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Statutory Authority: Act 178 of 1981, and 1976 Code Sections 4-29-140, 44-7-1590, and 48-3-140

19-101. Travel Regulations for State Employees; Policy.

These regulations apply to all employees of the State or agencies thereof not otherwise specifically covered by law.

19-101.01. Travel and Transportation at State Expense.

Travel and transportation at State expense will be authorized only when officially justified and by those means which meet State government requirements consistent with good management practices.

19-101.02. Economical Considerations.

Transportation to and from points of arrival and departure will be accomplished by the most economical methods.

19-101.03. Air Travel.

Travel by commercial airlines will be accomplished in coach or tourist class, except where exigencies require otherwise.

19-101.04. Definitions.

A. Permanent place of employment: The location of the place of activity where a State employee is regularly assigned and performs work. The corporate limits of the city or town in which the employee's place of work is located. If an employee is not employed in an incorporated city or town, his permanent place of employment is the place of work.

B. Residence: The fixed or permanent domicile of a person that can reasonably be justified as a bona fide place of actual residence.

C. Mileage allowance: A rate per mile in lieu of actual expenses of operation of a privately owned automobile. If a dependent accompanies an employee on an authorized business trip, only those expenses which may be directly attributed to the employee may be reimbursed.

19-101.05. Automobile Travel.

Auto travel should be by the most direct route practicable, and substantial deviation from distances shown by the current State Highway system map of the South Carolina Highway Department should be explained.

19-101.06. Mileage Between Employee's Home and Place of Employment.

Mileage between an employee's home and his/her place of employment is not subject to reimbursement. However, when an employee leaves on a business trip directly from his/her home, and does not go by the employee's headquarters, the employee shall be eligible for reimbursement for actual mileage beginning at his/her residence.

19-101.07. Travel and Subsistence Limitations.

Travel and subsistence limitations may be made more restrictive by the agency head or director as dictated by agency requirements.

19-101.08. Election to Travel by Automobile Rather Than Aircraft.

If, for his own convenience, an employee elects to travel by automobile when air travel is more economical he shall be entitled to reimbursement as follows:

A. Mileage equal to the amount of coach or tourist air fare.

B. Vicinity mileage incurred on official business in lieu of using a taxi.

C. Parking fees equal to that which would have been incurred if the car had been parked at the airport.

D. Subsistence based on date and time airline connections would have been made for departure and return. Any period of time exceeding these guidelines will be at the employee's expense and no subsistence will be paid.

19-101.09. Parking Fees; Fines for Motor Vehicle Violation.

Parking fees for state-owned vehicles are reimburseable. No reimbursement shall be made to operators of state-owned vehicles who must pay fines for moving or non-moving violations.

19-101.10. Mileage for Use of Privately Owned Vehicle.

The mileage allowance paid to State employees for the use of privately owned vehicles shall be in lieu of all expenses connected with the operation of the vehicle including but not limited to operating costs, depreciation, parking fees, tolls, et cetera. Provided, however, the employee may be reimbursed for storage or parking charges when it is necessary that the vehicle be left at a hotel, airport, or like facility.

19-101.11. Schedule of Maximum Meal Reimbursement.

The Budget and Control Board shall annually prepare a schedule of allowable deductions for meals which shall not exceed the total amount allowed in accordance with the General Appropriations Act. The Budget and Control Board may waive the provisions of this schedule for certain activities of or functions performed by members of state boards, commissions, or committees who are not state employees. The Budget and Control Board shall furnish to each agency a copy of the schedule as soon as practicable after the passage of the General Appropriations Act.

19-101.12. Meal Reimbursements.

No reimbursement shall be made for meals within ten (10) miles of an employee's official headquarters or official place of residence. Agency heads or directors may increase this distance requirement as deemed appropriate.

19-101.13. Receipts for Expenditures.

Receipts for all expenditures other than taxi fares and meals shall be provided with the voucher requesting reimbursement.. Provided, however, that the Budget and Control Board may waive this requirement if the employee can furnish other acceptable evidence of expenditures subject to reimbursement.

19-101.14. Attendance at Statewide, Regional or District Meetings.

Employees required, as a part of their official duties, to attend statewide, regional or district meetings within the area in which the employee is headquartered may receive reimbursement for the cost of meals served at such meetings. Reimbursements for these meetings must have the specific approval of the sponsoring agency director who will notify other agencies involved.

19-101.15. Repealed 063)by State Register Volume 17, Issue No. 5, Part 1, effective May 28, 1993.

19-101.16. Overnight Accommodations.

No reimbursement for overnight accommodations will be made within fifty (50) miles of the employee's official headquarters or place of official residence.

19-101.17. Foreign Travel.

Any foreign travel of a State employee will require prior approval of the Budget and Control Board regardless of the source of funds financing such travel. For the purpose of this regulation, foreign travel is defined as any destination outside the continental limits of the United States except Alaska, Hawaii, Canada, Puerto Rico, or the Virgin Islands.

19-101.18. Handicapped Employees.

If a handicapped employee, because of his handicap, is unable to use the most economical mode of travel he may avail himself of the most economical mode compatible with his handicap. In determining the next most economical mode of travel, the following must be considered:

A. Cost of fare or mileage.

B. Subsistence expenses incurred due to extra days of travel, if any.

C. Lodging expenses incurred due to extra days of travel, if any.

D. Other allowable expenditures incurred due to extra days of travel, if any.

The agency director of the employee's agency must certify as to the employee's handicap and as to his inability to use the most economical mode of travel.

No expenses will be authorized for attendants traveling with State employees.

19-101.19. Advances for Travel Expenses.

Travel expense advances may be made subject to the following:

A. No travel advance shall be made to an employee for travel within the State without specific approval of the Budget and Control Board.

B. No travel advance shall be made for more than 80% of the estimated amount of the total travel expense, excluding airline transportation.

C. No advance shall be made in instances where 80% of the estimated travel expense does not exceed $250.

D. The agency, department or institution making advances shall keep such records of advances made in accordance with rules prescribed by the Comptroller General. If the Comptroller General shall furnish to the Budget and Control Board a statement that any agency has failed to keep proper records of travel advances, the Budget and Control Board may withdraw the privilege of that agency for making travel advances.

E. The Comptroller General may require that requests for travel advances must be submitted not later than seven (7) business days prior to the beginning of the trip for which the advance is requested.

F. When the travel assignment is completed, a voucher payable to the traveler shall be prepared for the total amount of allowable expenses incurred and paid. The traveler must then repay the cash advance when the voucher is processed for payment and the check issued to the traveler.

19-102. Approval Procedure for Industrial Revenue Bond, Pollution Control Bond and Hospital Revenue Bond Proposals.

19-102.01. Securing Approval of Proposal.

To secure approval of a proposal to issue industrial revenue bonds (Sections 4-29-10, et seq), pollution control bonds (Sections 48-3-10, et seq), or hospital revenue bonds (Sections 44-7-1410, et seq), the following must be submitted as a package to the Budget and Control Board (the Board):

A. An executed original and two copies of the petition to the Board which may include a request for the allocation of a portion of the State Ceiling on the issuance of private activity bonds and the no consideration certificate required by the Internal Revenue Service in connection with such allocations.

B. An executed copy of the resolution or ordinance of the governing body authorizing a petition to the Board.

C. An executed copy of the inducement resolution or comparable preliminary approval of the proposed undertaking, if any.

D. Audited financial statements of the entity obligated to pay the bonds covering at least three prior fiscal years except that, in any case where the bonds are to be sold privately, a representation from the person or institution purchasing the bonds that satisfactory financial information has been provided by that entity and that the bonds are being purchased for investment rather than resale purposes may be submitted in lieu of audited financial statements. Use of the Board's Standard Form Investment Letter for that representation is urged.

E. The required certifications by the Department of Health and Environmental Control must accompany petitions for the issuance of pollution control and hospital revenue bonds.

F. An original and as many copies as bond counsel may need of the resolution proposed for adoption by the Board, which must include the proposed public notice, to be certified by the Board Secretary.

G. A check for the processing fee in accord with the following schedule:

$1,000,000 or less $2,000

Over $1,000,000 through $25,000,000 $3,000

Over $25,000,000 through $50,000,000 $4,000

Over $50,000,000 $5,000

If a request is only for an allocation of a portion of the State Ceiling on the issuance of private activity bonds, only the documents described in A and C, above, are required.

19-102.02. Notice; Submission of Documents.

The required documents must be submitted to the Board Secretary together as a package for agenda preparation and review purposes not less than six days prior to the Board meeting at which a particular petition is proposed to be acted upon. Unexecuted documents may be submitted for agenda and review purposes but executed versions must be submitted prior to the meeting or the proposal will be withdrawn from the agenda.

The submission of additional documents, such as the proposed forms of bonds, loan agreements, mortgages and security agreements, providing for the issuance and securing of the bonds is not required except when requested by the State Auditor or his designee. These additional documents may be submitted in unexecuted form.

The financial statements and other documents submitted for review by the State Auditor are considered part of the Auditor's working papers and are filed accordingly.

19-102.03. Review by Office of Attorney General; Review of Financial Condition of Entity Proposing Bonds.

Prior to Budget and Control Board approval of a petition (a) the resolution/ordinance, the petition, the inducement resolution or comparable preliminary approval, if any, the proposed Board resolution and any required certificate shall have been reviewed and found legally adequate by the Office of the Attorney General, and (b) except when the bonds are to be privately placed, the financial condition of the entity obligated to pay the bonds shall have been reviewed and found satisfactory by the State Auditor or his designee.

19-102.04. Notice of Approval.

When Board approval of any petition has been granted, the Board Secretary shall advise the governing body or its agent promptly and shall certify copies of the Board resolution evidencing such approval.

19-102.05. Publication of Public Notice of Approval.

The governing body or its agent shall bear responsibility for the publication of the public notice of the Board's approval of a petition required by law. A certified copy of the published notice must be filed promptly with the Board Secretary.

19-103. Regulations on Allocation of State Ceiling on Issuance of Private Activity Bonds.

19-103.01. Calculation and Certification of State Ceiling.

The State Ceiling, as established in the Deficit Reduction Act of 1984 (the Act), shall be calculated by the Secretary of the Budget and Control Board based upon the provisions of the Act and certified to by him as soon as practicable after the estimates of the population of the State of South Carolina are published by the Bureau of the Census and in no event later than February 1 of each calendar year; provided, that he shall calculate and certify the State Ceiling for the calendar year 1984 no later than fifteen (15) days following the issuance of these regulations.

19-103.02. Allocation of Bond Limit Amounts.

(a) The private activity bond limit amounts for all issuing authorities will be allocated by the Budget and Control Board in response to Authorized Requests (as described in Reg. 19-103.04 below) by such issuing authorities.

(b) The aggregate private activity bond limit amount for all South Carolina State government agencies and for all other South Carolina general purpose governmental units is allocated initially to the State for further allocation within the limits prescribed herein.

(c) Except as is provided in Reg. 19-103.05 hereof, all allocations from the Local Pool or from the State Agency and Exempt Facilities Pool (described in Reg. 19-103.03 below) by the Budget and Control Board will be made on a first-come, first-served basis, to be determined by the date and time sequence in which complete Authorized Requests are received by the Board's Secretary.

19-103.03. Private Activity Bond Limits.

(a) The private activity bond limit for all agencies of the State of South Carolina now or hereafter authorized to issue private activity bonds as defined in the Act and for issuing authorities other than State Government agencies for issues of such bonds for "exempt facilities" (which term, as used herein, shall mean facilities described in Section 103(b)(4) of the Internal Revenue Code of 1954, as amended, including, in particular, pollution control facilities) to be known as the "State Agency and Exempt Facilities Pool," shall be forty per cent (40%) of the State Ceiling (1) less any amount reallocated by the Budget and Control Board to the local pool (described in the succeeding paragraph); or (2) plus any amount reallocated by the Board from the local pool.

(b) The private activity bond limit for all issuing authorities within the State of South Carolina other than State Government agencies described in the preceding paragraph now or hereafter authorized to issue private activity bonds as defined in the Act, excluding issues of such bonds for "exempt facilities" by such issuing authorities, to be known as the "Local Pool," shall be sixty per cent (60%) of the State Ceiling (1) plus any amount reallocated by the Budget and Control Board from the State Agency and Exempt Facilities Pool; or (2) less any amount reallocated by the Board to the State Agency and Exempt Facilities Pool.

(c) The Budget and Control Board with review and comment by the Joint Bond Review Committee may at any time it determines that either the basic Local Pool or the basic State Agency and Exempt Facilities Pool is exhausted reallocate any unused amounts from one pool to the other.

19-103.04. Authorized Requests for an Allocation.

(a) For purposes of Reg. 19-103.02, an Authorized Request shall mean, for any bonds issued by issuing authorities other than State Agencies, a request contained in a petition to the Budget and Control Board that a portion of the State Ceiling be allocated to the bonds for which the petition has been filed, accompanied by a copy of the Inducement Contract, Inducement Resolution, or comparable preliminary approval on such bonds entered into by such issuing authority. A copy of such Authorized Request shall be forwarded promptly by the Budget and Control Board to the Joint Bond Review Committee for information.

(b) For private activity bonds proposed for issuance by any State Agency, an Authorized Request shall mean a petition filed with the Budget and Control Board not sooner than the adoption of a bond ordinance or bond resolution authorizing the issuance of such bonds. A copy of such Authorized Request shall be forwarded promptly by the Budget and Control Board to the Joint Bond Review Committee for information.

(c) Each Authorized Request must demonstrate that the allocation amount requested constitutes all of the private activity bond financing contemplated at the time for the project and any other facilities located at or used as a part of an integrated operation with the project.

19-103.05. Limitation on Board Allocations in Response to Authorized Requests.

The Budget and Control Board with review and comment by the Joint Bond Review Committee may disapprove, reduce or defer any Authorized Request. In the event it becomes necessary to exercise this authority due to lack of funds in either Pool, the Board and the Committee shall take into account the public interest in promoting economic growth and job creation.

19-103.06. Filing of Certificate.

(a) Prior to the issuance of any private activity Bond for which a portion of the State Ceiling has been allocated by the Budget and Control Board pursuant to Regs. 19-103.01 through 19-103.05 hereof, the chairman or other official of the issuing authority shall certify to the Secretary of the Budget and Control Board the exact amount of Bonds being issued. A copy of the Internal Revenue Service Form 8038 on the Bond issue being certified filed or to be filed with the Internal Revenue Service may be used to meet this certification requirement.

(b) In response, the Secretary of the Budget and Control Board shall determine that such Bonds when issued and combined with the total amount of such Bonds certified to the Board Secretary by issuing authorities as having been issued or to be issued previously in the calendar year will not exceed the State Ceiling and, if so, the Secretary shall certify in writing to that effect to such officer. Except under extraordinary circumstances, the Secretary will make such determination and execute such certificate within two (2) business days following the date he received the bond issue amount certificate of the issuing authority.

(c) The failure by any issuing authority to file the bond issue amount certificate shall cancel the allocation.

19-103.07. Lapse of Filing.

Whenever any filing as provided in Reg. 19-103.06 hereof precedes the date of issue of the Bonds by more than ten (10) business days, such filing shall be void and a new filing shall be required prior to the issuance of the bonds.

19-103.08. Time Limits of Allocations.

(a) Any allocation of the State Ceiling approved by the Budget and Control Board before October 1 shall be valid only for the calendar year in which it was approved, unless specified to the contrary in the Board Secretary's allocation certification required by Reg. 19-103.06 hereof.

(b) Board approval of allocations on and after October 1 must specify the calendar year in which the allocation is valid and this information must be indicated in the certificate of the Board's Secretary.

(c) Unless specified to the contrary, each allocation shall expire automatically if the bonds for which such allocation has been approved are not issued within ninety (90) days following the approval by the Budget and Control Board; provided that the entity which filed the Authorized Request must advise the Board's Secretary of the status of the issuance within sixty (60) days and again within seventy-five (75) days from the Board's approval if the Internal Revenue Service Form 8038 has not been filed before those points in time.

19-103.09. Termination of This Regulation.

These Regulations shall be of no force and effect upon the earlier of the recision by Congress or declaration of unconstitutionality of Section 621 of the Act, or any portion thereof, by the U.S. Supreme Court.

19-103.10. Future Changes and Evaluation of Regulations.

(a) Prior to January 1, 1986, the Joint Bond Review Committee will conduct a review and evaluation of these Regulations.

19-104. Approval Procedure for City, County and Regional Housing Authority Bond Issues for Multifamily Housing Projects.

19-104.01. Securing Approval; Documents Required.

To secure approval of the issue and sale of bonds or notes (hereafter bonds) by a city, county or regional housing authority (hereafter local housing authority) to finance multifamily housing projects, as provided in Act 369 of 1986, the following must be submitted to the Budget and Control Board (Board):

A. An executed original and a copy of the petition of the local housing authority governing body describing a proposed project, requesting Board approval of the issue and sale of a specified amount of bonds to finance the project and, including, if appropriate, a request for an allocation of a portion of the State Ceiling to the bonds and the project;

B. Two executed copies of the resolution or ordinance of the local housing authority governing body authorizing the petition to the Board;

C. Two sets of the documents providing for the issuance and securing of the bonds or drafts thereof in substantially final form;

D. Two sets of audited financial statements of the entity obligated to pay the bonds covering at least the three prior fiscal years except that, in any case where the bonds are to be sold privately, a representation from the person or institution purchasing the bonds that satisfactory financial information has been provided by that entity and that the bonds are being purchased for investment rather than resale purposes may be submitted in lieu of audited financial statements;

E. The original of a resolution approving the bond issue proposed by the local housing authority governing body for adoption by the Board and copies of that resolution to be certified by the Board Secretary;

F. Two copies of statements disclosing:

(1) the results of any market study or other analysis of the multifamily housing needs in the proposed project area which was the basis upon which a determination was made by the local housing authority to issue the bonds to finance the project together with a complete description of the project;

(2) the principal amount of the bonds proposed to be issued;

(3) the purpose or purposes for which the proceeds of such bonds are to be expended;

(4) the maturity schedule of the bonds proposed to be issued;

(5) the rate of interest expected on the bonds proposed to be issued;

(6) a schedule showing (a) the annual debt service requirements of all outstanding bonds of the local housing authority proposing the bonds; (b) the annual debt service requirements of the proposed bonds; and (c) the aggregate annual debt service requirements of the outstanding and proposed bonds;

(7) a schedule showing the amount and source of revenues available annually for the payment of the annual debt service requirements established by the schedule required by (6), above;

(8) the method to be employed in selling the proposed bonds;

(9) evidence of compliance with applicable provisions of State and federal law prior to the issuance of the bonds;

(10) evidence that the project or projects financed by the bonds will be managed and operated in compliance with applicable provisions of State and federal law including, in those instances determined by the Board, subjecting the project to restrictive covenants to ensure such compliance;

(11) evidence that each bond financing proposed is structured to protect the interests of prospective bondholders and the local housing authority by meeting the following requirements, as a minimum:

(a) With respect to bonds to be offered at public sale:

(1) the issue must be rated no less than "investment grade" by one of the national rating agencies; and

(2) in addition, one or more of the following conditions must be met:

(aa) There must be in effect for the bonds to be issued a federal program which provides assistance in the payment of the principal and interest when due to bondholders.

(bb) The lendable proceeds of the bond sale must be used to acquire either federally-insured mortgages or mortgages insured by a private mortgage insurance company authorized to do business in South Carolina.

(cc) The payment of principal and interest when due to bond purchasers and bondholders must be insured by the maintenance of adequate reserves or by insurance or by a guaranty by a responsible entity.

(b) With respect to bonds sold or placed as "Mortgage bonds sold as a unit" or in "Transactions with banks, institutional buyers, etc . . .", as provided in Code Section 35-1-320, the documents pursuant to which bonds are issued must permit the local housing authority to avoid any default by it by completing an assignment of or foregoing its rights with respect to any collateral or security pledged to secure the bonds.

(c) With respect to any bonds offered for sale upon the representation that the interest paid thereon by the issuer is exempt from federal income taxation, the documents pursuant to which bonds are issued must require the mandatory redemption of the bonds at par value if the interest paid thereon is determined to be subject to federal income taxation.

(12) evidence that every official statement, preliminary official statement, and any other document used in the sale of any bond issued by a local housing authority includes the following disclaimer:

No representation is made by or on behalf of the State of South Carolina or the State Budget and Control Board as to the creditworthiness of the securities hereby offered. Neither the State of South Carolina nor any of its agencies is obligated for the payment of any principal or interest due or to become due on the securities hereby offered for sale.

(13) the local housing authority's agreement that the management agent for any project approved by the Budget and Control Board must also be approved by the Board.

19-104.02. Review by Office of the Attorney General, by Office of State Auditor and by Office of Executive Director.

Before the Board will grant final approval in whole or in part to a petition by the governing body of a local housing authority to issue bonds,

A. the petition, the resolution or ordinance, the documents providing for the issuance and securing of the bonds, and the proposed Board resolution must have been reviewed and found legally adequate by the Office of the Attorney General;

B. the financial statements of the entity obligated to pay the bonds (which are considered part of the Auditor's working papers) must have been reviewed and the financial condition of the entity must have been found to be such that the Office of State Auditor found no reason for the Board to disapprove the petition and the Board must have determined, upon the advice of the Office of State Auditor, that the funds estimated to be available for the repayment of the local housing authority's bonds, including the proposed bonds, will be sufficient to provide for the payment of the principal and interest on the local housing authority's bonds to be outstanding as they become due; and

C. the statements required to be submitted to the Board as described in 19-104.01. F., above; the documents providing for the issuance and securing of the bonds; and the results of the reviews required in 19-104.02. A. and 19-104.02. B., above, must have been reviewed by staff of the Board's Office of Executive Director and, on the basis of this review, staff of the Board's Office of Executive Director must have recommended to the Board that it (1) approve the petition; (2) approve the petition with conditions; or (3) disapprove the petition.

19-104.03. Notice; Submission of Documents; Consideration By Board.

The governing body of the local housing authority or its agent must notify the Board Secretary not less than six (6) days prior to the Board meeting it proposes that a particular petition be acted upon and that governing body must submit to the Board Secretary at that time all of the documents required. If the reviews required in 19-104.02, above, are not completed prior to the Board meeting at which a petition is scheduled to be considered, the Board at that meeting may grant approval on the condition that the required reviews are completed with results which recommend approval of the petition, as determined by the Board Secretary, within not more than thirty (30) days of the date of the Board meeting at which the petition was scheduled for consideration, except in extraordinary cases. If any of the required reviews result in a recommendation that the petition be approved by the Board with conditions or that it be disapproved, the Board Secretary must include that petition on the agenda of the next regular meeting of the Board for its consideration and final decision.

19-104.04. Review and Report by Local Authorities.

After Board approval of a local housing authority petition, the local housing authority involved must periodically review and report to the Board on the operation of projects approved by the Board to ensure their compliance with State and federal law. As a means of guiding its project monitoring activities, the Board will issue a manual which is consistent with these regulations which outlines the procedures to be followed by local housing authorities in reporting on the operation of projects approved by the Board for distribution to local housing authorities and other interested parties. The manual must be approved by the Board for distribution not more than ninety (90) days after the approval of these regulations by the General Assembly. As a part of its on-going involvement with local housing authorities, the Board annually must provide to any local housing authority which has issued bonds approved by the Board a schedule showing maximum allowable income adjusted for family size which must be used to determine eligibility of prospective tenants for the purpose of ensuring compliance with federal and State law.

(Statutory Authority: 1976 Code Section 23-47-30)

19-200. Definitions.

Terms that have been defined in the Act shall have the same definitions when utilized in these regulations. Additional definitions are as follows:

A. "Government entity" means a political subdivision of the State having responsibility for public safety, specifically, a county, municipality, or similar governmental unit.

B. "Telephone service supplier" means "service supplier" as defined in the Act.

C. "Planned coverage area" or "PCA" means the well-defined geographical area from which the planned 9-1-1 system will directly accept and process 9-1-1 calls.

19-201. Application to be Made.

Government entities seeking approval to implement 9-1-1 systems must make application to the Division Director, Division of Information Resource Management (DIRM), Suite 930-AT&T Building, 1201 Main Street, Columbia, South Carolina, 29201.

19-202. Preliminary Review and Approval.

The Act requires a government entity that seeks funding for a 9-1-1 system to submit to DIRM a system plan for review and approval. It is recognized that much of the information needed to properly document the proposed 9-1-1 system may not be available in the beginning stages of the planning process, at which time, up to 30 months prior to system implementation, certain levels of funding may be required, as provided for in the Act. For this reason DIRM may grant preliminary approval based on information and estimates available at the beginning of the planning cycle. Such preliminary approval shall allow funding mechanisms to be activated so not to unduly hamper system development. The remaining items of information detailed below will be required as they become available, and a complete and final plan must be submitted and approved prior to 9-1-1 system implementation. The following items of information will suffice to allow an initial review of a 9-1-1 system plan. Corresponding actual, final, and complete information must replace all estimated, partial, and incomplete information prior to 9-1-1 system implementation.

A. A document outlining and describing proposed agreements, understandings, duties and obligations, and activities associated with the intended contractual relationship between the government entity making application and telephone service supplier(s) whose equipment, facilities, and services will be required for system implementation and operation. This document must contain information specified in items 203 H(1) through 203 H(6) below; and

B. A determination, with justification, of the type of 9-1-1 system planned, as Enhanced 9-1-1 (E911) or Basic 9-1-1, as specified in subsection 203 A below, and a statement of responsibility, as specified in subsection 203 B below; and

C. A listing of all public safety agents and other service providers, as specified in subsection 203 D below; and

D. A preliminary system description based on estimates of information specified in items 203 I(1) through 203 I(4) below; and

E. A description of the existing public telephone system within the PCA, as specified in item 203 I(5) below; and

F. A mapping and addressing plan covering the entire PCA, as specified in subsection 203 J below; and

G. A plan for public instruction in 9-1-1 capabilities and usage, as specified in subsection 203 L below; and

H. A preliminary budget plan containing estimates of cost and revenue figures specified in subsection 203 O below.

19-203. Information Requirements for Final Application.

Final applications must address, affirm compliance with, and furnish information in accordance with each section and subsection below, explicitly, completely, and in the order given, to allow for a speedy and accurate review. It is recognized that much of the information requested below will be included in other primary documents. It is not necessary to transcribe such material into the prescribed order or format, but, instead, a cross-reference guide must be provided, arranged in the required order, to provide exact reference for quick and straightforward access to the needed information. Copies of all referenced primary documents must be furnished with the application, and all referenced locations must contain sufficiently complete and explicit information.

A. Government entities planning to make available 9-1-1 services are encouraged to implement Enhanced 9-1-1 (E911) systems. However, where an E911 system is determined to be prohibitively costly or otherwise not feasible, and Basic 9-1-1 service can be shown to be reasonably adequate to the public's needs and safety, a Basic 9-1-1 system may be proposed. A Basic 9-1-1 system may be proposed as a temporary measure during development and pending implementation of full E911 capabilities. Applications must clearly identify the type of system proposed and contain sufficient explanatory information to justify such determination. In the event a Basic 9-1-1 system is proposed as a temporary measure, the application must indicate a proposed schedule or timetable for ultimate Enhanced 9-1-1 implementation.

B. Applications must include a statement of responsibility by which the government entity making application is identified and assumes responsibility for all matters and consequences relating to the implementation and operation of the planned 9-1-1 system, subject to limitations of legal liability specified in the Act. Applications must include name, title, address, and telephone number of the 9-1-1 project coordinator. In the case of planned regional systems, involving two or more distinct, coordinate government entities, a single statement of responsibility must delineate and make explicit respective administrative, operational, and fiscal functions and responsibilities by which the participating government entities will jointly undertake the planned 9-1-1 system as a whole.

C. Services made available through 9-1-1 must include all law enforcement, fire protection, emergency rescue, and EMS services in the PCA. Other emergency services may be included for potential 9-1-1 access; such services must be identified and described in the application. A 9-1-1 system must include in its PCA all of the territory of the government entity making application. A regional system must include in its PCA all of the territories of each of the separate government entities jointly making application. Applications must identify all 9-1-1 systems, basic and enhanced, operational and under development, that have coverage areas in common with the PCA.

D. Applications must include a listing of all public safety agents and other service providers accessible through the planned 9-1-1 system. Location, address, name of contact person, and telephone number(s) must be provided for each listed agent and service.

E. Applications must contain letters of understanding between the government entity making application and each public safety agent and other emergency service provider not falling under the direct administrative or operational control of the entity making application, defining a standard mutual operational relationship, and a joint acceptance and specific assignment of duties and responsibilities associated with 9-1-1 system operation. Where multiple public safety agents and/or other planned 9-1-1 accessible services have concurrent or overlapping jurisdictions within the PCA, a clear understanding of which specific calls for assistance will be referred to individual public safety agents and other services must be evidenced.

F. Applications must include written guidelines and procedures, based on internal policies and procedures of the government entity making application, or based on the above understandings with other public safety agents and emergency service providers, that will govern appropriate assignment of calls for assistance by/from each proposed 9-1-1 Public Safety Answering Point (PSAP) to the various public safety agents and other emergency services able to respond to such calls. Certain such agents and services may be physically located outside the PCA: each such instance must be noted, and corresponding 9-1-1 call assignment patterns must be shown to coordinate with assignment patterns in adjacent jurisdictions in a manner not unduly affecting emergency responsiveness in those jurisdictions.

G. The proposed 9-1-1 system, to include all planned services and coverage/response areas and patterns, must be coordinated with services and coverage/response areas and patterns associated with all adjacent 9-1-1 systems and their respective PCA's, and all other adjacent public safety jurisdictions and activities. Application must identify and verify all points of such required coordination.

H. Applications must contain letters of understanding between the government entity making application and the telephone service supplier, or local exchange carrier, whose equipment, facilities, and/or services will be employed to support planned 9-1-1 service and/or from whose subscriber billing supporting revenues will be derived. Such agreement(s) must affirm details of compliance with the Act. Such agreement(s) must assign and make clear all respective roles, duties, and functions pertaining to proper 9-1-1 system planning, development, implementation, and operation. Such agreement(s) must specifically:

(1) Present a master schedule, or "system time line", detailing the schedule and sequencing of all major and/or critical events associated with 9-1-1 system planning, development, implementation, and operation; and

(2) Detail and schedule the particulars of street address data base creation, data element and data format standardization, data coordination, and periodic data base reconciliation and rectification, to ensure proper ANI-ALI correspondence and optimal 9-1-1 system responsiveness and efficiency; and

(3) Cite and present the text of the ordinance to be adopted, imposing a monthly 9-1-1 charge upon each local exchange access facility subscriber, and indicate the amount of the uniform monthly 9-1-1 charge imposed or to be imposed initially; and

(4) Describe billing procedures and detail the schedule and mechanism for transfer of funds from telephone service supplier(s), or LEC(s), to the government entity responsible for 9-1-1 system implementation and operation; and

(5) Affirm the creation of an Emergency Telephone System Fund, as specified in the Act, specifying the use of that fund solely to defray costs associated with those items allowed in the Act, to include all telephone service suppliers' allowed charges for equipment, facilities, and services in support of the planned 9-1-1 system; and excluding those items disallowed in the Act; and

(6) Specify a mechanism for annual review and adjustment of the uniform monthly telephone subscriber charge for 9-1-1 service, so to maintain a minimal Emergency Telephone System Fund balance necessary for continuing proper support of 9-1-1 services.

I. Applications must include a comprehensive description of the planned 9-1-1 system, showing:

(1) Configuration of the planned 9-1-1 system, to include number, locations, and descriptions of PSAP's; types and quantities of equipment, and communications facilities and services to be employed initially upon implementation, and projected over the three year period following implementation; initial and projected system capacities; initial and projected reserve capacities expressed as percentages of total available capacities; and

(2) Description of real property and construction and renovation of physical structures necessary to accommodate PSAP(s) and all other facilities, to include provisions for environmental conditioning (HVAC), emergency power, and security; and

(3) Maintenance and system support resources and services necessary to ensure continuing system availability and optimal functioning; and

(4) Personnel resources and organizational structure necessary to manage, operate, and maintain the planned system, initially, and projected over the three (3) year period following implementation; and

(5) Description of the existing public telephone system within the PCA, to include: map identifying and showing extent of all telephone exchanges (prefixes) serving territory in common with the PCA; names and locations of telephone central offices (wire centers) serving those exchanges; identities of owning telephone companies; types of central office switching equipment, and counts of telephone subscribers served (capable of 9-1-1 access): counts of total access and billed lines within each telephone exchange listed; and

(6) Plans for disaster recovery and for continuing system availability and functioning during and following disaster/emergency situations, such plans to include records of federal Telecommunications Service Priority (TSP) System protection applied for, if any.

J. No Enhanced 9-1-1 system may be implemented until such time as at least eighty-five percent (85%) of all residents in the PCA have been assigned a standard street address. Applications for E911 systems must include a mapping/addressing plan and schedule verifying:

(1) That the 85% addressing requirement will be met prior to system implementation; and

(2) That duplicate addresses will be eliminated through readdressing, or, in cases where readdressing is considered not to be feasible, that any two or more distinct residences or locations within the PCA and adjacent coordination areas having the same address will be mapped for 9-1-1 response in a manner that ensures proper identification; and

(3) That planning and street naming and numbering conventions will prevent occurrence of future duplicate addressing.

K. The mapping/addressing plan must state long-term mapping/addressing policy and goals that will ensure the greatest practical extent of 9-1-1 coverage to residences and other locations throughout the PCA. The plan must indicate policy to apply to non-addressed locations, specifically as required by the Act, as concerning residents who do not have a standardized address provided by the local government.

L. Applications must include a plan for public instruction in 9-1-1 capabilities and usage. The plan must address the following instructional goals:

(1) Public awareness of what constitutes an emergency and a nonemergency.

(2) Public awareness of the availability of 9-1-1 service for emergencies.

(3) Promotion of general use of "911" rather than a 7-digit number for emergency calls.

(4) Public awareness of the requirements of the Act for conspicuous display of street numbers at residences.

M. 9-1-1 systems for which application is made must conform to the following requirements and incorporate the following features and capabilities, except that only those features and capabilities not specifically associated with E911 systems shall be required of proposed Basic 9-1-1 systems. Specific technical capabilities generally associated with those features indicated below shall be required to the extent such capabilities are technically and economically feasible and supportable within the respective telephone system infrastructure, to include cellular system infrastructure. Applications must note and justify such exceptions. Applications must identify all facilities, features, and capabilities that are to be furnished by or through a telephone service supplier.

(1) Continuous staffing and operation (24 hours a day, 7 days a week)

(2) Automatic Number Identification (ANI)-automatically displays at the PSAP the telephone number of 9-1-1 caller's telephone.

(3) Automatic Location Identification (ALI)-automatically displays at the PSAP the address of the 9-1-1 caller's telephone, to include coin or pay telephone locations.

(4) Central Office Identification-allows the identity of the 9-1-1 call-receiving central office to be determined (where a single PSAP may receive 9-1-1 calls from more than one telephone central office).

(5) Call Detail Recording-provides an electronic (e. g., magnetic tape) and printed record for each 9-1-1 call showing the caller's telephone number, the time the call was initiated, the time the call was answered, the time the call was transferred (if appropriate), the time the call was disconnected, trunk line identification, and identification of the call answerer's position or console.

(6) Electronic recording of all 9-1-1 calls; retention of all call recordings for a minimum of sixty days following the date of the call. Immediate playback capability for all 9-1-1 call recordings.

(7) A minimum of two trunk lines connecting each serving telephone central office to the E911 tandem (controlling central office), and a minimum of two trunk lines connecting the E911 tandem to the PSAP. In all cases sufficient lines, facilities, equipment, and staffing must remain continuously in service to ensure no more than one busy signal per one hundred 9-1-1 calls during normal operation, and capability to answer at least 80 percent of all 9-1-1 calls within ten seconds during normal operation.

(8) Sufficient telephone lines, facilities, and equipment to allow immediate telephone contact between the PSAP and each law enforcement, fire protection, emergency rescue, EMS, and other service location/activity designated to receive calls for assistance through the planned system.

(9) At least one telecommunications device for the deaf (TDD) available at each PSAP at all times.

(10) At least one local telephone line in addition to 9-1-1 access line(s). This nonemergency telephone number must be published as such immediately following the "emergency dial 911" listing.

(11) Sufficient standby emergency power to operate each PSAP during power failures of unlimited duration. This requirement may relaxed if provision is made to transfer functions of each PSAP to an alternate site.

(12) Adequate physical security to minimize the possibility of disruption of services through intentional acts, negligence, or Acts of God; adequate equipment security features to prevent unauthorized or improper use of equipment or communications facilities; adequate security features to prevent casual and inappropriate access to data base information.

(13) Means of identifying 9-1-1 calls for highest answering priority; both audible and visual (light) indicators of incoming 9-1-1 calls.

(14) Capability to route directly and receive any cellular telephone-originated 9-1-1 call placed from any location in the corresponding cellular system's coverage area within the PCA.

(15) Coin-free dialing-9-1-1 calls must be allowed without charge from all public coin or pay telephones in the PCA.

(16) Forced Disconnect-allows the PSAP to clear a 9-1-1 line when the calling party does not, or cannot, hang up.

(17) Disconnect Tone-distinctive tone indicating that the 9-1-1 caller has disconnected.

