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CONTRACTUAL ISSUES REGARDING THE PURCHASE OF AN AFIS 195

to pursue the development of a non-competitive contract for the future. A
control agency, however, may wish to revisit aspects of that initial competitive
procurement, especially if a competitor has contested the new non-competitive
contract. Agency A may need to recreate the initial competitive bid, and in
order to do that, the original records must be available.
The government is ultimately responsible to its taxpayers for its expendi-
tures. Its actions should reinforce and support the public’s trust, while balanc-
ing the needs of government with fairness to others. This general concept of
fairness is woven throughout the procurement process, including the informa-
tion gathering stage, defining the nature and form of the public procurement,
and developing the terms and conditions for the public procurement.

9.3.2 REQUIREMENTS IMPOSED ON THE ACTIONS
OF GOVERNMENTAL EMPLOYEES

As alluded to above, procurement is simply one activity undertaken by govern-
mental employees and is subject to the general rules imposed on employees’
actions. Consideration must be given to how the governmental entity’s ethical
requirements impact the public procurement process. As a general rule, most
governments require its employees to comply with a code of ethics. Public
employees are held to a higher standard of behavior since they are making deci-
sions that affect public welfare and the public purse. For example, in New York
State, Public Officers Law sections 73, 73-a, and 74 place limitations upon the
actions of public employees. In general, these provisions set out specific stan-
dards of conduct, restrict certain business and professional activities, and apply
while in governmental employment and, in some instances, after leaving gov-
ernmental employment. Within the procurement context, one issue that arises
is whether an employee’s actions constitute a conflict of interest. For example,
if an employee provides a vendor with “inside” information regarding an AFIS
procurement, such an action could violate the ethics requirements. Some ethics
requirements broadly obligate employees to avoid even the appearance of
impropriety. The employees conducting the procurement must be aware of
these requirements and develop procurement processes that ameliorate the
possibility of inappropriate actions.
In addition to ethical obligations established by statute and regulation,
requirements may also be established by executive order or agency policy. For
example, in New York State, an executive order was issued in 2003 responding
to public concern about the need to know the people who contact the gov-
ernment, such as lobbyists and vendors, in an effort to influence a procurement
decision, and standardizing the collection of such information. These kinds of
requirements must be identified and factored into the resulting RFP.