that Advizex had a financial interest in receiving payment for goods and services. 
  6. Therefore, Dickinson repeatedly violated § 6 by approving $454,432.02 in payments to Advizex in his capacity as ITD Hosting Services Director while negotiating for employment with Advizex.

Resolution

In view of the foregoing violations of G.L. c. 268A by Dickinson, the Commission has determined that the public interest would be served by the disposition of this matter without further enforcement proceedings, on the basis of the following terms and conditions agreed to by Dickinson:

(1)        that Dickinson pay to the Commonwealth of Massachusetts, with such payment to be delivered to the Commission, the sum of $30,000 as a civil penalty for repeatedly violating G.L. c. 268A, § 6; and

(2)        that Dickinson waive all rights to contest, in this or any other administrative or judicial proceeding to which the Commission is or may be a party, the findings of fact, conclusions of law and terms and conditions contained in this Agreement.

By signing below, Delwin Dickinson acknowledges that he has personally read this Disposition Agreement, that it is a public document, and that he agrees to all of the terms and conditions therein.

STATE ETHICS COMMISSION

 

//signed//                      12/4/13
Karen L. Nober           Date
Executive Director

//signed//                      10/16/13
Delwin Dickinson

 



[1] ITD is an agency within the Executive Office of Administration and Finance that provides computer hardware and software services to Commonwealth of Massachusetts agencies.
[2] “Participate” means to “participate in agency action or in a particular matter personally and substantially as a state, county or municipal employee, through approval, disapproval, decision, recommendation, the rendering of advice, investigation or otherwise.”  G.L. c. 268A, § 1(j).
[3] “Particular matter” means “any judicial or other proceeding, application, submission, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, decision, determination, finding . . . ”  G.L. c. 268A, § 1(k).
[4]“Negotiating for employment” occurs when there is a mutuality of interest.  EC-COI-90-01.  For example, such interest occurs when a public employee interviews for a position.
[5] “Financial interest” means any economic interest of a particular individual that is not shared with a substantial segment of the public.  Graham v. McGrail, 370 Mass. 133 (1976).