(18) Selective Routing-automatically routes all 9-1-1 calls originating in a specific geographical area to the PSAP serving that area, irrespective of political or telephone wire center boundary alignments within the PCA.

(19) Default Routing-automatically routes a 9-1-1 call to a predesignated alternate PSAP or answering point when the 9-1-1 call cannot be selectively routed due to ANI failure or other cause.

(20) Alternate Routing-provides backup for a PSAP by routing 9-1-1 calls to predesignated alternate PSAP or answering point when all lines to the primary PSAP are busy or when the primary PSAP is out of service.

(21) Selective Transfer-capability to transfer a 9-1-1 call directly, by means of one or two keystrokes, to a different PSAP to allow proper responsiveness to calls more appropriately handled by that PSAP.

(22) Contingency plans and capability to directly reroute some, or all, 9-1-1 calls from any receiving PSAP to adjacent PSAP's in the event of incoming 9-1-1 call overload or PSAP functional degradation due to equipment failure or other causes.

(23) Contingency plans and capability to relocate any PSAP as situations may warrant. Such relocation must not significantly impair overall 9-1-1 call processing capability.

N. Applications must include detailed, written operational procedures for each PSAP, governing invocation and usage of capabilities and features listed in subsection M above, in addition to specifying all 9-1-1 call processing procedures and other PSAP activities necessary and appropriate for proper PSAP functioning over a comprehensive range of usual and unusual situations and circumstances.

O. Applications must include a detailed budget plan scheduling all anticipated revenues and expenses associated with the following items. Each budget item must show two components: [1] that part to be funded through telephone subscriber fee revenues, and [2] that part to be funded through other sources, such other sources to be identified. The budget plan must detail all expense items to be recovered wholly or in part through telephone subscriber fee revenues, and make explicit and detail this revenue schedule and recovery mechanism.

(1) Mapping and addressing activities preliminary to 9-1-1 system implementation.

(2) Other pre-implementation activities.

(3) Acquisition, construction, renovation, and readying of physical facilities.

(4) Acquisition, installation, and preliminary testing of equipment, by item, and communications facilities and circuits.

(5) Estimated initial and projected recurring costs and charges associated with telephone service supplier furnished equipment, communications facilities and circuits, and services.

(6) Estimated initial and projected personnel costs with associated full-time-equivalent (FTE) figures.

(7) Estimated training costs, itemized by source of training.

(8) Estimated initial and projected recurring costs for ongoing PSAP operation, other than personnel costs.

(9) All other projected recurring and ongoing operational expenses, detailed, to include maintenance expenses.

(10) All other costs, detailed, e.g. debt service, legal expenses, consultants fees, other miscellaneous expenses.

P. The budget plan must make explicit all planned indebtedness and debt retirement schedules.

Q. The budget plan must explicitly make provision for and schedule an annual budget reconciliation, or "true-up", in which, to allow for periodic rate adjustment, revenues received by the responsible government entity through telephone subscriber fees are reconciled with actual allowed operating expenses and other allowed expenses, to include all costs and charges pertaining to telephone service supplier supplied facilities and services. Such reconciliation may provide for carryover of Emergency Telephone System Fund surpluses to accommodate identified long-term needs. Such reconciliation may be accomplished in conjunction with the annual audit required in the Act.

19-204. Commercial Mobile Radio System Surcharge.

Commercial Mobile Radio System (CMRS) providers shall collect monthly CMRS Emergency 911 surcharges from each of their subscribers with a South Carolina area code, in the amount of the average of the telephone (local exchange access facility or wire line) emergency 911 surcharges collected in South Carolina's counties, as annually calculated by the CMRS Emergency Telephone Service Advisory Committee and approved by the Budget and Control Board.

The CMRS providers shall submit these collected surcharges, less two (2%) percent, if they choose, with an accounting thereof, under oath, in a form prescribed by the Department of Revenue, to the Department, on or before the twentieth day of the second month succeeding each monthly collection.

(Statutory Authority: 1976 Code Section 1-11-770)

19-210. Purpose.

The purpose of these regulations is to establish certification criteria for entities to become certified by the Board as South Carolina 211 Network Providers as directed in Section 1-11-770(B) of the South Carolina Code of Laws.

19-211. Definitions.

A. "Board" means the South Carolina State Budget and Control Board, Division of the State Chief Information Officer.

B. "Board 211 Certification Process" means the application of criteria established by the Board for certification of a 211 provider in the South Carolina 211 Network.

C. "211" means a three digit dialing code assigned by the Federal Communications Commission (FCC) to be used for community information and referral purposes.

D. "South Carolina 211 Network" means the system of 211 providers certified by the Board that provide 211 services in the state.

E. "South Carolina 211 Network Provider" means an information and referral organization whose primary purpose is to maintain information about human service resources in the community, supply descriptive information about the agencies or organizations that offer services, and assist consumers in accessing appropriate providers.

F. "Alliance of Information and Referral Systems" or "AIRS" means a non profit, as defined by Section 501(c) (3) of the federal tax code, professional membership organization for information and referral providers.

G. "Alliance of Information and Referral Systems accreditation" or "AIRS accreditation" means a process by which the Alliance of Information and Referral Systems determines whether information and referral programs are in compliance with the standards set forth in the current edition of the Standards for Professional Information and Referral.

H. "Alliance of Information and Referral Systems certification" or "AIRS certification" means the awarding of professional credentials to individuals who successfully complete the Alliance of Information and Referral Systems certification program.

I. "AIRS/INFO LINE Taxonomy of Human Services" means the national standardized service classification system used to facilitate retrieval of community resource information, increase the reliability of planning data, make evaluation processes consistent and reliable, and facilitate national comparisons of data.

J. "Candidate" means an organization that requests to be certified by the Board to become a South Carolina 211 Network Provider in the South Carolina 211 Network.

K. "Client information" means any information that can be used to identify a specific individual to whom services are being provided.

L. "Donation management" means assisting individuals or agencies to make financial or in kind contributions to community organizations.

M. "Volunteer Management" means assisting individuals or organizations to provide volunteer services to the community.

N. "Information and Referral Services" mean programs whose primary purpose is to maintain information about human service resources in the community, to link people who need assistance with appropriate service providers, and to supply descriptive information about the agencies or organizations that offer services.

O. "Provisional certification" means the temporary certification granted by the Board to a South Carolina 211 Network Provider that loses AIRS accreditation.

P. "Standards for Professional Information and Referral" means the current edition of the document published by the Alliance of Information and Referral Systems that defines the national standards for information and referral programs and systems.

19-212. Board Certification Process and Requirements.

A. The Board shall certify a single South Carolina 211 Network Provider for each county. The minimum service delivery area for a South Carolina 211 Network Provider shall be a single county. This shall not preclude a South Carolina 211 Network Provider from serving multiple counties. To ensure the maximum use of the 211 number for information and referral services, the certified South Carolina 211 Network Provider shall be required to coordinate with all other information and referral services and the telecommunications companies within the designated county or counties. If the Board receives more than one application for South Carolina 211 Network Provider certification from organizations representing the same county, the Board will notify the organizations that the Board shall only accept one collaborative designation application per county.

B. In order to be considered to become a South Carolina 211 Network Provider, candidates shall submit to the Board a South Carolina 211 Network Provider Certification Application Form, as developed by the Board. Candidates shall also provide the Board with written documentation verifying that the organization meets the following criteria:

(1) provides 24 hour, 7 days a week coverage either on site or through written agreements with other information and referral organizations for after hours and emergency coverage, that shall be provided by personnel monitoring the 211 phone line and shall not be answered through an answering service or answering machine;

(2) adheres to the AIRS, Standards for Professional Information and Referral, which is incorporated herein by reference, and is AIRS accredited, or has initiated the written application process and shall become accredited within three years;

(3) has 25 percent or more of its staff that is eligible for certification through the AIRS certification program certified by AIRS as information and referral specialists or resource specialists;

(4) works collaboratively and has written agreements with specialized information and referral systems which shall include, but not be limited to, crisis centers, child care resource and referral programs, volunteer associations, elder help lines, homeless coalitions, designated emergency management systems, and 911 and 311 systems, where applicable;

(5) has an established automated information tracking system that maintains call center data that shall include, but not be limited to, call volume, number of abandoned calls, average speed of answering, average call length and other appropriate call center statistics;

(6) maintains a computerized information and referral system database that has up to date information and resource data and the capacity to collect caller information;

(7) uses the AIRS/INFO LINE Taxonomy and has incorporated the taxonomy into its resource data base;

(8) provides 211 services at no charge to callers and does not request or accept fees or compensation of any kind from referred organizations in return for referrals. Does not permit commercial advertisements to be heard on the phone lines or viewed via the internet if the 211 provider offers internet services;

(9) publicizes 211 services through a written public awareness, marketing, advertising and education plan to inform the public of available services;

(10) provides teletyping (TTY) services for speech and hearing impaired individuals and multilingual accessibility either on site, or through access to translators;

(11) has formal agreements with appropriate clearinghouse agencies that provide volunteer or donation management services;

(12) ensures quality of service and caller and customer satisfaction through the timely provision of services and appropriate follow up and written outcome evaluations;

(13) shares resource database information with other South Carolina 211 Network Providers and state and local governmental agencies, including submitting resource database information to a shared common website accessible by the public, if available;

(14) tracks information on inquirer needs, unmet needs, and barriers to services and shares this data with other South Carolina 211 Network Providers, and local and state agencies and organizations;

(15) uses a method common to all South Carolina 211 Network Providers to measure and evaluate outcomes for the operation of a 211 call center;

(16) provides proof of, or application for, authority to conduct business in the State of South Carolina;

(17) adheres to any applicable provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA); and

(18) submits to the Board a prospective five year budget, including a description of projected sources of funding. Candidates shall also submit to the Board an audited financial statement. This statement shall be the most recent and complete audited financial statement available and for a fiscal period not more than eighteen months old at the time of submission. Such statement shall be by an independent, certified public accountant. In the event qualifying audited financial statements are not available, an unaudited statement along with the entity's federal income tax returns for the preceding two years may be submitted.

C. South Carolina 211 Network Providers must submit to the Board an annual report documenting the information and referral services provided during the previous year including geographical areas served, call volume, number of abandoned calls, average speed of answering, average call length, information on inquirer needs, unmet needs, and barriers to services. This report shall also include a prospective budget for the upcoming year, including a description of projected sources of funding. This report shall follow the state's fiscal year from July 1st through June 30th and shall be due to the Board on or before August 15th of each year. A provider shall also submit to the Board an audited financial statement for its most recently completed fiscal year. This statement shall be submitted no later than six months following the close of the provider's fiscal year.

D. Candidates that submit a South Carolina 211 Network Provider Certification Application Form, with accompanying written documentation that verifies compliance with the Board's certification criteria, and have AIRS accreditation shall be certified for five years as a South Carolina 211 Network Provider.

E. Candidates that submit a South Carolina 211 Network Provider Certification Application Form, with accompanying written documentation that verifies compliance with the Board's certification criteria, and that have applied for, but not yet received, AIRS accreditation shall be certified for one year as a South Carolina 211 Network Provider. Prior to certifying a candidate who does not have AIRS accreditation, the Board may conduct an onsite visit to review the candidate's compliance with the Board's certification criteria.

F. Within ninety days of the receipt of the initial South Carolina 211 Network Provider Certification Application Form, the Board shall notify a candidate of whether the candidate is in compliance with the Board's certification requirements. Such notification shall include a statement of deficiencies for candidates that are determined not in compliance with the certification requirements. Candidates determined by the Board to not be in compliance with the certification requirements, shall submit a plan of correction to the Board for review and approval within twenty one days of receipt of the statement of deficiencies. The plan of correction shall include a list of corrective actions the candidate will take to remedy identified deficiencies and shall include the date by which each action shall be completed. The Board shall notify candidates whether their plan of correction has been approved. Candidates shall conform to the certification criteria within forty five days of receipt of the Board's notification of approval of the plan of correction, or shall be ineligible for certification by the Board. Candidates that fail to submit and adhere to an approved plan of correction shall not be certified by the Board as a South Carolina 211 Network Provider. Candidates shall be eligible to reapply for Board certification after one year from the date of notification by the Board.

G. If a South Carolina 211 Network Provider loses AIRS accreditation, yet is in compliance with the Board's certification criteria, the provider shall be granted a one year provisional certification by the Board as a South Carolina 211 Network Provider, if after consulting with AIRS, the Board determines that the provider is eligible to reapply for reaccreditation. The Board shall notify the provider that it has one year from the date of loss of accreditation by AIRS to obtain reaccreditation. Within forty five days of notification, the provider shall submit to the Board for approval a plan to secure AIRS accreditation within the provisional timeframe.

H. If the Board receives a written complaint that a South Carolina 211 Network Provider is not in compliance with the Board's certification criteria, the Board shall initiate an investigation of the complaint within forty five days of notification.

I. If the Board determines that a South Carolina 211 Network Provider is not in compliance with the Board's certification criteria, the provider shall be notified that it shall conform to the standards within forty five days of receipt of notice or lose certification by the Board.

J. The Board shall renew the certification of a South Carolina 211 Network Provider which has AIRS accreditation for an additional five years, if the provider submits a new South Carolina 211 Network Provider Certification Application Form, with accompanying written documentation that verifies compliance with the Board's certification criteria, at least ninety days prior to the termination of the certification period.

K. The Board shall renew the certification of a South Carolina 211 Network Provider which does not have AIRS accreditation, if the provider submits the following at least ninety days prior to the termination of the certification period: a new 211 South Carolina Network Provider Certification Application Form, with accompanying written documentation that verifies compliance with the remainder of the Board's certification criteria, and a written plan of how the provider intends to obtain AIRS accreditation. Prior to recertifying a provider that does not have AIRS accreditation, the Board may conduct an on site visit to review the provider's compliance with the Board's certification criteria. The Board shall renew certification for one year for a provider that does not have AIRS accreditation if the Board determines the provider is in compliance with the certification criteria. The Board shall notify the provider if it is not in compliance with the Board's certification criteria. The provider shall have forty five days from receipt of such notification to become compliant. Providers who become compliant with the certification criteria within forty five days shall be granted an additional one year of certification.

19-213. Dispute Resolution.

A. Review Procedure; Exclusive Remedy. A candidate who is denied certification by the Board to become a South Carolina 211 Network Provider may seek review of the denial in the manner set forth in subsection B below within fifteen days of receiving notice of certification denial. A South Carolina 211 Network Provider whose Board certification is revoked may seek review of the revocation in the manner set forth in subsection B below within fifteen days of receiving notice of revocation.

B. Request for Review. A request for review under subsection A above shall be submitted in writing to the South Carolina 211 Network Coordinator, South Carolina State Budget and Control Board, Division of the State Chief Information Officer, 4430 Broad River Road, Columbia, South Carolina 29210-4012. A request for review shall set forth the name of the party requesting administrative review, the grounds for review with enough particularity to give notice of the issues to be decided, the relief requested, and all information relied upon by the requestor to support the relief requested.

C. Administrative Review. The administrative review shall be performed by the Director of the Division of the State Chief Information Officer, or his representative. Any representative appointed by the Director shall be generally familiar with South Carolina 211 Network Provider certification and shall not have been directly involved with the certification decision under consideration. Upon receipt of the timely request for review, the Director or representative:

(1) shall request from the Board information used to reach the decision to deny or revoke certification;

(2) may request from the party requesting review any information the Director or representative believes necessary to reach a decision;

(3) may obtain any other information from any source as may in the Director's or representative's judgment be required to reach a decision; or

(4) may make a decision solely on the information provided by the requestor in its request for review.

The Director or representative may conduct any conferences or nonadversarial proceedings the Director or representative deem necessary. Any decision to conduct a conference or other nonadversarial proceeding is solely within the discretion of the Director or representative.

D. Decision. The Director or representative shall conduct an independent evaluation of material submitted and render a written final decision setting forth the reasons for the action taken. A copy of this decision shall be mailed or otherwise furnished to the parties.

E. Finality. The decision of the Director or representative is final as to administrative review and may be appealed to the Circuit Court of the State of South Carolina, Richland County pursuant to the Section 1-23-380.

19-214. Revocation of 211 Number.

A. The 211 dialing code shall only be used by entities certified by the Board as South Carolina Network 211 Providers. The Board shall notify any entity that is leasing the 211 number from a local exchange company and is not certified by the Board that it has thirty days from receipt of the notification to submit the South Carolina 211 Network Provider Certification Application Form, and accompanying written documentation that verifies compliance with the Board's certification criteria. If the entity leasing the 211 number fails to submit a completed certification application form within thirty days of receipt of the notice, or fails to become certified by the Board, the Board shall notify the local exchange company that the entity is not authorized to use the 211 number.

Statutory Authority: 1976 Code Chapter 9 of Title 23 and Chapter 43 of Title 39

19-300 to 19-312. Repealed by State Register Volume 23, Issue No. 6, eff June 25, 1999.

19-300 to 19-312. Repealed by State Register Volume 23, Issue No. 6, eff June 25, 1999.

(Statutory Authority: 1976 Code Sections 10-5-210 through 10-5-320)

19-400. South Carolina Barrier Free Building Design Standard.

(Statutory Authority: 1976 Code Sections 40-1-40, and 10-5-220, et seq.)

19-400.1. Authority.

(A) With the exception of one and two family detached dwellings and other residential buildings to be offered for sale as individual dwelling units, every building or structure shall have all levels and areas made accessible to disabled persons in accordance with the latest edition of the American National Standards Institute, Inc. (ANSI) document A117.1, and the requirements of this section.

(B) Buildings containing dwelling units that are to be offered for rent, such as apartments, hotels, dormitories, etc., shall provide the following number of fully accessible units.

Total Number of Units Number of Accessible Units

0 thru 19 1

20 or more 5%

Fractions of 1/2 or more shall be counted as a

whole unit

19-400.2. Application.

(A) There shall be no construction, alteration or leasing of a government building nor construction or renovation of a public building except in conformity with these Regulations. If the occupancy as defined in the Building Code of an existing building is changed, that building shall be made to conform to the requirements of these Regulations for the new occupancy. If the occupancy of a portion of an existing building is changed, then only such portion which is changed shall comply.

19-400.3. Administration.

(A) Interpretation--Interpretation of these Regulations and provisions herein shall be the responsibility of the local building officials, in consultation with the appropriate State Officials where necessary. However, request for interpretation may be forwarded to the Accessibility Committee for the South Carolina Building Codes Council for resolution.

(B) Enforcement--The enforcement of these Regulations including investigations shall be the responsibility of the Building Official of each county or municipality within the state. If the county or the municipality does not have a Building Official, the South Carolina Building Codes Council shall enforce these Regulations.

(C) Conflicts--Where a conflict exists between these Regulations and Section 10-5-210 through 10-5-320 of the Code of Laws of South Carolina, 1976, as amended, these Regulations shall be superseded and governed by the applicable code section. Where there is conflict between these Regulations and local and municipal ordinances, these Regulations govern and shall be followed.

(D) All meetings and conferences, of an agency of this State, in which participation by the public is invited or anticipated, must be held in a place and manner that is accessible to persons with disabilities, unless there are compelling reasons why specific elements of accessibility cannot be provided. In such instances where specific elements of accessibility cannot be provided, the meeting or conference areas shall be as accessible as reasonably possible.

19-405. State Board of Pyrotechnic Safety.

(Statutory Authority: 1976 Code Section 40-56-20)

19-405.1. Applicability of Regulations.

Pursuant to legislation enacted in the State of South Carolina relating to the manufacture, storage, sale and possession of fireworks, the Rules and Regulations set forth herein are adopted by the State Board of Pyrotechnic Safety who directs compliance therewith by any person who shall manufacture, store, sell or possess fireworks in the State of South Carolina.

19-405.2. Definitions.

For the purpose of these Rules and Regulations, the following terms are defined as meaning:

A. Board--The State Board of Pyrotechnic Safety.

B. Division--The Office of General Services of the State Budget and Control Board.

C. Pyrotechnics--The art of making or the manufacture and use of fireworks.

19-405.3. Scope of Jobbers, Retailers and Wholesale Distributors.

A. Jobber

A Jobber may sell fireworks to retailers only. A Jobber must purchase fireworks from a wholesale distributor licensed to do business in South Carolina.

B. Retailer

A Retailer may sell fireworks to the general public, except as provided in Regulation 405.6 (H). A Retailer must purchase fireworks from a jobber or wholesale distributor licensed in South Carolina.

C. Wholesale Distributor

A Wholesale Distributor may sell fireworks to licensed jobbers and/or retailers, supply Class "B" Displays and/or import foreign and/or domestic fireworks.

19-405.4. Enforcement.

The enforcement of these Rules and Regulations and the responsibility thereof is as follows:

A. The General Services Division of the State Budget and Control Board shall supervise the enforcement of the laws and regulations of the State Board of Pyrotechnic Safety and shall employ and supervise personnel necessary to carry out the duties of this Board.

B. The Agent in Charge of the Pyrotechnic Enforcement Section, his Agents, Municipal Fire Chiefs and their Inspectors, Sheriffs, Deputy Sheriffs, City and County Chiefs of Police, their Officers and/or SLED Officers shall have authority to inspect any building where pyrotechnic material (fireworks) may be stored or sold to see that the laws of the State are enforced.

C. Upon determining violations of the law, any official named in this section, having the authority, shall contact the Agent in Charge of the Pyrotechnic Enforcement Section, who may either confiscate or direct the agent to confiscate any fireworks or fireworks in a facility not being in compliance with the laws of the State.

19-405.5. Facilities for Retail Sale of Pyrotechnics.

A. Fireworks Stands:

1. This facility consists of a temporary structure and shall be located in such a manner as to make it immobile and to prevent it from shifting or blowing over. Tie down devices shall be affixed and wheels shall be removed.

2. Any such structure, if attached, adjacent or within thirty (30) feet of any other structure must provide a minimum of two-hour fire separation.

3. The structure shall be tied down in the following manner: Definitions:

a. Diagonal Tie--Any tiedown designed to resist horizontal or sheer forces and which deviates not less than thirty (30) degrees from a vertical direction.

b. Ground Anchor--Any device designed for the purpose of securing a temporary structure to the ground.

c. Hurricane Zone--The first two (2) tiers of coastal counties.

d. Tiedown--Any device designed for the purpose of anchoring a temporary structure to ground anchors.

Tiedown Spacing and Sizes:

Over the top tiedowns shall be positioned at stud and rafter locations near each end of the temporary structure. Others, if needed, may be positioned between them. Whenever feasible, over the top tiedowns and diagonal ties directly beneath them may use the same ground anchors. Cable or strapping, or other approved methods or materials shall be used for ties. All ties shall be fastened to ground anchors and drawn tight with turn buckles, yoke-type fasteners or other such tensioning devices listed with the ground anchor. Cable shall be either seven thirty-seconds ( 7/32 ) of an inch in diameter or greater (7 × 7) steel cable, or one quarter ( 1/4 ) inch diameter or greater (7 × 19) aircraft cable. All cable ends shall be secured with at least two (2) U-bolt cable clamps. The material shall be capable of resisting an allowable working load of three thousand, one hundred fifty (3,150) pounds with no more than two (2) percent elongation and shall withstand a fifty (50) percent overload (4,725 pounds total). Tiedowns exposed to weathering shall be resistant to deterioration at least equivalent to that provided by a coating of zinc on steel of not less than thirty-hundredths (0.30) ounces per square foot of surface coated. Note: Type 1, Class B, Grade 1 steel strapping 1 1/4 inches wide and 0.035 inch thick, conforming with Federal Specification QQ-S-781-F is judged to conform with these requirements. Materials used for ties must terminate with D-ring bolts, or other fastening devices which will not cause distortion of the band or reduce its breaking strength (4,725 pounds). Connection of the cable frame tie to the I-beam (or other shape) main structural frame should be by a five eights ( 5/8 ) inch drop-forged closed eye, bolted through a hole in the center of the I-beam web. A washer or equivalent shall be used so that the beam is sufficiently reinforced around the hole. If steel strap ties are used, care must be exercised to insure that minimum bending radius is adhered to so that the breaking strength of the strap is not reduced. Frame ties shall connect the anchor and the steel I-beam (or other shape) main structural frame member which runs lengthwise under the temporary structure. Frame ties shall never be connected to any steel outrigger beams which fasten to and intersect the main I-beam at right angles. Ground anchors shall be aligned with the centers of all piers. In addition, they must be situated immediately below the outer wall to accommodate over the top ties as well as frame ties. All ground anchors, cables, straps, etc., shall be installed in strict compliance with the manufacturers' recommendations. All temporary structures shall contain the minimum number of ties as specified below:

(a) Hurricane Zone--Up to 14 feet in width;

(b) Non-Hurricane Zone--Up to 14 feet in width;

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LENGTH OF STRUCTURE

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UP TO 40' 41' TO 60' 61' TO 82'

(a) (b) (a) (b) (a) (b)

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Diagonal Ties Per side 4 3 6 5 8 6

Over the Roof Ties 2 2 3 3 4 3

Min. Anchors Per Structure 8 6 12 10 16 12

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4. Customers shall be prohibited entrance to said facility or access to displayed fireworks.

5. An approved fireworks extinguisher having a minimum classification of 2A or equivalent shall be provided and easily accessible.

6. An independent electrical supply shall be provided for the facility and all electrical, heating and cooling equipment and connections shall be installed so as not to constitute a fire hazard.

7. Smoking shall be prohibited within thirty (30) feet of said facility and shall be strictly enforced by the operator. Sufficient NO SMOKING signs shall be posted in conspicuous locations (front, rear and sides).

8. All fuses shall be taped or covered while on display, to prevent direct exposure of said fuse.

B. Permanent Fireworks Retail Outlets:

This type facility displays and offers for sale fireworks in a permanent location, to include the following:

1. All fireworks displayed in this facility and the cashier must be so situated that NO SMOKING can be controlled within the facility at all times by the cashier.

2. NO SMOKING signs shall be painted on each entrance door at eye level with letters no less than four (4) inches in height. Letters shall be on a contrasting background. (Decals are acceptable.)

3. A fire extinguisher having a minimum classification of 2A or equivalent shall be provided for each 600 square feet of floor space. Extinguishers shall be located throughout the facility and placed at a height easily accessible.

4. NO SMOKING signs with letters no less than four (4) inches in height shall be posted in conspicuous locations, one sign for each 600 square feet of floor space.

5. All exposed fuses shall be taped or covered, while on display, to prevent direct exposure to said fuse.

19-405.6. General Provisions for Sale of Pyrotechnics.

A. These general provisions do not exempt retail fireworks establishments from other Rules and Regulations where applicable.

B. The State Board of Pyrotechnic Safety shall adopt the 1985 Edition of the Standard Building Code with the 1986 and 1987 Amendments including Appendix "P" for the construction of all fireworks facilities.

C. The State Board of Pyrotechnic Safety shall adopt the 1987 Edition of the National Electrical Code for the construction of all fireworks facilities.

D. No fireworks shall be stored, displayed or offered for sale in any area so situated that the rays of the sun shining through glass will be directly on them.

E. All retailers shall store backup stocks of Class "C" Fireworks in the original unbroken DOT containers in which such fireworks were shipped and received.

F. Separation of fireworks storage areas from other areas of the same building shall be not less than one-hour fire rated construction with a separate exit/entrance combination.

G. The operator's, salesman's or handler's conduct or condition shall be as such as not to imperil the public safety, and shall be capable of reading, writing, speaking and understanding the English language.

H. No person under the age of eighteen (18) shall be employed or allowed to participate as a salesman or handler of fireworks and no person under the age of fourteen (14) shall be sold permissible fireworks unless accompanied by a parent.

I. No fireworks shall be permitted to be sold from automobiles, trucks, campers, or any other motor driven vehicle.

J. No flame shall be allowed within thirty (30) feet of any structure housing fireworks for sale.

K. The area surrounding a fireworks facility shall be kept clean of debris, empty boxes, trash or any other materials that would constitute a fire hazard.

L. The Division shall have the authority, to inspect any vehicle or building where fireworks may be stored or sold, to see that the laws of the State are enforced.

M. All disputes arising as a result of these Rules and Regulations shall be referred to the State Board of Pyrotechnic Safety.

1. Any party involved in a dispute arising under these Rules and Regulations may within fifteen (15) days of the occurrence giving rise to such dispute petition the Board, in writing via Certified or Registered Mail, for an appearance before the Board. The petition shall plainly and substantially set forth the details of the occurrence including its time, location and date, and state petitioner's reasoning for request to appear before the Board.

2. The Board shall within twenty (20) days of receipt of a written request for appearance make a determination as to the necessity of the appearance and notify the petitioner, in writing via Certified or Registered Mail, of its decision to grant or deny the appearance, and the reasons therefor.

19-405.7. Wholesale Distributors and Jobbers.

A. All Wholesale Distributors and Jobbers shall store permissible fireworks in their original packaging and in unopened cases or cartons so as to take advantage of the insulation provided by such packaging, provided however, unopened fireworks packages which have been returned by retailers may be temporarily retained in bins for repackaging or resale.

B. A fire extinguisher having a minimum classification of 2A or equivalent shall be provided for each 600 square feet of floor space and so located that accessibility is not hampered.

C. Such areas where fireworks are stored shall have signs posted containing the words, NO SMOKING, in letters not less than four inches in height on a contrasting background. The owner or operator shall strictly enforce NO SMOKING at all times.

D. No open flame type heat shall be allowed and all electrical, heating or cooling equipment and connections shall be installed so as not to constitute a fire hazard.

E. All fireworks storage warehouses, where closer than thirty (30) feet to adjacent buildings shall provide a minimum of two-hour fire separation.

F. No person under the age of eighteen (18) shall be employed or allowed to participate as a salesman or handler of fireworks.

G. The salesman's or handler's conduct or condition of sobriety shall be such as not to imperil the public safety, and this individual shall be capable of reading, speaking and understanding the English language.

H. The Division shall have the authority, to inspect any building or vehicle where fireworks may be sold or stored to see that the laws of the State are enforced.

I. All disputes arising as a result of these rules and regulations shall be referred to the State Board of Pyrotechnic Safety.

19-405.8. Storage of Class "B" Pyrotechnics.

A. Outdoor facilities are to be fire-resistant, weather-resistant and theft-resistant. The ground around outdoor facilities must slope away for drainage or other adequate drainage be provided. When unattended, vehicular facilities must have wheels removed or otherwise be effectively immobilized by locking devices.

B. Outdoor facilities are to be constructed of masonry, metal-covered wood, fabricated metal, or a combination of these materials. Foundations are to be constructed of brick, concrete, cement block, stone or metal or wood posts. If piers or posts are used in lieu of a continuous foundation, the space under the building is to be enclosed with fire-resistant material. The walls and floors are to be constructed of, or covered with, a non-sparking material or lattice work. The doors must be metal or solid wood covered with metal.

C. Indoor storage facilities are to be fire-resistant and theft-resistant. They need not be weather-resistant if the buildings in which Class "B" pyrotechnics are stored provide protection from the weather. No indoor facility is to be located in a residence or dwelling. The indoor storage of low explosives must not exceed a quantity of fifty (50) pounds. More than one indoor facility may be located in the same building if the total quantity of explosive materials stored does not exceed fifty (50) pounds.

D. Indoor facilities are to be constructed of masonry, metal-covered wood, fabricated metal, or a combination of these materials. The walls and floors are to be constructed of, or covered with, a non-sparking material. The doors must be metal or solid wood covered with metal.

E. Hinges and hasps for all storage facilities are to be attached to doors by welding, riveting, or bolting (nuts inside of door). Hinges and hasps must be installed so that they cannot be removed when the doors are closed and locked.

F. Each door in a facility is to be equipped with (i) two (2) mortise locks; (ii) two (2) padlocks fastened in separate hasps and staples; (iii) a combination of a mortise lock and a padlock; (iv) a mortise lock that requires two (2) keys to open; or (v) a three-point lock. Padlocks must have at least five (5) tumblers and case-hardened shackle of at least 3/8 inch diameter. Padlocks must be protected with not less than 1/4 inch steel hoods constructed so as to prevent sawing or lever action on the locks, hasps and staples. These requirements do not apply to facility doors that are adequately secured on the inside by means of a bolt, lock or bar that cannot be actuated from the outside.

G. Smoking, matches, open flames, and spark producing devices are not permitted--

(1) In any facility;

(2) Within fifty (50) feet of any outdoor facility; or

(3) Within any room containing an indoor facility.

H. Explosive materials within a facility are not to be placed directly against interior walls and must be stored so as not to interfere with ventilation. To prevent contact of stored explosive materials with walls, a non-sparking lattice work or other non-sparking material may be used.

19-405.9. Sale of Class "B" Pyrotechnics.

A. Storage and Sale of Class "B" Pyrotechnics shall be prohibited in a facility that offers Class "C" Common Fireworks for sale.

B. Each distributor of Class "B" display pyrotechnics shall provide to the purchaser necessary permit forms for fireworks displays in South Carolina and all sales records shall be kept opened for inspection by the authorities for no less than eighteen (18) months.

C. No one under the age of eighteen (18) shall be employed as a salesman or handler of Class "B" pyrotechnics.

D. The Division shall have the authority, to inspect any building or vehicle where Class "B" pyrotechnics may be stored and sold to see that the laws of the State are enforced.

19-410. Surplus Property.

(Statutory Authority: 1976 Code Section 3-9-10)

19-410.1. State Plan for Surplus Property.

INTRODUCTION

A. Address: State Agency for Surplus Property (SASP)

1441 Boston Ave.

West Columbia, S. C. 29170

B. This plan describes our primary mission. Our secondary mission is to acquire, warehouse and distribute surplus property to all eligible donees in the state in accordance with Public Law 94-519 as amended and FPMR 101.44 as amended.

C. Hours of operation: 8:00 a.m. to 4:30 p.m., Monday through Friday, except State holidays.

D. All monies for goods and services are handled directly by the accounting section of the Office of Internal Operations of the S. C. Budget & Control Board.

E. All previous regulations which deal with the Federal Surplus Property Plan and all regulations which conflict with the State Plan for Surplus Property are hereby repealed.

19-410.2. Designation of State Agency.

The Office of General Services of the State Budget and Control Board has been designated as the State Agency for Surplus Property and will be responsible for administering the plan.

A. Organizational Chart (Copies of organizational charts obtained from Office of General Services).

1. Showing organizational units and functioning units. (Copies of organizational charts obtained from Office of General Services) See B(1)(b) below.

2. Showing major lines of authority.

(a) To what official the Agency Director is responsible and the supervision of organizational units.

B. Certification of Screeners.

In accordance with Federal Property Management Regulations 101-44.116 the names of State Agency personnel authorized to screen and select surplus personal property for donation will be submitted to General Services Administration for certification.

C. Physical Facilities.

(1) Summary sheets describe in detail the physical facilities.

(2) The land is owned by the State and the buildings thereon are owned by the State Agency.

(3) Location of facilities is 1441 Boston Avenue, West Columbia, South Carolina 29170.

19-410.3. Inventory and Accounting Systems.

A. Scope of Accountability System.

All donable property approved for transfer, and donable property received, warehoused, and distributed by the State agency is accounted for under a full accountability system that meets the requirements of Section 3-9-10, South Carolina Code and Public Law 94-519, as amended.

B. Checking Property into SASP Custody.

(1) Verification of property. Shipments received are verified promptly. Property is received in an area which is separated from the rest of the distribution center in order that there will be no possibility of mingling with other items available to the donees.

(2) Documentation. The shipment is physically checked against the shipping documents and the "Application for Donation of Surplus Personal Property" (Form 123).

(3) Record preparation. Identification tags are prepared and attached to the individual items. The documents are signed by the stock clerk and forwarded to the office where the inventory clerk prepares the inventory record.

(4) Overages and Shortages. Property received is verified by a physical count with the Holding Agency's shipping document. The "Application for Donation of Surplus Property" (Form 123) is also verified to the count of property received. A SF 123 will be prepared and submitted to the appropriate GSA regional office for line item overages of $500.00 or more in accordance with FPMR 101-44.115.

(5) Recording and reporting difference. If the count of property received does not agree with the Holding Agency's shipping document, an overage and shortage report is prepared and delivered to the Holding Agency by screener for reconciliation with PDO. Over and short items not reconciled are reported to GSA regional office in accordance with FPMR Paragraph 101-44.115. Differences between items listed on Form 123 and the physical count are handled in the manner outlined above. Any such differences are also reflected by the monthly "Report of Surplus Property Received."

C. Periodic Verification of Property on Hand.

(1) Verification. The inventory or stock record cards are checked with the physical count of inventory of personal property on hand once each year.

(2) Recording of difference. Any difference between the stock cards and the actual count are reported to the distribution center manager, who, after a thorough check as to their correctness, presents these cards to the Surplus Property Officer for final determination.

(3) Reporting. Differences will be reported as in (2) above.

D. Inventory Adjustments.

(1) Report Form. Any necessary adjustments to the inventory record cards will be noted on the Inventory Adjustment form.

(2) Reporting variations.

(a) The Inventory Adjustment form will be presented to the Surplus Property Officer by the distribution center manager for inspection together with the appropriate inventory card. The Surplus Property Officer will sign those Inventory Adjustment forms requiring adjustment or take other corrective action.

(3) Adjustments. Adjustments will be made after review by the Surplus Property Officer and completion of the Inventory Adjustment form. The inventory record card will reflect the necessary adjustments. Both records will be retained in appropriate files in numerical order for a minimum period of three years.

