Amend the bill, as and if amended, Section 1-30-125 of the 1976 Code, as contained in SECTION 4, by striking item (12) in its entirety.
Amend the bill further, as and if amended, SECTION 7, by striking subsection V. in its entirety and inserting:
/ V. Sections 11-35-3810 and 11-35-3830, both as last amended by Act 153 of 1997, and Sections 11-35-3820, 11-35-3840, and Section 11-35-5270, all as last amended by Act 376 of 2006, of the 1976 Code are further amended to read:
Subject to existing provisions of law, the
board State Contracts and Accountability
Authority (SCAA) shall promulgate regulations governing:
(1) the sale, lease, or disposal of surplus supplies by public auction, competitive sealed bidding, or other appropriate methods designated by such regulations;
(2) the transfer of excess supplies between agencies and departments.
Except as provided in Section 11-35-1580 and Section
11-35-3830 and the regulations pursuant to them, the sale of all
state-owned supplies, or personal property not in actual public
use must be conducted and directed by the
board office Division of Procurement Services of the
SCAA. The sales must be held at such places and in a manner
as in the judgment of the designated board
office Division of Procurement Services is most
advantageous to the State. Unless otherwise determined, sales
must be by either public auction or competitive sealed bid to
the highest bidder. Each governmental body shall inventory and
report to the designated board office
division all surplus personal property not in actual
public use held by that governmental body for sale. The
designated board office division shall
deposit the proceeds from the sales, less expense of the sales,
in the state general fund or as otherwise directed by
regulation. This policy and procedure applies to all
governmental bodies unless exempt by law.
(1) Trade-in Value. Unless otherwise
provided by law, governmental bodies may trade-in personal
property, the trade-in value of which may be applied to the
procurement or lease of like items. The trade-in value of such
personal property shall not exceed an amount as specified in
regulations promulgated by the
(2) Approval of Trade-in Sales. When the trade-in value of personal property of a governmental body exceeds the specified amount, the
board SCAA shall have the authority to
(a) the subject personal property shall be traded in and the value applied to the purchase of new like items; or
(b) the property shall be classified as surplus and sold in accordance with the provisions of Section 11-35-3820. The
board SCAA determination shall be in
writing and be subject to the provisions of this chapter.
(3) Record of Trade-in Sales. Governmental bodies shall submit quarterly to the materials management officer a record listing all trade-in sales made under subsections (1) and (2) of this section.
Section 11-35-3840. The
State Budget and Control Board SCAA may
license for public sale publications, including South Carolina
Business Opportunities, materials pertaining to training
programs, and information technology products that are developed
during the normal course of the board's
its activities. The items must be licensed at reasonable
costs established in accordance with the cost of the items. All
proceeds from the sale of the publications and materials must be
placed in a revenue account and expended for the cost of
providing the services.
Section 11-35-5270. A
Small and Minority Business Assistance Office (SMBAO)
shall must be established within the
SCAA to assist the board authority
and the Department of Revenue in carrying out the intent of this
article. The responsibilities of the office
shall include, but are not
be limited to, the following:
Assist assisting the chief
procurement officers and governmental bodies in developing
policies and procedures which will facilitate awarding contracts
to small and minority firms;
Assist assisting the chief
procurement officers in aiding small and minority-owned firms
and community-based business in developing organizations to
provide technical assistance to minority firms;
Assist assisting with the
procurement and management training for small and minority firm
Assist assisting in the
identification of responsive small and minority firms;
process receiving and processing applications to
be registered as a minority firm in accordance with Section
may revoke revoking the certification of any
firm which that has been found to have
engaged in any of the following:
(a) fraud or deceit in obtaining the certification;
(b) furnishing of substantially inaccurate or incomplete information concerning ownership or financial status;
(c) failure to report changes which affect the requirements for certification;
(d) gross negligence, incompetence, financial irresponsibility, or misconduct in the practice of his business; or
(e) wilful violation of any provision of this article.
