PURCHASING ETHICS 2017 AGENCY PURCHASING CONFERENCE PRESENTED BY: JIMMY MEADOWS, GENERAL COUNSEL

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1 PURCHASING ETHICS 2017 AGENCY PURCHASING CONFERENCE PRESENTED BY: JIMMY MEADOWS, GENERAL COUNSEL

2 PURCHASING ETHICS History of the Purchasing Division Division created in the 1940 s Relative Issues: Invest Right, 1968 PPPC Commission on Special Investigations

3 PURCHASING ETHICS State Law The laws that govern the public procurement process are strict and demand the highest degree of discretion and ethical behavior. The West Virginia Code address penalties for violating purchasing procedures

4 PENALTY W. Va. Code 5A-3-17 (Violation of Article) Contract is void Personal liability spending officer and others responsible actions must be knowing and willful. W. Va. Code 5A-3-29 (Violation of Article) Misdemeanor conviction not less than 10 days nor more one year prison fined between $10 and $500.

5 PENALTY W. Va. Code 5A-3-31 (Corruption, Action, Collusion, Conspiracy in Bidding) felony conviction not less than one nor more than five years prison fined not exceeding $10,000.

6 PURCHASING ETHICS Penalty West Virginia Code 5A-3-32: Power of Director to suspend right to bid; notice of suspension West Virginia Code 5A-3-33: Review of suspension by Cabinet Secretary

7 OTHER PENALTY PROVISIONS State Ethics Laws Wire Fraud Mail Fraud State and Federal Bribery Statutes Racketeer Influenced and Corrupt Organizations (RICO)

8 PURCHASING ETHICS Certificate of Non-Conflict of Interest Form The Purchasing Division requires all evaluators of solicitations, despite the type of transaction, to sign a Certification of Non- Conflict of Interest, in accordance with the West Virginia Code 5A-3-31 By signing this certification, the evaluator(s) and/or advisor(s) attest that they have no conflict of interest, including financial or personal, in the evaluation of the specific solicitation

9 PURCHASING ETHICS Certificate of Non-Conflict of Interest Form Agency procurement officers should discuss the non-conflict of interest issue with potential committee members to ensure that individuals who may have a conflict are not chosen to participate as evaluation committee members. Please note that this requirement applies to all transaction types Needs to be signed before the evaluation starts on RFPs

10 ETHICS GONE WRONG Bribes/Kickbacks/Extortion Bob Andrew: In 2015 he was named in a 29-count federal indictment accusing him of rigging bids, taking bribes, tampering with a witness and documents and engaging in political activity on state time. The indictment also alleges Andrew permitted the owner of a salvage company to "change his bid after the bid request had closed" and... demanded kickbacks for valuable parts and equipment he made employees dump in salvage bins, threatening to cancel the salvage company's state contracts if he didn't pay the kickbacks. Arch Moore: Pleaded guilty to an indictment that said he accepted illegal payments during his 1984 and 1988 election campaigns, extorted more than $573,000 from a Maben Energy Corporation, a coal company based in the town of Beckley, and obstructed the investigation.

11 ETHICS GONE WRONG Collusion on Bidding Two or more companies agree to alternate high and low bids so as to evenly distribute contract work.

12 ETHICS GONE WRONG * Change Order Abuse

13 ETHICS GONE WRONG Conflict of Interest Sheriff may not sell unused or surplus weapons directly to the son of a Deputy Sheriff, (son being a gun dealer) and deposit the money into the Concealed Weapons Fund, as it would be using his public position to benefit the son of a subordinate in violation of the Act s prohibition against use of public office for private gain, and would be an unavoidable conflict of interest. Ethics Advisory Opinion Excluding Qualified Bidders State v. Fahlgren Martin, Inc., 190 W. Va. 306 (1993) Director of the Lottery convicted of mail fraud and subversion of the bidding process for advertising contract. Directed Lottery employees to falsify bid results and make certain that they recommend vendor as the most responsible bidder.

14 ETHICS GONE WRONG Knowing Failure to Meet Specs after Award Vendor delivers a vehicle that does not contain the required features. Even if offering a discount, this is a violation.

15 ETHICS GONE WRONG False or Inflated Invoices United States Attorney Booth Goodwin announced Jeremy Vickers, 36, of Point Pleasant, was charged with submitting fraudulent bills for work he performed in appointed state criminal matters. According to the Information, Vickers billed more than 24 hours for one day s work on 173 occasions. Sept. 12, 2011 Manipulation of Bids / Fake Bids Wally Barron Convicted of jury tampering while on trial for the Investright Scandal. Vendors told to pay Florida company for assistance in obtaining public contracts. Wallpapers in Stock Vendor falsified bids of competitors Bob Andrew Allegedly allowed vendor to modify bid after opening.