(4) Written authority. The Surplus Property Officer will authorize adjustments as outlined in (3) above. This will apply, not only for annual inventory adjustments, but also for other necessary adjustments as well.

(5) Disposal of property of no value to program.

(a) In accordance with the procedures and requirements of FPMR 101-44.205, property will be reported to GSA for transfer to another state or disposed of by public sale, destruction or abandonment.

(b) Appropriate records are maintained to cover disposals described above.

E. Tracing Property from Receiving Document to the Issue Document.

(1) Method. At the time the inventory record cards are prepared, the state serial number of the Form 123 and line item number is entered on these cards and the identification tag which is attached to the item. When a pre-numbered warehouse issue sheet is prepared, the state serial number and line item number is also entered thereon. The warehouse issue sheet number and the date is noted on the inventory record card. Each inventory record card bears only one state serial number. When the items listed on an inventory record card are all issued, the card is filed in an inactive file. In this way, property is readily traced from the receiving document to the issue document.

(2) Reference to exhibit of inventory of property card. For the use to which the inventory card is put, see E(1) above.

F. Systematic Means of Determining Quantity of Various Types of Property Donated to Individual Donees.

(1) Description of files for each donee. Individual donee files are maintained on an annual basis which contain copies of all warehouse issue sheets showing property issued, service charges, etc. Separate files for $5,000 or over acquisition cost items and all passenger motor vehicles are maintained (see Part X of the State Plan).

(2) Other records (if any) of property donated to each donee. A correspondence file and an invoice file is also maintained by donee.

G. Accounting System.

The Surplus Property Service Fund utilizes basic accrual accounting practices outlined in Governmental Accounting, Auditing and Financial Reporting as compiled by the National Committee on Governmental Accounting (1968).

On Deposit accounts are cash accounts with documented deposits and withdrawals.

Accounts Receivable account has all billings and payments received with net amount owed as a balance.

Buildings account has all expenditures for permanent construction and additions to structures used at the Surplus Property site.

Accumulated Depreciation-Buildings account has amount of expiration of the useful life of the buildings using the straight-line method with a twenty year base.

Office Equipment account has expenditures for non-expendable equipment that is inventoried, tagged and accounted.

Accumulated Depreciation-Office Equipment account has amount of expiration of the useful life using the straight-line method with a ten year base.

Motor Vehicle Equipment account has amount of expenditure for motor vehicle equipment.

Accumulated Depreciation-Motor Vehicle Equipment account has expended amount of useful life using straight-line method with four year useful life.

Allocated To/From State General Fund account has amounts received or returned to the State General Fund from the Surplus Property Service Fund.

Retained Earnings account shows accumulated amount of equity retained in operations.

Revenue From Operations account shows amount of sales.

Expenses (cash) account shows amount spent for operating costs.

Expenses (accrual) account shows amount applicable to accounting period.

The accounts for the Surplus Property Service Fund is kept by the Comptroller General of South Carolina and a corresponding ledger system is kept by the Office of Internal Operations, S. C. Budget and Control Board. Fixed asset accounts are kept also at the Office of Internal Operations, S. C. Budget and Control Board where amounts for purchase of these assets are maintained by source fund.

All accounts are periodically audited by internal auditors and the State auditing staff to ascertain to the correctness of the Surplus Property Service Fund as stipulated by GAAP standards.

The State Agency is furnished detailed operating statement and balance sheet monthly, reflecting the current financial condition of the Agency.

All accounting records are maintained at the central office of the Office of General Services.

19-410.4. Return of Donated Property.

When determination has been made that property has not been placed in use by the donee, for the purposes for which it was donated, within one year from the date of receipt of the property, or when the donee has not used the property for one year thereafter under the terms and conditions of the application certification and agreement form signed by the administrative officer (or other authorized representative of the donee) as a condition of eligibility and repeated on the reverse side of each distribution document, the donee, if the property is still usable as determined by the State Agency, must:

(a) Return the property at his own expense to the State Agency distribution center.

(b) Re-transfer the property to another eligible donee as directed by the State Agency.

(c) Make such other disposal of the property as the State Agency may direct.

(d) The State Agency will periodically emphasize this requirement when corresponding and meeting with donees and when surveying the utilization of donated property at donee facilities.

19-410.5. Financing and Service Charges.

A. Section 3-9-10, Code of Laws of South Carolina, 1976. Any charges made or fees assessed by the South Carolina Office of General Services for the acquisition, warehousing, distribution or transfer of any property of the United States of America for educational, public health or civil defense purposes, including research for any such purpose which may now be or hereafter become eligible under the act, shall be limited to those reasonably related to the costs of care and handling in respect to its acquisition, receipt, warehousing, distribution or transfer. The State Agency does not receive any appropriated funds from either State or Federal sources.

B. Method of Computing Service Charges.

Service charges shall be fair and equitable as related to the services performed and the direct and indirect cost of operations. In general the charges are related to the following expense factors:

(1) Personal Service

(a) Clerical

(b) Secretarial

(c) Purchasing & Supply

(d) Security

(e) Labor & Trades

(f) Equipment Operation

(2) Contractual Services

(a) Freight, Express & Delivery

(b) Travel

(c) Telegraph & Telephone

(d) Repairs

(e) Water, Heat, Lights & Power

(f) Other Contractual Services

(3) Supplies

(a) Fuel Supplies

(b) Office Supplies

(c) Motor Vehicle Supplies

(d) Postage

(e) Other Supplies

(4) Fixed Charges & Costs

(a) Rents--Equipment

(b) Insurance

(c) Contributions & Dues

(5) Equipment

(a) Office Equipment

(6) Depreciation

A chart has been prepared for computing service and handling charges by applying percentage factors to acquisition cost in ranges to permit consideration of property conditions, desirability, normal market value, quantity available, etc. (See chart, infra)

C. Minimal Charges.

(1) In cases where property is located and screened exclusively by a donee screener at a Holding Agency where state screeners do not visit, the service charge will be reduced, as a general rule, by 10%.

(2) On direct transfers of property from the Holding Agency to the donee, where the donee pays all transportation costs, the service charge may, as a general rule, be reduced by 25%, when compared to similar items transferred from the State Distribution Center.

(3) Service and handling charges assessed for donated property to providers of assistance to homeless individuals shall be at nominal cost for care and handling.

D. Special Donations.

In cases involving major items of property or otherwise when unusual expenses may be incurred, the State Agency may mutually arbitrate with the donee for a fair and equitable service charge.

E. Evaluation of Service Charges.

The relation of service charges to the total costs of operation will be evaluated on a quarterly basis. The service charges will be revised in accordance with the evaluation results.

F. Funds accumulated from service charges including such funds accumulated from donee service charges before October 17, 1977, or from other sources such as sales or compliance proceeds, will be used to cover direct and indirect costs of the State Agency's operation, to purchase necessary equipment, to rehabilitate donable surplus property, to provide normal upkeep of office and distribution center facilities, to purchase necessary equipment and supplies, to purchase replacement parts for donable property items, to acquire or improve office space or distribution center facilities as authorized in Section 3-9-10 of the South Carolina Code.

G. Capital Reserve Fund.

A reasonable working capital reserve fund will be maintained (the previous year's total overhead expenses) and should this reserve become excessive, a reduction in service charges shall be made to all donees on future transfers.

H. Deposits of Service Charge Funds.

All moneys are deposited with the State Treasurer in a Revolving General Fund and designated by a separate account in accordance with Section 11-14-30 of the South Carolina Code, 1976.

I. Disposition of Funds if Facilities are Sold.

All moneys arising from the sale of facilities shall be paid into the State Treasurer and shall be kept on a separate account by the Treasurer as a fund to be drawn upon the warrant of the Budget and Control Board for the exclusive use and purpose which have been or shall be declared in relation to the General Fund, in accordance with Section 11-9-620 of the South Carolina Code, 1976.

J. Means and Methods of Financing.

(1) The State Agency receives no appropriated funds from the State or Federal Government. The Agency is financed solely from the assessment of service and handling charges on Federal surplus personal property donated. Authority for this is covered by State statutes as defined in Part I of the State Plan, Paragraph B(1).

Chart for Computing Service and Handling Charges

(a) (b) (c)

Percent of Acquisition Service Charge

A/C Cost Range

0-50% 0-$10 0-$5

0-40% $10-$100 0-$40

0-30% $100-$200 0-$60

0-25% $200-$1500 0-$375

0-10% $1500-$5000 0-$500

0- 5% $5000-$20,000 0-$1000

0- 3% $20,000-$50,000 0-$1050

0- 1% $50,000-$100,000 0-$1000

Open Over $100,000 Negotiable

Exceptions:

(a) Rehabilitated property--Direct costs for rehabilitating property will be added to the charge.

(b) Overseas property--Additional costs for screening and returning property will be added.

(c) Extraordinary and/or unusual transportation charges--Charges on property with "out-of-the ordinary" or "unusual transportation cost" will be added.

(d) Special Handling--An additional charge may be made for dismantling, packing, crating, shipping, delivery and other extraordinary charges.

(e) Adjustment in acquisition cost--When the acquisition cost of an item is unrealistic, an adjustment will be requested from the GSA Regional Office prior to assessment of service charge.

(f) Lotted property--Property issued by the pound will not be covered by the above schedule. Service charges will be assessed on a price per pound basis.

(g) Fair market value--In certain special cases service charges may be assessed on a basis of the fair market value of the property.

NOTE: The above schedule will be re-evaluated periodically for comparison of operating expenses with income receipts, at which time the percentage of acquisition cost (Col. a) will be adjusted accordingly.

19-410.6. Terms and Conditions on Donable Property.

A.(1) The State Agency will require each eligible donee, as a condition of eligibility, to file with the State Agency an application, certification and agreement form outlining the certifications and agreements, and the terms, conditions, reservations and restrictions, under which all Federal surplus personal property will be donated. Each form must be signed by the chief executive officer of the donee institution agreeing to these requirements prior to the donation of any surplus property. The certifications and agreements and terms, conditions, reservations and restrictions will be printed on the reverse side of each State Agency Issue Document.

(2) The following periods of restriction are established by the State agency on all items of property with a unit acquisition cost of $5,000 or more, and on all passenger motor vehicles.

(a) Passenger motor vehicles--18 months from date the property is placed in use.

(b) Items with a unit acquisition cost of $5000 to $10,000--18 months from the date the property is placed in use.

(c) Items with a unit acquisition cost over $10,000--30 months from the date the property is placed in use.

(d) Aircraft (except combat type) and vessels (50 feet or more in length) with a unit acquisition cost of $5,000 or more--60 months from the date the property is placed in use. Such donations shall be subject to the requirements of a Conditional Transfer Document.

(e) Aircraft (combat type)--restricted in perpetuity. Donation of combat type aircraft shall be subject to the requirements of a Conditional Transfer Document.

(3) The State Agency may reduce the period of restriction on items of property falling within the provisions of Part VI, Paragraph A, Subparagraph (2), sub-paragraphs (c) and (d), at the time of donation but not less than for a period of 18 months from the date the property is placed in use, for good and sufficient reasons, such as the condition of the property, or the proposed use (secondary utilization, cannibalization, etc.).

(4) The State Agency, at its discretion and when considered appropriate, may impose such terms, conditions, reservations and restrictions, as it deems reasonable on the use of donated property other than items with a unit acquisition cost of $5,000 or more and passenger motor vehicles.

B.(1) The State Agency may amend, modify, or grant release of any term, condition, reservation or restriction, it has imposed on donated items of personal property in accordance with the standards prescribed in this plan, provided that the conditions pertinent to each situation have been affirmatively demonstrated to the prior satisfaction of the State Agency and made a matter of public record.

(2) The State Agency will impose on the donation of any surplus item of property, regardless of unit acquisition cost, such conditions involving special handling or use limitations as the General Services Administration may determine necessary because of the characteristics of the property.

(3) The State Agency will impose on all donees the statutory requirement that all items donated must be placed in use within one year of donation and be used for one year after being placed in use or otherwise returned to the State Agency while the property is still usable.

(4) The State Agency cannot amend, modify or release the requirements of Sub-paragraph B(2) and B(3) above.

(5) Cannibalization of items on which GSA has imposed special handling conditions or use limitations will require prior GSA approval during the period of restriction.

19-410.7. Non-utilized Donable Property.

A. All property in the possession of the State Agency for 18 months, that cannot be utilized by eligible donees, shall be reported to the General Services Administration for disposal authorization as described in FPMR 101-44.205. In accordance with this regulation the State Agency shall:

1. Transfer the property to another State or Federal Agency.

2. Sell the property by public sale.

3. Abandon or destroy the property.

B. In the event of disposal by transfer to another agency or by public sale, the State Agency may seek such reimbursement as authorized in FPMR 101-44.205.

19-410.8. Fair and Equitable Distribution.

A. The State Agency shall provide for a fair and equitable distribution of available surplus property to the eligible donees in the State based upon their relative need and resources and their ability to utilize the property in their program.

(1) Need. In determining relative needs of eligible entities, the following factors, among others, will be considered:

(a) Expression of interest by the eligible donee for specific items of property.

(b) Justification of expressed needs defining proposed purposes for use of property.

(c) Indication of whether the needs are continuing or temporary.

(d) Nature of requested items--whether common use and readily available items or more specialized and not readily obtainable.

(e) Record of previous donations of similar or like items to the donee.

(f) Past performance in prompt pick-up and utilization of property, including prompt payment of service charges.

(g) Location of property in relation to the requesting donee.

(h) Extraordinary needs created by disasters such as storms, floods, fires, etc.

(i) Population to be served by property requested.

(2) Resources. The following factors will be evaluated in establishing relative resources of eligible donees who have expressed specific needs:

(a) Availability of funds--whether tax-appropriated funds, Federal or State grants, tuition or charges for services, donations or contributions, or other sources.

(b) Assessment of financial ability including data pertaining to inability to purchase from other sources, relative income and economic conditions, and other appropriate data.

(3) Utilization. In determining utilization capability for property needs expressed, the following factors, among others, will be considered:

(a) Statement of utilization potential for requested property.

(b) Area in square miles to be served by requested property.

(c) Plans for continued or temporary use of property.

(d) Capability for repair and maintenance of property.

B. The State Agency shall review information submitted by the donee at the time of his certification of eligibility, or at other times, to establish priorities to ensure fair and equitable distribution in accordance with the donee's relative need, resources and ability to utilize the desired property.

C. The State Agency shall establish and maintain a want list for items of property that are not generally available in the distribution center and allocate this property, when it becomes available, in accordance with the requesting donees' relative need, resources and ability to utilize the desired property.

D. The State Agency will authorize, insofar as practical, direct pick-up or shipment of available property for the donee for a reduced service charge as provided in Part V of the plan. The State Agency will provide the recipient with a letter authorizing release of the property directly to the donee. The State Agency shall, insofar as practicable, select property requested by an eligible donee within the State.

E. The State Agency shall recommend to General Services Administration the certification of donee screeners, as are qualified and needed, in accordance with FPMR 101-44.116.

19-410.9. Eligibility.

A. Scope.

The State Agency procedures for determining the eligibility of public agencies and non-profit educational and public health institutions and organizations in the State shall be those standards and guidelines as set forth in FPMR 101-44.207.

B. Determination of Eligibility.

The State Agency is responsible for the determination that an applicant is eligible as a public agency or a non-profit educational or public health institution or organization to participate in the program and receive donations of surplus personal property, and to utilize such property for the purposes authorized by the act. In establishing a listing of potential donees the following sources of information will be utilized:

(1) Public Agencies

(a) The Secretary of State

(b) The South Carolina Legislative Manual

(2) Non-profit, Tax-exempt Institutions

(a) State Departments of Education, Higher Education, Public Health, Mental Health, Mental Retardation, Youth Services and others for listing of all local units approved or licensed by them.

(b) Existing records of institutions now eligible under the existing Surplus Property Program.

(c) State and regional organizations and associations.

(d) Inquiries, letters, telephone calls, etc., received regarding eligibility.

(e) Contacts may be made by letter, telephone calls, general meetings, or conferences with above groups, supplemented when necessary by news release, information bulletins. Special efforts will be made to present the Surplus Property Program at conferences and meetings.

C.(1) As a condition of eligibility each unit will be required to file with the State Agency:

(a) An Application Certificate and Agreement Form signed by the Chief Administrative Officer accepting the terms and conditions under which property will be transferred.

(b) A written authorization from the Chief Administrative Officer or executive head of the donee activity, or a resolution of the governing body, designating one or more representatives to act for the applicant, obligate any necessary funds, and execute issue sheets.

(c) Assurance of Compliance indicating acceptance of Civil Rights and Non-Discrimination on the basis of sex in accordance with GSA regulations and requirements.

(d) A Directory Information Form including legal name of applicant, address and telephone number and their status as a public agency or non-profit, tax-exempt educational, or public health unit.

(e) Details and scope of their program including their different activities and functions.

(f) Listing as to the types and kinds of equipment, vehicles, machines or other items they need.

(g) Financial information if necessary to help in evaluation of their relative needs and resources.

(h) Proof of their tax-exemption under Section 501 of the Internal Revenue Code of 1954 (for non-profit units only.)

(i) Proof that the applicant is approved, accredited or licensed in accordance with FPMR 101-44.207.

D. Maintaining Eligibility.

(1) Eligibility files are maintained for each donee, alphabetically by County.

(2) The State Agency shall update each donee's eligibility on a periodic basis, but not less than once every three years, to ensure continuing eligibility.

(3) The State Agency shall terminate its distribution of property to the activity when the eligible donee ceases to operate, loses its license, accreditation, or approval or otherwise fails to maintain its eligibility status.

(4) The State Agency may, at its option, terminate distribution of property to the donee if service charge accounts are delinquent ninety days or more, or at any time the State Agency determines that the activity is without adequate resources to pay its obligations.

E. Conditional Eligibility.

(1) In certain cases where newly organized activities have not commenced operations or may not have been approved, accredited, or licensed as may be required as eligible donees, the State Agency may, under certain circumstances as outlined in FPMR 101-44.207(i), establish a conditional eligibility for the activity.

19-410.10. Compliance and Utilization.

A. Scope of Survey

(1) The State Agency shall effect reviews for compliance by donees with the terms, conditions, reservations and restrictions imposed on:

(a) Any property not placed in use within one year from the date of acquisition and not used for a period of one year after being placed in use.

(b) Any passenger motor vehicle.

(c) Any item of property with an acquisition cost of $5,000 or more.

(d) Any item having characteristics that require special handling or use limitations imposed by GSA.

(e) Any other items of property that the State Agency may impose special restrictions.

B. Method of Survey.

(1) Within 6 months after issue of restricted property (acquisition cost of $5,000 or more and all passenger motor vehicles), a form letter is mailed to donee requesting verification of usage and location of property.

(2) If letter is returned indicating proper usage of property, the letter is filed with invoice and document in restricted file. If letter indicates that property has not been put into use but will be used at a later date, a follow-up letter will be mailed to correspond with date specified by donee.

(3) In case of a negative reply or no reply, qualified State Agency personnel will then make a physical check of the property at the donee institution and submit "Utilization Check Form" to Surplus Property Officer, also, make verbal report.

(4) During the course of such visits, items under $5,000 in possession of the donee are observed to determine property utilization to learn of any unique or unusual uses which can be passed on to other donees, and to determine any misuse or unauthorized disposal made of property donated.

(5) During any review the State Agency representative will ensure that the donee is complying with any special handling conditions or use limitations imposed on items of property by GSA in accordance with FPMR 101-44.108.

C. Report on Surveys.

(1) Main points covered in reports.

(a) These reports cover a detailed list of property checked, any misuses or good uses of properties, apparent stockpiling, other needs of donees for property, major points of discussion with donee, and the reporter's pertinent personal observation.

(2) All reports are received and reviewed by the Surplus Property Officer. Effective action will be taken to correct noncompliance and to enforce terms, conditions, reservations and restrictions as set forth.

D. Action Taken on Reports.

(1) Indication of Fraud

(a) The State Agency will initiate appropriate investigation of alleged fraud in the acquisition of donable property and notify the FBI and GSA of allegations immediately.

(b) If the investigation indicates fraud, a written report will be made to the FBI and GSA by the State Agency and full cooperation will be rendered in resolving the problems presented.

(c) The State Agency is not authorized to prosecute any actions for the State of South Carolina, but will take whatever actions are necessary to aid in prosecuting cases of alleged fraud or misuse, and assist GSA or other responsible Federal or State agencies in investigating such cases upon request.

(2) Unauthorized disposal of items of $5,000 and over and passenger motor vehicles.

(a) Whenever possible the property will be placed in use. When it cannot be immediately placed into eligible use, it will be returned to the State Agency distribution center, unless circumstances make this impractical. Donations to the institution will be suspended until the matter is properly evaluated. The case will be reported to the GSA Regional Office for further action.

(3) Misuse of $5,000 and over items and passenger motor vehicles.

(a) As in C(2) above.

(4) Lack of use of items of $5,000 and over and passenger motor vehicles.

(a) As in C(2) above.

(5) Stockpiling

(a) If a report indicates property is being stockpiled, the institutional representative will be contacted and the matter discussed. Methods to prevent such stockpiling will be developed to remedy the situation. If the situation appears to warrant a return of the stockpiled property, the donee may be requested to return the property to the State Agency for further donee distribution.

E. Type or Title of Personnel Making Surveys.

(1) These visits are made by qualified State Agency employees, including the Surplus Property Officer and screeners.

19-410.11. Consultation with Advisory Bodies, Public and Private Groups.

A.(1) The State Agency will arrange for and participate in local, regional or statewide meetings of such public and private organizations and associations representing public agencies, educational, public health, library, museums, civil defense, etc., to disseminate information on the program, discuss procedures and problems and obtain the recommendations on determining relative needs, resources and the utilization of property and how we can provide a more effective service.

(2) The State Agency will regularly provide information on the donation program to state and local officials, and to heads of nonprofit institutions and organizations and will actively participate in and provide speakers for conferences and meetings held by public and private organizations upon request.

(3) The State Agency in consultation with advisory bodies and public and private groups will write eligible donees to submit expressions of need and interest for property items so that the State Agency may advise the General Services Administration of such requirements, including requirements for specific items of property.

19-410.12. Audit.

A. Audit.

(1) An external audit of the operations and financial affairs of the State Agency will be made by the South Carolina State Auditor at least every two years. The audit shall include a review of the conformance of the State Agency with the provisions of the State Plan of Operation and the requirements of 41 CFR 101-44. Copy of this audit shall be forwarded upon completion to the GSA Regional Office with advice as to corrective action taken with respect to any exceptions or violations, indicated by the audit. Internal audits will be made as required by the South Carolina Office of General Services.

(2) It is agreed that GSA may, for appropriate reasons, conduct its own audit of the State Agency following due notice to the Governor of the State of South Carolina the reasons for such audit. It is also agreed that GSA may visit the State Agency for purposes of reviewing the Agency's operation when deemed appropriate.

(3) Financial records and all other books and records of the State Agency will be made available for inspection by GSA, GAO, or other authorized Federal activities.

19-410.13. Cooperative Agreements.

A.(1) The State agency has the authority and will enter into such cooperative agreements with Federal agencies or other states in accordance with FPMR 101-44.206. Such agreements will involve, but will not be limited to, the following:

(a) Use of property by the State Agency

(b) Overseas property

(c) Use of Federal Telecommunications System

(d) Inter-state transfers

(e) Others, as deemed necessary

19-410.14. Liquidation.

A.(1) Preparation of Plan

(a) In the event of, or at the time a determination has been made by State officials to liquidate the State Agency, a liquidation plan shall be prepared in accordance with FPMR 101-44.202(c)(14).

(2) The Plan Will Include:

(a) Reasons for Liquidation.

(b) Schedule and estimated date of termination.

(c) Method of disposal of surplus property on hand, consistent with the provisions of FPMR 101-44.205.

(d) Method of disposal of any agency physical and financial assets.

(e) Retention of books and records for a two year period following liquidation.

(3) Such plan will be submitted to the General Services Administration and approval secured prior to the beginning of the liquidation.

19-410.15. Forms.

A. The Distribution Document used will be an issue sheet, as described in Part III, Paragraph E of the State Plan. The Document is a 4-part color coded document, pre-numbered, to cover all issues of surplus property made to eligible donees or to other states. The white copy (original) will be used for billing purposes in the State Agency office, then filed in donee folder with copy of invoice. The yellow copy is used at the Agency for posting to stock records and is maintained in files at the distribution center in numerical order. The pink copy is forwarded to the Agency's central office accounting for invoice mailing to the donee and setting up accounts receivable records. The blue copy is furnished to the donee when he signs for and picks up property.

B. Each restricted item issued is listed on a separate Distribution Document, with proper description and notation on the Document as to restricted time limit.

C. Aircraft and vessels (over 50 feet in length) with a unit acquisition cost of $5,000 or more will be donated in accordance with provisions of a Conditional Transfer Document.

19-410.16. Records.

A.(1) Official records of the State Agency shall be retained for a period of not less than three years.

(2) Records of property subject to restrictions for more than two years shall be kept one year beyond the specified period of restriction.

(3) Should property be in compliance status at the end of the period of restriction, records shall be retained for at least one year after the case is closed.

19-415. Insurance Reserve Funds.

(Statutory Authority: 1976 Code Section 1-11-140)

19-415.1. Authority for Tort Liability Insurance--Information Service.

The State Budget and Control Board, through the Office of General Services, is authorized to provide insurance for personnel employed by the State, its departments, agencies, institutions, commissions or boards, so as to protect such personnel against tort liability arising in the course of their employment. The Insurance Reserve Funds, formerly the Insurance Sinking Funds, shall be administered by the Chief of Insurance for the Office of General Services.

By codifying copies of the Tort Liability policy and the Medical Employee Professional Liability Insurance policy, and the Automobile Liability Certificate of Insurance, the Office of General Services purports to provide the public with information regarding the nature, terms, and scope of the insurance which it provides under Section 1-11-140 of the 1976 Code.

19-415.2. Nature, Terms and Scope of Insurance Policies.

A. The nature, terms and scope of the Insurance Reserve Funds' tort liability is declared in the policy entitled "General Liability Policy." This policy may be revised at the discretion of the Office of General Services.

B. The nature, terms, and scope of the Insurance Reserve Funds' liability for medical employee professionals is declared in the policy entitled "Medical Employee Professional Liability Insurance." This policy may be revised at the discretion of the Office of General Services.

C. The nature, terms, and scope of the Insurance Reserve Funds' liability for automobiles is declared in the policy entitled "Automobile Liability." This certificate may be revised at the discretion of the Office of General Services.

19-415.3. General Liability Policy.

Declarations

Item 1 Insured:

Employees including elective or appointive executive officers or members of the board of trustees, directors or governors of public bodies of the State of South Carolina (or any subdivision thereof) to whom a certificate of insurance has been issued indicating that coverage is afforded by this policy.

Item 2. Policy Period: From: January 1, 1975

To: January 1, 1980

12:01 A.M. Standard Time

Item 3. Limit of Liability:

The limit of the Fund's Liability for personal injury and/or property damage each occurrence or event: $300,000.

Endorsements attached to policy at inception: Nuclear Energy Liability Exclusion A-0009.

Errors and Omissions Endorsement

January 1st, 1976.

State of South Carolina Budget and Control Board Office of General Services Countersigned by ___ Authorized Representative

GENERAL LIABILITY POLICY

State of South Carolina Budget and Control Board

Office of General Services

(Herein called the Fund)

In consideration of the payment of the premium, in reliance upon the statements in the declarations made a part hereof and subject to all of the terms of this policy, agrees with the Employer as follows:

I. Insuring Agreements

A. Coverage

The Fund will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of personal injury or property damage to which this policy applies, caused by an occurrence or event, and the Fund shall have the right and duty to defend any suit against the insured seeking damages on account of such personal injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Fund shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Fund's liability has been exhausted by payment of judgments or settlements.

B. Supplementary Payments

The Fund will pay, in addition to the applicable limit of liability:

(1) all costs taxed against the insured in any suit defended by the Fund and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the Fund has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the Fund's liability thereon;

(2) premiums on appeal bonds required in any such suit, premiums on bonds to release attachments in any such suit for an amount not in excess of the applicable limit of liability of this policy;

(3) reasonable expenses incurred by the insured at the Fund's request in assisting the Fund in the investigation or defense of any claim or suit, including actual loss of earnings not to excess $25 per day.

C. Limit of Liability

The Fund's liability with respect to each occurrence or event, shall not exceed the amount stated in Item 3 of the declarations. It is further agreed that the insurance afforded applies separately to each insured against whom claim is made or suit is brought but the inclusion in this policy of more than one insured shall not operate to increase the limit of the Fund's liability.

D. Policy Period, Territory

This policy applies to occurrences or events happening anywhere during the policy period.

II. Exclusions

This policy does not apply:

(a) to liability assumed by the insured under any contract or agreement;

(b) to personal injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of any automobile, watercraft, or aircraft;

(c) to personal injury or property damage arising out of and in the course of the transportation of mobile equipment by any automobile;

(d) to personal injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any water course or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental;

(e) to personal injury or property damage due to war, whether or not declared, civil war, insurrection, rebellion or revolution;

(f) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;

(g) to any employee with respect to bodily injury to or the death of another employee of the same employer;

(h) to property damage to:

(1) property owned or occupied by or rented to the insured or the insured's employer, or

(2) property used by the insured, or the insured's employer or property in the care, custody or control of the insured or the insured's employer or as to which the insured or the insured's employer is for any purpose exercising physical control.

(i) to personal injury or property damage due to:

(1) the rendering of or failure to render

(a) medical, surgical, dental, x-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith;

(b) any service or treatment conducive to health or of a professional nature; or

(c) any cosmetic or tonsorial service or treatment;

(2) the furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances; or

(3) the handling of or performing of autopsies on dead bodies;

(j) to personal injury or property damage if liability is imposed:

(1) by, or because of the violation of, any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or

(2) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person.

(k) to property damage to public property to the extent such property is insured under a property insurance policy or certificate issued by the Fund.

III. Definitions

When used in this policy (including endorsements forming a part hereof):

(a) Automobile means a land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto), but does not include mobile equipment;

(b) Employer means the employer designated in item 1 of the declarations;

(c) Insured means the person or persons designated in the declarations while acting within the scope of his duties for his employer;

(d) Mobile equipment means a land vehicle (including any machinery or apparatus attached thereto), whether or not self-propelled, (1) not subject to motor vehicle registration, or (2) maintained for use exclusively on premises owned by or rented to the insured or the insured's employer, including the ways immediately adjoining, or (3) designed for use principally off public roads, or (4) designed or maintained for the sole purpose of affording mobility to equipment of the following types forming an integral part of or permanently attached to such vehicle: power cranes, shovels, loaders, diggers and drills; concrete mixers (other than the mix-in-transit type); graders, scrapers, rollers and other road construction or repair equipment; air-compressors, pumps and generators, including spraying, welding and building cleaning equipment; and geophysical exploration and well servicing equipment;

(e) Occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;

(f) Personal injury means:

(1) bodily injury, sickness, shock, mental anguish and mental injury including death resulting therefrom sustained by any person caused by an occurrence;

(2) false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution or humiliation;

(3) libel, slander, defamation of character, invasion or rights of privacy, discrimination, or violation of Civil Rights; or

(4) assault and battery not committed by or at the direction of the insured, unless committed for the purpose of protecting persons or property.

(g) Property damage means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period.

IV. Conditions

A. Premium. All premiums for this policy shall be computed in accordance with the Fund's rules, rates, rating plans, premiums and minimum premiums applicable to the insurance afforded herein.

B. Insured's Duties in the Event of Occurrence, Claim or Suit.

(1) in the event of an occurrence or event, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the Fund or any of its authorized agents as soon as practicable.

(2) if claim is made or suit is brought against the insured, the insured shall immediately forward to the Fund every demand, notice, summons or other process received by him or his representative.

(3) the insured shall cooperate with the Fund and, upon the Fund's request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident.

C. Action Against Fund. No action shall lie against the fund unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the Fund.

Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the Fund as a party to any action against the insured to determine the insured's liability, nor shall the Fund be impleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the Fund of any of its obligations hereunder.

D. Other Insurance. The insurance afforded by this policy is primary insurance, except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the Fund's liability under this policy shall not be reduced by the existence of such other insurance.

When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, the Fund shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below:

(1) Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the Fund shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid.

(2) Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, the Fund shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.

E. Subrogation. In the event of any payment under this policy, the Fund shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.

F. Changes. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the Fund from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy signed by a duly authorized officer of the Fund.

G. Assignment. Assignment of interest under this policy shall not bind the Fund until its consent is endorsed hereon; if, however, the insured shall die, such insurance as is afforded by this policy shall apply (1) to the insured's legal representative, as the insured, but only while acting within the scope of his duties as such.

H. Cancellation. This policy may be cancelled by the Employer by surrender thereof to the Fund or any of its authorized agents or by mailing to the Fund written notice stating when thereafter the cancellation shall be effective. This policy may be cancelled by the Fund by mailing to the Employer at the address shown in this policy written notice stating when not less than thirty days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of the surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the Employer or by the Fund shall be equivalent to mailing.

If the Employer cancels, earned premium shall be computed in accordance with the customary short rate table and procedure. If the Fund cancels, earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.

I. Declarations. By acceptance of this policy, the Employer agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between himself and the Fund or any of its agents relating to this insurance.

IN WITNESS WHEREOF The State Budget and Control Board of the State of South Carolina, through the Office of General Services executed and attested these presents.

Office of General Services By ___ Chief of Insurance Endorsement A0009

NUCLEAR ENERGY LIABILITY EXCLUSION

ENDORSEMENT

It is agreed that:

I. The policy does not apply:

A. Under any Liability Coverage, to bodily injury or property damage.

(1) with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its limit of liability; or

(2) resulting from the hazardous properties of nuclear material and with respect to which (a) any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954 or any law amendatory thereof, or (b) the insured is, or had this policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization.

B. Under any Medical Payments Coverage, or under any Supplementary Payments provision relating to first aid, to expenses incurred with respect to bodily injury resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization.

C. Under any Liability Coverage, to bodily injury or property damage resulting from the hazardous properties of nuclear material, if

(1) the nuclear material (a) is at any nuclear facility owned by, or operated by or on behalf of, an insured or (b) has been discharged or dispersed therefrom;

(2) the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or

(3) the bodily injury or property damage arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this exclusion (3) applies only to property damage to such nuclear facility and any property thereat.

II. As used in this endorsement:

"hazardous properties" include radioactive, toxic or explosive properties;

"nuclear material" means source material, special nuclear material or byproduct material;

"source material", "special nuclear material", and "byproduct material" have the meanings given them in the Atomic Energy Act of 1954 or in any law amendatory thereof;

"spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor;

"waste", means any waste material (1) containing byproduct material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (a) or (b) thereof;

"nuclear facility" means

(a) any nuclear reactor;

(b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste.

(c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235;

(d) any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations;

"nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material;

"property damage" includes all forms of radioactive contaminations of property.

ERRORS & OMISSIONS ENDORSEMENT

(This is a claims made coverage endorsement)

The Fund, in consideration of the payment of the premium and subject to all of the provisions of the policy not expressly modified herein, agrees with the Employer as follows:

Coverage--Errors and Omissions Liability The Fund will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of a breach of duty arising out of any negligent act, error or omission of the insured if claim is made or suit is brought during the policy period, or if the negligent act, error or omission is committed during the policy period, within twenty-four months after expiration or termination of the policy and the Fund shall have the right and duty to defend any suit against the insured seeking damages on account of such negligent act, error or omission even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the Fund shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Fund's liability has been exhausted by payment of judgments or settlements.

Additional Exclusions

All exclusions of the policy applicable to Coverage A also apply to the insurance afforded by this endorsement. In addition this insurance does not apply:

(a) to personal injury or to property damage;

(b) to any dishonest, fraudulent, criminal or malicious act or omission;

(c) to disappearance of any tangible property (including money) or the loss of use thereof;

(d) to any claim arising out of the Employee Retirement Income Security Act of 1974 or any amendment thereto;

(e) to any claim or suit for a negligent act, error or omission committed prior to January 1, 1976.

This endorsement forms a part of Policy No. GL-0001 issued by the State of South Carolina Budget and Control Board Office of General Services.

Effective Date of Endorsement: January 1, 1976

Countersigned by ___

Date ____________ Endorsement No. 1

19-415.4. Medical Employee Professional Liability Insurance.

Definitions

When used in reference to this insurance "damages" means all damages, including damages for death, which are payable because of injury to which this insurance applies. "Insured" means any person qualifying as an insured in the "Persons Insured" provision of the applicable insurance coverage. The insurance afforded applies separately to each insured against whom claims are made or suit is brought, except with respect to the limits of the Fund's Liability;

"Named Insured" means the persons named on the face of this policy.

Conditions

A. Premium. All premiums for this policy shall be computed in accordance with the Fund's rules, rates, rating plans, premiums and minimum premiums applicable to the insurance afforded herein.

B. Inspection and Audit. The Fund shall be permitted but not obligated to inspect the named insured's operations at any time. Neither the Fund's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking on behalf of or for the benefit of the named insured or others, to determine or warrant that such operations are safe. The Fund may examine and audit the named institution's books and records at any time during the policy period and extensions thereof and within three (3) years after the final termination of this policy, as far as they relate to the subject matter of this insurance.

