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Policy Change to Address AG Recommendation Regarding Conflicts of Interest

In December of 2013 the Florida Auditor General (AG) completed an operational audit of the Beach Management Funding Assistance Program (Program), formerly the Beach Erosion Control Program. In Audit Report 2014-064, one finding stated that… “Contractors selected to monitor Program projects were not always independent of the feasibility, design, and construction project phases.” The report included the following recommendation:

“We (AG) recommend that Department management establish a standardized review process and develop Program guidance for local sponsors addressing the selection of contractors. The review process and guidance should address the identification of potential conflicts of interest and require that project monitors be independent of the Program project phases they are to monitor.”

In an effort to comply with the recommendation, the program has hosted a series of webinars to define conflicts of interest and develop a policy to mitigate potential conflicts of interest to maintain compliance with statutory authority in Chapter 287, Florida Statutes. The policy change addresses conflicts of interest through transparency when state funding is used to cost share in permit-required monitoring for beach and inlet management projects.

During the June 17, 2015 webinar, Department staff outlined the following policy changes:

To be eligible for state cost sharing, monitoring activities will require…

  • Direct and concurrent submittal of raw data and statistical analysis from the monitor to DEP/engineer/sponsor
  • Draft reports from the monitor can be submitted along with final reports
  • Multidisciplinary engineering firms and subcontractors working in support of the local sponsor must demonstrate the ability to provide organizational/physical/electronic separation

During public webinars and in various conversations with stakeholders, several questions have been posed to the Department with regard to implementation of the new policy. These questions are listed below along with a response from the Department to assist stakeholders as we move forward with implementing the policy change.

Frequently Asked Questions

Questions posed during Webinar 5, on August 20, 2015

Slide 12, “Goal”: Does the policy also pertain to actual Conflicts of Interest, in addition to the slide that reads “potential perception for conflict of interest?”

Yes. The program must mitigate all conflicts of interest, whether actual or perceived.

Can monitors communicate with local sponsors/engineers during field sampling in the event of weather delays, complications, etc.?

Communication regarding sampling logistics is acceptable, such as timing, equipment issues, etc. However, any communication that references a change in the approved monitoring protocol, such as sampling location , frequency, etc. should be directed to FDEP resources staff.

Will FDEP develop a certification form for demonstrating the mitigation of conflicts of interest for multi-discipline or subcontracting firms?

Not at this time, since firms vary in organizational structure and contracting protocol. A form may be developed in the future, as similarities are identified. A memo/letter report from each firm defining separation protocol will be adequate until such time.

When should local sponsors begin planning for the policy change?

All sponsors should start planning for this requirement immediately. FY2015-16 funds are available for contracting and the new language will be incorporated into the contract template. Any data sent or received after the execution of a new contract or an amended contract will be subject to the reporting policy. The requirement will not be retroactive, so any monitoring conducted and transmitted prior to the execution or amendment of a grant agreement will not be subject to the policy change.

Types of Monitoring

What type of monitoring is included in the Policy change?

The Program has specifically identified hardbottom, mangrove and seagrass monitoring to be included in this policy.

What about physical monitoring and wildlife surveys, such as shorebird and turtles? Shouldn’t the policy be consistent and pertain to all monitoring required by permit?

Because some types of monitoring do not require interpretation of the data collected, the Program does not see a significant benefit to including physical monitoring (profile surveys and aerials) and wildlife surveys (shorebird and turtle) in this policy change.

Data Submittal Protocol

How will this policy actually work?

  1. Biological monitoring is comprised of three components: raw data, statistical analysis, and the interpretive report. After monitoring data is collected in the field and entered into a database, the monitor will QA/QC the raw data and then provide the raw data to the Department directly and concurrently with submittal to the engineer and local sponsor. (Note that this is already a permit requirement for some projects and will be added into new permits in the future.)
  2. When statistical analysis is completed and QA/QC’d by the monitor, the statistical analysis will be submitted directly and concurrently to the Department, the local sponsor and the engineer.

How and where must a monitor submit data and statistical analyses in order to be considered a direct submittal to the Department?