16 ETHICS GONE WRONG Product Substitution Vendor submits substitution request after contract award for a product that does not meet the original requirements. Smaller fence gauge or ungalvanized pipe. What should agency do?

17 ETHICS GONE WRONG Overly Restrictive Specifications Writing specifications to favor a brand or vendor without allowing equal providers an opportunity to participate.

18 ETHICS GONE WRONG Personal Use David Baisden (2014) Baisden, who served as the county purchasing agent, admitted he demanded Appalachian Tire to sell him tires for his personal vehicle at the same price they were giving the county to put tires on their vehicles. Appalachian refused and lost the county contract to supply tires for the Mingo County fleet. Judge John Copenhaver sentenced him to 20 months in prison $7,700 in restitution to two companies.

19 ETHICS GONE WRONG Personal Use David P. Smith (2013) An engineering technician with the DNR for 18 years, was sentenced to two years of probation, after admitting he misused a state-issued Visa credit card also known as a P card to buy an air compressor. Smith kept the compressor at his home in Jackson County. West Virginia State Police arrested Smith in June 2013 after he allegedly tried to sell a state-owned man lift to undercover officers at a parking lot outside the Division of Motor Vehicles office in Kanawha City. A 22-count indictment alleged that Smith used state funds to buy a generator, pressure washer, compressor and other equipment for personal use.

20 PURCHASING ETHICS Ethics Commission Opinions related to public procurement available on website

21 PURCHASING ETHICS Role of State Procurement Officer It is your RESPONSIBILITY to follow all state laws, rules, and procedures approved to ensure taxpayer s money is used properly It is your DUTY to spend tax dollars in accordance with statutory and regulatory requirements

22 PURCHASING ETHICS What would YOU do?

23 SCENARIO #1 CONFLICT OF INTEREST Agency is soliciting an EOI and the Bidder lists State Employee as Reference for work completed with State OK or Not?

24 SCENARIO #1 - CONFLICT OF INTEREST Bidder quotes state employee in the bid as follows John Doe of the Oversight Division says This is the best method ever used to get the job done. OK or Not?

25 SCENARIO #1 - CONFLICT OF INTEREST What do you do now? Cancel Solicitation, advise John Doe about the ethics violation Advise Vendor to never do it again Cancel solicitation Resolicit with new evaluation committee

26 SCENARIO #1 Relevant Law A public official or public employee may not knowingly and intentionally use his or her office or the prestige of his or her office for his or her own private gain or that of another person. W. Va. Code 6B-2-5(b).

27 SCENARIO #2 Two agency employees arrive on site to conduct the pre-bid. After the pre-bid, one agency employee is requested to return to Charleston and the other is needed elsewhere. A friendly familiar bidder offers a ride back to Charleston to one of the agency employees.

28 SCENARIO #2 - IMPROPRIETY What should you do if you are the agency employee faced with the offer of a ride to Charleston?

29 SCENARIO #2 - IMPROPRIETY What is wrong with taking the vendor up on his offer of a ride?

30 SCENARIO #2 - IMPROPRIETY Appearance of Impropriety Favoritism Special treatment Potential Blackout Period Violation Questions between agency and vendor while riding in the car

31 SCENARIO #3 - GIFTS A bidder s salesman/service rep has obtained numerous state contracts over the years and believes that he has developed a collegial/working relationship with the agency buyer. The salesman/service rep often makes sales calls to the agency buyer and offers:

32 SCENARIO #3 - GIFTS Offer: Tickets to the Game? What s the law? (W. Va. Code 6B-2-5(c)) No official or employee may knowingly accept any gift, directly or indirectly, from a lobbyist or from any person whom the official or employee knows or has reason to know: Is doing or seeking to do business of any kind with his or her agency Best Practice: JUST SAY NO THANKS!

33 SCENARIO #3 - GIFTS Offer: take the agency buyer out to lunch or dinner. What s the law? (W. Va. Code 6B-2-5(c)(2)) a person who is a public official or public employee may accept a gift of meals and beverages and there shall be a presumption that the receipt of such gift does not impair the impartiality and independent judgment of the person. This presumption may be rebutted only by direct objective evidence that the gift did impair the impartiality and independent judgment of the person. Best Practice: JUST SAY NO THANKS!