C. Insured's Duties in the Event of Occurrence, Claim or Suit.

(1) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the Fund or any of its authorized agents as soon as practicable. The named insured shall promptly take at his expense all reasonable steps to prevent other bodily injury or damage from arising out of the same or similar conditions, but such expense shall not be recoverable under this policy.

(2) If claim is made or suit is brought against the insured, the insured shall immediately forward to the Fund every demand, notice, summons or other process received by him or his representative. (3) The insured shall cooperate with the Fund and upon the Fund's request, assist in making settlements, in the conduct of suits and in enforcing any right on contribution or indemnity against any person or organization who may be liable to the insured because of bodily injury with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of accident.

D. Action Against Fund. No action shall lie against the Fund unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the Fund. Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the Fund as a party to any action against the insured to determine the insured's liability, nor shall the Fund be impleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the Fund of any of its obligations hereunder.

E. Other Insurance. In consideration of fact that this insurance is written at a reduced premium the insurance afforded by this policy is excess insurance. Should the insured have other insurance applicable to a loss under this policy on an excess contingent or primary basis this policy will come into effect only after other such insurance has been exhausted. When both this insurance and other insurance apply to the loss on the same basis, excess or contingent, the Fund shall not be liable under this policy for a greater proportion of the loss than stated in the applicable contribution provision below.

(1) Contribution by Equal Shares. If all of such other valid and collectible insurance provides for contribution by equal shares, the Fund shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid, and with respect to any amount of loss not so paid the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each such insurer has paid its limit in full or the full amount of the loss is paid.

(2) Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, the Fund shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss.

F. Subrogation. In the event of any payment under this policy, the Fund shall be subrogated to all the insured's rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.

G. Changes. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the Fund from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy, signed by a duly authorized officer of the Fund.

H. Assignment. Assignment of interest under this policy shall not bind the Fund until its consent is endorsed hereon; if, however, the named insured shall die, such insurance as is afforded by this policy shall apply to the named insured's legal representative, as the named insured, but only while acting within the scope of his duties as such.

I. Cancellation. This policy may be cancelled by the institution by surrender thereof to the Fund or any of its authorized agents or by mailing to the Fund written notice stating when thereafter the cancellation shall be effective. This policy may be cancelled by the Fund by mailing to the institution, at the address shown in this policy, written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of the surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the institution or by the Fund shall be equivalent to mailing.

J. Declarations. By acceptance of this policy, the named institution agrees that the statements in the declarations are his agreements and representations, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements existing between institution and the Fund or any of its agents relating to this insurance.

I. Coverage

The Fund will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to any person arising out of the rendering of or failure to render, during the policy period, the following services:

(1) medical, surgical, dental or nursing treatment to such person or the person inflicting the injury including the furnishing of food or beverages in connection therewith,

(2) furnishing or dispensing of drugs or medical, dental or surgical supplies or appliances if the injury occurs after the named insured has relinquished possession thereof to others,

(3) handling of or performing post-mortem examinations on human bodies, or

(4) service by any person as a member of a formal accreditation or similar professional board or committee of the named institution or as a person charged with the duty of executing directives of any such board or committee, and the Fund shall have the right and duty to defend any suit against the insured seeking damages, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and, with the written consent of the insured, such settlement of any claims or suit as it deems expedient, but the Fund shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the Fund's liability has been exhausted by payment of judgments or settlements.

A. Exclusions--This insurance does not apply:

(1) to bodily injury to the insured arising out of and in the course of his employment by the institution;

(2) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law.

II. Persons Insured

Each of the following is an insured under this insurance to the extent set forth below:

(a) the named insured;

(b) executive officer or member of the board of trustees, directors or governors of the named institution while acting within the scope of his duties as such.

III. Limits of Liability

Regardless of the number of (1) insureds under this policy, the Fund's liability is limited as follows:

The limit of liability stated in the declarations as applicable to "each claim" is the limit of the Fund's liability for all damages because of each claim or suit covered hereby. The limit of liability stated in the declarations as "aggregate" is, subject to the above provision respecting "each claim", the total limit of the Fund's liability hereunder for all damages.

IV. Additional Conditions

First Aid Exclusion. The insurance shall not apply to expenses incurred by the insured for first aid at the time of an accident. The "Insured's Duties in the Event of Occurrence, Claim or Suit" Condition is amended accordingly.

DIVISION OF GENERAL SERVICES By ___ Chief of Insurance

19-415.5. Automobile Liability Certificates of Insurance.

19-415.6. Insurance Reserve Fund.

All hospitals which are insured by the State Budget and Control Board through the Insurance Reserve Fund under a General Liability or Professional Liability Insurance Policy shall develop and implement a program providing for risk management and loss prevention. The risk management program must be approved by the Insurance Reserve Fund prior to its implementation.

The Hospital Risk Management Program shall include:

(a) A written plan for risk management,

(b) Identification of a risk manager,

(c) A committee of reference for risk management,

(d) Education and training,

(e) A system for reporting incidents to the State Insurance Reserve Fund including adverse effects of medical management, and

(f) Participation in loss control educational programs and services sponsored by the State Insurance Reserve Fund.

19-425. Repealed by State Register Volume 29, Issue No. 2, eff February 25, 2005.

APPENDIX A. Repealed by State Register Volume 29, Issue No. 2, eff February 25, 2005.

APPENDIX B. Repealed by State Register Volume 29, Issue No. 2, eff February 25, 2005.

19-440. Repealed by State Register Volume 20, Issue No. 5, eff May 24, 1996.

19-445. Consolidated Procurement Code.

(Statutory Authority: 1976 Code Section 11-35-10 et seq.)

19-445.2000. State Procurement Regulations.

19-445.2005. Internal Procurement Procedures; Procurement Records.

19-445.2010. Disclosure of Procurement Information.

19-445.2015. Ratification.

19-445.2020. Certification.

19-445.2022. Temporary Suspension of Authority; Audit.

19-445.2025. Authority to Contract for Certain Services; Definitions.

19-445.2030. Competitive Sealed Bidding--The Invitation for Bids.

19-445.2035. [Repealed].

19-445.2040. The Official State Government Publication.

19-445.2042. Pre-Bid Conferences.

19-445.2045. Receipt and Safeguarding of Bids.

19-445.2050. Bid Opening.

19-445.2055. Bid Acceptance and Bid Evaluation.

19-445.2060. Telegraphic Bids.

19-445.2065. Rejection of Bids.

19-445.2070. Rejection of Individual Bids.

19-445.2075. All or None Qualifications.

19-445.2077. Bid Samples and Descriptive Literature.

19-445.2080. Clarifications with Bidders.

19-445.2085. Correction or Withdrawal of Bids; Cancellation of Awards.

19-445.2090. Award.

19-445.2095. Competitive Sealed Proposals.

19-445.2097. Rejection of Proposals.

19-445.2100. Small Purchases and Other Simplified Purchasing Procedures.

19-445.2105. Sole Source Procurements.

19-445.2110. Emergency Procurements.

19-445.2115. Information Technology Procurements.

19-445.2120. Cost or Pricing Data.

19-445.2121. [Repealed].

19-445.2125. Responsibility of Bidders and Offerors.

19-445.2130. Prequalification of Supplies and Suppliers.

19-445.2132. Prequalification for a Single Solicitation.

19-445.2135. Conditions for Use of Multi-term Contracts.

19-445.2137. Food Service Contracts.

19-445.2140. Specifications.

19-445.2145. Construction, Architect Engineer, Construction Management, and Land Surveying Services.

19-445.2150. Surplus Property Management.

19-445.2152. Leases, Lease/Payment, Installment Purchase, and Rental of Personal Property.

19-445.2155. Intergovernmental Relations.

19-445.2160. Assistance to Minority Businesses.

19-445.2165. Gifts

19-445.2180. Assignment, Novation, and Change of Name.

19-445.2200. Administrative Review Protective Orders.

19-445.3000. School District Procurement Codes; Model.

19-445.2000. State Procurement Regulations.

A. General.

These Regulations issued by the South Carolina Budget and Control Board, hereafter referred to as the Board, establish policies, procedures, and guidelines relating to the procurement, management, control, and disposal of supplies, services, information technology, and construction, as applicable, under the authority of the South Carolina Consolidated Procurement Code, as amended. These Regulations are designed to achieve maximum practicable uniformity in purchasing throughout state government. Hence, implementation of the Procurement Code by and within governmental bodies, as defined in Section 11-35-310(18) of the Procurement Code, shall be consistent with these Regulations. Nothing contained in these Rules and Regulations shall be construed to waive any rights, remedies or defenses the State might have under any laws of the State of South Carolina.

B. Organizational Authority.

(1) The Chief Procurement Officers acting on behalf of the Board shall have the responsibility to audit and monitor the implementation of these Regulations and requirements of the South Carolina Consolidated Procurement Code. In accordance with Section 11-35-510 of the Code, all rights, powers, duties and authority relating to the procurement of supplies, services, and information technology and to the management, control, warehousing, sale and disposal of supplies, construction, information technology, and services now vested in or exercised by any governmental body under the provisions of law relating thereto, and regardless of source funding, are hereby vested in the appropriate chief procurement officers. The chief procurement officers shall be responsible for developing such organizational structure as necessary to implement the provisions of the Procurement Code and these Regulations.

(2) Materials Management Office: The Materials Management Officer is specifically responsible for:

(a) developing a system of training and certification for procurement officers of governmental bodies in accordance with Section 11-35-1030;

(b) recommending differential dollar limits for direct procurements on the basis of but not limited to the following:

(1) procurement expertise,

(2) commodity,

(3) service,

(4) dollar;

(c) performing procurement audits of governmental bodies in accordance with Sections 11-35-70 and 11-35-1230 of the Procurement Code.

(d) overseeing acquisitions for the State by the State Procurement Office.

(e) coordinating with the Information Technology Management Office in accordance with Section 11-35-820;

(f) overseeing the acquisition of procurements by the State Engineer in accordance with Section 11-35-830.

(3) Office of Information Technology Management: The Office of Information Technology Management shall be responsible for all procurements involving information technology pursuant to Section 11-35-820 of the Procurement Code.

(4) Office of State Engineer: The Office of State Engineer under the direction and oversight of the Materials Management Officer shall be responsible for all procurements involving construction, architectural and engineering, construction management, and land surveying services pursuant to Section 11-35-830 of the Procurement Code.

C. Definitions

(1) "Head of purchasing agency" means the agency head, that is, the individual charged with ultimate responsibility for the administration and operations of the governmental body. Whenever the South Carolina Consolidated Procurement Code or these Regulations authorize either the chief procurement officer or the head of the purchasing agency to act, the head of the purchasing agency is authorized to act only within the limits of the governmental body's authority under Section 11-35-1550(1) or its certification as granted by Board under Section 11-35-1210(1), except with regard to acts taken pursuant to Section 11-35-1560 and 11-35-1570.

(2) "Procuring Agency" means "purchasing agency" as defined in Section 11-35-310.

D. Duty to Report Violations

All governmental bodies shall comply in good faith with all applicable requirements of the consolidated procurement code and these procurement regulations. When any information or allegations concerning improper or illegal conduct regarding a procurement governed by the consolidated procurement code comes to the attention of any employee of the State, immediate notice of the relevant facts shall be transmitted to the appropriate chief procurement officer.

E. Effective Date.

Except as otherwise provided herein, these regulations are effective upon publication in the State Register. The following additions or revisions to this regulation 19-445 apply only to solicitations issued after the first Monday in September following the legislative session during which they are approved: Sections 2010, -.2015, -.2050, -.2095, -.2097, -.2105, -.2120, -.2180.

19-445.2005. Internal Procurement Procedures; Procurement Records.

A. Procedures Manual.

All governmental bodies shall develop and maintain an internal procurement procedures manual and forward a copy, and any revisions, of such to the Materials Management Officer. Upon receipt of the respective governmental body's internal procurement procedures manual, the Materials Management Office shall be responsible for the following review:

(1) Determine that written internal operations procedures as submitted (a) are consistent with the South Carolina Consolidated Procurement Code and Regulations, (b) are consistent with any policies or procedures published by the chief procurement officers for their respective areas of responsibility, and (c) establish a clear means by which vendors can identify the governmental body's procurement officers and the limits of their authority.

(2) Notify the governmental body of its findings in writing.

B. Procurement Records.

Each governmental body must maintain procurement files sufficient to satisfy the requirements of external audit.

19-445.2010. Disclosure of Procurement Information.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. If requested in writing by an actual offeror prior to final award, the responsible procurement officer shall, within ten days of the receipt of any such request, make documents directly related to the procurement activity not otherwise exempt from disclosure available for inspection at an office of the responsible procurement officer.

B. Prior to the issuance of an award or notification of intent to award, whichever is earlier, state personnel involved in an acquisition shall forward or refer all requests for information regarding the procurement to the responsible procurement officer. The procurement officer will respond to the request.

C. Prior to the issuance of an award or notification of intent to award, whichever is earlier, state personnel involved in an acquisition shall not engage in conduct that knowingly furnishes source selection information to anyone other than the responsible procurement officer, unless otherwise authorized in writing by the responsible procurement officer. "Source selection information" means any of the following information that is related to or involved in the evaluation of an offer (e.g., bid or proposal) to enter into a procurement contract, if that information has not been previously made available to the public or disclosed publicly: (1) Proposed costs or prices submitted in response to an agency solicitation, or lists of those proposed costs or prices, (2) source selection plans, (3) technical evaluation plans, (4) technical evaluations of proposals, (5) cost or price evaluations of proposals, (6) information regarding which proposals are determined to be reasonably susceptible of being selected for award, (7) rankings of responses, proposals, or competitors, (8) reports, evaluations of source selection committees or evaluations panels, (9) other information based on a case-by-case determination by the procurement officer that its disclosure would jeopardize the integrity or successful completion of the procurement to which the information relates.

D. Throughout the competitive sealed proposal process, state personnel with access to proposal information shall not disclose either the number of offerors or their identity, except as otherwise required by law.

E. Prior to the issuance of an award or notification of intent to award, whichever is earlier, the procurement officer shall not release a proposal to a person without first obtaining from that person a written agreement, in a form approved by the responsible chief procurement officer, regarding restrictions on the use and disclosure of proposals. Such agreements are binding and enforceable.

F. The release of a proposal to non-state personnel for evaluation does not constitute public disclosure or a release of information for purposes of the Freedom of Information Act.

G. Except as prohibited by law, and subject to section 2200, state contracts may include clauses restricting the state's release of documents and information received from a contractor if those documents are exempt from disclosure under applicable law.

H. Subject to item (E), any person may furnish source selection information to the Office of the State Engineer. The procurement officer shall provide to the Office of the State Engineer any information it requests regarding a procurement.

19-445.2015. Ratification.

Text of regulation applicable to solicitations issued on or before the first Monday in September 2007

A. Unauthorized Procurements.

The ratification of an act obligating the State in a contract by any person without the requisite authority to do so by an appointment or delegation under the procurement Code rests with the Office of General Services. It is prohibited for a procurement officer to ratify such acts.

(1) Ratification by a Governmental Body. The Office of General Services hereby delegates authority to ratify such acts to the head of the governmental body or his designee above the level of the procurement officer responsible for the person committing the act when the value of the contract is within the dollar limits designated by the Budget and Control Board for that governmental body.

(2) Ratification by the Office of General Services. The Director of the Office of General Services may delegate authority to ratify such acts other than those specified in Item 1 above to the Chief Procurement Officers in such amounts as the Director may determine.

(3) Corrective Action and Liability. In either case referred to in Items 1 and 2 above, the head of the governmental body or his designee as authorized in writing above the level of the procurement officer, shall prepare a written determination as to the facts and circumstances surrounding the act, what corrective action is being taken to prevent reoccurrence, action taken against the individual committing the act, and documentation that the price paid is fair and reasonable.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. Upon finding after award that a State employee has made an unauthorized award of a contract or that a contract award is otherwise in violation of law, the appropriate official may ratify or affirm the contract or terminate it in accordance with this section. The contract may be terminated and reasonable termination costs, if any, may be awarded as provided in this section. The contract may be ratified and affirmed only if it is in the best interests of the State. The decision required by this subsection A may be made by the chief procurement officer, the head of a purchasing agency, or a designee of either officer, above the level of the person responsible for the person committing the act. If the value of the contract exceeds one hundred thousand dollars, the chief procurement officer must concur in the written determination before any action is taken on the decision.

B. All decisions to ratify or terminate a contract shall be supported by a written determination of appropriateness. In addition, the appropriate official shall prepare a written determination as to the facts and circumstances surrounding the act, what corrective action is being taken to prevent recurrence, and the action taken against the individual committing the act. Any governmental body shall submit quarterly a record listing all decisions required by subsection A to the chief procurement officers. A copy of the record shall be submitted to the board on an annual basis and shall be available for public inspection.

C. Except as provided in subsection D, if a contract is terminated pursuant to subsection A, the State shall, where possible and by agreement with the supplier, return the supplies delivered for a refund at no cost to the State or at a minimal restocking charge. If a termination claim is made, settlement shall be made in accordance with the contract. If there are no applicable termination provisions in the contract, settlement shall be made on the basis of actual costs directly or indirectly allocable to the contract through the time of termination. Such costs shall be established in accordance with generally accepted accounting principles. Profit shall be proportionate only to the performance completed up to the time of termination and shall be based on projected gain or loss on the contract as though performance were completed. Anticipated profits are not allowed.

D. Upon finding after award that an award is in violation of law and that the recipient of the contract acted fraudulently or in bad faith, the appropriate chief procurement officer shall declare the contract null and void unless it is determined in writing that there is a continuing need for the supplies, services, information technology, or construction under the contract and either (i) there is no time to re-award the contract under emergency procedures or otherwise; or (ii) the contract is being performed for less than it could be otherwise performed. If a contract is voided, the State shall endeavor to return those supplies delivered under the contract that have not been used or distributed. No further payments shall be made under the contract and the State is entitled to recover the greater of (i) the difference between payments made under the contract and the contractor's actual costs up until the contract was voided, or (ii) the difference between payments under the contract and the value to the State of the supplies, services, information technology, or construction it obtained under the contract. The State may in addition claim damages under any applicable legal theory.

E. Regardless of its ratification and affirmation of a contract, the State shall be entitled to any damages it can prove under any theory including but not limited to contract and tort.

19-445.2020. Certification.

A. Review Procedures.

(1) Unless otherwise authorized by statute, any governmental body that desires to make direct agency procurements in excess of $50,000.00, shall contact the Materials Management Officer in writing to request certification in any area of procurement, including the following four areas:

(a) Supplies and services;

(b) Consultant services;

(c) Construction and related professional services;

(d) Information technology.

(2) The Materials Management Officer shall review and report on the particular governmental body's entire internal procurement operation to include, but not be limited to the following:

(a) Adherence to provisions of the South Carolina Consolidated Procurement Code and these Regulations;

(b) Procurement staff and training;

(c) Adequate audit trails and purchase order register;

(d) Evidences of competition;

(e) Small purchase provisions and purchase order confirmation;

(f) Emergency and sole source procurements;

(g) Source selections;

(h) File documentation of procurements;

(i) Decisions and determinations made pursuant to section 2015;

(j) Adherence to any mandatory policies, procedures, or guidelines established by the appropriate chief procurement officers;

(k) Adequacy of written determinations required by the South Carolina Consolidated Procurement Code and these Regulations;

(l) Contract administration;

(m) Adequacy of the governmental body's system of internal controls in order to ensure compliance with applicable requirements.

(3) The report required by item (2) shall be submitted to the Board, along with the recommendation of the Materials Management Officer. Upon favorable review by the Materials Management Officer and approval by the Board, the particular governmental body may be certified and assigned a dollar limit below which the certified governmental body may make direct agency procurements. Such certification shall be in writing and specify:

(a) The name of the governmental body;

(b) Any conditions, limits or restrictions on the exercise of the certification;

(c) The duration of the certification; and

(d) The procurement areas in which the governmental body is certified.

(4) Using the criteria listed in item A(2) above, the office of each chief procurement officer shall be reviewed at least ever five years by the audit team of the Materials Management Office. The results of the audit shall be provided to the appropriate chief procurement officer and the designated board officer.

B. Limitations.

(1) Such certification as prescribed in subsection A shall be subject to any term contracts established by the chief procurement officers which requires mandatory procurement by all governmental bodies.

(2) Such certification as prescribed in subsection A may be subject to maintaining an adequate staff of qualified or certified procurement officers.

19-445.2022. Temporary Suspension of Authority; Audit.

A. Suspension of Authority.

Within his area of authority, the appropriate chief procurement officer may temporarily suspend a governmental body's power to conduct all, any type of, or any value of procurements if the chief procurement officer concludes that the governmental body either (1) lacks adequate internal controls to ensure compliance with the procurement laws, (2) lacks qualified or adequate staff, or (3) has otherwise acted in a manner that, in the opinion of the chief procurement officer, warrants a temporary loss of authority. The chief procurement officer may make continued suspension contingent upon corrective action, e.g., retain additional staff, training, revised internal controls. The suspension is effective upon delivery of written notice to the head of the purchasing agency. The written notice shall state the duration of the temporary suspension, which may not extend beyond the next regularly scheduled audit to be conducted pursuant to Section 11-35-1320. A chief procurement officer may not limit direct agency procurements below $25,000.00. Before issuing a suspension pursuant to this paragraph, a chief procurement officer shall consult with the other chief procurement officers.

B. Audit.

In order to monitor the implementation of the procurement process, the appropriate chief procurement officer has the authority to audit any governmental body regarding one or more procurement activities.

19-445.2025. Authority to Contract for Certain Services; Definitions.

A. Consultant Services.

(1) For the purposes of these Regulations, consultant services shall be defined as follows: An individual, partnership, corporation or any other legally established organization performing consulting services for or providing consulting advice to the State of South Carolina, or any governmental body thereof, over whom the State or governmental body has the right of control as to the result to be accomplished but not as to the details and means by which that result is to be accomplished.

(2) Services which fall within this definition shall be procured in accordance with the Code and these Regulations.

B. Employee Services.

(1) For the purposes of these Regulations, employee services shall be defined as follows: An individual performing services directly for the State of South Carolina, or any governmental body thereof, over whom the State or governmental body has the right of control not only as to the result to be accomplished by the work but also as to the details and means by which that work is to be accomplished.

(2) Services which fall within this definition shall be procured in accordance with State personnel policies and procedures.

C. Employment Services.

(1) For the purposes of these Regulations, employment services shall be defined as follows: An individual performing services indirectly for the State of South Carolina, or any governmental body thereof, whose services are obtained through a private employment agency. The employee employer relationship exists between the private employment agency and its employee. The State, or any governmental body, will contract with the private employment agency for the services of its employees.

(2) Services which fall within this definition shall be procured in accordance with the Code and these Regulations.

D. Legal Services.

Prior to the award of any state contract for the services of attorneys, approval for such services shall be obtained by the governmental body from the State Attorney General.

E. Auditing Services.

Prior to the award of any state contract for auditing or accounting services, approval for such services shall be obtained by the governmental body from the State Auditor.

19-445.2030. Competitive Sealed Bidding--The Invitation for Bids.

The invitation for bids shall be used to initiate a competitive sealed bid procurement and shall include the following, as applicable:

(1) instructions and information to bidders concerning the bid submission requirements, including the time and date set for receipt of bids, the individual to whom the bid is to be submitted, the address of the office to which bids are to be delivered, the maximum time for bid acceptance by the State, and any other special information;

(2) the purchase description, evaluation factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description;

(3) the contract terms and conditions, including warranty and bonding or other security requirements, as applicable; and

(4) Instructions to bidders on how to visibly mark information which they consider to be exempt from public disclosure.

(5) Bidding time will be set to provide bidders a reasonable time to prepare their bids. The date of opening may not be less than seven (7) days after notice of the solicitation is provided as required by Section 11-35-1520(3), unless a shorter time is deemed necessary for a particular procurement as determined in writing by the Chief Procurement Officer or the head of the purchasing agency or his designee.

19-445.2035. Repealed in State Register Volume 23, Issue No. 5, eff May 28, 1999.

19-445.2040. The Official State Government Publication.

A. Specifications of Publication.

The name of the official state government publication shall be known as the "South Carolina Business Opportunities." It shall be published by the Materials Management Office at least weekly. The purpose is to provide a listing of proposed procurements of construction, information technology, supplies, services and other procurement information of interest to the business community. Except as otherwise provided by law, the publication will be available to all interested parties by subscription and distributed by mail or electronic media. Contents shall be limited to inclusion of proposed procurements required by regulations and such other business information as approved by the Materials Management Officer. Publication of proposed procurements of a classified nature or emergencies may be excluded from publication.

B. Availability in Public Libraries.

Each publication of the "South Carolina Business Opportunities" shall be distributed to public libraries within the State.

19-445.2042. Pre-Bid Conferences.

(A) Pre-bid conferences may be conducted. The conference should be held long enough after the Invitation for Bids has been issued to allow bidders to become familiar with it, but sufficiently before bid opening to allow consideration of the conference results in preparing their bids. Notice of the conference must be included in the notice of the solicitation required by Articles 5 or 9 of this code.

(B) Nothing stated at the pre-bid conference shall change the Invitation for Bids unless a change is made by written amendment. A potential bidder's failure to attend an advertised pre-bid conference will not excuse its responsibility for estimating properly the difficulty and cost of successfully performing the work, or for proceeding to successfully perform the work without additional expense to the State.

(C) Pre-bid conferences may not be made mandatory absent a written determination by the head of the governmental body or his designee that the unique nature of the procurement justifies a mandatory pre-bid conference and that a mandatory pre-bid conference will not unduly restrict competition.

19-445.2045. Receipt and Safeguarding of Bids.

A. Procedures Prior to Bid Opening.

All bids (including modifications) received prior to the time of opening shall be kept secure and, except as provided in subsection B below, unopened. Necessary precautions shall be taken to insure the security of the bid. Prior to bid opening, information concerning the identity and number of bids received shall be made available only to the state employees, and then only on a "need to know" basis. When bid samples are submitted, they shall be handled with sufficient care to prevent disclosure of characteristics before bid opening.

B. Unidentified Bids.

Unidentified bids may be opened solely for the purpose of identification, and then only by an official specifically designated for this purpose by the Chief Procurement Officer, the procurement officer of the governmental body, or a designee of either officer. If a sealed bid is opened by mistake, the person who opens the bid will immediately write his signature and position on the envelope and deliver it to the aforesaid official. This official shall immediately write on the envelope an explanation of the opening, the date and time opened, the invitation for bids' number, and his signature, and then shall immediately reseal the envelope.

19-445.2050. Bid Opening.

Text of regulation applicable to solicitations issued on or before the first Monday in September 2007

A. Procedures.

The procurement officer of the governmental body or his designee shall decide when the time set for bid opening has arrived, and shall so declare to those present. He shall then personally and publicly open all bids received prior to that time, and read aloud so much thereof as is practicable, including prices, to those persons present and have the bids recorded. The amount of each bid and such other relevant information, together with the name of each bidder, shall be tabulated. The tabulation shall be open to public inspection.

B. If it becomes necessary to postpone a bid opening, the procurement officer shall issue the appropriate amendments to the solicitation postponing or rescheduling the bid opening. When the procuring agency is closed due to force majeure, bid opening will be postponed to the same time on the next official business day.

C. Disclosure of Bid Information. Only the information disclosed by the procurement officer of the governmental body or his designee at bid opening is considered to be public information under the Freedom of Information Act, Chapter 4 of Title 30, until the notice of intent to award is issued.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. Procedures.

The procurement officer of the governmental body or his designee shall decide when the time set for bid opening has arrived, and shall so declare to those present. In the presence of one or more state witnesses, he shall then personally and publicly open all bids received prior to that time, and read aloud so much thereof as is practicable, including prices, to those persons present and have the bids recorded. The amount of each bid and such other relevant information, together with the name of each bidder, shall be tabulated and certified in writing as true an accurate by both the person opening the bids and the witness. The tabulation shall be open to public inspection.

B. If it becomes necessary to postpone a bid opening, the procurement officer shall issue the appropriate amendments to the solicitation postponing or rescheduling the bid opening. When the purchasing agency is closed due to force majeure, bid opening will be postponed to the same time on the next official business day.

C. Disclosure of Bid Information.

Only the information disclosed by the procurement officer of the governmental body or his designee at bid opening is considered to be public information under the Freedom of Information Act, Chapter 4 of Title 30, until after the issuance of an award or notification of intent to award, whichever is earlier.

19-445.2055. Bid Acceptance and Bid Evaluation.

When necessary for the best interest of the State, bid criteria to determine acceptability may include inspection, testing, quality, workmanship, delivery and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award shall be measurable costs to include, but not be limited to, discounts, transportation costs, total or life cycle costs.

19-445.2060. Telegraphic Bids.

The Invitation for Bids may state that electronic, telegraphic, and mailgram bids will be considered whenever they are received in hand at the designated office by the time and date set for receipt of bids. Such electronic, telegraphic, or mailgram bids shall contain specific reference to the Invitation for Bids; the items, quantities, and prices for which the bid is submitted; the time and place of delivery; and a statement that the bidder agrees to all the terms; conditions, and provisions of the Invitation for Bids.

19-445.2065. Rejection of Bids.

A. Unless there is a compelling reason to reject one or more bids, award will be made to the lowest responsible and responsive bidder. Every effort shall be made to anticipate changes in a requirement prior to the date of opening and to notify all prospective bidders of any resulting modification or cancellation, thereby permitting bidders to change their bids and preventing the unnecessary exposure of bid prices. As a general rule after opening, an invitation for bids should not be canceled and readvertised due solely to increased quantities of the items being procured; award should be made on the initial invitation for bids and the additional quantity required should be treated as a new procurement.

B. Cancellation of Bids Prior to Award.

(1) When it is determined prior to the issuance of an award or notification of intent to award, whichever is earlier, but after opening, that the requirements relating to the availability and identification of specifications have not been met, the invitation for bids shall be cancelled. Invitations for bids may be cancelled after opening, but prior to award, when such action is consistent with subsection A above and the procurement officer determines in writing that:

(a) inadequate or ambiguous specifications were cited in the invitation;

(b) specifications have been revised;

(c) the supplies, services, information technology, or construction being procured are no longer required;

(d) the invitation did not provide for consideration of all factors of cost to the State, such as cost of transporting state furnished property to bidders' plants;

(e) bids received indicate that the needs of the State can be satisfied by a less expensive article differing from that on which the bids were invited;

(f) all otherwise acceptable bids received are at unreasonable prices;

(g) the bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith; or

(h) for other reasons, cancellation is clearly in the best interest of the State.

(2) Determinations to cancel invitations for bids shall state the reasons therefor.

C. Extension of Bid Acceptance Period.

Should administrative difficulties be encountered after bid opening which may delay award beyond bidders' acceptance periods, the several lowest bidders should be requested, before expiration of their bids, to extend the bid acceptance period (with consent of sureties, if any) in order to avoid the need for re-advertisement.

D. Return of Bids

If an invitation for bids is canceled, bids shall be returned to the bidders.

19-445.2070. Rejection of Individual Bids.

A. General Application.

Any bid which fails to conform to the essential requirements of the invitation for bids shall be rejected.

B. Alternate Bids.

Any bid which does not conform to the specifications contained or referenced in the invitation for bids may be rejected unless the invitation authorized the submission of alternate bids and the supplies offered as alternates meet the requirements specified in the invitation.

C. Any bid which fails to conform to the delivery schedule, to permissible alternates thereto stated in the invitation for bids, or to other material requirements of the solicitation may be rejected as nonresponsive.

D. Modification of Requirements by Bidder.

(1) Ordinarily a bid should be rejected when the bidder attempts to impose conditions which would modify requirements of the invitation for bids or limit his liability to the State, since to allow the bidder to impose such conditions would be prejudicial to other bidders. For example, bids should be rejected in which the bidder:

(a) attempts to protect himself against future changes in conditions, such as increased costs, if total possible cost to the State cannot be determined;

(b) fails to state a price and in lieu thereof states that price shall be "price in effect at time of delivery;"

(c) states a price but qualified such price as being subject to "price in effect at time of delivery;"

(d) when not authorized by the invitation, conditions or qualifies his bid by stipulating that his bid is to be considered only if, prior to date of award, bidder receives (or does not receive) award under a separate procurement;

(e) requires the State to determine that the bidder's product meets state specifications; or

(f) limits the rights of the State under any contract clause.

(2) Bidders may be requested to delete objectionable conditions from their bid provided that these conditions do not go to the substance, as distinguished from the form, of the bid or work an injustice on other bidders. Bidder should be permitted the opportunity to furnish other information called for by the Invitation for Bids and not supplied due to oversight, so long as it does not affect responsiveness.

E. Price Unreasonableness.

Any bid may be rejected if the procurement officer determines in writing that it is unreasonable as to price.

F. Bid Security Requirement.

When a bid security is required and a bidder fails to furnish it in accordance with the requirements of the invitation for bids, the bid shall be rejected.

G. Exceptions to Rejection Procedures.

Any bid received after the procurement officer of the governmental body or his designee has declared that the time set for bid opening has arrived, shall be rejected unless the bid had been delivered to the location specified in the solicitation or the governmental bodies' mail room which services that location prior to the bid opening.

19-445.2075. All or None Qualifications.

Unless the invitation for bids so provides, a bid is not rendered nonresponsive by the fact that the bidder specifies that award will be accepted only on all, or a specified group, of the items included in the invitation for bids. However, bidders shall not be permitted to withdraw or modify "all or none" qualifications after bid opening since such qualification is substantive and affects the rights of the other bidders.

19-445.2077. Bid Samples and Descriptive Literature.

A. "Descriptive literature" means information available in the ordinary course of business which shows the characteristics, construction, or operation of an item which enables the State to consider whether the item meets its needs.

B. "Bid sample" means a sample to be furnished by a bidder to show the characteristics of the item offered in the bid.

C. Bid samples or descriptive literature may be required when it is necessary to evaluate required characteristics of the items bid.

D. The Invitation for Bids shall state that bid samples or descriptive literature should not be submitted unless expressly requested and that, regardless of any attempt by a bidder to condition the bid, unsolicited bid samples or descriptive literature which are submitted at the bidder's risk will not be examined or tested, and will not be deemed to vary any of the provisions of the Invitation for Bids.

19-445.2080. Clarifications with Bidders.

Apparent responsive bidder, as used in the source selection process, means a person who has submitted a bid or offer which obviously conforms in all material aspects to the solicitation. A procurement officer's decision regarding whether a bid is apparently responsive is final unless protested.

19-445.2085. Correction or Withdrawal of Bids; Cancellation of Awards.

A. General Procedure.

A bidder or offeror must submit in writing a request to either correct or withdraw a bid to the procurement officer. Each written request must document the fact that the bidder's or offeror's mistake is clearly an error that will cause him substantial loss. All decisions to permit the correction or withdrawal of bids shall be supported by a written determination of appropriateness made by the chief procurement officers or head of a purchasing agency, or the designee of either.

B. Correction Creates Low Bid.

To maintain the integrity of the competitive sealed bidding system, a bidder shall not be permitted to correct a bid mistake after bid opening that would cause such bidder to have the low bid unless the mistake is clearly evident from examining the bid document; for example, extension of unit prices or errors in addition.

C. Cancellation Of Award Prior To Performance.

After an award or notification of intent to award, whichever is earlier, has been issued but before performance has begun, the award or contract may be canceled and either re-awarded or a new solicitation issued or the existing solicitation canceled, if the Chief Procurement Officer determines in writing that:

(1) Inadequate or ambiguous specifications were cited in the invitation;

(2) Specifications have been revised;

(3) The supplies, services, information technology, or construction being procured are no longer required;

(4) The invitation did not provide for consideration of all factors of cost to the State, such as cost of transporting state furnished property to bidders' plants;

(5) Bids received indicate that the needs of the State can be satisfied by a less expensive article differing from that on which the bids were invited;

(6) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith;

(7) Administrative error of the purchasing agency discovered prior to performance, or

(8) For other reasons, cancellation is clearly in the best interest of the State.

19-445.2090. Award.

A. Application.

The contract shall be awarded to the lowest responsible and responsive bidder(s) whose bid meets the requirements and criteria set forth in the invitation for bids.

B. The procurement officer shall issue the notice of intent to award or award on the date specified in the solicitation, unless the procurement officer determines, and gives notice, that a longer review time is necessary. The procurement officer shall give notice of a time extension to each bidder by posting it at the location identified in the solicitation.

19-445.2095. Competitive Sealed Proposals.

Text of regulation applicable to solicitations issued on or before the first Monday in September 2007

A. Request for Proposals.

The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-1530 (2), Public Notice.

B. Receipt and Safeguarding of Proposals.

The provisions of Regulation 19-445.2045 shall apply for the receipt and safeguarding of proposals.

C. Receipt of Proposals.

For the purposes of implementing Section 11-35-1530 (3), Receipt of Proposals, the following requirements shall be followed:

(1) Proposals shall be opened publicly by the procurement officer of the governmental body or his designee in the presence of one or more witnesses at the time and place designated in the request for proposals. A tabulation of those offering a proposal shall be made public record. Contents of competing offers shall not be disclosed during the process of negotiation. All offerors must visibly mark as "confidential" each part of their proposal which they consider to be proprietary information.

D. Evaluation of Proposals.

The provisions of Regulation 19-445.2055 shall apply to implement the requirements of Section 11-35-1530(5), Evaluation Factors.

E. Minor Informalities and Irregularities in Proposals.

The provisions of Section 11-35-1520(13) shall apply to competitive sealed proposals.

