On February 25, 2010, the Massachusetts Department of Transportation, Highway Division (“MassDOT”) amended its Supplemental Specifications to the 1988 English Standard Specifications for Highways and Bridges and the 1995 Metric Standard Specifications for Highways and Bridges to include a prohibition on giving gifts to present and former state employees. Previously, the Standard Specifications and the Supplemental Specifications did not specifically address this issue.

The new MassDOT provision is similar to the language of Massachusetts’ Conflict of Interest Law, M.G.L. c. 268, §3, which prohibits anyone from offering to a state employee anything of substantial value in connection with an official act performed by the state employee – with one important difference. While the Conflict of Interest Law prohibits giving gifts of substantial value to state employees, defined as “anything worth $50 or more,” the new MassDOT provision goes even further: it prohibits giving “anything of value” to state employees. “Anything of value” includes “any item of value, including but not limited to invitations or tickets to sporting events, social gatherings, outings or parties, or the provision of meals or lodging, or the use of vehicles of any kind, and any other item or thing of monetary value.” Supplemental Specifications, §7.01. The new MassDOT provision thus is stricter than the existing Conflict of Interest Law, and contractors should construe it as a bright line rule against giving anything to former or state employees.

Under both rules, there must be a nexus, or link, between the gift and an official act performed by the state employee. The term “official act” is not defined in the new MassDOT provision, but is defined by the Conflict of Interest Law as “any decision or action in a particular matter or in the enactment of legislation.” Official acts would include, for example, voting on a matter before a governmental body, preparing a Request For Proposals for a public agency, serving on a hiring committee, or making a policy recommendation to one’s supervisor. Therefore, any gifts offered as a reward for an official act, or to influence or induce an official act, would be improper. Whether a gift is given for or because of an official act depends on the giver’s intent as determined by the circumstances surrounding the gift. Such circumstances could include the identities or relationship of the giver and the recipient, the giver’s and recipient’s expressed intents, the timing of the gift, whether the recipient has acted or will act on matters affecting the giver, and the effect, if any, of the gift on the employee’s official acts. “State employees” should be construed broadly to include all Massachusetts state, county and municipal officials and employees, whether part-time or fulltime, paid or unpaid, elected or appointed.

The repercussions for contractors who violate the new MassDOT provision are severe. In the event of a violation, the Department may order the contractor to cease work on the contract, terminate the contract, require the contractor’s sureties to complete the work, and/or suspend or terminate the contractor’s prequalification status.

Given these potential penalties, the best practice is to err on the side of caution. Regardless of whether a contractor believes that there is a nexus between a gift and an official act, and regardless of whether there is any subjective intent to influence an official act, the contractor should avoid giving anything of value to any state employee.