Data must be submitted electronically and in the approved DEP-format as required by permit. The submittal must include a signed cover letter noting the monitoring survey event, survey dates, project name and permit number. If the statistical analysis is submitted separately from the data, it must also be submitted with a signed cover letter noting the monitoring event for the analysis including the project name, survey dates and permit number. Submittals should be sent to JCPCompliance@dep.state.fl.us and Beaches.Funding@dep.state.fl.us .

Is there a time limit/deadline for submittal of statistical analyses?

There is no set time for submittal of statistical analysis. A likely time for the submittal is immediately before transmitting the report to the local sponsor (permittee)/ contractor for review. The biological monitor can simply extract and email the data analysis portion of the report (this should be strictly statistical analysis, and should not include interpretative results or conclusions) to DEP, local sponsor and engineer. The report can then follow the permittee’s chain of review protocol and be submitted to the Department when finalized.

Does the monitor have to provide the draft monitoring report to the Department before it is submitted to the engineer and local sponsor?

No. This policy does not include the draft interpretive report created by the monitor.

Can Local Sponsors and engineers participate in the field collection process?

Local sponsors and engineers can participate in field activities, but for observation purposes only. Permits require that each crew member in the monitoring firm be approved by Division of Water Resource Management staff prior to data collection, to ensure that all individuals are appropriately trained in biological monitoring techniques. Additionally, data entry and QA/QC process must be conducted individually by the approved monitors.

Will this policy add additional tasks or costs to monitoring?

This policy will not require additional monitoring tasks nor should it increase the cost of monitoring. Raw data is already submitted to the Department in most permits and statistical analysis can be emailed to the Department at a JCPCompliance@dep.state.fl.us and Beaches.Funding@dep.state.fl.us.

Contracting and Demonstrating Separation of Tasks

Can I continue using my multidisciplinary firm if they also provide both engineering and monitoring services?

Yes. One benefit to this policy change is that conflicts of interest can be mitigated through transparency without requiring contracts to be renegotiated. In order to ensure that the monitor avoids conflicts of interest, the firm will need to illustrate to program staff the ability to separate engineering and monitoring services during the data QA/QC process and the statistical analysis portion of monitoring efforts. Engineers may still assist with the drafting of the interpretive report.

If I have contracted a multidisciplinary firm, what does “organizational/ physical/electronic” separation mean? Can engineers and monitors work in the same location?

For this program policy, separation means having the ability for engineers and monitors to work independently. We understand that firms will be housed in the same building. However, data and information will not be transferred between engineer and monitor, either in hard copy or electronic media prior to submittal to the Department. Many such firms may already have separation protocols established that are sufficient to meet the program needs.

Can I continue having my engineering firm sub-contract monitoring services?

Yes. Like multidisciplinary firms, engineers will need to demonstrate to program staff the ability to separate engineering and monitoring services during the data QA/QC process and the statistical analysis portion of monitoring efforts. Engineers may still assist with the drafting of the interpretive report.

Policy Implementation 

How will the policy be implemented?

Using the authority in section 287.057, Florida Statutes, the program will amend the policy into the grant agreement template. Therefore, the policy will be added to each grant agreement when it is initially executed or upon amendment.

When will this policy take effect?

Once the protocol has been vetted with the coastal community, local sponsors will be notified of the policy change and the grant agreement template will be amended. Program staff anticipates the change to occur in the Fall of 2015.

What if my project does not receive state cost sharing prior to conducting the work but I hope to receive a reimbursement appropriation in the next funding cycle?

To be considered eligible for state cost sharing reimbursement, the policy must be followed on a voluntary basis once the policy is fully adopted. Remember that most permits already require raw data submittal. The only other change required in order to be compliant is direct and concurrent data/statistics submittal to DEP prior to report review. In the event that the local sponsor is using a multidisciplinary firm or subcontracting monitors through the engineer, a demonstration of independence of engineer and monitor will be required during the scope of work review process.

What happens if I do not follow the data reporting protocol?

Monitoring tasks that do not follow the protocol will be ineligible for cost reimbursement and appropriated funds for the associated monitoring task will be subject to reversion to the state treasury to be re-appropriated for another purpose.

Have additional questions? Please email questions to Beaches_Funding@dep.state.fl.us


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Would you like to view rules and regulations regarding beach restoration?

Chapter 62B-36, Florida Administrative Code
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Chapter 161, Florida Statutes
Beach and Shore Preservation

Last updated: September 21, 2015

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