F. Specified Types of Supplies, Services or Construction.

(1) Pursuant to Section 11-35-3020(1), and the approval requirements of Section 11-35-3010, the following types of supplies, services, or construction may be procured by competitive sealed proposals:

(a) Architect/Engineer services and construction services to be awarded in the same contract for an indefinite delivery of a specialized service (e.g. Hazardous waste remedial action).

(b) Design/Build or Lease-Purchase contracts where there must be selection criteria in addition to price.

(c) Energy conservation or other projects to be financed by vendors who will be paid from the State's savings.

(d) Supplies, services, or construction, where consideration of alternative methods or systems would be advantageous to the State.

(2) The appropriate Chief Procurement Officer shall develop and issue procedures which shall be followed by all agencies using the competitive sealed proposal method of acquisition.

G. Other Applicable Provisions.

The provisions of the following Regulations shall apply to competitive sealed proposals:

(1) Regulation 19-445.2060, Telegraphic Bids,

(2) Regulation 19-445.2065, Rejection of Bids,

(3) Regulation 19-445.2070, Rejection of Individual Bids,

(4) Regulation 19-445.2075, All or None Qualifications,

(5) Regulation 19-445.2085, Correction or Withdrawal of Bids; Cancellation of Awards, and Cancellation of Awards Prior to Performance.

(6) Regulation 19-445.2135[G], Food Service Contracts.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. Request for Proposals.

The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-1530 (2), Public Notice.

B. Receipt and Safeguarding of Proposals.

The provisions of Regulation 19-445.2045 shall apply for the receipt and safeguarding of proposals.

C. Receipt of Proposals.

The provisions of Regulation 19-445.2050(B) shall apply to the receipt and safeguarding of proposals. For the purposes of implementing Section 11-35-1530 (3), Receipt of Proposals, the following requirements shall be followed:

(1) Proposals shall be opened publicly by the procurement officer or his designee in the presence of one or more witnesses at the time and place designated in the request for proposals. Proposals and modifications shall be time-stamped upon receipt and held in a secure place until the established due date. After the date established for receipt of proposals, a Register of Proposals shall be prepared which shall include for all proposals the name of each offeror, the number of modifications received, if any, and a description sufficient to identify the item offered. The Register of Proposals shall be certified in writing as true and accurate by both the person opening the proposals and the witness. The Register of Proposals shall be open to public inspection only after the issuance of an award or notification of intent to award, whichever is earlier. Proposals and modifications shall be shown only to State personnel having a legitimate interest in them and then only on a "need to know" basis. Contents and the identity of competing offers shall not be disclosed during the process of opening by state personnel.

(2) As provided by the solicitation, offerors must visibly mark all information in their proposals that they consider to be exempt from public disclosure.

D. [Repealed]

E. Clarifications and Minor Informalities in Proposals.

The provisions of Sections 11-35-1520(8) and 11-35-1520(13) shall apply to competitive sealed proposals.

F. Specified Types of Construction.

Consistent with Section 48-52-670, which allows the use of competitive sealed proposals, it is generally not practicable or advantageous to the State to procure guaranteed energy, water, or wastewater savings contracts by competitive sealed bidding.

G. Procedures for Competitive Sealed Proposals.

The appropriate Chief Procurement Officer may develop and issue procedures which shall be followed by all agencies using the competitive sealed proposal method of acquisition. Unless excused by the State Engineer, the Office of State Engineer shall oversee (1) the evaluation process for any procurement of construction if factors other than price are considered in the evaluation of a proposal, and (2) any discussions with offerors conducted pursuant to Section 11-35-1530(6) or subsection I below.

H. Other Applicable Provisions.

The provisions of the following Regulations shall apply to competitive sealed proposals:

(1) Regulation 19-445.2042, Pre-Bid Conferences,

(2) Regulation 19-445.2060, Telegraphic and Electronic Bids,

(3) Regulation 19-445.2075, All or None Qualifications,

(4) Regulation 19-445.2085, Correction or Withdrawal of Bids; Cancellation of Awards, and Cancellation of Awards Prior to Performance.

(5) Regulation 19-445.2137, Food Service Contracts.

I. Discussions with Offerors

(1) Classifying Proposals.

For the purpose of conducting discussions under Section 11-35-1530(6) and item (2) below, proposals shall be initially classified in writing as:

(a) acceptable (i.e., reasonably susceptible of being selected for award);

(b) potentially acceptable (i.e., reasonably susceptible of being made acceptable through discussions); or

(c) unacceptable.

(2) Conduct of Discussions.

If discussions are conducted, the procurement officer shall exchange information with all offerors who submit proposals classified as acceptable or potentially acceptable. The content and extent of each exchange is a matter of the procurement officer's judgment, based on the particular facts of each acquisition. In conducting discussions, the procurement officer shall:

(a) Control all exchanges;

(b) Advise in writing every offeror of all deficiencies in its proposal, if any, that will result in rejection as non-responsive;

(c) Attempt in writing to resolve uncertainties concerning the cost or price, technical proposal, and other terms and conditions of the proposal, if any;

(d) Resolve in writing suspected mistakes, if any, by calling them to the offeror's attention.

(e) Provide the offeror a reasonable opportunity to submit any cost or price, technical, or other revisions to its proposal, but only to the extent such revisions are necessary to resolve any matter raised by the procurement officer during discussions under items (2)(b) through (2)(d) above.

(3) Limitations. Offerors shall be accorded fair and equal treatment with respect to any opportunity for discussions and revisions of proposals. Ordinarily, discussions are conducted prior to final ranking. Discussions may not be conducted unless the solicitation alerts offerors to the possibility of such an exchange, including the possibility of limited proposal revisions for those proposals reasonably susceptible of being selected for award.

(4) Communications authorized by Section 11-35-1530(6) and items (1) through (3) above may be conducted only by procurement officers authorized by the appropriate chief procurement officer.

J. Rejection of Individual Proposals.

(1) Proposals need not be unconditionally accepted without alteration or correction, and to the extent otherwise allowed by law, the State's stated requirements may be clarified after proposals are submitted. This flexibility must be considered in determining whether reasons exist for rejecting all or any part of a proposal. Reasons for rejecting proposals include but are not limited to:

(a) the business that submitted the proposal is nonresponsible as determined under Section 11-35-1810;

(b) the proposal ultimately (that is, after an opportunity, if any is offered, has passed for altering or clarifying the proposal) fails to meet the announced requirements of the State in some material respect; or

(c) the proposed price is clearly unreasonable.

(2) The reasons for cancellation or rejection shall be made a part of the procurement file and shall be available for public inspection.

19-445.2097. Rejection of Proposals.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. Unless there is a compelling reason to reject one or more proposals, award will be made to the highest ranked responsible offeror or otherwise as allowed by Section 11-35-1530. Every effort shall be made to anticipate changes in a requirement prior to the date of opening and to notify all prospective offerors of any resulting modification or cancellation.

B. Cancellation of Solicitation Prior to Award.

(1) When it is determined prior to the issuance of an award or notification of intent to award, whichever is earlier, but after opening, that the requirements relating to the availability and identification of specifications have not been met, the request for proposals shall be cancelled. A request for proposals may be cancelled after opening, but prior the issuance of an award or notification of intent to award, whichever is earlier, when such action is consistent with subsection A above and the procurement officer determines in writing that:

(a) inadequate or ambiguous specifications were cited in the solicitation;

(b) specifications have been revised;

(c) the supplies, services, information technology, or construction being procured are no longer required;

(d) the solicitation did not provide for consideration of all factors of cost to the State, such as cost of transporting state furnished property to bidders' plants;

(e) proposals received indicate that the needs of the State can be satisfied by a less expensive article differing from that on which the proposals were requested;

(f) all otherwise acceptable proposals received are at unreasonable prices;

(g) the proposals were not independently arrived at in open competition, were collusive, or were submitted in bad faith; or

(h) for other reasons, cancellation is clearly in the best interest of the State.

(2) Determinations to cancel a request for proposals shall state the reasons therefor.

C. Extension of Bid Acceptance Period.

Should administrative difficulties be encountered after opening which may delay award beyond offeror's acceptance periods, the relevant offerors should be requested, before expiration of their offers, to extend the acceptance period (with consent of sureties, if any).

D. Return of Proposals

If a request for proposals is canceled, proposals shall be returned to the offerors.

19-445.2100. Small Purchases and Other Simplified Purchasing Procedures.

A. Authority.

Small purchases (under $50,000) shall be made as provided in Section 11-35-1550. For small purchases over ten thousand dollars, bidders must be provided reasonable time to prepare their bids, no less than seven (7) days after notice is provided as required by Section 11-35-1550(2)(c), unless a shorter time is deemed necessary for a particular procurement as determined in writing by the head of the purchasing agency or his designee. In accordance with Section 11-35-1550(2)(c), an agency may:

(1) solicit written quotes, as further specified in Section 11-35-1550(2)(c);

(2) solicit bids in accordance with Section 11-35-1520, Competitive Sealed Bidding, Section 11-35-1525, Competitive Fixed Price Bidding, or Section 11-35-1528, Competitive Best Value Bidding; or

(3) solicit proposals in accordance with Section 11-35-1530, Competitive Sealed Proposals.

B. Establishment of Blanket Purchase Agreements.

(1) General. A blanket purchase agreement is a simplified method of filling repetitive needs for small quantities of miscellaneous supplies, services, or information technology by establishing "charge accounts" with qualified sources of supply. Blanket purchase agreements are designed to reduce administrative costs in accomplishing small purchases by eliminating the need for issuing individual purchase documents.

(2) Alternate Sources. To the extent practicable, blanket purchase agreements for items of the same type should be placed concurrently with more than one supplier. All competitive sources shall be given an equal opportunity to furnish supplies, services, or information technology under such agreements.

(3) Terms and Conditions. Blanket purchase agreements shall contain the following provisions:

(a) Description of agreement. A statement that the supplier shall furnish supplies, services, or information technology, described therein in general terms, if and when requested by the Procurement Officer, or his authorized representative, during a specified period and within a stipulated aggregate amount, if any. Blanket purchase agreements may encompass all items that the supplier is in a position to furnish.

(b) Extent of obligation. A statement that the State is obligated only to the extent of authorized calls actually placed against the blanket purchase agreement.

(c) Notice of individuals authorized to place calls and dollar limitations. A provision that a list of names of individuals authorized to place calls under the agreement, identified by organizational component, and the dollar limitation per call for each individual shall be furnished to the supplier by the Procurement Officer.

(d) Delivery tickets. A requirement that all shipments under the agreement, except subscriptions and other charges for newspapers, magazines, or other periodicals, shall be accompanied by delivery tickets or sales slips which shall contain the following minimum information:

(1) name of supplier;

(2) blanket purchase agreement number;

(3) date of call;

(4) call number;

(5) itemized list of supplies, services, or information technology furnished;

(6) quantity, unit price, and extension of each item less applicable discounts (unit price and extensions need not be shown when incompatible with the use of automated systems, provided that the invoice is itemized to show this information); and

(7) date of delivery or shipment.

(e) Invoices one of the following statements:

(1) A summary invoice shall be submitted at least monthly or upon expiration of the blanket purchase agreement, whichever occurs first, for all deliveries made during a billing period, identifying the delivery tickets covered therein, stating their total dollar value, and supported by receipted copies of the delivery tickets; or

(2) An itemized invoice shall be submitted at least monthly or upon expiration of the blanket purchase agreement, whichever occurs first, for all deliveries made during a billing period and for which payment has not been received. Such invoices need not be supported by copies of delivery tickets;

(3) When billing procedures provide for an individual invoice for each delivery, these invoices shall be accumulated provided that a consolidated payment will be made for each specified period; and the period of any discounts will commence on final date of billing period or on the date of receipt of invoices for all deliveries accepted during the billing period, whichever is later. This procedure should not be used if the accumulation of the individual invoices materially increases the administrative costs of this purchase method.

C. Competition Under Blanket Purchase Agreement.

Calls against blanket purchase agreements shall be placed after prices are obtained. When concurrent agreements for similar items are in effect, calls shall be equitably distributed. In those instances where there is an insufficient number of BPAs for any given class of supplies, services, or information technology to assure adequate competition, the individual placing the order shall solicit quotations from other sources.

D. Calls Against Blanket Purchase Agreement.

Calls against blanket purchase agreements generally will be made orally, except that informal correspondence may be used when ordering against agreements outside the local trade area. Written calls may be executed. Documentation of calls shall be limited to essential information. Forms may be developed for this purpose locally and be compatible with the Comptroller General's Office STARS system.

E. Receipt and Acceptance of Supplies or Services.

Acceptance of supplies, services, or information technology shall be indicated by signature and date on the appropriate form by the authorized State representative after verification and notation of any exceptions.

F. Review Procedures.

The governmental body shall review blanket purchase agreement files at least semiannually to assure that authorized procedures are being followed. Blanket purchase agreements shall be issued for a period of no longer than 12 months.

19-445.2105. Sole Source Procurements.

Text of regulation applicable to solicitations issued on or before the first Monday in September 2007

A. Application.

The provisions of this Regulation shall apply to all sole source procurements unless emergency conditions exist as defined in Regulation 19-445.2110.

B. Exceptions.

Sole source procurement is not permissible unless there is only a single supplier. The following are examples of circumstances which could necessitate sole source procurement:

(1) where the compatibility of equipment, accessories, or replacement parts is the paramount consideration;

(2) where a sole supplier's item is needed for trial use or testing;

(3) [Repealed]

(4) [Repealed]

(5) where the item is one of a kind; and

(6) [Repealed]

The determination as to whether a procurement shall be made as a sole source shall be made by either the Chief Procurement Officer, the head of a governmental body, or designee of either office above the level of the procurement officer. Any delegation of authority by either the Chief Procurement Officer or the head of a governmental body with respect to sole source determinations shall be submitted in writing to the Materials Management Officer. Such determination and the basis therefor shall be in writing. Such officer may specify the application of such determination and the duration of its effectiveness. In cases of reasonable doubt, competition should be solicited. Any request by a governmental body that a procurement be restricted to one potential contractor shall be accompanied by an explanation as to why no other will be suitable or acceptable to meet the need.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. Application.

The provisions of this Regulation shall apply to all sole source procurements unless emergency conditions exist as defined in Regulation 19-445.2110.

B. Exceptions.

Sole source procurement is not permissible unless there is only a single supplier. The following are examples of circumstances which could necessitate sole source procurement:

(1) where the compatibility of equipment, accessories, or replacement parts is the paramount consideration;

(2) where a sole supplier's item is needed for trial use or testing;

(3) [Repealed]

(4) [Repealed]

(5) where the item is one of a kind; and

(6) [Repealed]

C. Written Determination.

The determination as to whether a procurement shall be made as a sole source shall be made by either the Chief Procurement Officer, the head of a purchasing agency, or designee of either office above the level of the procurement officer. Any delegation of authority by either the Chief Procurement Officer or the head of a purchasing agency with respect to sole source determinations shall be submitted in writing to the Materials Management Officer. Such determination and the basis therefor shall be in writing. Such officer may specify the application of such determination and the duration of its effectiveness. In cases of reasonable doubt, competition should be solicited. Any request by a governmental body that a procurement be restricted to one potential contractor shall be accompanied by an explanation as to why no other will be suitable or acceptable to meet the need. The determination must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision. The determination must be authorized prior to contract execution.

19-445.2110. Emergency Procurements.

A. Application.

The provisions of this Regulation apply to every procurement made under emergency conditions that will not permit other source selection methods to be used.

B. Definition.

An emergency condition is a situation which creates a threat to public health, welfare, or safety such as may arise by reason of floods, epidemics, riots, equipment failures, fire loss, or such other reason as may be proclaimed by either the Chief Procurement Officer or the head of a purchasing agency or a designee of either office. The existence of such conditions must create an immediate and serious need for supplies, services, information technology, or construction that cannot be met through normal procurement methods and the lack of which would seriously threaten:

(1) the functioning of State government;

(2) the preservation or protection of property; or

(3) the health or safety of any person.

C. Limitations.

Emergency procurement shall be limited to those supplies, services, information technology, or construction items necessary to meet the emergency.

D. Conditions.

Any governmental body may make emergency procurements when an emergency condition arises and the need cannot be met through normal procurement methods, provided that whenever practical, approval by either the head of a purchasing agency or his designee or the Chief Procurement Officer shall be obtained prior to the procurement.

E. Selection of Method of Procurement.

The procedure used shall be selected to assure that the required supplies, services, information technology, or construction items are procured in time to meet the emergency. Given this constraint, such competition as is practicable shall be obtained.

F. Written Determination.

The Chief Procurement Officer or the head of the purchasing agency or a designee of either office shall make a written determination stating the basis for an emergency procurement and for the selection of the particular contractor. The determination must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision.

19-445.2115. Information Technology Procurements.

A. Authority and Purpose.

Every governmental body, whether using State appropriations or other funds, shall rent, purchase, or lease any information technology, or software, or contract for consulting or other services in the field of information technology only in accordance with these Regulations.

B. Organization.

Every governmental body shall develop in coordination with the designated board officer master plan for Information Technology procurements as defined in Section 11-35-310 of the Procurement Code. Subject to the approval of the master plan by the designated board office, acquisition of Information Technology by governmental bodies shall be through the Information Technology Management Office.

C. Software Licensing

Pursuant to Section 11-35-510 and 11-35-1580, the Information Technology Management Officer may execute an agreement with a business on behalf of, and which binds all, governmental bodies in order to establish the terms and conditions upon which computer software may be licensed, directly or indirectly, from that business by a governmental body. Such an agreement may provide for the voluntary participation of any other South Carolina public procurement unit. Such agreements do not excuse any governmental body from complying with any applicable requirements of the Procurement Code and these Regulations, including the requirements of Section 11-35-1510.

19-445.2120. Cost or Pricing Data.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. Definitions

(1) Adequate Price Competition. Price competition exists if competitive sealed proposals are solicited, at least two responsive and responsible offerors independently compete for a contract, and price is a substantial factor in the evaluation. If the foregoing conditions are met, price competition shall be presumed to be "adequate" unless the procurement officer determines in writing that such competition is not adequate.

(2) Established catalog price has the meaning stated in Section 11-35-1410.

(3) Established Market Price means a current price, established in the usual and ordinary course of trade between buyers and sellers, which can be substantiated from sources which are independent of the manufacturer or supplier and may be an indication of the reasonableness of price.

(4) Prices Set by Law or Regulation. The price of a supply or service is set by law or regulation if some governmental body establishes the price that the offeror or contractor may charge the State and other customers.

B. Thresholds

(1) Section 11-35-1830(1)(a) applies where the total contract price exceeds five hundred thousand dollars.

(2) Section 11-35-1830(1)(b) applies where the pricing of any change order, contract modification, or termination settlement exceeds five hundred thousand dollars, unless the procurement officer determines in writing that such information is necessary to determine that the pricing is reasonable. Price adjustment amounts shall consider both increases and decreases (e.g., a $150,000 modification resulting from a reduction of $350,000 and an increase of $200,000 is a pricing adjustment exceeding $500,000.). This requirement does not apply when unrelated and separately priced changes for which cost or pricing data would not otherwise be required are included for administrative convenience in the same modification.

C. Conditions of Waiver

The requirements of Section 11-35-1830 may be waived if the head of the using agency determines in writing that the price can be determined to be fair and reasonable without submission of cost or pricing data.

D. Refusal to Submit Data

A refusal by the offeror to supply the requested information may be grounds to disqualify the offeror or to defer award pending further review and analysis.

19-445.2121. Repealed163) in State Register Volume 23, Issue No. 5, eff May 28, 1999.

19-445.2125. Responsibility of Bidders and Offerors.

A. State Standards of Responsibility.

Factors to be considered in determining whether the state standards of responsibility have been met include whether a prospective contractor has:

(1) available the appropriate financial, material, equipment, facility, and personnel resources and expertise, or the ability to obtain them, necessary to indicate its capability to meet all contractual requirements;

(2) a satisfactory record of performance;

(3) a satisfactory record of integrity;

(4) qualified legally to contract with the State; and

(5) supplied all necessary information in connection with the inquiry concerning responsibility.

B. Obtaining Information; Duty of Contractor to Supply Information.

At any time prior to award, the prospective contractor shall supply information requested by the procurement officer concerning the responsibility of such contractor. If such contractor fails to supply the requested information, the procurement officer shall base the determination of responsibility upon any available information or may find the prospective contractor non responsible if such failure is unreasonable. In determining responsibility, the procurement officer may obtain and rely on any sources of information, including but not limited to the prospective contractor; knowledge of personnel within the using or purchasing agency; commercial sources of supplier information; suppliers, subcontractors, and customers of the prospective contractor; financial institutions; government agencies; and business and trade associations.

C. Demonstration of Responsibility.

The prospective contractor may demonstrate the availability of necessary financing, equipment, facilities, expertise, and personnel by submitting upon request:

(1) evidence that such contractor possesses such necessary items;

(2) acceptable plans to subcontract for such necessary items; or

(3) a documented commitment from, or explicit arrangement with, a satisfactory source to provide the necessary items.

D. Duty Concerning Responsibility.

Before awarding a contract or issuing a notification of intent to award, whichever is earlier, the procurement officer must be satisfied that the prospective contractor is responsible. The determination is not limited to circumstances existing at the time of opening.

E. Written Determination of Nonresponsibility.

If a bidder or offeror who otherwise would have been awarded a contract is found nonresponsible, a written determination of nonresponsibility setting forth the basis of the finding shall be prepared by the procurement officer. A copy of the determination shall be sent promptly to the nonresponsible bidder or offeror. The final determination shall be made part of the procurement file.

F. Special Standards of Responsibility

When it is necessary for a particular acquisition or class of acquisitions, the procurement officer may develop, with the assistance of appropriate specialists, special standards of responsibility. Special standards may be particularly desirable when experience has demonstrated that unusual expertise or specialized facilities are needed for adequate contract performance. The special standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors. A valid special standard of responsibility must be specific, objective and mandatory.

G. Subcontractor responsibility.

(1) Generally, prospective prime contractors are responsible for determining the responsibility of their prospective subcontractors. Determinations of prospective subcontractor responsibility may affect the procurement officer's determination of the prospective prime contractor's responsibility. A prospective contractor may be required to provide written evidence of a proposed subcontractor's responsibility.

(2) When it is in the state's interest to do so, the procurement officer may directly determine a prospective subcontractor's responsibility (e.g., when the prospective contract involves medical supplies, urgent requirements, or substantial subcontracting). In this case, the same standards used to determine a prime contractor's responsibility shall be used by the procurement officer to determine subcontractor responsibility.

19-445.2130. Prequalification of Supplies and Suppliers.

A. Qualified Products Lists.

A qualified products list may be developed with the approval of the Chief Procurement Officer or the procurement officer of the governmental body authorized to develop qualified products lists, when testing or examination of the supplies or construction items prior to issuance of the solicitation is desirable or necessary in order to best satisfy state requirements. The procedures for the inclusion of a product on the qualified products list ("QPL") must be available to prospective vendors for consideration of their product to the list.

B. Prospective suppliers may be prequalified, and distribution of the solicitation may be limited to prequalified suppliers. Suppliers who meet the prequalification standards at any time shall be added to the prequalified list for subsequent solicitations. The fact that a prospective supplier has been prequalified does not necessarily represent a finding of responsibility.

19-445.2132. Prequalification for a Single Solicitation.

A. Application.

The pre-qualification process shall not be used to unduly limit competition. Any mandatory minimum requirements shall comply with Section 11-35-2730. In a competitive bid, the pre-qualification process is not intended to eliminate bidders capable of completing the work being procured. Before a request for qualifications may be issued pursuant to Section 11-35-1520(11) or 11-35-1530(4), the chief procurement officer or the head of a purchasing agency or either officer's designee shall prepare a written justification stating the necessity for pre-qualifying offerors. Prior to issuance of the solicitation, each potential offeror seeking qualification must be promptly informed as to whether qualification is attained and, in the event qualification is not attained, is promptly furnished specific information why qualification was not attained.

B. Receipt and Safeguarding of Responses.

Prior to opening submittals received in response to a request for prequalification, the provisions of Regulation 19-445.2045 shall apply to the receipt and safeguarding of all such submittals received.

19-445.2135. Conditions for Use of Multi-term Contracts.

A. General.

A multi-term contract is a contract for the acquisition of supplies, services, or information technology for more than one year. A contract is not a multi-term contract if no single term exceeds one year and each term beyond the first requires the governmental body to exercise an option to extend or renew. A multi-term contract is appropriate when it is in the best interest of the State to obtain uninterrupted services for a period in excess of one year, where the performance of such services involves high start up costs, or when a changeover of service contracts involves high phase in/phase out costs during a transition period. The multi-term method of contracting is also appropriate when special production of definite quantities of supplies for more than one year is necessary to best meet state needs but funds are available only for the initial fiscal period. Special production refers to production for contract performance when it requires alteration in the contractor's facilities or operations involving high start up costs.

B. Objective.

The objective of the multi-term contract is to promote economy and efficiency in procurement by obtaining the benefits of sustained volume production and consequent low prices, and by increasing competitive participation in procurements which involve special production with consequent high start-up costs and in the procurement of services which involve high start-up costs or high phase-in/phase-out costs during changeover of service contracts.

C. Exceptions.

This Regulation 19-445.2135 applies only to contracts for supplies, services, or information technology and does not apply to contracts for construction.

D. Conditions for Use.

(1) A multi-term contract may be used if , prior to issuance of the solicitation, the Procurement Officer determines in writing that:

(a) Special production of definite quantities or the furnishing of long term services are required to meet state needs; or

(b) a multi-term contract will serve the best interests of the state by encouraging effective competition or otherwise promoting economies in state procurement.

(2) The following factors are among those relevant to such a determination:

(a) firms which are not willing or able to compete because of high start up costs or capital investment in facility expansion will be encouraged to participate in the competition when they are assured of recouping such costs during the period of contract performance;

(b) lower production cost because of larger quantity or service requirements, and substantial continuity of production or performance over a longer period of time, can be expected to result in lower unit prices;

(c) stabilization of the contractor's work force over a longer period of time may promote economy and consistent quality;

(d) the cost and burden of contract solicitation, award, and administration of the procurement may be reduced.

(3) The determination must contain sufficient factual grounds and reasoning to provide an informed, objective explanation for the decision.

E. Solicitation.

The solicitation shall state:

(1) the estimated amount of supplies or services required for the proposed contract period;

(2) that a unit price shall be given for each supply or service, and that such unit prices shall be the same throughout the contract (except to the extent price adjustments may be provided in the solicitation and resulting contract);

(3) that the multi-term contract will be cancelled only if funds are not appropriated or otherwise made available to support continuation of performance in any fiscal period succeeding the first; however, this does not affect either the state's rights or the contractor's rights under any termination clause in the contract;

(4) that the procurement officer of the governmental body must notify the contractor on a timely basis that the funds are, or are not, available for the continuation of the contract for each succeeding fiscal period;

(5) whether bidders or offerors may submit prices for:

(a) the first fiscal period only;

(b) the entire time of performance only; or

(c) both the first fiscal period and the entire time of performance;

(6) that a multi-term contract may be awarded and how award will be determined including, if prices for the first fiscal period and entire time of performance are submitted, how such prices will be compared; and,

(7) that, in the event of cancellation as provided in (E) (3) of this subsection, the contractor will be reimbursed the unamortized, reasonably incurred, nonrecurring costs.

F. Award.

Award shall be made as stated in the solicitation and permitted under the source selection method utilized. Care should be taken when evaluating multi-term prices against prices for the first fiscal period that award on the basis of prices for the first period does not permit the successful bidder or offerer to "buy in", that is give such bidder or offeror an undue competitive advantage in subsequent procurements.

G. Maximum Contract Periods

Prior to opening, a contract with a total potential duration in excess of five years must be approved as required by Section 11-35-2030(4).

19-445.2137. Food Service Contracts.

Any food service contracts entered into by any governmental body shall be solicited by the Materials Management Office under Code Section 11-35-1530, Competitive Sealed Proposals, and Regulation 19-445.2095. A review panel composed of one representative each from the governmental body, the Materials Management Office, and the Commission on Higher Education shall review such proposals and approve it prior to the issuance of an award or notification of intent to award, whichever is earlier.

19-445.2140. Specifications.

A. Definitions.

(1) "Brand Name Specification" means a specification limited to one or more items by manufacturers' names or catalogue number.

(2) "Brand Name or Equal Specification" means a specification which uses one or more manufacturer's names or catalogue numbers to describe the standard of quality, performance, and other characteristics needed to meet state requirements, and which provides for the submission of equivalent products.

(3) "Qualified Products List" means an approved list of supplies, services, information technology, or construction items described by model or catalogue number, which, prior to competitive solicitation, the State has determined will meet the applicable specification requirements.

(4) "Specification" means any description of the physical, functional, or performance characteristics, or of the nature of a supply, service, information technology, or construction item. A specification includes, as appropriate, requirements for inspecting, testing, or preparing a supply, service or construction item for delivery. Unless the context requires otherwise, the terms "specification" and "purchase description" are used interchangeably throughout the Regulations.

(5) "Specification for a Common or General Use Item" means a specification which has been developed and approved for repeated use in procurements.

B. Issuance of Specifications.

The purpose of a specification is to serve as a basis for obtaining a supply, service, information technology, or construction item adequate and suitable for the State's needs in a cost effective manner, taking into account, to the extent practicable, the cost of ownership and operation as well as initial acquisition costs. It is the policy of the State that specifications permit maximum practicable competition consistent with this purpose. Specification shall be drafted with the objective of clearly describing the State's requirements. All specifications shall be written in a non restrictive manner as to describe the requirements to be met.

C. Use of Functional or Performance Descriptions.

Specifications shall, to the extent practicable, emphasize functional or performance criteria while limiting design or other detailed physical descriptions to those necessary to meet the needs of the State. To facilitate the use of such criteria, using agencies shall endeavor to include as a part of their purchase requisitions the principal functional or performance needs to be met. It is recognized, however, that the preference for use of functional or performance specifications is primarily applicable to the procurement of supplies, services, and information technology. Such preference is often not practicable in construction, apart from the procurement of supply type items for a construction project.

D. Preference for Commercially Available Products.

It is the general policy of this State to procure standard commercial products whenever practicable. In developing specifications, accepted commercial standards shall be used and unique requirements shall be avoided, to the extent practicable.

E. [Repealed]

F. [Repealed]

19-445.2145. Construction, Architect Engineer, Construction Management, and Land Surveying Services.

A. Definitions

(1) Designer, as used in these regulations, means a person who has been awarded, through the qualifications-based process set forth in Section 11-35-3220, a contract with the State for the design of any infrastructure facility using the design-bid-build project delivery method defined in Section 11-35-2910(6).

(2) Builder, as used in these regulations, means a person who has been awarded, through competitive sealed bidding, a separate contract with the State to construct (alter, repair, improve, or demolish) any infrastructure facility using the design-bid-build project delivery method defined in Section 11-35-2910(6).

(3) Design-Builder, as used in these regulations, means a person who has been awarded a contract with the State for the design and construction of any infrastructure facility using the design-build project delivery method defined in Section 11-35-2910(7).

(4) DBO Producer, as used in these regulations, means a person who has been awarded a contract with the State for the design, construction, operation, and maintenance of any infrastructure facility using the design-build-operate-maintain project delivery method defined in Section 11-35-2910(9).

(5) DBFO Producer, as used in these regulations, means a person who has been awarded a contract with the State for the design, construction, finance, operation, and maintenance of any infrastructure facility using the design-build-finance-operate-maintain project delivery method defined in Section 11-35-2910(8).

(6) Guaranteed Maximum Price (GMP) means a price for all costs for the construction and completion of the project, or designated portion thereof, including all construction management services and all mobilization, general conditions, profit and overhead costs of any nature, and where the total contract amount, including the contractor's fee and general conditions, will not exceed a guaranteed maximum amount.

(7) Independent Peer Reviewer means a person who has been awarded a contract with the State for an independent, contemporaneous, peer review of the design services provided to the State by a DBO or DBFO Producer. In the event the State does not elect to contract with the Independent Peer Reviewer proposed by the successful DBO or DBFO Producer, the Independent Peer Reviewer shall be selected as provided in Section 11-35-2910(11).

(8) Operator, as used in these regulations, means a person who has been awarded, through competitive sealed bidding, a separate contract with the State for the routine operation, routine repair, and routine maintenance (Operation and Maintenance) of any infrastructure facility, as defined in Section 11-35-2910(13).

B. Choice of Project Delivery Method.

(1) This Subsection contains provisions applicable to the selection of the appropriate project delivery method for constructing infrastructure facilities, that is, the method of configuring and administering construction projects which is most advantageous to the State and will result in the most timely, economical, and otherwise successful completion of the infrastructure facility. The governmental body shall have sufficient flexibility in formulating the project delivery approach on a particular project to fulfill the State's needs. Before choosing the project delivery method, a careful assessment must be made of requirements the project must satisfy and those other characteristics that would be in the best interest of the State.

(2) Selecting An Appropriate Project Delivery Method.

In selecting an appropriate project delivery method for each of the State's Infrastructure Facilities , the governmental body should consider the results achieved on similar projects in the past and the methods used. Consideration should be given to all authorized project delivery methods, the comparative advantages and disadvantages of each, and how these methods may be appropriately configured and applied to fulfill State requirements. Additional factors to consider include:

(a) the extent to which the governmental body's design requirements for the Infrastructure Facility are known, stable, and established in writing;

(b) the extent to which qualified and experienced State personnel are available to the governmental body to provide the decision-making and administrative services required by the project delivery method selected;

(c) the extent to which decision-making and administrative services may be appropriately assigned to designers, builders, construction-managers at-risk, design-builders, DBO producers, DBFO producers, peer reviewers, or operators, as appropriate to the project delivery method;

(d) the extent to which outside consultants, including construction manager agent, may be able to assist the governmental body with decision-making and administrative contributions required by the project delivery method;

(e) the governmental body's projected cash flow for the Infrastructure Facility to be acquired (both sources and uses of the funds necessary to support design, construction, operations, maintenance, repairs, and demolition over the facility life cycle);

(f) the type of infrastructure facility or service to be acquired - for example, public buildings, schools, water distribution, wastewater collection, highway, bridge, or specialty structure, together with possible sources of funding for the infrastructure facility - for example, state or federal grants, state or federal loans, local tax appropriations, special purpose bonds, general obligation bonds, user fees, or tolls;

(g) the required delivery date of the infrastructure facility to be constructed;

(h) the location of the infrastructure facility to be constructed;

(i) the size, scope, complexity, and technological difficulty of the infrastructure facility to be constructed;

(j) the State's current and projected sources and uses of public funds that are currently generally available (and will be available in the future) to support operation, maintenance, repair, rehabilitation, replacement, and demolition of existing and planned infrastructure facilities;

(k) and, any other factors or considerations specified in the Manual for Planning of Execution of State Permanent Improvements, Part 11, or as otherwise requested by the State Engineer.

(3) Except for guaranteed energy, water, or wastewater savings contracts (Section 48-52-670), design-bid-build (acquired using competitive sealed bidding) is hereby designated as an appropriate project delivery method for any infrastructure facility and may be used by any governmental body without further project specific justification.

(4) Governmental Body Determination.

The head of the governmental body shall make a written determination that must be reviewed by the State Engineer. The determination shall describe the project delivery method (Section 11-35-3005), source selection method (Section 11-35-3015 and 11-35-1510), any additional procurement procedures (11-35-3023 and 11-35-3024(2)(c)), and types of performance security (Sections 11-35-3030 and 11-35-3037) selected and set forth the facts and considerations leading to those selections. This determination shall demonstrate either reliance on paragraph (3) above, or that the considerations identified in paragraphs (1) and (2) above, as well as the requirements and financing of the project, were all considered in making the selection. Any determination to use a project delivery method other than design-bid-build must explain why the use of design-bid-build is not practical or advantageous to the State. Any determination to use any of the additional procedures allowed by Section 11-35-3024(2)(c) must explain why the use of such procedures are in the best interests of the State. Any request to use the prequalification process in a design-bid-build procurement must be in writing and must set forth facts sufficient to support a finding that pre-qualification is appropriate and that the construction involved is unique in nature, over ten million dollars in value, or involves special circumstances.

C. Bonds and Security.

(1) Bid Security. Bid Security shall be a certified cashier's check or a bond, in a form to be specified in the Manual for Planning and Execution of State Permanent Improvements - Part II, provided by a surety company licensed in South Carolina with an "A" minimum rating of performance as stated in the most current publication of "Best Key Rating Guide, Property Liability", which company shows a financial strength rating of at least five (5) times that portion of the contract price that does not include operations, maintenance, and finance. In the case of a construction contract under $100,000, the agency may, upon written justification and with the approval of the Office of the State Engineer, allow the use of a "B+" " rated bond when bid security is required. Each bond shall be accompanied by a "Power of Attorney" authorizing the attorney in fact to bind the surety.

(2) Contract Performance and Payment Bonds. The contractor shall provide a certified cashier's check in the full amount of the Performance and Payment Bonds or may provide, and pay for the cost of, Performance and Payment Bonds in a form to be specified in the Manual for Planning and Execution of State Permanent Improvements-Part II. Each bond shall be issued by a Surety Company licensed in South Carolina with an "A" minimum rating of performance as stated in the most current publication of "Best Key Rating Guide, Property Liability", which company shows a financial strength rating of at least five (5) times that portion of the contract price that does not include operations, maintenance, and finance. In the case of construction under $50,000, the agency may, upon written justification and with the approval of the Office of the State Engineer, allow the use of a "B+" " rated bond when bid security is required. Each bond shall be accompanied by a "Power of Attorney" authorizing the attorney in fact to bind the surety.