(7) After a period of one year, the SMBAO may reissue a certificate of eligibility provided acceptable evidence has been presented to the commission that the conditions which caused the revocation have been corrected." /
Amend the bill further, as and if amended, by striking SECTION 35 in its entirety, and inserting:
/ SECTION 35. A. Chapter 11, Title 1 of the 1976 Code is amended by adding:
(A) There is established the Division
of Procurement Services within the State Contracts and
Accountability Authority on July 1, 2013.
(B) Effective July 1, 2013, the Division of Procurement services shall exercise all functions, powers, duties, responsibilities, and authority pursuant to the provisions of Chapter 35, Title 11, the South Carolina Consolidated Procurement Code, previously delegated by law to the State Budget and Control Board except for the functions, powers, duties, responsibilities, and authority specifically provided by law to the State Contracts and Accountability Authority."
B. Section 11-35-310 of the 1976 Code is amended to read:
Unless the context clearly indicates otherwise:
(1) 'Information Technology (IT)' means data processing, telecommunications, and office systems technologies and services:
(a) 'Data processing' means the automated collection, storage, manipulation, and retrieval of data including: central processing units for micro, mini, and mainframe computers; related peripheral equipment such as terminals, document scanners, word processors, intelligent copiers, off-line memory storage, printing systems, and data transmission equipment; and related software such as operating systems, library and maintenance routines, and applications programs.
(b) 'Telecommunications' means voice, data, message, and video transmissions, and includes the transmission and switching facilities of public telecommunications systems, as well as operating and network software.
(c) 'Office systems technology' means office equipment such as typewriters, duplicating and photocopy machines, paper forms, and records; microfilm and microfiche equipment and printing equipment and services.
(d) 'Services' means the providing of consultant assistance for any aspect of information technology, systems, and networks.
'Board' 'Authority' means
the State Budget and Control Board
Contracts and Accountability Authority.
(3) 'Business' means any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture, or any other legal entity.
(4) 'Change order' means any written alteration in specifications, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual agreement of the parties to the contract.
(5) 'Chief procurement officer' means (a) the management officer for information technology, (b) the state engineer for areas of construction, architectural and engineering, construction management, and land surveying services, and (c) the materials management officer for all other procurements.
(6) 'Information Technology Management Officer' means the person holding the position as the head of the Information Technology Office of the State.
(7) 'Construction' means the process of building, altering, repairing, remodeling, improving, or demolishing a public infrastructure facility, including any public structure, public building, or other public improvements of any kind to real property. It does not include the routine operation, routine repair, or routine maintenance of an existing public infrastructure facility, including structures, buildings, or real property.
(8) 'Contract' means all types of state agreements, regardless of what they may be called, for the procurement or disposal of supplies, services, information technology, or construction.
(9) 'Contract modification' means a written order signed by the procurement officer, directing the contractor to make changes which the changes clause of the contract authorizes the procurement officer to order without the consent of the contractor.
(10) 'Contractor' means any person having a contract with a governmental body.
(11) 'Cost effectiveness' means the ability of a particular product or service to efficiently provide goods or services to the State. In determining the cost effectiveness of a particular product or service, the appropriate chief procurement officer shall list the relevant factors in the bid notice or solicitation and use only those listed relevant factors in determining the award.
(12) 'Data' means recorded information, regardless of form or characteristics.
(13) 'Days' means calendar days. In computing any period of time prescribed by this code or the ensuing regulations, or by any order of the Procurement Review Panel, the day of the event from which the designated period of time begins to run is not included. If the final day of the designated period falls on a Saturday, Sunday, or a legal holiday for the state or federal government, then the period shall run to the end of the next business day.
(14) 'Debarment' means the disqualification of a person to receive invitations for bids, or requests for proposals, or the award of a contract by the State, for a specified period of time commensurate with the seriousness of the offense or the failure or inadequacy of performance.
(15) 'Designee' means a duly authorized representative of a person with formal responsibilities under the code.
'Employee' means an individual
drawing a salary from a governmental body, whether elected or
not, and any nonsalaried individual performing personal services
for any governmental body 'Division' means the
Division of Procurement Services of the SCAA.