34 SCENARIO #3 - GIFTS Offer: Give the agency buyer a part for his antique car, as a co-participant in the local car club. What s the law? (W. Va. Code 6B-2-5(c)(2)) a person who is a public official or public employee may accept gifts that are purely private and personal in nature and there shall be a presumption that the receipt of such gift does not impair the impartiality and independent judgment of the person. This presumption may be rebutted only by direct objective evidence that the gift did impair the impartiality and independent judgment of the person. Best Practice: JUST SAY NO THANKS!

35 SCENARIO #3 - GIFTS Offer: Used golf clubs valued at $300. What s the law? (W. Va. Code 6B-2-5(c)) No official or employee may knowingly accept any gift, directly or indirectly, from a lobbyist or from any person whom the official or employee knows or has reason to know: Is doing or seeking to do business of any kind with his or her agency Best Practice: JUST SAY NO THANKS!

36 SCENARIO #3 - GIFTS Purchasing Division Complete Prohibition (W. Va. Code 5A-3-28): Neither the secretary, nor the director nor any employee of the Division of Purchasing, shall accept or receive directly or indirectly from any person, firm or corporation, known by such secretary, director or employee to be interested in any bid, contract or purchase, by rebate, gift or otherwise, any money or other thing of value whatsoever, or any promise, obligation or contract for future reward or compensation.

37 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS Agency director or procurement officer authorized to contract for the agency recommends and signs off on an award to a company owned by.

38 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS Company Owner: Director s Spouse Problem or not?

39 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS Company Owner: Director s Brother Problem or not?

40 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS Company Owner: Director s First Cousin Problem or not?

41 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS Company Owner: Director s Step-Child Problem or not?

42 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS What s the law? (W. Va. Code 6B-2-5(d)) no elected or appointed public official or public employee or member of his or her immediate family or business with which he or she is associated may be a party to or have an interest in the profits or benefits of a contract which the official or employee may have direct authority to enter into, or over which he or she may have control:

43 SCENARIO #4 INTERESTS IN PUBLIC CONTRACTS What s the law? (W. Va. Code 6B-2-5(d)) Immediate Family means: a spouse with whom the individual is living as husband and wife and any dependent child or children, dependent grandchild or grandchildren and dependent parent or parents. W. Va. Code 6B-1-3(f).

44 SCENARIO #5 COLLUSION You receive a joint bid from two companies in response to a solicitation for floor maintenance products. One company plans to service certain counties and the other will service other counties. Is this improper under W. Va. Code 5A-3-31?

45 SCENARIO #5 COLLUSION It shall be unlawful for any person to corruptly act alone or combine, collude or conspire... if the purpose or effect of such action, combination, collusion or conspiracy is either to: (1) Lessen competition... ; or (2) cause the state to pay a higher price... ; or (3) cause one prospective vendor or vendors to be preferred over one or more other prospective vendor. W. Va. Code 5A-3-31?

46 SCENARIO #5 COLLUSION NO, it is not improper Openly submitted good faith joint bid... because each corporation had been designated a West Virginia franchised distributor by manufacturer of those products and under which each intended to handle certain counties did not violate criminal statute. (State ex rel. Waller Chemicals, Inc. v. McNutt, 1968, 160 S.E.2d 170, 152 W.Va. 186.)

47 SCENARIO #6 COLLUSION Bidder A and Bidder B agree to alternate bidding high and low on successive bidding opportunities in an effort to share the work with each other. Is this improper under W. Va. Code 5A-3-31?

48 SCENARIO #7 FAVORITISM Agency procurement officer intentionally drafts specifications to limit competition and ensure the agency receives the desired brand even though competition is available? What does the law say?

49 SCENARIO #7 FAVORITISM W. Va. Code 5A It shall be unlawful for any person to corruptly act alone... to: cause one prospective vendor or vendors to be preferred over one or more other prospective vendor or vendors.

50 SCENARIO #8 - STRINGING Your boss says you need to acquire furniture for three rooms for a grand opening of a new facility in four weeks. Your boss suggests that separating the purchase of furniture for each room will save time by allowing the purchase at a delegated level and asks you to do it. Aggregating the purchase would likely be over $25,000. WHAT WOULD YOU DO?

51 SCENARIO #9 FAILURE TO BID An agency Procurement Officer has been instructed to order a new high priced piece of equipment for the agency s maintenance section. As she begins gathering the necessary specifications for the equipment, her boss tells her to not waste time working on specifications and to go to the local equipment dealer and buy it from that company, since they have been supportive to the agency in the past. WHAT WOULD YOU DO?

52 Don t forget to sign the attendance sheet. CONTACT US Jimmy Meadows James.D.Meadows@wv.gov

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