D. Architect Engineer, Construction Management and Land Surveying Services Procurement.

(1) The Advertisement of Project Description

The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Code Section 11-35-3220(2), Advertisement of Project Description.

(2) State Engineer's Office Review.

The Office of State Engineer will provide forms in the Manual for Planning and Execution of State Permanent Improvements Projects-Part II for use by governmental bodies in submitting a contract for approval pursuant to Section 11-35-3220(8) of the Code.

E. Contract Forms.

(1) Pursuant to Section 11-35-2010(2), the following contract forms shall be used as applicable, as amended by the State Engineer, and as provided in the Manual for Planning and Execution of State Permanent Improvements-Part II. Subject to the foregoing:

(a) If an agency conducts a competitive sealed bid to acquire construction independent of architect-engineer or construction management services, the governmental body may use a document in the form of AIA Document A701.

(b) If an agency acquires architect-engineer services independent of construction, the governmental body may use a document in the form of AIA Document B151.

(c) If an agency acquires construction independent of architect-engineer or construction management services, the governmental body may use documents in the form of ALA Document A101 and A201. Other contract forms may be used as are approved by the State Engineer.

(d) If an agency acquires architect-engineer services, construction management services, and construction on the same project, each under separate contract, the governmental body may use documents in the form of AIA Documents Al0l/CMa, A201/CMa, B141/CMa, and B801/CMa. This paragraph does not apply if an agency acquires both construction and construction management services from the same business under the same contract.

(2) With prior approval of the State Engineer, a governmental body may supplement the contract forms identified in paragraph (1), as they have been amended by the State Engineer.

(3) Paragraph (1) does not apply to a contract entered into pursuant to Sections 11-35-1530, 11-35-1550, 11-35-3230, or 11-35-3310.

(4) For any contract forms specified herein, the Manual for Planning and Execution of State Permanent Improvements-Part II shall specify the appropriate edition or, if applicable, replacement form.

(5) For any contract forms not specified herein or otherwise required by law, the Manual for Planning and Execution of State Permanent Improvements-Part II may, without limitation, require the use of any appropriate contract document, standard industry contract form, standard state amendments to such documents or forms, or publish state specific contract forms. Absent contrary instructions in the Manual, the governmental body may use a contract written for an individual project.

(6) Construction under Procurement Code Section 11-35-1550 and 11-35-1530 may be in a format and description of services approved by the State Engineer.

F. Manual for Planning and Execution of State Permanent Improvements Projects.

For the purpose of these Regulations and Code Section 11-35-3240, a manual of procedures to be followed by governmental bodies for planning and execution of state permanent improvement projects is prepared and furnished by the designated board office, and included in this regulation. Part II of this manual, covering the procurement of construction for the projects, will be the responsibility of the Office of the State Engineer.

G. Prequalifying Construction Bidders.

In accordance with Section 11-35-3023, the State Engineer's Office shall develop procedures for a prequalification process and shall include it in the Manual for Planning and Execution of State Permanent Improvements-Part II. The provisions of Regulation 19-445.2132 shall apply to implement Section 11-35-3023.

H. With regard to Section 11-35-3310, the State Engineer's Office will establish working procedures for indefinite delivery construction contracts, and shall include them in the Manual for Planning and Execution of State Permanent Improvements-Part II.

I. Construction Procurement-The Invitation for Bids.

The provisions of Regulation 19-445.2040 shall apply to implement the requirements of Section 11-35-3020(a), Invitation for Bids, The provisions of Regulation 19-445.2090(B) shall not apply to implement the requirements of Code Section 11-35-3020.

J. Participation in Prior Reports or Studies.

(1) Before awarding a contract for a report or study that could subsequently be used in the creation of design requirements for an infrastructure facility or service, the procurement officer should address, to the extent practical, the contractor's ability to compete for follow-on work.

(2) Before issuing a request for proposals for an infrastructure facility or service, the procurement officer should take reasonable steps to determine if prior participation in a report or study could provide a firm with a substantial competitive advantage, and, if so, the procurement officer should take appropriate steps to eliminate or mitigate that advantage.

(3) In complying with items (1) and (2) above, the procurement officer shall consider the requirements of Section 11-35-3245 and the Manual for Planning and Execution of State Permanent Improvements, Part II.

K. Additional Procedures for Design-Build; Design-Build-Operate-Maintain; and Design-Build-Finance-Operate-Maintain.

(1) Content of Request for Proposals. Each request for proposals (RFP) issued by the State for design-build, design-build-operate-maintain, or design-build-finance-operate-maintain services shall contain a cover sheet that: (a) confirms that design requirements are included in the RFP, (b) confirms that proposal development documents are solicited in each offeror's response to the RFP, and (c) states the governmental body's determination for that procurement (i) whether offerors must have been prequalified through a previous request for qualifications; (ii) whether the governmental body will select a short list of responsible offerors prior to discussions and evaluations (along with the number of proposals that will be short-listed); and (iii) whether the governmental body will pay stipends to unsuccessful offerors (along with the amount of such stipends and the terms under which stipends will be paid).

(2) Purpose of Design Requirements. The purpose and intent of including design requirements in the RFP is to provide prospective and actual offerors a common, and transparent, written description of the starting point for the competition and to provide the State with the benefit of having responses from competitors that meet the same RFP requirements. In order to be effective, the governmental body must first come to understand and then to communicate its basic requirements for the infrastructure facility to those who are considering whether they will participate in the procurement competition.

(3) Purpose of Requirement for Proposal Development Documents. The purpose and intent of including the requirement for submittal of proposal development documents in each RFP for design-build, design-build-operate-maintain, or design-build-finance-operate-maintain is to provide actual offerors with a common, and transparent, written description of the finish point for the competition. To be responsive, each offeror must submit drawings and other design related documents that are sufficient to fix and describe the size and character of the infrastructure facility to be acquired, including price (or life-cycle price for design-build-operate-maintain and design-build-finance-operate-maintain procurements).

(4) Content of Request for Proposals: Evaluation Factors. Each request for proposals for design-build, design-build-operate-maintain, or design-build-finance-operate-maintain shall state the relative importance of (1) demonstrated compliance with the design requirements, (2) offeror qualifications, (3) financial capacity, (4) project schedule, (5) price (or life-cycle price for design-build-operate-maintain and design-build-finance-operate-maintain procurements), and (6) other factors, if any by listing the required factors in descending order of importance (without numerical weighting), or by listing each factor along with a numerical weight to be associated with that factor in the governmental body's evaluation. Subfactors, if any, must be stated in the RFP and listed, pursuant to the requirements of this Regulation, either in descending order, or with numerical weighting assigned to each subfactor. The purpose and intent of disclosing the relative importance of factors (and subfactors) is to provide transparency to prospective and actual competitors from the date the RFP is first published.

(5) The Manual for Planning and Execution of State Permanent Improvement Projects - Part II must include guidelines for the proper drafting of design requirements, proposal development documents, and requests for proposals.

L. Errors and Omissions Insurance.

(1) For design services in design-bid-build procurements. A governmental body shall include in the solicitation such requirements as the procurement officer deems appropriate for errors and omissions insurance (commonly called "professional liability insurance" in trade usage) coverage of architectural and engineering services in the solicitation for design services in design-bid-build procurements.

(2) For design services to be provided as part of design-build procurements. A governmental body shall include in the solicitation for design-build such requirements as the procurement officer deems appropriate for errors and omissions insurance coverage of architectural and engineering services to be provided as part of such procurements. Prior to award, the head of a governmental body, or his delegee, shall review and approve the errors and omissions insurance coverage for all design-build contracts in excess of $25,000,000.

(3) For design services to be provided as part of design-build-operate-maintain and design-build-finance-operate-maintain procurements. A governmental body shall include in the solicitation for design-build-operate-maintain and design-build-finance-operate-maintain such requirements as the procurement officer deems appropriate for errors and omissions insurance coverage of architectural and engineering services to be provided as part of such procurements. Prior to award, the head of a governmental body, or his delegee, shall review and approve the errors and omissions insurance coverage for all design-build-operate-maintain and design-build-finance-operate-maintain contracts in excess of $25,000,000.

(4) For Construction Management (Agency) services. A governmental body shall include in the solicitation for construction management agency services such requirements as the procurement officer deems appropriate for errors and omissions insurance coverage.

(5) Errors and omissions (or professional liability) insurance coverage for construction management services is typically not required when the governmental body is conducting a construction management at-risk procurement.

M. Other Security; Operations Period Performance Bonds.

(1) Purpose.

To assure the timely, faithful, and uninterrupted provision of operations and maintenance services procured separately, or as one element of design-build-operate-maintain or design-build-finance-operate-maintain services, the governmental body shall identify, in the solicitation, one or more of the other forms of security identified in Section 11-35-3037 that shall be furnished to the governmental body by the offerors (or bidders) in order to be considered to be responsive.

(2) Operations Period Performance Bonds.

(a) If required in a solicitation for operation and maintenance, design-build-operate-maintain, or design-build-finance-operate-maintain, each offeror shall demonstrate in its offer that it is prepared to provide, and upon award of the contract, to maintain in effect an operations period performance bond that secures the timely, faithful, and uninterrupted performance of operations and maintenance services required under the contract, in the amount of 100% of that portion of the contract price that includes the cost of such operation and maintenance services during the period covered by the bond. In those procurements in which the contract period for operation and maintenance is longer than 5 years, the procurement officer may accept an operations period performance bond of five years' duration, provided that such bond is renewable by the contractor every five (5) years during the contract, and provided further, that the contractor has made a firm contractual commitment to maintain such bond in full force and effect throughout the contract term.

(b) The operations period performance bond shall be delivered by the contractor to the governmental body at the same time the contract is executed. If a contractor fails to deliver the required bond, the contractor's bid (or offer) shall be rejected, its bid security shall be enforced, award of the contract shall be made to the next ranked bidder (or offeror), or the contractor shall be declared to be in default, as otherwise provided by these regulations.

(c) Operations period performance bond shall be in a form to be specified in the Manual for Planning and Execution of State Permanent Improvement, Part II. Each bond shall be issued by a Surety Company licensed in South Carolina with an "A" minimum rating of performance as stated in the most current publication of "Best Key Rating Guide, Property Liability", which company shows a financial strength rating of at least five (5) times the bond amount.

(3) Letters of Credit to Cover Interruptions in Operation.

(a) If required in a solicitation for operation and maintenance, design-build-operate-maintain, or design-build-finance-operate-maintain, each offeror shall demonstrate in its offer that it is prepared to post, and upon award of the contract shall post, and in each succeeding year adjust and maintain in place, an irrevocable letter of credit with a banking institution in this State that secures the timely, faithful, and uninterrupted performance of operations and maintenance services required under the contract, in an amount established under the contract that is sufficient to cover 100% of the cost of performing such operation and maintenance services during the next 12 months.

(b) The letter of credit required under this Section shall be posted by the contractor at the same time the contract is executed, and thereafter, shall be annually adjusted in amount and maintained by the contractor. If an offeror or bidder fails to demonstrate in its offer that it is prepared to post the required letter of credit, the bid (or offer) shall be rejected, the bid security shall be enforced, and award of the contract shall be made to the next ranked bidder (or offeror), as otherwise provided by these regulations. If the contractor fails to place and maintain the required letter of credit, the contractor shall be declared to be in default, as otherwise provided by these regulations.

(c) If required by the solicitation, letters of credit shall be in a form to be specified in the Manual for Planning and Execution of State Permanent Improvement, Part II.

(4) Guarantees.

(a) If required in a solicitation for operation and maintenance, design-build-operate-maintain, or design-build-finance-operate-maintain, the contractor and affiliated organizations (including parent corporations) shall provide a written guarantee that secures the timely, faithful, and uninterrupted performance of operations and maintenance services required under the contract, in an amount established under the contract that is sufficient to cover 100% of the cost of performing such operation and maintenance services during the contract period.

(b) The written guarantee required under this Section shall be submitted by each offeror at the time the proposal is submitted. If the contractor fails to submit the required guarantee, the contractor's bid (or offer) shall be rejected, its bid security shall be enforced, and award of the contract shall be made to the next ranked bidder (or offeror) as otherwise provided by these regulations.

(c) If required by the solicitation, guarantees shall be in a form to be specified in the Manual for Planning and Execution of State Permanent Improvement, Part II.

N. Construction Management At-Risk.

(1) Absent the approval required by Section 11-35-2010, a contract with a construction manager at-risk may not involve cost reimbursement.

(2) Prior to contracting for a GMP, all construction management services provided by a construction manager at-risk must be paid as a fee based on either a fixed rate, fixed amount, or fixed formula.

(3) As required by Section 11-35-3030(2)(a)(iv), construction may not commence until the bonding requirements of Section 11-35-3030(2)(a) have been satisfied. Subject to the foregoing, bonding may be provided and construction may commence for a designated portion of the construction.

(4) In a construction management at-risk project, construction may not commence for any portion of the construction until after the governmental body and the construction manager at risk contract for a fixed price or a GMP regarding that portion of the construction. Prior to executing a contract for a fixed price or a GMP, a governmental body shall comply with Section 11-35-1830 and Regulation 19-445.2120, if applicable. For purposes of Section 11-35-1830(3)(a), adequate price competition exists for all components of the construction work awarded by a construction manager at-risk on the basis of competitive bids.

(5) When seeking competitive sealed proposals in a construction management at-risk procurement, the solicitation shall include a preliminary budget, and if applicable, completed programming and the conceptual design. The solicitation shall request information concerning the prospective offeror's qualifications, experience, and ability to perform the requirements of the contract, including but not limited to, experience on projects of similar size and complexity, and history of on-time, on-budget, on-schedule construction. The offeror's proposed fee may be a factor in determining the award.

(6) After all preconstruction services and final construction drawings have been completed, or prior thereto upon written determination by the procurement officer, a governmental body must negotiate with and contract for a GMP with a construction manager at-risk. If negotiations are unsuccessful, the governmental body may issue an invitation for bids, as allowed by this code, for the remaining construction.

(7) A governmental body shall have the right at any time, and for three years following final payment, to audit the construction manager at-risk to disallow and to recover costs not properly charged to the project. Any costs incurred above the GMP shall be paid for by the construction manager at-risk.

(8) A construction manager at-risk may not self-perform any construction work for which subcontractor bids are invited, unless no acceptable bids are received or a subcontractor fails to perform. Ordinarily, the contract with a construction manager at-risk should require the construction manager at-risk to invite bids for all major components of the construction work. Section 11-35-4210 does not apply to any subcontractor bid process conducted by a construction manager at-risk.

19-445.2150. Surplus Property Management.

(Statutory Authority: 1976 Code Section 11-35-3810)

A. Definition, Authority and Mission.

(1) Definition.

Surplus property is all State-owned supplies and equipment, not in actual public use, with remaining useful life and available for disposal. This definition and the ensuing regulations exclude the disposal of solid and hazardous wastes as defined by any federal, state or local statutes and regulations. Property so defined as solid or hazardous waste shall not be relocated, nor title assumed under the authority of these regulations.

(2) Authority.

The disposition of all surplus property shall be conducted by the General Service Division's Surplus Property Management Office (SPMO) at such places and in such manner determined most advantageous to the State, except as defined in Section 11-35-1580 of the Procurement Code. All government bodies must identify surplus items and declare them as such, and report them in writing to the SPMO within one hundred and eighty (180) days from the date they become surplus. The SPMO shall deposit the proceeds from such disposition, less expense of the disposition, in the State's General Fund unless a government body makes a written request to retain such proceeds, less cost of disposition, for the purchase of like kind property and the SPMO, or his designee, approves such request.

(3) Mission.

The primary mission of the Surplus Property Management Office shall be to receive, warehouse and dispose of the State's surplus property in the best interest of the State. The central warehousing of State surplus property will allow all State governmental bodies and other political subdivisions one location to acquire needed property.

The purpose of this program is to provide the following:

1. elimination of costs related to the warehousing, insurance and accounting systems necessary to fulfill an agency's surplus property responsibility,

2. maximization of proceeds by disposing of property as soon as possible after it becomes excess to an agency's needs,

3. establishment of priorities in the disposal process that encourage keeping assets in public use as long as possible,

4. conversion of unneeded fixed assets into available funds on a timely basis .

B. Reporting and Relocation of Surplus Property.

(1) Reporting.

Within one hundred eighty (1 80) days from the date property becomes surplus, it must be reported to the SPMO on a turn-in document (TID) designed by the SPMO. The description, model or serial number, acquisition cost, date of purchase and agency ID number shall be listed for each item.

Upon receipt of the TID, the SPMO will screen the property to determine whether it is surplus or junk as defined in these regulations.

(2) Property Relocation.

Surplus property reported shall be scheduled for relocation to the SPMO, Boston Avenue, West Columbia; or, upon consultation and agreement with the generating governmental body, remain at the governmental body's site if deemed by the SPMO to be a more cost-effective method for disposal.

At such time as property is officially received by the SPMO, title will pass to the General Services' Division and shall be accounted for as described herein. Governmental bodies shall delete insurance coverage on such property. The SPMO shall carry sufficient insurance to ensure these assets are safeguarded against loss. Governmental bodies shall delete such property from their fixed asset records at this point of transfer.

Upon disposal of the property, the proceeds, less cost of disposition, will be returned to the authorized revenue center if so requested and authorized in accordance with these regulations.

If determined to be junk, disposal will be the responsibility of the generating governmental body in accordance with Section 11-35-4020 of the Procurement Code.

C. Transfer of Surplus Property to Governmental Bodies, Political Subdivisions, and Eligible Nonprofit Health or Education Institutions.

(1) Eligibility.

The SPMO's primary role shall be to relocate surplus property to eligible Donees which includes governmental bodies, political subdivisions and nonprofit health and educational institutions.

The term governmental bodies means any State government department, commission, council, board, bureau, committee, institution, college, university, technical school, legislative body, agency government corporation, or other establishment or official of the executive, judicial, or legislative branches of the State. The term political subdivisions includes counties, municipalities, school districts or public service or special purpose districts. The term eligible nonprofit health or educational institutions means tax-exempt entities, duly incorporated as such by the State. SPMO shall be responsible for determining an applicant's eligibility prior to any transfer of property.

The SPMO will maintain sufficient records to support the eligibility status of these entities.

(2) Determination of Sale Price.

The sale price for all items will be established by the Manager of Surplus Property or the Manager's designee. The Manager or the Manager's designee shall have the final authority to accept or reject bids received via public sale. The following categories and methods will be used:

(a) Vehicles: NADA loan value shall be used for the sale price. In certain instances, the most recent public sale figures and consultation with the generating governmental body shall be the basis for a sale price.

(b) Boats, motors, heavy equipment, farm equipment, airplanes and other items with an acquisition cost in excess of $5,000: The sale price shall be set from the most recent public sale figures and/or any other method necessary to establish a reasonable value including consultation with the generating governmental body.

(c) Miscellaneous items with an acquisition cost of $5,000 or less such as office furniture and machines, shop equipment, cafeteria equipment, etc.: A sale price will be assessed based on current market conditions.

(3) Terms and Conditions on Property Transferred from Warehouse.

For any purchases made under this subsection, the purchasing entity will certify that all items acquired will be for the sole benefit of the buying institution and that no personal use will be involved. This certification will be formalized by the agreement signed at the time eligibility is established. The following terms and conditions will be set forth therein:

(1) Property must be placed into public use within one (1) year of acquisition and remain in use one (1) year from the date placed into actual use.

(2) Property which becomes unusable may be disposed of prior to the one-year limitation with the approval of the SPMO.

A utilization visit may be made by authorized personnel of the SPMO. All vehicles and property with an acquisition cost in excess of $5,000 require a utilization review during the twelve-month period from date of transfer to ensure the property is in public use.

(A) Any misuse of property will be reported in writing to the SPMO's Manager by the utilization staff of the SPMO. The SPMO Manager shall have the authority to suspend all further purchases until a determination can be made under Subsection B. If warranted, the matter shall be referred to the proper law enforcement authority for full investigation.

(B) Upon determination that misuse of property has occurred, purchasing privileges will be terminated and not restored until the buying governmental body, political subdivision, or nonprofit health or educational institution pays to the SPMO the fair market value of the item(s) misused or returns the misused property to the SPMO.

(4) Disposition Cycles for Surplus Property.

An appropriate cycle methodology as determined in the SPMO's sole discretion shall be used for the disposal process of surplus property. Governmental bodies, political subdivisions and nonprofit health and educational institutions, and any other qualifying donees will be given priority over the general public to acquire the property.

Special items and heavy equipment, will generally follow the same disposal procedures as other property. When vehicles are the items in question, they will be held for two weeks to allow State agencies purchasing priority. However, the SPMO shall have the authority to deviate from these procedures in circumstances where cost avoidance, space requirements, market conditions, accessibility and manpower are considerations. The SPMO must document that such procedure is advantageous to the State.

D. Public Sale of Surplus Property.

(1) Public Sale Cycle.

Upon completion of the Donee sales cycle, the remaining items shall be made available to the public. Donees and the general public may purchase in this period, but without priority. This period has no minimum or maximum length and is determined by warehouse space and scheduled incoming property. There will also be times when property will not be made available for a Public Cycle Sale.

(2) Final Disposition by Competitive Public Sale.

When surplus property is sold via the competitive sealed bid process, notification of such sale shall be given through a Notice of Sale to be posted at the SPMO at least fifteen (1 5) days prior to the bid opening date. The sale shall also be announced through advertisement in newspapers of general circulation, the South Carolina Business Opportunities publication and such electronic or other media as deemed appropriate by the SPMO. The Notice of Sale shall list the supplies or property offered for sale; designate the location and how property may be inspected; and state the terms and conditions of sale and instructions to bidders including the place, date, and time set for bid opening. Bids shall be opened publicly.

Award shall be made in accordance with the provisions set forth in the Notice of Sale and to the highest responsive and responsible bidder provided that the price offered by such bidder is deemed reasonable by the SPMO or his designee. Where such price is not deemed reasonable, the bids may be rejected in whole, or in part, and the sale negotiated beginning with the highest bidder provided the negotiated sale price is higher than the highest responsive and responsible bid. In the event of a tie bid the award will be made in accordance with the tie bid procedure set forth in Section 11-35-1520(9) of the Consolidated Procurement Code.

Property may also be sold at a public auction by an experienced auctioneer. The Notice of Sale shall include, at a minimum, all terms and conditions of the sale and a statement clarifying the authority of the SPMO, or his designee, to reject any and all bids. These auctions will be advertised in a newspaper of general circulation or on the radio, or both.

(3) Other Means of Disposal.

Some types and classes of items can be sold or disposed of more economically by some other means of disposal including barter, appraisal, electric commerce and web based sales. In such cases, and also where the nature of the supply or unusual circumstances necessitate its sale to be restricted or controlled, the SPMO may employ such other means provided the SPMO makes a written determination that such procedure is advantageous to the State.

(4) Designation of Surplus Property.

Upon written determination by the SPMO that surplus property items are needed to comply with programs authorized by the legislature or by executive order of the governor exercising his statutory authority, the SPMO may designate surplus property items for disposal in order to comply with the program requirements. The SPMO will develop and implement internal guidelines and procedures for the disposal of surplus property items designated as necessary to comply with the program requirements established by the legislature or the governor.

E. Fee Schedule.

The State Surplus Property Management Program will operate solely from service charges retained from the sale of surplus property. The Board shall establish a fee schedule sufficient to fund all program costs and it shall be reviewed by the Board as required to ensure the adequacy and equity of the Program.

F. Inventory and Accounting Systems.

(1) Forms.

Turn-in documents designed by the SPMO shall be used by all governmental bodies for reporting surplus property to the SPMO. It shall be the responsibility of the generating governmental body to obtain these forms and to furnish all information required on the form. Items received by the SPMO shall be physically checked by the SPMO against the turn-in document and a signed receipt issued to the governmental body.

(2) Tagging.

Items received by the SPMO shall be assigned an inventory number and data including generating governmental body, description of property, quantity, original acquisition cost, and other relevant information entered into an automated inventory system. Inventory tags listing all necessary information shall be attached to each item.

(3) Display.

Items shall be displayed in locations with other like commodities to allow for easy viewing.

(4) Issuing property.

All items sold by the SPMO to governmental bodies, political subdivisions and nonprofit health or educational institutions shall be recorded on a Bill of Sale and all required information shall be listed on the document. The Bill of Sale must be signed by the signatory authority of the governmental body, political subdivision or nonprofit health or educational institution as defined in Subsection C, Item 1 of these regulations. At the time of sale, the eligible entity shall receive a copy of the Bill of Sale.

(5) Invoicing.

Invoices shall be generated and mailed to the acquiring agency. All cash and accounts receivable transaction records shall be properly maintained. All transfers of funds to various accounts will be performed in accordance with these regulations.

(6) Deletions.

Items shall be deleted from the SPMO's inventory simultaneously with the invoicing process or by written justification from the Surplus Property Management Officer or his designee.

(7) Property sold to the public shall be paid for in full at the time of purchase.

Transactions shall be documented by a Bill of Sale enumerating all conditions of the sale i.e., "as is, where is," etc. and must be signed by the purchaser. Personal checks with proper identification, certified checks, or money orders made payable to the State of South Carolina or cash or credit cards shall be accepted as a form of payment. A copy of the Bill of Sale shall be presented to the purchaser as a receipt.

G. Trade In Sales.

Governmental bodies may trade in personal property, whose original unit purchase price did not exceed $5,000, the trade in value of which must be applied to the purchase of new items. When the original unit purchase price exceeds $5,000, the governmental body shall refer the matter to the SPMO, or his designee, for disposition.

The SPMO, or his designee, shall have the authority to determine whether the property shall be traded in and the value applied to the purchase of new like items or classified as surplus and sold in accordance with the provisions of Section 11-35-3820 of the Procurement Code. When the original purchase price exceeds $100,000, the SPMO, or his designee, shall make a written determination as to its reasonableness and document such trade-in transaction.

H. Definition of Junk.

Junk is State-owned supplies and equipment having no remaining useful life in public service and the cost to repair or to refurbish the property exceeds the value of like used equipment, or the cost of transporting the property for sale exceeds the likely recovery from a sale. Property that may be recycled is not considered junk. The classification of property as junk is at the sole discretion of the SPMO.

I. Unauthorized Disposal.

(1) The ratification of an act of unauthorized and/or improper disposal of State property by any persons without the requisite authority to do so by an appointment or delegation under the Procurement Code rests with the Surplus Property Management Officer.

(2) Corrective Action and Liability.

In all cases, the head of the disposing agency shall prepare a written determination describing the facts and circumstances surrounding the act, corrective action being taken to prevent recurrence, and action taken against the individual committing the act and shall report the matter in writing to the SPMO within ten (10) days after the determination.

J. Authority to Debar or Suspend.

The procedures and policies set forth in Section 11-35-4220 of the Procurement Code shall apply to the disposal of State property. The authority to debar a person from participation in the public sales of State-owned property shall rest with the Materials Management Officer.

19-445.2152. Leases, Lease/Payment, Installment Purchase, and Rental of Personal Property.

A. Justification. A governmental body proposing to enter into an agreement other than an outright purchase is responsible for the justification of such action. Lease, lease/purchase, installment purchase, or rental agreements are subject to the procedures of the Procurement Code and these Regulations.

B. Procedures. Upon written justification by the procurement officer of the governmental body of such alternate method, the following procedures will be followed:

(1) The State of South Carolina Standard Equipment Agreement will be used in all cases unless modifications are approved by the designated board officer or his designee. A purchasing agency may enter into an agreement for the rental of equipment without using the Standard Equipment Agreement when the agreement has a total potential value of fifteen thousand dollars or less or the agreement does not exceed ninety days in duration.

(2) Installment purchases will require the governmental body to submit both a justification and purchase requisition to the appropriate chief procurement officer or his designee for processing.

(3) All lease/purchase and installment sales contracts must contain an explicitly stated rate of interest to be incurred by the State under the contract.

19-445.2155. Intergovernmental Relations.

A. Selective Mandatory Opting.

As provided in the solicitation, local political subdivisions such as counties, municipalities, school districts, public service or special purpose districts and the Federal Government may purchase from or through the State at any time. When the appropriate chief procurement officer determines prior to establishment of a contract that localities must mandatorily opt in or out of the contract, the following procedures shall be followed:

(1) Sixty (60) days prior to establishment of a particular contract, the appropriate chief procurement officer shall publicly notify local political subdivision of the mandatory opting requirement; and

(2) Require local political subdivisions to advise the appropriate chief procurement officer within 30 days of its desire to participate in the contract.

19-445.2160. Assistance to Minority Businesses.

A. Definitions

(1) "Minority Person" means a United States citizen who is economically and socially disadvantaged.

(2) "Socially disadvantaged individuals" means those individuals who have been subject to racial or ethnic prejudice or cultural bias because of their identification as members of a certain group without regard to their individual qualities. Such groups include, but are not limited to, Black Americans, Hispanic Americans, Native Americans (including American Indians, Eskimos, Aleuts and Native Hawaiians), Asian Pacific Americans, Women and other minorities to be designated by the South Carolina Budget and Control Board or designated agency.

(3) "Economically disadvantaged individuals" means those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged.

(4) "A socially and economically, disadvantaged small business" means any small independent business concern which:

(a) At a minimum is fifty one (51) percent owned by one or more citizens of the United States who are determined to be socially and economically disadvantaged and who also exercise control over the business per 49 CFR Part 26, Subpart D (2006), as amended.

(b) In the case of a corporation, at a minimum, fifty-one (51) percent of all classes of voting stock of such corporation must be owned by an individual or individuals determined to be socially and economically disadvantaged who also exercise control over the business.

(c) In the case of a partnership, at a minimum, fifty-one (51) percent of the partnership interest must be owned by an individual or individuals determined to be socially and economically disadvantaged who also exercise control over the business.

(5) "Small Business" means a for-profit concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on government contracts, and qualified as a small business under the criteria and size standards in 13 C.F.R. Section 121 (1996), as amended. Such a concern is "not dominant in its field of operation" when it does not exercise a controlling or major influence on a national basis in a kind of business activity in which a number of business concerns are primarily engaged. In determining whether dominance exists, consideration shall be given to all appropriate factors, including volume of business, number of employees, financial resources, competitive status or position, ownership or control of materials, processes, patents, license agreements, facilities, sales territory, and nature of business activity.

(6) "Minority Business Enterprise" is a business which has been certified as a socially and economically disadvantaged small business.

(7) "OSMBA" means the Office of Small and Minority Business Assistance.

B. Certification as a Minority Business Enterprise (MBE)

(1) A South Carolina business seeking certification as a Minority Business Enterprise must submit to OSMBA an application and any supporting documentation as may be required.

(2) Certification Process. The Certification Board within OSMBA will determine if the business is controlled and operated by socially and economically disadvantaged individuals. Upon recommendation of the Certification Board, OSMBA will certify the business as a socially and economically disadvantaged small business and issue a Certification as authorized by Section 11-35-5270 of the Procurement Code. Firms may re-apply to OSMBA one year after denied certification. Certifications are valid for five years. Firms may apply for re-certification by submitting an application and required supporting documents of eligibility.

C. Certification Board/Procedures

(1) The certification board, as defined below, is responsible for reviewing files and applications in order to determine whether a business should be recommended for approval or disapproval by the Director of the OSMBA (hereinafter referred to as the Director) as a certified business in compliance with Article 21.

(2) The certification board shall include three (3) members of the Office in which the OSMBA is located and is chaired by a member selected by the Director. The board will meet at the request of the Director.

(3) Applications for certification must be addressed to the Director. Upon receipt, OSMBA shall conduct an investigation of the applicant and provide the results to the Certification Board. Failure to furnish requested information will be grounds for denial or revocation of certification.

D. Eligibility

In order for a firm to be certified, the business must have an office in South Carolina, duly registered and licensed as a South Carolina business, it must be found to be a small independent business owned and controlled by a person or persons who are socially and economically disadvantaged. The following factors will be considered in determining whether the applicant is eligible for certification:

(1) Small Business

The business must meet the definition of small business contained in Subsection A hereof.

(2) Independent Business

a. Recognition of the business as a separate entity for tax or corporate purposes is not necessarily sufficient for certification under Article 21. In determining whether an applicant for certification is an independent business, OSMBA shall consider all relevant factors, including the date the business was established, the adequacy of its resources, and relationships with other businesses.

b. A joint venture is eligible if one of the certified business partners of the joint venture meets the standards of a socially and economically disadvantaged small business and this partner's share in the ownership, control and management responsibilities, risks and profits of the joint venture is at least 51 percent, and this partner is also responsible for a clearly defined portion of the work to be performed.

(3) Ownership and Control

a. The business must be 51 percent owned by socially and economically disadvantaged persons. The OSMBA will examine closely any recent transfers of ownership interests to insure that such transfers are not to be made for the sole purpose of obtaining certification.

b. Ownership shall be real, substantial and continuing and shall go beyond the pro forma structure of the firm as reflected in its ownership documents. The minority owners shall enjoy the customary incidents of ownership and shall share in the risks and profits commensurate with their ownership interests, as demonstrated by an examination of the substance rather than form of ownership arrangements.

c. The contribution of capital or expertise by the minority or women owners to acquire their interest in the business shall be real and substantial. Examples of insufficient contributions include gifts, inheritance, a promise to contribute capital, a note payable to the business or its owners who are not socially disadvantaged and economically disadvantaged, or the participation as an employee, rather than as a manager.

d. The minority owners must have management responsibilities and capabilities including the ability to hire and fire personnel at the highest level and to exercise financial control. A previous and/or continuing employer-employee relationship between or among present owners is carefully reviewed.

e. Where the actual management of the firm is contracted out to individuals other than the owner, those persons who have the ultimate power to hire and fire the managers can, for the purpose of this part, be considered as controlling the business.

f. Any relationship between a business that is applying for certification under Article 21 and a business which is not certified will be carefully reviewed to determine if there are conflicts with the ownership and control requirement of this section.

g. All securities which constitute ownership and/or control of a business for purposes of establishing it as a Minority shall be held directly by minorities. No securities held in trust, or by any guardian for a minor, shall be considered in determining ownership or control.

(4) Socially Disadvantaged

The only factor to be considered in determining whether a firm is socially disadvantaged is membership in a minority group which is listed in Subsection A hereof. Membership shall be established on the basis of the individual's claim that he or she is a member of one of the minority groups included in the definition of socially disadvantaged in Subsection A above and is so regarded by that particular group.

(5) Economically Disadvantaged

a. OSMBA will make a determination of whether a firm is socially disadvantaged before proceeding to make a determination of economic disadvantage. If OSMBA determines that the business owner is not socially disadvantaged, it is not necessary to make the economically disadvantaged determination.

b. OSMBA may consider as evidence of the business owner's economic disadvantage the following: unequal access to credit or capital; acquisition of credit under unfavorable circumstances; difficulty in meeting requirements to receive government contracts; discrimination by potential clients; exclusion from business or professional organizations; and other similar factors which have restricted the owner's business development.

c. In determining the degree of diminished credit and capital opportunities of a socially disadvantaged individual, consideration will be given to both the disadvantaged individual and the business with which he or she is affiliated.

d. In considering the economic disadvantages of businesses and owners, OSMBA will make a comparative judgement about relative disadvantage. The test is not absolute deprivation, but rather whether the individuals and businesses owned by such individuals are disadvantaged in this respect.

e. It is the responsibility of an applicant business and its owner(s) to provide information to OSMBA about its economic situation when it seeks certification. OSMBA will be making a judgement about whether the applicant business and its socially disadvantaged owner(s) are in a more difficult economic situation than most businesses (including established businesses) and owners who are not socially disadvantaged. OSMBA is not required to make a detailed, point-to-point, accountant like comparison of the businesses involved.

E. Decertification

OSMBA reserves the right to cancel a certification at any time if a business becomes ineligible after certification. OSMBA will take action to ensure that only firms meeting the eligibility requirements stated herein qualify for certification. OSMBA will also review the eligibility of businesses with existing certifications to ensure that they remain eligible. A business organization's, ownership or control can change over time resulting in a once eligible business becoming ineligible. Certified businesses must notify OSMBA, in writing within 30 days, of changes in organization, ownership or control. When OSMBA determines that an existing business may no longer be eligible, it will file a Complaint with the Certification Board, and send a copy of the Complaint by certified mail to the business. Upon receipt of such a complaint, the Certification Board shall conduct a hearing in accordance with the procedures set forth in the Administrative Procedures Act (Section 1-23-310, et seq., Code of Laws of South Carolina, 1976, as amended).

19-445.2165. Gifts

A. Policy

It is the policy of the State that a governmental body should not accept or solicit a gift, directly or indirectly, from a donor if the governmental body has reason to believe the donor has or is seeking to obtain contractual or other business or financial relationships with the governmental body.

B. Future Contracts with Donors

Prior to accepting a gift, care should be taken to determine whether acceptance of the gift will provide the donor, directly or indirectly, an undue competitive advantage in subsequent procurements.