'Employee' means an individual drawing a salary from a
governmental body, whether elected or not, and any nonsalaried
individual performing personal services for any governmental
(18) 'Governmental Body' means a state government department, commission, council, board, bureau, committee, institution, college, university, technical school, agency, government corporation, or other establishment or official of the executive or judicial branch. Governmental body excludes the General Assembly or its respective branches or its committees, Legislative Council, the Office of Legislative Printing, Information and Technology Systems, and all local political subdivisions such as counties, municipalities, school districts, or public service or special purpose districts or any entity created by act of the General Assembly for the purpose of erecting monuments or memorials or commissioning art that is being procured exclusively by private funds.
(19) 'Grant' means the furnishing by the State or the United States government of assistance, whether financial or otherwise, to a person to support a program authorized by law. It does not include an award, the primary purpose of which is to procure specified end products, whether in the form of supplies, services, information technology, or construction. A contract resulting from such an award must not be considered a grant but a procurement contract.
(20) 'Invitation for bids' means a written or published solicitation issued by an authorized procurement officer for bids to contract for the procurement or disposal of stated supplies, services, information technology, or construction, which will ordinarily result in the award of the contract to the responsible bidder making the lowest responsive bid.
(21) 'Materials Management Officer' means the person holding the position as the head of the materials management office of the State.
(23) 'Political subdivision' means all counties, municipalities, school districts, public service or special purpose districts.
(24) 'Procurement' means buying, purchasing, renting, leasing, or otherwise acquiring any supplies, services, information technology, or construction. It also includes all functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection, and solicitation of sources, preparation and award of contracts, and all phases of contract administration.
(25) 'Procurement officer' means any person duly authorized by the governmental body, in accordance with procedures prescribed by regulation, to enter into and administer contracts and make written determinations and findings with respect thereto. The term also includes an authorized representative of the governmental body within the scope of his authority.
(26) 'Purchasing agency' means any governmental body other than the chief procurement officers authorized by this code or by way of delegation from the chief procurement officers to enter into contracts.
(27) 'Real property' means any land, all things growing on or attached thereto, and all improvements made thereto including buildings and structures located thereon.
(28) 'Request for proposals (RFP)' means a written or published solicitation issued by an authorized procurement officer for proposals to provide supplies, services, information technology, or construction which ordinarily result in the award of the contract to the responsible bidder making the proposal determined to be most advantageous to the State. The award of the contract must be made on the basis of evaluation factors that must be stated in the RFP.
(29) 'Services' means the furnishing of labor, time, or effort by a contractor not required to deliver a specific end product, other than reports which are merely incidental to required performance. This term includes consultant services other than architectural, engineering, land surveying, construction management, and related services. This term does not include employment agreements or services as defined in Section 11-35-310(1)(d).
(30) 'Subcontractor' means any person having a contract to perform work or render service to a prime contractor as a part of the prime contractor's agreement with a governmental body.
(31) 'Supplies' means all personal property including, but not limited to, equipment, materials, printing, and insurance.
(32) 'State' means state government.
(33) 'State Engineer' means the person holding the position as head of the state engineer's office.
(34) 'Suspension' means the disqualification of a person to receive invitations for bids, requests for proposals, or the award of a contract by the State, for a temporary period pending the completion of an investigation and any legal proceedings that may ensue because a person is suspected upon probable cause of engaging in criminal, fraudulent, or seriously improper conduct or failure or inadequacy of performance which may lead to debarment.
(35) 'Term contract' means contracts established by the chief procurement officer for specific supplies, services, or information technology for a specified time and for which it is mandatory that all governmental bodies procure their requirements during its term. As provided in the solicitation, if a public procurement unit is offered the same supplies, services, or information technology at a price that is at least ten percent less than the term contract price, it may purchase from the vendor offering the lower price after first offering the vendor holding the term contract the option to meet the lower price. The solicitation used to establish the term contract must specify contract terms applicable to a purchase from the vendor offering the lower price. If the vendor holding the term contract meets the lower price, then the governmental body shall purchase from the contract vendor. All decisions to purchase from the vendor offering the lower price must be documented by the procurement officer in sufficient detail to satisfy the requirements of an external audit. A term contract may be a multi-term contract as provided in Section 11-35-2030.
(36) 'Using agency' means any governmental body of the State which utilizes any supplies, services, information technology, or construction purchased under this code.
board division office' and 'designated
board division officer' means the office
or officer designated in accordance with Section
c. Section 11-35-540 of the 1976 Code is amended to read:
(1) Authority to Promulgate
Regulations. Except as otherwise provided in this code, the
board division through the SCAA may
promulgate regulations, consistent with this code, governing the
procurement, management, control, and disposal of all supplies,
services, information technology, and construction to be
procured by the State. These regulations are binding in all
procurements made by the State.
(2) Nondelegation. The
board division through the SCAA may not
delegate its power to promulgate regulations.
(3) Approval of Operational Procedures. Governmental bodies shall develop internal operational procedures consistent with this code; except, that the operational procedures must be approved in writing by the appropriate chief procurement officer. The operational procedures must be consistent with this chapter. Operational procedures adopted pursuant to this chapter are exempt from the requirements of Section 1-23-140.
board authority shall consider and
decide matters of policy within the provisions of this code
including those referred to it by the chief procurement
officers. The board has the power to audit and monitor the
implementation of its regulations and the requirements of this
(5) For every reference in this code to a 'designated
division office', the chief executive officer of the
board division shall designate the
office or other subdivision of the board
division that is responsible for the referenced statutory
role. For every reference in this code to a 'designated
board division officer', the chief
executive officer of the board division
shall designate the board division
officer or other board division position
that is responsible for the referenced statutory role. More
than one office or officer may be designated for any referenced
statutory role. All designations pursuant to this subparagraph
must be submitted in writing to the chief procurement
d. Section 11-35-1560(C) of the 1976 Code is amended to read:
"(C) A violation
of these regulations by a purchasing agency, upon recommendation
of the designated board office with approval of the majority of
Budget and Control Board State Contracts
and Accountability Authority (authority), must result in the
temporary suspension, not to exceed one year, of the violating
governmental body's ability to procure supplies, services,
information technology, or construction items pursuant to this
E. Section 11-35-3010(3) of the 1976 Code is amended to read:
"(3) Approval or
Disagreement by State Engineer's Office. The State Engineer's
Office has ten days to review the data submitted by the
governmental body to determine its position with respect to the
particular project delivery method recommended for approval by
the governmental body, and to notify the governmental body of
its decision in writing. If the State Engineer's Office
disagrees with the project delivery method selected, it may
contest it by submitting the matter to the
board Procurement Review Panel for
decision. Written notification by the State Engineer's Office
to the governmental body of its intention to contest the project
delivery method selected must include its reasons. The
board Procurement Review Panel shall
hear the contest at its next regularly scheduled meeting after
notification of the governmental body. If the
board Procurement Review Panel rules in
support of the State Engineer's Office position, the
governmental body shall receive written notification of the
decision. If the board Procurement Review
Panel rules in support of the governmental body, the
governmental body must be notified in writing and by that
writing be authorized to use that project delivery method as
previously recommended by the governmental body on the
particular construction project."
F. Section 11-35-3220(9) of the 1976 Code is amended to read:
"(9) Approval or
Disagreement by State Engineer's Office. The State Engineer's
Office has ten days to review the data submitted by the agency
selection committee, and to determine its position with respect
to the particular person or firm recommended for approval by the
agency. If the State Engineer's Office disagrees with the
proposal, it may contest the proposal by submitting the matter
board Procurement Review Panel
for decision. In the event of approval, the State Engineer's
Office shall notify immediately in writing the governmental body
and the person or firm selected of the award and authorize the
governmental body to execute a contract with the selected person
or firm. In the event of disagreement, the State Engineer's
Office immediately shall notify the governmental body in writing
of its intention to contest the ranking and the reasons for it.
All contract negotiations by the governing body must be
suspended pending a decision by the board
Procurement Review Panel concerning a contested ranking.
The board Procurement Review Panel shall
hear contests at its next regularly scheduled meeting after
notification of the governmental body. If the
board Procurement Review Panel rules in
support of the State Engineer's Office position, the
governmental body shall submit the name of another person or
firm to the State Engineer's Office for consideration, selected
in accordance with the procedures prescribed in this section.