C. Definition

For purposes of this Regulation 19-445.2165, the term "donor" means the business donating the gift and all divisions or other organizational elements of the business and any principals and affiliates of the business. For purposes of this Regulation, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or a third party controls or has the power to control both. Indications of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized subsequent to the gift which has the same or similar management, ownership, or principal employees as the business that made the gift. For purposes of this section, the term 'principals' means officers, directors, owners, partners, and persons having primary management or supervisory responsibilities within a business entity including, but not limited to, a general manager, plant manager, head of a subsidiary, division, or business segment, and similar positions.

19-445.2180. Assignment, Novation, and Change of Name.

Text of regulation applicable to solicitations issued after the first Monday in September 2007

A. No Assignment.

No State contract is transferable, or otherwise assignable, without the written consent of the Chief Procurement Officer, the head of a purchasing agency, or the designee of either; provided, however, that a contractor may assign monies receivable under a contract after due notice from the contractor to the State.

B. Recognition of a Successor in Interest; Novation.

When in the best interest of the State, a successor in interest may be recognized in a novation agreement in which the transferor and the transferee shall agree that:

(1) the transferee assumes all of the transferor's obligations;

(2) the transferor waives all rights under the contract as against the State; and

(3) unless the transferor guarantees performance of the contract by the transferee, the transferee shall, if required, furnish a satisfactory performance bond.

C. Change of Name.

When a contractor requests to change the name in which it holds a contract with the State, the procurement officer responsible for the contract may, upon receipt of a document indicating such change of name (for example, an amendment to the articles of incorporation of the corporation), enter into an agreement with the requesting contractor to effect such a change of name. The agreement changing the name shall specifically indicate that no other terms and conditions of the contract are thereby changed.

19-445.2200. Administrative Review Protective Orders.

A. At the request of any party or on its own initiative, the appropriate chief procurement officer or the Procurement Review Panel may issue a protective order controlling the treatment of protected information for purposes of a protest or other proceeding currently pending before it. Such information may include any information exempt from public disclosure by law, such as information exempt from disclosure under Sections 11-35-410 and 30-4-40. The protective order shall establish procedures for application for access to protected information and for identification and safeguarding of that information. Because a protective order serves to facilitate the pursuit of a protest or other administrative proceeding by a protester through counsel, it is the responsibility of protester's counsel to request that a protective order be issued and to submit timely applications for admission under that order. Protected information received by a person pursuant to a protective order issued under this regulation shall be released only pursuant to and in compliance with the protective order.

B. A protective order may not prohibit a public body from releasing information which the public body must release under applicable law. A protective order may not require the release of any public record that a public body is prohibited from releasing by law. Issuance of a protective order does not preclude a party from asserting any legally cognizable privilege to withhold any document or information.

C. Before being permitted to view any protected information, counsel and any consultants retained by counsel who will review or utilize any protected information must file an application for access in accordance with the conditions of the protective order. To be entitled to access, an applicant must establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that there will be no significant risk of inadvertent disclosure of protected information. A consultant will not be permitted access to protected information if he or she is employed by a party to the action or is working under a contract to a party. Objections to granting an applicant access to protected information must be in writing and filed within two business days after the person receives a copy of the application for access.

D. Any violation of the terms of a protective order may result in the imposition of such sanctions as the CPO or Procurement Review Panel, as applicable, deems appropriate, including referral to appropriate bar associations or other disciplinary bodies and restricting the individual's practice before the CPO or Panel. A business aggrieved by violation of a protective order may seek enforcement of such order in any available judicial or administrative forum.

19-445.3000. School District Procurement Codes; Model.

A. Application.

Under Section 11-35-70, a school district is exempt from the South Carolina Consolidated Procurement Code (except for a procurement audit) if the district has its own procurement code which is, in the written opinion of the Office of General Services of the State Budget and Control Board, substantially similar to the provisions of the Consolidated Procurement Code and regulations in effect at the time the opinion is issued.

B. Delegation.

The authority and responsibilities under Section 11-35-70 are hereby delegated to the Materials Management Officer.

C. Substantially Similar.

To qualify for approval, a district code should largely mirror, but need not be identical to, the Consolidated Procurement Code. Because a district code needs only to be substantially similar to the consolidated procurement code and regulations, a district code may accommodate the differing context of school districts (e.g., differences between state government and local school district operations, including size, purchasing staff resources, volume and type of procurements, and structure of its governing body and executive hierarchy) as long as it preserves the sound procurement policies and practices underlying the rules found in the consolidated procurement code and regulations.

D. Definitions.

Covered District means a school district subject to the requirements of Section 11-35-70. Model code means a model school district procurement code and any subsequent modifications to the model code, including instructions regarding how each district may customize the model code to an individual district's organizational structure.

E. Guidelines; Model Code.

By requiring a written opinion, Section 11-35-70 provides for an exercise of judgment. The best interest of the state is served by exercising this judgment in a consistent manner. Accordingly, the Materials Management Office may publish guidance regarding its exercise of this judgment, including publication of a model code. In developing a model code, the Materials Management Officer should consult with all covered districts and the State Department of Education. Any model should be designed to serve and comply with the purposes and policies enumerated in Section 11-35-20 in the specific context of local school district operations, with due regard for minimizing administrative costs of compliance with the model code. Prior to publishing a model code, the Materials Management Officer must determine in writing that the model code is substantially similar to the provisions of the South Carolina Consolidated Procurement Code and these procurement regulations. Any school district may adopt the model code.

F. Duration of Written Opinion.

A written opinion issued pursuant to Section 11-35-70 remains valid for a covered district's procurement code until the covered district seeks and receives a written opinion for modifications to its procurement code.

G. Effect of Adoption.

A procurement code adopted by a school district in accordance with all applicable law shall have the full force and effect of law.

19-446. Representation in Proceedings.

(Statutory Authority: 1976 Code Section 11-35-540)

Persons not licensed to practice law in South Carolina, including laypersons, Certified Public Accountants, attorneys licensed in other jurisdictions, persons possessing Limited Certificates of Admission, architects, and engineers, may appear and represent clients in protests, contract disputes and other proceedings before the Chief Procurement Officers.

19-446.1000. Repealed in State Register Volume 23, Issue No. 5, eff May 28, 1999.

19-447.1000. Leasing of Real Property.

A. LEASE OF NON STATE-OWNED REAL PROPERTY

No governmental body shall contract for the lease, rental, or use of non state-owned real property without approval of the Office of General Services, except as specified in subsection C. Requests shall be directed to the Office of General Services. The Office of General Services shall negotiate or approve the terms of all leases of non state-owned real property unless the governmental body has been exempted.

1. GENERAL REGULATIONS

(a) The Office of General Services shall be accountable for the procurement of leased real property for governmental bodies in accordance with the regulations promulgated by the Board.

(b) All leases shall require the written approval of the Office of General Services, except when such lease is exempt from approval by the Budget and Control Board.

(c) Before approving any lease, Office of General Services shall:

(1) assure that all appropriate approvals have been obtained.

(2) verify that adequate funds exist for the lease payments;

(3) verify that lease payments represent no more than fair market rental;

(4) verify that upfitting costs represent no more than current market costs;

(5) verify that a multi-year financial plan has been submitted by the requesting agency for review by the Budget and Control Board's budget office.

(d) All requests for leased real property by governmental bodies and agencies shall be submitted to the Office of General Services on a "Request for Space Form" provided by General Services.

(1) This form shall include, but not be limited to:

(a) The purpose for which the space will be used.

(b) Any special requirements or needs with written justification (computer rooms, etc.).

(c) Parking requirements and justification.

(d) The general location or area desired.

(e) A multi-year financial plan for review by the Board's budget office.

(2) The amount of office space desired shall be computed and justified using the standards specified in Code Section 1-11-55.

(3) Other types of space (warehouse, laboratory, etc.) shall require a written letter of justification from the requesting agency or governmental body and shall include documentation of market standards for use of this type space. The Office of General Services shall be accountable for investigating the existing space or any other information given in the justification.

(4) The "Request for Space Form" or any other document requesting space or justifying the need for space shall be certified by the Director of the requesting agency or governmental body.

(e) An agency or governmental body desiring to renew an existing lease is responsible for notifying the Office of General Services in writing of its intention to do so at least 60 days before the renewal deadline as stated in the lease. Upon approval by appropriate boards and the Office of General Services, the governmental body or agency shall notify the Lessor that it has elected to exercise its right of renewal pursuant to the lease. The Office of General Services may send each a renewal request form and a reminder notice well in advance of these deadlines.

(f) Under no circumstances will the requesting governmental body or state agency contact or negotiate lease terms with any real estate agency, broker, builder, owner, or representative in reference to space needs without the prior written consent of the Office of General Services.

(g) The Office of General Services will begin investigation of available rental space within ten (10) working days after receiving the "Request for Space Form".

(h) When processing requests for space, the Office of General Services will first determine whether appropriate state-owned or state-leased space is available before exploring commercial space alternatives. If such space is available, the Office of General Services will direct the requesting agency or governmental body to occupy said space. If state-owned or state-leased space is unavailable or inappropriate, the Office of General Services shall begin a solicitation process to secure proposals for commercial space from as many qualified developers and/or brokers as is practicable.

(i) Rental rates will be determined by the Office of General Services for all leases by use of standard acceptable market rent analysis methods.

2. TYPES OF LEASE TRANSACTIONS

All state leases will be categorized as one of the following five types:

(a) Exempt Leases. Those leases exempted in accordance with subsection C or otherwise exempted by the Budget and Control Board.

(b) Standard Lease. All leases which commit less than $1 million in a five year period and which do not involve equity accrual.

(c) Major Leases. Any lease which commits $1 million or more in a five year period but which is otherwise standard in all respects.

(d) Lease/Purchases. All lease transactions which include clauses providing for equity accrual.

(e) Other Leases. All leases which are not encompassed by the first four categories. At its discretion, the Office of General Services may place any proposed lease transaction in this category if it involves complex issues or methodologies which warrant special handling.

3. EXEMPT LEASES

All exempt leases will be administered in accordance with regulations and procedures outlined in subsection C or Budget and Control Board directives.

4. STANDARD LEASES

(a) The Office of General Services will be responsible for managing all aspects of soliciting lease proposals from commercial entities. In all solicitations, the Office of General Services is required to assure that equitable competition occurs in the broadest market practicable.

(b) The Office of General Services will review all proposals from prospective Lessors with the agency or governmental body. The Office of General Services will recommend the proposal which offers the most cost effective terms and conditions to the agency or governmental body after satisfying subjective criteria such as parking, location requirements, special needs, etc. If the agency accepts the recommendation, General Services will make the selection and begin negotiations to finalize the lease transaction.

(c) If the agency or governmental body cannot accept the Office of General Services' recommendation, the dispute shall be referred to the Budget and Control Board, which will make the final determination.

(d) Evaluation criteria shall include total cost (including rental payments, upfitting costs, escalations, additional rents, operating, and all other costs) and location. Other subjective criteria such as parking and other special needs may be included. Total cost shall be given the highest weight of any single factor.

(e) Before making a recommendation, the Office of General Services shall verify that:

(1) all prior approvals have been obtained;

(2) adequate funds exist for the lease payments;

(3) lease payments are no more than fair market rental; and

(4) upfitting costs are no more than reasonable market costs.

(f) The Office of General Services may reject the agency's request for additional space and/or space at a specific location.

5. MAJOR LEASES

(a) All regulations and procedures for standard leases will apply to all major leases.

(b) All major leases must be reviewed by the Joint Bond Review Committee and approved by the Budget and Control Board before a final lease becomes effective.

6. LEASE/PURCHASES

All regulations and procedures for major leases will apply to lease/purchase transactions.

7. OTHER LEASES

(a) At its discretion, the Office of General Services may place any proposed lease transaction in this category if it involves complex issues or methodologies which warrant special handling.

(b) The Office of General Services shall determine which of the above regulations are applicable to any special lease situation and may adopt additional procedures to meet special needs on a case by case basis.

8. STANDARD LEASE DOCUMENTS

(a) The Office of General Services will be responsible for drafting and updating the state standard lease document.

(b) The state standard lease document will be used in all lease negotiations unless a substitute document is approved in advance by the Office of General Services.

(c) The state lease document will incorporate cancellation provisions including a right to cancel in the event of a (a) non-appropriation of funds for the renting agency, (b) dissolution of the agency and (c) the availability of public space in substitution for private space being leased by the agency.

B. LEASE OF STATE-OWNED REAL PROPERTY

No governmental body shall contract with any commercial entity or other governmental body for the lease, rental, or use of state-owned real property whether it be titled in the name of the State of South Carolina or any governmental body, without approval of the Office of General Services, except as specified in subsection C. Requests shall be directed to the Office of General Services. The Office of General Services shall negotiate or approve the terms of all leases of state-owned real property unless the governmental body has been exempted.

C. EXEMPTIONS

The Budget and Control Board may exempt governmental bodies from leasing state-owned and non state-owned real property through the leasing procedure herein required provided, however, that annual reports be filed with the Office of General Services, prior to July 1 of each year. Annual reports shall contain copies of all existing leases of state-owned and non state-owned real property. The Budget and Control Board may limit or withdraw any exemptions provided for in this Regulation.

19-450. Permits for Construction in Navigable Waters.

19-450.1. Scope of Duties.

A. Scope. Unless expressly exempted, a permit issued by the Department of Health and Environmental Control is required for any dredging, filling or construction or alteration activity in, on, or over a navigable water, or in, or on the bed under navigable waters, or in, or on lands or waters subject to a public navigational servitude under Article 14 Section 4 of the South Carolina Constitution and 49-1-10 of the 1976 S.C. Code of Laws including submerged lands under the navigable waters of the state, or for any activity significantly affecting the flow of any navigable water.

B. General Duties of the Department of Health and Environmental Control. For purposes of administering these procedures, the Department of Health and Environmental Control shall serve as the permitting agency, responsible for obtaining and evaluating the views of all relevant agencies and persons, and taking such administrative actions as are appropriate to advise agencies, applicants and others concerning the procedures. The Department shall determine whether the permit should be granted or denied or made subject to any particular condition not provided in these regulations.

C. General Responsibilities of Applicant

1. An applicant who seeks a permit from the Department under these regulations is responsible for establishing that the proposed activity is consistent with these regulations, and for providing to the commenting agencies and the Department the information that may be required to make that determination with reasonable certainty. Failure to respond or provide requested information may result in the denial of the permit.

2. Applicants contemplating major projects are encouraged to contact the Department prior to submitting a formal application for a permit. The Department will advise the applicant of the procedures, requirements, and areas of regulatory concern, and in appropriate cases may convene an interagency meeting to assist and guide the applicant in the preparation of the permit application.

19-450.2. Definitions.

A. Board means the Board of Health and Environmental Control.

B. Department means the South Carolina Department of Health and Environmental Control.

C. Navigable waters means those waters which are now navigable, or have been navigable at any time, or are capable of being rendered navigable by the removal of accidental obstructions, by rafts of lumber or timber or by small pleasure or sport fishing boats. Navigability shall be determined by the Department.

D. Lands and waters subject to a public navigational servitude means those lands below the mean high water line in tidally influenced areas, or below the ordinary high water mark of any nontidal navigable waterway of the state.

E. Mean high water line means that line which intersects with the shore representing the average height of high waters over an 18.5 year tidal cycle. Benchmarks purporting to have established mean high or low water values must be verified by the Department as meeting State and National Ocean Survey Standards.

F. Ordinary high water mark means the natural or clear line impressed on the shore or bank in nontidal waters representing the ordinary height of water therein. It may be determined by bank shelving, changes in the character of the soil, destruction or absence of terrestrial vegetation, the presence of litter or debris, or a combination of the above or other appropriate criteria that consider the characteristics of the surrounding area.

G. Feasible (feasibility) is determined by the Department and is based upon the best available information, including but not limited to technical input from the agencies, and consideration of economic, environmental, social and legal factors bearing on the suitability of the proposed activity and its alternatives. It includes the concepts of reasonableness and likelihood of success of achieving the purpose. "Feasible alternatives" applies to both locations or sites and to methods of design or construction and includes a "no action" alternative.

H. Person means any individual, organization, association, partnership, business trust, estate trust, corporation, public or municipal corporation, county, local government unit, public or private authority and shall include the federal government and its agencies and political subdivisions, the State of South Carolina, its political subdivision, and all its departments, boards, bureaus or other agencies.

19-450.3. Exemptions.

A. No permit is required by the Department for any activity or construction on private highlands above the mean high water line or ordinary high water mark which does not affect directly and significantly any navigable water or water or land subject to a public navigational servitude.

B. No permit is required by the Department for any activity subject to the exclusive permitting authority of the Department under Section 48-39-140 et. seq. and the applicable regulations thereunder.

C. No permit is required by the Department for any normal and otherwise lawful use of the navigable waters of the state which does not involve construction, filling, dredging or alteration activity in navigable waters, or any activity significantly affecting the flow of navigable waters.

D. No permit is required for any state or federal navigational markers.

E. No permit is required for the normal maintenance and repair of any existing permitted structure, or any structure completed prior to the adoption of the Construction in Navigable Waters permitting regulation on December 31, 1976 that is currently serviceable, intact and has been maintained in good working order since that date, provided that the normal maintenance and repairs on these structures does not alter significantly the dimensions nor change the purpose, scope or use of the structure nor do the repairs and maintenance activities create a hazard to navigation nor otherwise adversely affect the navigable waters of the state, water quality or wildlife. Any activity that is intended to restore a water control structure involving impoundment that has not been continually maintained and is not currently serviceable and intact and is now in disrepair and disuse shall require a permit.

F. Any activity undertaken prior to the commencement of the Construction in Navigable Waters permitting program under regulation 19-450 promulgated on December 31, 1976, which involves a structure which has been continually maintained in good working order since than and is intact and functional on the effective date of this regulation, and which subsequently does not adversely affect water quality, navigability, or other natural resource conditions existing on the effective date shall be exempt from the permitting process, provided, however, that the Department may require the owner or other person responsible for the structure to report the existence and condition of the structure.

G. No permit is required for any activity which requires another Department permit or certification, including but not limited to 401 Water Quality Certifications, water supply permits, National Pollutant Discharge Elimination System permits, wastewater construction permits, and mining permits. These permitting/certification areas will be required to coordinate with the Construction in Navigable Waters Permitting staff to insure the provisions of this regulation are adhered to.

H. No permit may be required for the following activities provided that the applicant or permittee, in all except emergency situations, obtains from the Department a written exemption from the permitting procedure prior to commencing work:

1. Any activity on a permitted structure that does not significantly alter the dimensions, changes the purpose, scope or use of the structure, or may create a hazard to navigation or otherwise adversely affect the navigable waters of the state, the flow of navigable waters, water quality, or wildlife. Any request to perform an activity which significantly affects the navigable waters of the state, the flow of navigable waters, water quality, or wildlife shall be processed as an amendment to the permit under section 450.14. Any activity on an unpermitted structure, or that is intended to restore a water control structure involving impoundment that has not been continually maintained and is not currently serviceable and intact and is now in disrepair and disuse, shall require a permit.

2. Any emergency construction when the construction is ordered by a duly constituted official of county, municipality or the state acting to protect the public safety from a sudden and unanticipated threat to the health or public safety. The Department must be notified promptly by telephone and not later than seventy-two hours after construction has commenced, and within thirty days of the commencement of construction, written application must be made to the Department for permission or a permit for the activity undertaken under emergency conditions.

3. Any emergency repair or replacement of a recently damaged permitted structure, or any structure completed prior to the adoption of the Construction in Navigable Waters permitting regulation on December 31, 1976 provided that it has been continually maintained in an intact and currently serviceable condition and that the repairs are essential to prevent property damage from sudden and unanticipated events which make it impossible to notify the Department prior to undertaking the activity, providing that the Department must be notified not later than seventy-two hours after construction has commenced, and written application made within thirty (30) days for permission or a permit for the activity undertaken under emergency conditions.

4. Any installation of utility lines to be attached to an existing permitted structure provided that the utility lines do not alter or reduce significantly the vertical or horizontal clearance provided by the structure.

5. Any drilling for soil borings for construction foundation testing.

19-450.4. Permit Conditions.

A. Any permit issued pursuant to these regulations is subject to the following conditions as well as any specifically mentioned in the individual permit.

1. The authorization for activities or structures granted by the permit shall constitute a revocable license to use the lands and waters within the jurisdiction of the state. Permits for activities which require continuous operation, such as marinas, will be issued for a term of ten (10) years or for such longer period as the Department may grant. These permits are renewable provided that there has been no material adverse change in circumstances.

2. The Department may require the permittee to modify or remove activities or structures authorized herein if it is determined by the Department that such modification or removal is consistent with the requirements of 450.9(A). Modification or removal after the permit has been granted or refusal to renew a permit shall be ordered only after reasonable notice stating the reasons therefor and providing the permittee an opportunity to be heard.

3. All activities authorized by the permit shall be consistent with and limited by the terms and conditions of the permit; any unauthorized work or activity different from or inconsistent with the permit may result in the modification, suspension, or revocation of the permit in whole or in part, and the institution of such legal proceeding as the State of South Carolina may consider appropriate.

4. The construction authorized by this permit must be completed within three years of the date of issuance or such other time as the Department may set for good cause shown. Extensions of time may be granted provided that the requests are submitted to the Department in writing prior to the expiration of the original time period, state whether there has been any change in the circumstances since the permit was approved and the reason for the extension of time.

5. No permit shall convey nor be interpreted as conveying expressly or implicitly, any property right in the land or water in which the permitted activity is located. No permit shall be construed or interpreted as alienating public property for private use, nor does it authorize the permittee to alienate, diminish, infringe upon or other-wise restrict the property rights of other persons or the public.

6. The grant, denial, modification, suspension, revocation of a permit or removal of a structure authorized under these regulations, shall not be the basis for any claim for damages against the State of South Carolina. In no way shall the State be liable for any damage as the result of the erection of permitted works.

7. The permitted activities shall not block or obstruct navigation or the flow of any waters unless specifically authorized herein; no attempt shall be made by the permittee to prevent the full and free use by the public of all navigable waters at or adjacent to the work authorized by the permits; and that no spoil, dredged material, or any other fill material be placed below the mean high water or ordinary high water elevation, unless specifically authorized herein.

8. The permittee shall make every reasonable effort to perform the authorized work in a manner to minimize adverse impact on fish, wildlife, or water quality and shall maintain any authorized structure in good condition in accordance with approved plans and specifications.

9. The permittee shall allow the Department or its authorized agents or representatives to make periodic inspections at any time deemed necessary to assure that the activity being performed is in accordance with the terms and conditions of the permit.

10. Permits are issued in the name of the applicant and may not be assigned to another without the written permission of the Department and the written agreement of the transferee to abide by all the terms and conditions of the permit.

19-450.5. Application Procedure to Obtain Permit.

A. Preliminary Interagency Meeting. The Department may convene at any time a meeting of commenting agencies and the applicant to provide assistance to the applicant, to explain the statutory requirements and areas of agency concern, to provide a preliminary review of the proposal, or to otherwise expedite the administrative aspects of filing an application for a permit.

B. Proposed Activity Requiring Only State Construction in Navigable Waters Permits. Except for applications filed with federal agencies described below, applications for a state permit shall be made to the Department on forms provided by the Department containing, but not limited to:

1. the name and address of the applicant;

2. the location of the proposed activity, including the navigable stream where the construction or activity is contemplated. An appropriate map of the area should be included;

3. a brief description of the proposed activity, its purpose and intended use, including a drawing of the type of structures and method of construction including a drawing of the type of structures and method of construction including size specifications;

4. a plan and elevation drawing showing the general and specific site locations and character of all proposed activities including the size relationship of the proposed structures to the size of the impacted waterway and depth of water in the area and the distance of encroachment of the activity into the water. A handdrawn sketch showing the size and shape of the structure and a location map will be considered sufficient detail for docks, piers, boardwalks or bulkheads without fill and extending no more than fifty (50) feet from the shoreline;

5. evidence of ownership or the consent of the owners of the adjacent high land on which any part of the projected activity will be located;

6. certification that the applicant has or will publish a notice describing the application in a newspaper of general or local circulation in the county where the encroachment is sought one time. Proof of the publication shall be furnished promptly, and the notice by the applicant shall be in the substantially the following form:

PUBLIC NOTICE

(Applicant) has applied to the South Carolina Department of Health and Environmental Control for a Construction in Navigable Waters Permit to (brief description of work) for (public/private) use in (name and location of waterbody). Comments will be received by South Carolina Department of Health and Environmental Control at 2600 Bull St., Columbia, SC, 29201, ATTN: Division of Water Quality and Shellfish Sanitation, until (insert date -15 days from date of this notice).

7. When considered appropriate by the Department, additional information may be required.

C. The Department shall promptly issue a notice to affected state agencies and make such other notice as it deems appropriate no later than fifteen (15) days after receipt of all information necessary to process the application.

D. Activity Requiring Construction in Navigable Waters and Federal Permits

1. When the applicant must obtain authorization from Corps of Engineers or the Coast Guard pursuant to federal law, he is directed to make application to those agencies in the style and on the forms provided by them. By agreement the above applications to federal agencies may be jointly used by the federal agencies and the State and no separate application may be required for the State permit.

2. The federal permitting agency shall publish and provide to interested agencies, groups and persons a joint public notice or public notice letter containing the permit application and clearly stating the requirement of a State permit and if required, certification that the permitted activity does not contravene the Coastal Zone Management Plan. Note: The federal permitting agency may require a certificate of water quality or waiver thereof from the Department of Health and Environmental Control.

E. Upon receipt of the joint public notice the Department shall notify the applicant that a state permit may or may not be required, and if, on the face of the joint public notice or application therein, it appears to the Department that insufficient or inaccurate information is presented, the Department shall notify the applicant and request such additional or corrected information as may be necessary, and that in addition to the joint public notice or public notice letter provided by government agencies, the applicant must publish a notice describing the application in a newspaper of general or local circulation in the county where the encroachment is sought one time. Proof of the publication shall be furnished promptly, and the notice by the applicant shall be in the substantially the following form:

PUBLIC NOTICE

(Applicant) has applied to the South Carolina Department of Health and Environmental Control for a Construction in Navigable Waters Permit to (brief description of work) for (public/private) use in (name and location of waterbody). Comments will be received by South Carolina Department of Health and Environmental Control at 2600 Bull St., Columbia, SC, 29201, ATTN: Division of Water Quality and Shellfish Sanitation, until (insert date - 15 days from date of this notice).

F. Processing of the State permit application by the Department shall commence upon receipt of the joint public notice and shall be processed concurrently but separately from any federal authorization.

19-450.6. Review of Permit Application and Comment by State Agencies.

A. Review by Agencies

1. State agencies commenting on permit applications are collectively responsible for providing to the Department a total assessment of the impact of any proposed work affecting navigable waters, stream beds, submerged lands or other lands or waters within the state's jurisdiction. Each agency is individually responsible for a specific area or field of review based on that agency's statutory responsibilities or primary interests as they relate to the protection or development of the State's natural resources. Within its area of statutory responsibility or primary interest, each agency is to identify the advantages and disadvantages of the project on the lands and waters of the state and to provide an assessment of the relative merits of the proposed activity whether environmentally harmless or not.

2. An agency which comments on a proposed activity that requires a permit under these regulations is responsible for presenting and supporting the comments and objections, if any, made by that agency during any administrative or judicial proceedings growing out of the permitting process.

B. Time for Response. All State agencies receiving public notice of permit applications from the Corps of Engineers, Coast Guard or the Department must submit their comments directly to the Department within thirty (30) days of the receipt of the public notice. Requests by State agencies for extensions of time shall be submitted to the Department in writing before the expiration of the original comment period. A failure to comment, or to request an extension of time during that period shall be treated as no objection to the application. The Department may consider untimely comments for good cause shown.

C. Form and Scope of Comments. Comments and their supporting materials are used to review the proposed activity, as the basis for discussing the terms and conditions of the proposed activity, for conciliating objections, if any, by the Department in making its decision. Therefore, comments by an agency should be objective, and state specifically its conclusions concerning the permit application and include in summary form the information that supports the conclusion of the agency. Objections shall be specifically stated and contain supporting material. Comments which are without support, or are limited solely to use of adjacent private highlands, or are without a comparative assessment of the beneficial and detrimental impacts of the projected activity on lands and waters subject to the jurisdiction of the Department, may, in the discretion of the Department, be disregarded as non-responsive, or returned to the agency for reconsideration or reformulation. All comments of agencies shall be public records available to the public and applicant at the Department.

19-450.7. Procedure if Agency Objects to Activity Requiring State Permit.

A. Conciliation of Agency Objections

1. Within thirty (30) days of notification of a permit application, or any extension thereof, an agency objecting to or intending to object to a projected activity shall notify the Department and the applicant of the specific objection(s) of the agency, the reasons for the objection and the supporting grounds for the objection. When the permit application raises complex issues or more than one agency objects, the Department shall coordinate the conciliation process. If only one agency objects, the Department shall inform the applicant that he is responsible for meeting with the agency and considering how the objection might be reconciled. The applicant and the objecting agency are primarily responsible for the conciliation process, but the Department may support and assist their efforts to conciliate and resolve their differences.

2. In the reconciliation process, the agency and the applicant shall consider how the objections might be reconciled by: (a) avoiding the adverse impact by not taking a certain action or parts thereof; (b) minimizing the adverse impact by limiting the degree or magnitude of the action or its implementation; (c) rectifying the objection by repairing, rehabilitating or restoring the affected area; and (d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the permitted activity. The applicant shall provide any additional information reasonably necessary to resolve the objections.

B. Notice of failure of Conciliation; Joint Statement of Objections. The Department will not take action on a permit application upon which an objection has been made until it has received notice that the objection has been resolved, or that in the opinion of either the applicant or agency that all efforts to resolve the objection have failed and that further negotiation will be of no benefit. Within fifteen days after notice that reconciliation efforts have failed, the applicant and each agency with an unreconcilable objection shall submit to the Department a short and plain statement of the matter in dispute, the position of the agency, the position of the applicant, supported by such facts and information as are relevant. The parties should identify and clarify those issues that prevented reconciliation. If possible the parties should prepare a joint statement so as to expedite the permitting process.

C. Objections that the Proposed Activity Violates The Coastal Zone Management Plan or Water Classifications and Standards System

1. In those applications involving activity within the Coastal Zone where the Office of Ocean and Coastal Resource Management has determined, after efforts to conciliate the objection have failed, that the projected activity contravenes the Coastal Management Plan, a Notice of Proposed Decision proposing to deny the project will be issued. This Notice of Proposed Decision will allow fifteen (15) days for appeal of the decision.

2. In those applications where the Department has determined that the projected activity violates Water Classifications and Standards or endangers the public health, and all efforts to resolve the objection have failed, a Notice of Proposed Decision proposing to deny the project will be issued. This Notice of Proposed Decision will allow fifteen (15) days for appeal of the decision.

19-450.8. Comments by Public on Permit Application.

A. Comments From Interested Persons. Any person who may be affected by the grant or denial of the permit, or the conditions under which a permit may be granted, may submit, in writing, comments or objections to the proposed activity to the Department. These comments will be received by the Department for 15 days after a public notice is published in a newspaper by the applicant or within thirty (30) days after public notice of the proposed activity is distributed by federal or state agencies, whichever is later. The comments may include a request that the commentor be notified of the initial decision. The comments of interested persons shall be public records available to the applicant and all interested persons and the applicant may respond to them.

B. Public Informational Hearings. The Department may hold public hearings if such hearing are deemed necessary to receive information from the public or obtain local public comment and whenever twenty (20) or more individual written requests are received during the public comment period. The hearings shall be held after at least fifteen (15) days notice and whenever possible, in the county where the project is to be located. Besides an oral presentation, a copy of the comments and the supporting material should be submitted in writing, or if not in writing a summary of the comments received be prepared by the Department for inclusion in the record. Written comments on the matters raised at the Public Informational Hearing may be made within 15 days of that hearing.

C. Application and Related Documents Available to Public. The application for a permit, any amendments thereto, any official comments on the application by agencies or comments by the public including joint or individual statements of objections, any notice of failure of conciliation, any proposal for replacement or compensation for unavoidable detriments, and any comments thereto, all records and statements from the public informational hearing and comments thereon and all extensions of time and other scheduling matters and the decision by the Department, and all similar documents filed with the Department shall be available to the public as provided by law.

19-450.9. Review of Comments and Action by the Department.

A. Review by the Department. The Department is responsible for assessing the total impact of the projected activity on the navigable waters and lands subject to the jurisdiction of this regulation, as well as the impact on the economy and natural resources of the state. The Department shall be concerned with the utilization and protection of important state resources and balance the extent and permanence of reasonably foreseeable benefits and detriments of the projected activity including its impact on conservation, economics, aesthetics, general environmental concerns, cultural values, fish and wildlife, navigation, erosion and accretion, recreation, water quality, water supply and conservation, and determine whether the projected activity is consistent with the needs and welfare of the public. In particular the Department shall consider the comments and objections of the affected agencies as well as the public, and the extent to which:

1. the activity requires construction in, on or over a navigable waterway, and the economic benefits to the state and public from such location;

2. the activity would harmfully obstruct navigability or the natural flow of navigable waters or cause erosion, shoaling of navigable channels, or the creation of stagnant waters;

3. the activity would impact fish and wildlife, water quality and other natural resource values or could affect the habitats or rare and endangered species of wildlife and irreplaceable historic and archaeological sites associated with public lands and waters;

4. the activity could affect public access to and use of public lands;

5. the economic benefits to the state and public from the authorized use of lands and waters meets or exceeds the benefits from preservation of the area in its unaltered state;

6. there is any adverse environmental impact which cannot be avoided by reasonable safeguards;

7. all feasible alternatives are taken to avoid adverse environmental impact resulting from the project; and,

8. the long range, cumulative effects of the project, including the cumulative effects of similar projects, may affect navigable waters.

B. Request For Proposal For Replacement or Compensation For Unavoidable Detriments.

1. If the Department tentatively determines: (1) that the proposed activity is likely to produce an adverse impact on navigable waters or other associated natural resources; (2) that the applicant has already agreed to or taken all reasonable and feasible measures to prevent the detriment; and (3) the adverse impact relative to the benefit is not so great as to automatically require a recommendation of disapproval of the proposed activity on that or other grounds; and (4) that the proposed activity otherwise meets the standards in 450.9(A), the Department may request the applicant to submit a proposal that provides or creates natural resource benefits that replace or compensate for the economic, environmental and natural resource benefits lost by the proposed activity so that even considering the detriment or negative impacts of the project, the proposal, including the compensation/replacement, results in a net gain of natural resource benefits to the state.

2. Provided, however, that no compensation or replacement (1) may be made for a project that produces no benefits to the public or state; (2) may be made where the proposed activity amounts to a taking of public land for private purposes; (3) when there is a reasonable, and feasible alternative, step, effort or activity is available that prevents or corrects a detriment created by the proposed activity. A feasible and reasonable alternative, step, effort or activity shall not be deemed unreasonable or infeasible because it would require the applicant to expend more time, effort or expense than the proposed replacement or compensation offered by the applicant.

3. The applicant shall inform the Department within fifteen (15) days whether it intends to submit a proposal for replacement or compensation. If no proposal is submitted the application shall be processed under 450.9(C).

4. The applicant shall submit the proposal for compensation/replacement to the Department which shall be a public record available to the public, and submit it to all commenting agencies which shall make its response to the Department within fifteen (15) days, or such other time as may be set. The Department may use the general procedures in the conciliation process under 450.7 when, in its opinion, it will expedite review of the proposal. In addition to the factors mentioned above, the commenting agencies shall consider:

(a) whether the replacement/compensation proposal provides resources of the same type, quality and extent as those destroyed or burdened by the proposed activity and replaces the same type of natural resource or benefit adversely affected by the projected activity so that the proposal, if accepted, results in compensation in kind rather than the substitution of poorer or more common natural resources for more valuable lands and waters or more rare resources;

(b) whether the replacement/compensation proposal will provide the public with comparable access as previously available to the lands or waters burdened by the projected activity;

(c) whether the replacement/compensation is located on or near the same area as the lands or waters burdened by the proposed activity;

(d) whether the replacement/compensation produces specific benefits to the state and public beyond those produced by compliance with existing state or federal regulation of the resources included in the proposal;

(e) whether the replacement/compensation proposal presently provides specific benefits without further effort or expense by the applicant or the state;

(f) whether the replacement/compensation proposal will require the state to incur costs in obtaining, maintaining or preserving the resources, land or waters in the proposal in appropriate condition;

(g) whether the replacement/compensation proposal is comparable to the lands and waters of the projected activity, when the areas surrounding the respective locations are considered.

(h) whether the replacement/compensation proposal provides permanent benefits.

(i) the likelihood that the benefits in the replacement/compensation proposal will occur, the person responsibility for monitoring the replacement/compensation to see that it does occur as proposed, and modifications or alternatives if the benefits do not occur.

(j) the necessity for obtaining financial guarantees including secured bonds to insure that the applicant complies with all of the terms and conditions of the replacement/compensation proposal.

(k) such other factors, conditions or requirements that may be necessary to insure that specific and permanent benefits accrue to the public or the state from the proposal that compensate or replace the resources burdened by the proposed permitted activity. After the agencies have reviewed the replacement/compensation proposal, and after any efforts to resolve objections have occurred if in the opinion of the Department such efforts would be useful, the applicant shall submit to the Department the proposal for replacement/compensation and the commenting agencies shall submit to the Department their comments or objections, if any to that proposal.