If the board Procurement Review Panel
rules in support of the governmental body, the governmental body
must be notified in writing and authorized to execute a contract
with the selected person or firm."
G. Subarticle 3, Article 17, Chapter 35, Title 11 of the 1976 Code is amended to read:
(1) There is created the South
Carolina Procurement Review Panel which is charged with the
responsibility to review and determine de novo:
(a) requests for review of written determinations of the chief procurement officers pursuant to Sections 11-35-4210(6), 11-35-4220(5), and 11-35-4230(6); and
(b) requests for review of other written determinations, decisions, policies, and procedures arising from or concerning the procurement of supplies, services, information technology, or construction procured in accordance with the provisions of this code and the ensuing regulations; except that a matter which could have been brought before the chief procurement officers in a timely and appropriate manner pursuant to Sections 11-35-4210, 11-35-4220, or 11-35-4230, but was not, must not be the subject of review under this paragraph. Requests for review pursuant to this paragraph must be submitted to the Procurement Review Panel in writing, setting forth the grounds, within fifteen days of the date of the written determinations, decisions, policies, and procedures.
(2) The panel must be composed of:
(e) five members
appointed by the Governor each member of the
State Contracts and Accountability Authority, except for the
Attorney General and the Comptroller General, from the State
at large who must be representative of the professions governed
by this title including, but not limited to:
(i) goods and services;
(ii) information technology procurements;
(iv) architects and engineers;
(v) construction management; and
(vi) land surveying services;
state employees appointed by the Governor
Attorney General and Comptroller General in their capacity as
members of the State Contracts and Accountability Authority;
(c) in making the appointments pursuant to the provisions of item (a), the appointing officials shall coordinate their appointments so that no more than one appointment shall be representative of a particular profession listed in item (a).
(3) The panel shall elect a chairman from the members at large and shall meet as often as necessary to afford a swift resolution of the controversies submitted to it. Four members present and voting shall constitute a quorum. In the case of a tie vote, the decision of the chief procurement officer is final. At-large members of the panel must be paid per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees. State employee members must be reimbursed for meals, lodging, and travel in accordance with current state allowances.
(4)(a) Notwithstanding the provisions of Chapter 23, Title 1 or another provision of law, the Administrative Procedures Act does not apply to administrative reviews conducted by either a chief procurement officer or the Procurement Review Panel. The Procurement Review Panel is vested with the authority to:
(i) establish its own rules and procedures for the conduct of its business and the holding of its hearings;
(ii) issue subpoenas;
(iii) interview any person it considers necessary; and
(iv) record all determinations.
(b) A party aggrieved by a subpoena issued pursuant to this provision shall apply to the panel for relief.
(5) Within fifteen days of receiving a grievance filed pursuant to Section 11-35-4210(6), 11-35-4220(5), 11-35-4230(6), or 11-35-4410(1)(b), the chairman shall either convene the review panel to conduct an administrative review or schedule a hearing to facilitate its administrative review. Except for grievances filed pursuant to Section 11-35-4230(6), the review panel shall record its determination within ten working days and communicate its decision to those involved in the determination. In matters designated by the review panel as complex, the review panel shall record its determination within thirty days.
(6) Notwithstanding another provision of law, including the Administrative Procedures Act, the decision of the Procurement Review Panel is final as to administrative review and may be appealed only to the circuit court. The standard of review is as provided by the provisions of the South Carolina Administrative Procedures Act. The filing of an appeal does not automatically stay a decision of the panel.
Section 11-35-4420. The appropriate chief procurement officer and an affected governmental body shall have the opportunity to participate fully as a party in a matter pending before the Procurement Review Panel and in an appeal of a decision of the Procurement Review Panel, whether administrative or judicial."
I. The Code Commissioner is directed to change all references in Chapter 35, Title 11 of the 1976 Code, the South Carolina Consolidated Procurement Code, from the "Budget and Control Board", the "State Budget and Control Board" or the "Board" to the "State Contracts and Accountability Authority", or the "Division of Procurement Services" of the "State Contracts and Accountability Authority", as appropriate. /
Renumber sections to conform.
Amend title to conform.