C. Notice of Proposed Decision

1. Promptly after the receipt of all written agency comments and objections to the proposed activity including an offer of replacement or compensation under 450.9(B), if any, the Department shall review all comments and supporting information and, the materials submitted by the applicant, and, in light of the standards listed above make its preliminary decision in the form of a Notice of Proposed Decision.

2. The preliminary decision shall be supported by findings on the relevant issues, including those raised by the comments and objections, if any. The findings shall be supported by materials in the record.

3. Whenever the preliminary decision is inconsistent with the written objection of the agency or other person to the application, the Department shall state the facts found by the Department and the reasons supporting its conclusions. For purposes of this section, the same or similar objections may be treated as one subject. If an objection by an agency or other person, or a response thereto by the applicant is without adequate support, Department shall so state, and may refuse to consider the objection or response and render decision accordingly.

4. The Department may conclude that the permit be granted, or denied, or conditionally granted or denied unless the applicant does or does not do certain activities in connection with the permitted activities.

5. The Notice of Proposed Decision shall advise of availability of related file information and shall be mailed to the following:

(a) the applicant;

(b) the authorized agent, if any;

(c) agencies having jurisdiction or interest over the activity site;

(d) owners or residents of property adjoining the area of the proposed activity; and

(e) those persons providing comment in response to the initial notice of application.

19-450.10. Appeal of the Notice of Proposed Decision.

A. Persons Who May Appeal. Any person with legal standing to contest the decision of the Notice of Proposed Decision to grant or deny a permit under this regulation may appeal that decision to the Board. One objecting only to the highland use of the property, or on grounds other than the impact the proposed activity will have on navigable waters or the economy or natural resources of the state, or who has not submitted written comments on the project including any proposal for replacement/compensation shall not be deemed to have legal standing to contest the decision.

B. Time for Appeal; Contents; Notification of Appeal to Others. A person with legal standing to contest a decision must submit a written request for an adjudicatory hearing before the Department within fifteen (15) days of notification of proposed permit. Such request must set forth the manner in which the person is adversely affected and the grounds for the request. If no appeal of the proposed decision is received, the proposed permit decision shall become the Department's final decision.

C. Hearing Officer; Date of Hearing. Requests for hearing shall be processed in accordance with the South Carolina Administrative Procedures Act and any applicable procedural rules and regulations. Determinations of whether a person has legal standing to contest a determination shall be made in the course of the contested case procedures.

D. Appeals of a permit which include coastal zone consistency certification will be heard according to the above procedures unless the appeal is based exclusively on a coastal zone management issue. In that case the appeal will be heard according to the procedures for appeals of coastal zone consistency certifications.

19-450.11. Final Decision of the Board and Judicial Review.

Board review and any subsequent judicial review of the order of the Administrative Law Judge shall be allowed according to law and applicable procedures, rules and regulations.

19-450.12. Unpermitted Activity; Review of Previously Permitted Activity.

A. Any activity undertaken after the commencement of the Construction in Navigable Waters permitting program under regulation 19-450 promulgated on December 31, 1976 for which a permit is required but was not obtained is in violation of these regulations. Such activity may be permitted providing that it is consistent with these regulations, and the applicant promptly complies with the permitting process. Unless specifically authorized by the Department, an applicant may not complete any structure or continue any activity until the permit is issued.

B. Any person who has received a Construction in Navigable Waters permit that has an expiration date shall notify the Department every ten years after the permit was granted and report the status or condition of the permitted structure or activity, any repairs or alterations, and any material changes in the navigable waters or lands of the state. The Department shall review the report, make such investigation as it deems appropriate, and either renew the permit or revoke or modify the permit, giving the holder due notice and opportunity to be heard. If the Department determines that there have been significant changes since the permit was originally granted, or that a structure that originally was exempt from the permitting process adversely affected water quality, navigability, or natural resources or other conditions as they existed on or about the effective date of this regulation, it may require the applicant to comply with the provisions of Reg. 450.5 through 450.11.

19-450.13. Amendments to Permits or Applications for Permits.

A person who has been issued a permit by the Department may petition for an amendment to the permit. If the amendment reduces the size of the permitted structure, or the permitted activity, and results in less intrusive impact on the navigable waters and lands of the State, the Department may grant the amendment without requiring additional agency and public notice and comment. Any request for an amendment which enlarges the proposed structure or activity or, in the opinion of the Department, may produce a greater impact on the navigable waters and lands of the State shall be given new public and agency notice and comment under Reg. 450.5 through 450.11.

19-450.14. Minor Projects.

The Department may expedite the processing of an application for permits for projects under this regulation, including reducing the time for public or agency comment, if the projects by their nature, size, location or use have a negligible impact on navigable streams, and do not involve proposals for replacement/compensation under 450.9(B), and do not require a permit by any other federal or state agency. Provided, however, that the expedited procedures shall require at least one public notice of the application, permit public comment for at least fifteen (15) days, and provide for comment by the affected agencies.

19-450.15. General or Block Permits.

The Department, using the procedures under this regulation, may issue general or block permits to an agency, political subdivision or public service corporation for certain clearly described categories of work or substantially similar structures in a particular areas. Once the general or block permit is issued, individual Department permits for structures within the categories are not required. The agency, political subdivision or public service corporation as permit administrator shall report to the Department when structures or activities are authorized under the block permit.

19-450.16. Saving Clause.

If any provision of these regulations is adjudged invalid or unconstitutional, the remainder, and the application of their provisions to other persons shall not be affected thereby.

19-460 to 19-460.27. Repealed by State Register Volume 32, Issue No. 6, eff June 27, 2008.

19-460 to 19-460.27. Repealed by State Register Volume 32, Issue No. 6, eff June 27, 2008.

19-470. South Carolina Building Codes Council Regulations.

19-470.1. Purpose.

These regulations are intended to establish procedures for the operation of the South Carolina Building Codes Council and the application and administration of its authority. It is further intended that these regulations establish a formal standard policy and specific criteria on which the Council will base its approval or disapproval of proposed modifications to building codes. It is also intended that these regulations establish a formal standard policy and specific criteria on which the Council will base its approval or disapproval of proposed modifications to or variations from, the required state energy standards.

19-470.2. Definitions

For the purpose of these regulations, the following words or terms are defined as meaning:

(a) "Agency" means any division, department or section of state or federal government.

(b) "Amendment(s)" means the changing of any word, number, date, section or reference in either the text or appendix (if adopted) of any building code, regardless of whether the effect is more or less restrictive.

(c) "Applicable Governing Body" means a city, county, state, state agency or other political government subdivision or entity authorized to administer and enforce the provisions of this code, as adopted or amended.

(d) "Building Codes" means all construction codes, standards or documents presently listed by name in Chapter 9 of Title 6 of the Code of Laws of South Carolina, 1976, as amended.

(e) "Building Codes Act" means the Building, Housing, Electrical, Plumbing and Gas Codes Act, Chapter 9 of Title 6 of the Code of Laws of South Carolina, 1976, as amended.

(f) "Building Official" means the officer or other designated authority, or duly authorized representative, charged with the administration and enforcement of building codes and standards.

(g) "Climatological" means the susceptibility of specific unusual reoccurring weather or atmospheric conditions for a local jurisdiction, including hurricanes, tornados, damaging wind, lightning, or floods due to rainfall.

(h) "Council" means the South Carolina Building Codes Council as established by Chapter 9 of Title 6 of the Code of Laws of South Carolina, 1976, as amended.

(i) "Division" means the Office of General Services, State of South Carolina Budget and Control Board.

(j) "Energy Standards" means the Building Energy Efficiency Standard Act, Chapter 10 of Title 6 of the Code of Laws of South Carolina, 1976, as amended.

(k) "Flood(ing)" means temporary inundation of normally dry land areas from the overflow of inland or tidal waters or from the unusual and rapid accumulation of runoff or surface waters by excessive rainfall, snowmelt, wind storms or any combination of such conditions.

(l) "Geographical" means the geographic or topographic characteristics of a specific area or region.

(m) "Geological" means the structure of a specific area or region of the earth's surface.

(n) "Local Enforcement Agency" means the agency of local government with authority to make inspections of buildings and to enforce the laws, ordinances, and regulations enacted by the State and local government, which establish standards and requirements applicable to the construction, alteration, repair and occupancy of buildings.

(o) "Local Government" means any county, city, municipal corporation, or other political subdivision of this State and state agencies with authority to establish standards and requirements applicable to the construction, alteration, repair and occupancy of buildings.

(p) "Local Jurisdiction" means any county, city, town, village or other political subdivision of the State of South Carolina.

(q) "Modification(s)" means the changing of any word, number, date, section or reference in either the text or appendix (if adopted) of any building code, regardless of whether the effect is more or less restrictive.

(r) "Modular Act" means the Modular Buildings Construction Act, Chapter 43 of Title 23 of the Code of Laws of South Carolina, 1976, as amended.

(s) "Physical" means the natural stable and unstable characteristics and conditions of the land area within a local jurisdiction, including topography, geography, geology, water table and seismic activity.

(t) "Variation(s)" means the changing of the Energy Standards or any building code in either the text or appendix (if adopted), the nature of which, would accept an alternate building material or alternate method of compliance.

19-470.3. Powers Duties, and Responsibilities of Council.

(a) The Council shall clarify the various aspects and provision of the Building Codes Act, the Modular Act and their corresponding regulations, as may be necessary to carry out their intended purposes.

(b) The Council shall review requests by local jurisdictions, for variations or modifications to their adopted building codes.

(c) The Council shall review requests by local enforcement agencies, for variations from the Energy Standards.

(d) The Council shall monitor the adoption of building codes by local jurisdictions to insure compliance with the Building Codes Act.

(e) The Council shall produce records of all its transactions and minutes of all its meetings, hearings and proceedings.

19-470.4. Duties and Responsibilities of Division.

(a) The Division shall provide the personnel to serve as staff for the Council. Such staff shall have the duty and responsibility to:

(1) Maintain an accurate and complete record of all meetings, hearings, proceedings, correspondence and technical work performed by and for Council;

(2) Make all records and documents of Council available for public inspection any time during normal working hours;

(3) Prepare and provide all information, documents and exhibits necessary for the Council agendas and meetings; and,

(4) Perform such other related tasks as may, from time to time, arise.

(b) The Division shall interpret the Building Codes Act and these regulations.

(c) The Division shall provide legal counsel for the Council.

(d) The Division shall enforce the provisions of the Building Codes Act.

19-470.5. Council Officers.

(a) The Council shall elect from its appointed members, a chairman, a vice-chairman and a secretary.

(b) Election of officers shall occur during the first meeting of each calendar year. All elected officers shall assume office upon adjournment of the meeting at which the election occurs.

(c) The duties of each officer shall be as follows:

(1) Chairman-Preside over all meetings of the Council, call special meetings as the need may arise, authenticate by signature all licenses, resolutions, documents and other instruments of Council and perform such other duties as may fall within the jurisdiction of the office;

(2) Vice-chairman-Function as chairman in the absence of the chairman and perform such other duties as may fall within the jurisdiction of the office; and,

(3) Secretary-Function as chairman in the absence of the chairman and vice-chairman, swear in all witnesses for hearings conducted by Council and perform such other duties as may fall within the jurisdiction of the office.

(d) All officers shall serve for a period of one year or until their successors are elected.

(e) Vacancies occurring in any officers position shall be filled in the following manner.

(1) If, during the course of any unexpired term, the office of chairman is vacated, the vice-chairman shall, immediately and without any further action of Council, be named chairman and continue in that capacity until the next regular election.

(2) If, during the course of an unexpired term, the office of vice-chairman or secretary is vacated, the Council shall fill the vacancy by election during its next official meeting. The elected member shall assume office immediately and continue in that capacity until the next regular election.

19-470.6. Council Meetings.

(a) The Council shall meet regularly on a monthly basis. Regularly scheduled meetings may be cancelled by the chairman by giving written notice to all remaining members. In addition to the regularly scheduled meetings, the chairman may call special meetings at any time throughout the year.

(b) All formal agenda items and supporting documentation shall be submitted to the Council staff not later than ten (10) working days prior to the meeting date. The prepared agenda and the meeting notice shall be mailed to each Council member no later than seven (7) working days prior to the meeting date. The meeting notice shall contain the date, time and place the meeting will be held.

(c) All meetings shall be open to the public. Notices designating the date, time and place of the meeting shall be posted at the offices of the Council, not later than twenty-four hours before the meeting starting time.

(d) Minutes of every meeting of Council shall be produced and distributed to each Council member. The minutes shall reflect the names of all persons in attendance, each item and action taken and all motions, seconds and votes made during the course of the meeting. All recorded minutes shall be approved by motion, second and vote at a meeting of Council before they will be considered official. Only official minutes shall be made available to the general public. A copy of all official minutes of Council meetings shall be maintained in the offices of the Council and made available for public inspection during all normal working hours.

19-470.7. Building Codes Amendment Procedure.

(a) The Council shall review and grant variations or modifications to any of the building codes adopted by a local jurisdiction, when it determines that the changes are required to meet local needs due to physical or climatological conditions. For the purpose of this section, the words "Physical" and "Climatological" shall have only the meanings as defined in these regulations.

(b) Requests for building codes variations or modifications may only be considered when submitted to Council by an elected representative or authorized employee of the local jurisdiction proposing the changes.

(c) All requests for variations or modifications shall be submitted on a form approved by Council and must be accompanied with sufficient test information, studies, data or other documentation to fully explain and justify the issues to be considered. The submittal should include a list of the persons wishing to testify and their titles and affiliations. Each variation or modification shall be submitted on a separate form. Information submitted shall be legible and each form must contain the following:

(1) Name, address, phone number and title of the person making the request;

(2) Name of jurisdiction for which the variation or modification is being submitted;

(3) The full wording (either added or deleted) of the proposed variation or modification and the code(s) section(s) affected;

(4) The physical or climatological basis for the request and the reason that the suggested change would correct the condition.

(d) Variations and modifications granted to any specific edition of a building code shall not carry over into any later editions of the same document. If a local jurisdiction desires to apply variations or modifications of any edition of a building code to any later or subsequent edition of the same document, a new request before Council shall be submitted.

(e) Variations and modifications granted to any local jurisdiction shall apply only to site constructed buildings. Structures approved and constructed in compliance with the Modular Act shall not be affected by any local building codes variations and modifications. All properly labeled modular buildings shall be accepted by the local enforcement agency as being in full compliance with all of its adopted building codes.

(f) A local jurisdiction shall not propose a variation or modification which will amend, suspend, eliminate or supersede an existing statute, policy, rule or regulation of any state or federal agency.

(g) Proposed variations and modifications of building codes shall not take effect in any jurisdiction until after they have first been reviewed and approved by the Building Codes Council.

19-470.8. Qualifications for Building Codes Amendments.

A local jurisdiction may qualify for a variation or modification to any of the building codes, by establishing that the basis for the requested amendment is either physical or climatological in nature.

(a) To qualify by physical basis, a jurisdiction must demonstrate that it possesses unique physical qualities, such as unusual characteristics or composition of soils, unusual geological conditions (including earthquakes), unusual geographical conditions, unusually varying or extreme ranges in the topography of the land or any other natural condition.

(b) To qualify by climatological basis, a jurisdiction must demonstrate that it experiences weather conditions which are unusual to, confined to, occurring on a regular or seasonal cycle or determined through research or past experiences to have a high probability of reoccurrence within its area. Climatological conditions may include the known occurrence of hurricanes, tornados, damaging wind, snow, flooding caused by rainfall, lightning or any other form of natural weather related phenomenon.

19-470.9. Energy Standards Variation Procedure.

(a) The Council shall review and grant variations to the Energy Standards, when it determines that conditions requiring special or different building standards exist within any local jurisdiction.

(b) Requests for variations to the Energy Standards may only be considered when submitted to Council by the local enforcement agency proposing the changes and, if approved, are valid only within the requesting jurisdiction.

(c) All requests for variations shall be submitted on a form approved by Council and must be accompanied with sufficient test information, studies, data or other documentation to fully explain and justify the issues to be considered. The submittal should include a list of the persons wishing to testify and their titles and affiliations Each variation shall be submitted on a separate form. Information submitted shall be legible and each form must contain the following:

(1) Name, address, phone number and title of the person making the request;

(2) Name of jurisdiction for which the variation is being submitted;

(3) The full wording and nature for the proposed variation;

(4) The basis or reason for the request.

(d) Variations granted to any local jurisdiction shall apply only to site constructed buildings. Structures approved and constructed in compliance with the Modular Act shall not be affected by any variation to the Energy Standards that may be granted to a local jurisdiction. All properly labeled modular buildings shall be accepted by the local enforcement agency as being in full compliance with the Energy Standards.

19-470.10. Energy Standards Appeal Procedure.

(a) The Council shall review and decide appeals to the requirements of the energy standards when certain occupancy or construction conditions are proven to exist.

(b) Appeals may be brought before Council by any person, persons or parties who may be affected by any provision of or decision made pursuant to the administration or enforcement of the Energy Standards.

(c) All appeals shall be submitted on a form approved by Council and must fully explain and justify the issues to be considered. The submittal should include a list of the persons wishing to testify. Each appeal shall be submitted on a separate form. Information submitted shall be legible and each form must contain the following:

(1) Name, address and phone number of the person making the request;

(2) Name of jurisdiction in which the structure involved is located;

(3) The nature of the appeal;

(4) The basis or reason for the appeal.

(d) Any decision of Council may be appealed to a court of competent jurisdiction.

19-470.11. Administration of Modular Act.

The Council shall implement the provisions of the Modular Act and its accompanying regulations.

19-470.12. Building Codes Adopted.

(a) A local government may adopt any combination of building codes, in accordance with the Building Codes Act, for use within its respective jurisdiction. If a local government does elect to adopt building codes however, they must be only those listed in the Building Codes Act, as published, without local amendments, deletions or additions except as approved in accordance with the Building Codes Act. Local governments are prohibited from writing or publishing any other building codes in part or in whole.

(b) All subsequent editions of every building code adopted by a local government, must also be adopted within one year of the date the document is made available by its publisher. Authorized amendments issued between editions may, at the option of the local government, be adopted as published, without further amendments, deletions or additions.

(c) The appendices included with all building codes are not intended to be administered or enforced unless specifically referenced in the texts of the codes or specifically included by name and letter designation in the adopting ordinance of the local government.

19-470.13. Injunctive Relief.

(a) In the event of a proposed or actual violation of the prescribed building codes or these regulations, injunctive relief shall be as provided by the Building Codes Act.

(b) In the event of a proposed or actual violation of the Modular Act or its regulations, injunctive relief shall be provided by the Modular Act.

Private suits for damages resulting from violations of the Modular Act or its regulations, shall be as provided by the Modular Act.

(c) In the event of a proposed or actual violation of the Energy Standards, injunctive relief shall be as provided therein.

19-470.14. Penalties.

(a) Any person violating the codes listed in the Building Codes Act or the regulations adopted pursuant to the provisions of the Building Codes Act, shall be subject to the penalties provided therein.

(b) Any person violating any of the provisions of the Modular Act or its regulations, shall be subject to the penalties provided therein.

(c) Any person violating any of the provisions of the Energy Standards, shall be subject to the penalties provided therein.

Statutory Authority: Section 6, Part II, Act 632 of 1978 [1976 Code Section 1-11-25]

19-501. Eligibility Requirements for Rural Improvement Funds.

1. Any project to be funded from Rural Improvement monies must be located in an area which has a population of less than 50,000 individuals.

2. The State, and political subdivision of the State, or any local entity as may be approved by the Division of Local Government of the Budget and Control Board, may apply for Rural Improvement funds, provided the project for which the application is made meets the other criteria set forth in these regulations. Before approving an application, the Division of Local Government of the Budget and Control Board shall determine that the entity is qualified to receive such funds, is fully capable of carrying out or completing the project for which funds are requested and maintains accounts and records which may be audited to determine that allocated funds are expended for the stated purpose.

19-502. Method of Application.

An application for Rural Improvement funds must be submitted in writing on forms prescribed by the Division of Local Government of the Budget and Control Board.

19-503. Monitoring Process.

Successful applicants must agree to provide and/or make available to the Budget and Control Board or its agents such books, records or accounting information as may be necessary for the performance of an audit of any and all aspects of the project for which Rural Improvement funds have been made available.

(Statutory Authority: 1976 Code Sections 1-11-220 through 1-11-340)

19-600 to 19-614. Repealed by State Register Volume 21, Issue No. 5, eff May 23, 1997.

19-600 to 19-614. Repealed by State Register Volume 21, Issue No. 5, eff May 23, 1997.

19-630 to 19-633. Repealed by State Register Volume 21, Issue No. 5, eff May 23, 1997.

19-630 to 19-633. Repealed by State Register Volume 21, Issue No. 5, eff May 23, 1997.

(Statutory Authority: 1976 Code Sections 8-11-41, 8-11-230, 8-11-240, 8-11-680)

19-700. Definitions.

The following definitions should be used in conjunction with these Regulations.

ACADEMIC PERSONNEL--presidents, provosts, vice-presidents, deans, teaching and research staffs, and others of academic rank employed by the State educational institutions of higher learning or medical institutions of education and research.

AGENCY--a department, institution of higher learning, board, commission, or school that is a governmental unit of the State of South Carolina. Special purpose districts, political subdivisions, and other units of local government are excluded from this definition.

AGENCY HEAD--the person who has authority and responsibility for an agency.

AGENCY HIRE DATE--the date an employee begins employment with an agency without any adjustments.

APPEAL--the request by a covered employee to the State Human Resources Director for review of an agency's final decision concerning a grievance.

APPOINTING AUTHORITY--the agency head or other person or group of persons empowered to employ.

BASE PAY--the rate of pay approved for an employee in his position exclusive of any additional pay, such as supplements, bonuses, longevity pay, temporary salary adjustments, shift differential pay, on-call pay, call back pay, special assignment pay, or market or geographic differential pay.

BASE PERIOD--the period of time that defines the regular annual schedule of employment (e.g., either a semester, an academic year, or ten months to 12 months).

BREAK IN SERVICE--an interruption of continuous State service. An employee experiences a break in State service when the employee (1) separates from State service and is paid for unused annual leave; (2) moves from one State agency to another and is not employed by the receiving agency within 15 calendar days following the last day worked (or approved day of leave at the transferring agency); (3) remains on leave for a period of more than one calendar year; (4) separates from State service as a result of a reduction in force and is not recalled to the original position or reinstated with State government within 12 months of the effective date of the separation; (5) involuntarily separates from State service and the agency's decision is upheld by the State Employee Grievance Committee or by the courts; or (6) moves from a full-time equivalent (FTE) position to a temporary, temporary grant, or time-limited position.

CALENDAR DAYS--the sequential days of a year. For purposes of calculating time frames under the State Employee Grievance Procedure Act, the time must be computed by excluding the first day and including the last. If the last day falls on a Saturday, Sunday, or holiday, it must be excluded.

CLASS--a group of positions sufficiently similar in the duties performed; degree of supervision exercised or received; minimum requirements of education or experience; and the knowledge, skills, and abilities required, that the Office of Human Resources applies the same State class title and the same State salary range to each position in the group.

CLASS/UNCLASSIFIED STATE TITLE CODE--the alphanumeric identification assigned to a particular class or unclassified State title.

CLASSIFIED POSITION--an FTE position that has been assigned to a class.

CLASSIFIED SERVICE--all of those positions in State service which are subject to the position classification plan.

CLASS SERIES--a group of classes which are sufficiently similar in kind of work performed to warrant similar class titles, but sufficiently different in level of responsibilities to warrant different pay bands.

CLASS SPECIFICATION--the official description approved by the Office of Human Resources providing examples of the kind of work and level of responsibility normally assigned to positions that may be allocated to the class.

CLASS TITLE--the name assigned to a class by the Office of Human Resources.

CLASS/UNCLASSIFIED STATE TITLE DATE--the date an employee enters his current class or unclassified State title.

COMPENSATION--monetary payment for services rendered.

CONFLICT OF INTEREST--any action or situation in which an individual's personal or financial interest or that of a member of his household might conflict with the public interest.

CONTINUOUS SERVICE--service with one or more State agencies without a break in service.

CONTINUOUS SERVICE DATE--the date that reflects the first date of State employment without a break in service.

COVERED EMPLOYEE--a full-time or part-time employee occupying a part or all of an FTE position who has completed the probationary period and has a "meets" or higher overall rating on the employee's performance evaluation and who has grievance rights. Instructional personnel are covered upon the completion of one academic year except for faculty at State technical colleges upon the completion of not more than two full academic years' duration. If an employee does not receive an evaluation before the performance review date, the employee must be considered to have performed in a satisfactory manner and be a covered employee. This definition does not include employees in positions such as temporary, temporary grant, or time-limited employees who do not have grievance rights.

DEMOTION--the assignment of an employee by the appointing authority from one established position to a different established position having a lower State salary range or, for employees in positions without a State salary range, assignment of a lower rate of pay to the employee except when the employee's job duties also are decreased for nonpunitive reasons.

DUAL EMPLOYMENT--an agreement by which an employee with an employing agency accepts temporary, part-time employment with the same or another agency.

EMPLOYEE--any person in the service of an agency who receives compensation from the agency and where the agency has the right to control and direct the employee in how the work is performed.

EMPLOYING AGENCY--the agency having primary control over the services of the employee.

EXEMPT EMPLOYEE--an employee who is exempt from both the minimum wage and overtime requirements of the Fair Labor Standards Act due to employment in a bona fide executive, administrative, professional, or outside sales capacity.

FULL-TIME EQUIVALENT or FTE--a numerical value expressing a percentage of time in hours and of funds related to a particular position authorized by the General Assembly.

GRIEVANCE--a complaint filed by a covered employee or the employee's representative regarding an adverse employment action taken by an agency designated in Section 8-17-330 of the South Carolina Code of Laws.

HOLIDAY--any holiday recognized by State law or enumerated in the South Carolina Code of Laws Section 53-5-10.

HOLIDAY COMPENSATORY TIME--leave time earned by an employee for work performed on a holiday.

IN-BAND INCREASE--a salary increase which is awarded within the pay band assigned to the employee's class.

INITIAL EMPLOYMENT--the employment of a person newly hired into State government in a classified or unclassified FTE position.

INSTRUCTIONAL PERSONNEL--for purposes of the State Employee Grievance Procedure Act, employees of an agency that has primarily an educational mission, excluding the State technical colleges and excluding those employees exempted in Section 8-17-370 10. of the South Carolina Code of Laws, who work an academic year.

INVOLUNTARY REASSIGNMENT--the movement of an employee's principal place of employment in excess of 30 miles from the prior workstation at the initiative of the agency. The reassignment of an employee by an agency in excess of 30 miles from the prior workstation to the nearest facility with an available position having the same State salary range for which the employee is qualified is not considered involuntary reassignment.

LEAVE ACCRUAL DATE--the date used to calculate an employee's rate of annual leave earnings, which includes: (1) all State service in an FTE position, including part-time service, adjusted to reflect periods of leave without pay of over 30 consecutive workdays and periods when there was a break in service; and, (2) all service as a certified employee in a permanent position of a school district of this State.

LEAVE DONOR--an employee of an employing agency whose voluntary written request for donation of sick or annual leave to the pool leave account of his employing agency is granted.

LEAVE RECIPIENT--an employee of an employing agency who has a personal emergency and is selected and approved to receive sick or annual leave from the pool leave account of his employing agency.

MEDIATION--an alternative dispute resolution process whereby a mediator who is an impartial third party acts to encourage and facilitate the resolution of a dispute without prescribing what it should be. The process is informal and non-adversarial with the objective of helping the disputing parties reach a mutually acceptable agreement.

MEDIATION-ARBITRATION--an alternative dispute resolution process that provides for the submission of an appeal to a mediator-arbitrator, an impartial third party who conducts conferences to attempt to resolve the grievance by mediation and render a decision that is final and binding on the parties if the appeal is not mediated.

NONEXEMPT EMPLOYEE--an employee who is covered by the Fair Labor Standards Act and who is, therefore, subject to both the minimum wage and overtime requirements of the law.

OFFICE OF HUMAN RESOURCES (OHR)--the central State human resources entity under the Budget and Control Board.

PAY BAND--for classified positions, the dollar amount between the minimum and maximum rates of pay to which a class is assigned by OHR.

PAY SCHEDULE--the official list of pay bands.

PERFORMANCE REVIEW DATE--the first day which marks the beginning of a new performance review period.

PERMANENT STATUS--the status attained by an employee upon completion of a probationary or trial period in a class or an unclassified State title.

PERSONAL EMERGENCY--a catastrophic and debilitating medical situation, severely complicated disability, severe accident case, family medical emergency, or other hardship situation that is likely to require an employee's absence from duty for a prolonged period of time and to result in a substantial loss of income to the employee because of the unavailability of paid leave.

POSITION--those duties and responsibilities constituting a single job.

POSITION NUMBER--a unique number assigned to an FTE position by OHR.

PROBATIONARY STATUS--the status of an employee during the probationary period.

PROBATIONARY EMPLOYEE--a full-time or part-time employee occupying a part or all of an FTE position in the initial working test period of employment with the State of 12 months' duration for non-instructional personnel, of the academic year duration for instructional personnel except for those at State technical colleges, or of not more than 2 full academic years' duration for faculty at State technical colleges. An employee who receives an unsatisfactory performance evaluation during the probationary period must be terminated before becoming a covered employee.

PROBATIONARY PERIOD--an initial working test period of employment in an FTE position with the State of not more than 12 months' duration for non-instructional personnel or the academic year duration for instructional personnel except for those at State technical colleges, or of not more than 2 full academic years' duration for faculty at State technical colleges. An employee who receives an unsatisfactory performance evaluation during the probationary period must be terminated before becoming a covered employee.

PROMOTION--the assignment of an employee by the appointing authority from one established position to a different established position having a higher State salary range or, for positions without a State salary range, having a higher rate of pay. Failure to be selected for a promotion is not an adverse employment action that can be considered as a grievance or appeal.

PUNITIVE RECLASSIFICATION--for classified employees, the assignment of a position in one class to a different class with a lower pay band with the sole purpose to penalize the covered employee.

REALLOCATION--for classified positions, the assignment of all positions in a class from one pay band to another pay band.

REASSIGNMENT--the movement within an agency of an employee from one position to another position having the same State salary range, or the movement of a position within an agency which does not require reclassification.

RECLASSIFICATION--for classified positions, the assignment of a position in one class to another class which is the result of a natural or an organizational change in duties or responsibilities of the position.

REDUCTION IN FORCE--the procedure used by an agency to eliminate or reduce a portion of one or more filled FTE positions in one or more organizational units within the agency due to budgetary limitations, shortage of work, or organizational changes.

REEMPLOYMENT--the employment of a person following a break in service in an FTE position.

REINSTATEMENT--the return of an employee to State service without a break in service. Examples include return resulting from: (1) the Reduction in Force procedure; (2) the reversal of a termination under the State Employee Grievance Procedure Act; (3) the settlement of a complaint negotiated under an authorized administrative agency; or, (4) the order of a court.

REQUESTING AGENCY--for dual employment purposes, the agency engaging the services of and compensating any employee for services which are clearly not a part of the employee's regular job.

RESIGNATION--written or oral notification by an employee of his relinquishment of employment.

SEPARATION--action initiated by either the agency or employee which ends the employment relationship.

SHIFT DIFFERENTIAL--the additional amount of pay awarded to employees who are assigned to an evening, night, weekend, rotating, or split-shift, provided a majority of the hours worked are other than 8:00 a.m. to 5:00 p.m., Monday through Friday.

SLOT NUMBER--the number used to identify individual positions in a class or unclassified State title within an agency.

STATE EMPLOYEE GRIEVANCE COMMITTEE--the committee composed of State employees who are appointed by the Budget and Control Board and who conduct hearings involving appeals filed by covered employees.

STATE HIRE DATE--the first date of State employment adjusted to reflect periods of authorized leave without pay of over 30 consecutive work days in any one calendar year and periods when there were breaks in service.

STATE HUMAN RESOURCES DIRECTOR--the head of the Office of Human Resources of the State Budget and Control Board, or his designee who is responsible for statewide coordination of human resources programs.

STATE SALARY RANGE--the dollar amount between the minimum and maximum rates of pay as established by OHR.

STATE SERVICE TIME--the total employment time defined in years, months, and days in which an employee has occupied an FTE position, including part-time service.

SUPERVISOR--an individual who directs one or more subordinates and is designated as the rater on those subordinates' performance evaluations.

SUPPLEMENT--any compensation, excluding travel reimbursement, from an affiliated public charity, foundation, clinical faculty practice plan, or other public source or any supplement from a private source to the salary appropriated for a State employee and fixed by the State.

SUSPENSION--an enforced leave of absence without pay pending investigation of charges against an employee or for disciplinary purposes.

TEACHERS--individuals employed in instructional positions for which certification is required.

TEMPORARY EMPLOYEE--a full-time or part-time employee who does not occupy an FTE position, whose employment is not to exceed one year, and who is not a covered employee.

TEMPORARY GRANT EMPLOYEE--a full-time or part-time employee who does not occupy an FTE position and is hired to fill a position specified in and funded by a federal grant, public charity grant, private foundation grant, or research grant and who is not a covered employee.

TEMPORARY POSITION--a full-time or part-time non-FTE position created for a period of time not to exceed one year.

TEMPORARY SALARY ADJUSTMENT--compensation not included in an employee's base salary that is awarded for a limited period of time.

TERMINATION--for purposes of the State Employee Grievance Procedure Act, the action taken by an agency against an employee to separate the employee involuntarily from employment.

TIME-LIMITED PROJECT EMPLOYEE--a full-time or part-time employee who does not occupy an FTE position who is hired to fill a position with time-limited project funding approved or authorized by the appropriate State authority, and who is not a covered employee.

TRANSFER--the movement to a different agency of an employee from one position to another position having the same State salary range, or the movement of a position from one agency to another agency which does not require reclassification.

TRIAL PERIOD--the initial working test period of six months required of a covered employee upon movement to any class or an unclassified State title in which the employee has not held permanent status.

TRIAL STATUS--the status of a full-time or part-time covered employee who is in the initial working test period of six months following the movement of the employee or the employee's position to any class or unclassified State title in which the employee has not held permanent status.

UNCLASSIFIED POSITION--an FTE position that has been assigned to an unclassified State title.

UNCLASSIFIED SERVICE--all those positions in the State service which are not subject to the position classification plan.

UNCLASSIFIED STATE TITLE--the name assigned to an unclassified position or to a group of similar positions by the Office of Human Resources.

WORKDAY (AVERAGE)--the number of hours upon which leave and holidays are based. To determine the number of hours in an average workday, divide the total number of hours an employee is regularly scheduled to work during a week by five (regardless of the number of days the employee actually reports to work).

19-701. General Rules.

SCOPE AND PURPOSE

Human Resources Regulations Sections 19-700 through 19-720 are applicable to all agencies that are not specifically exempted by Section 8-11-260 of the South Carolina Code of Laws.

19-701.01. Equal Employment Opportunity.

The State of South Carolina is an equal employment opportunity employer.

19-701.02. Construction of Words.

All words in these Regulations referencing the masculine gender shall apply to females as well.

19-701.03. State and Federal Laws.

These Regulations are in addition to the requirements of applicable State and federal laws.

19-701.04. Audits by the Office of Human Resources (OHR).

All information and documentation required by these Regulations are subject to audit by OHR.

19-701.05. Human Resources Information System (HRIS).

As required by Section 8-11-230 of the South Carolina Code of Laws, HRIS serves as the central database to maintain human resources data on all employees. To maintain the integrity and completeness of the compensation module of HRIS, all agencies are required to submit appropriate information in a timely manner.

19-701.06. Ethics Act.

The Ethics Act governs the employment of family members and conflicts of interest. For additional information consult the Ethics Act (Section 8-13-100 through Section 8-13-1520 of the South Carolina Code of Laws), the Ethics Commission opinions, and the State Ethics Commission.

A. Employment of Family Members

No public official, public member, or public employee may cause the employment, appointment, promotion, reassignment, transfer, or advancement of a family member to a State or local office or position in which the public official, public member, or public employee supervises or manages. Family member means an individual who is (a) the spouse, parent, brother, sister, child, mother-in-law, father-in-law, son-in-law, daughter-in-law, grandparent, or grandchild, or (b) a member of the individual's immediate family. Immediate family is defined as follows:

1. A child residing in a candidate's, public official's, public member's, or public employee's household;

2. A spouse of a candidate, public official, public member, or public employee; or

3. An individual claimed by the candidate, public official, public member, or public employee or the candidate's, public official's, or public employee's spouse as a dependent for income tax purposes.

B. Conflict of Interest

No employee may accept any work or compensation that could be reasonably construed as a conflict of interest. Acceptance without proper prior approval of work assignment or compensation that is found to be a conflict of interest may be grounds for disciplinary action or termination. The propriety of an employment situation or compensation for services rendered shall be considered by all parties concerned. Counsel from the Office of the Attorney General or the State Ethics Commission may be necessary to make such determinations.

19-701.07. Employment Outside of State Government.

Agencies may adopt policies and procedures for the approval and regulation of jobs held by employees outside of State government. Such policies shall be in accordance with law and the policies and procedures of the Budget and Control Board. An agency may withdraw approval for such secondary employment for reasonable work-related issues.

19-701.08. Solicitation and Distribution.

Solicitations and distributions by agency employees or outside individuals are generally prohibited on agency property during working hours. Each agency is responsible for enforcing this Regulation to minimize the disruption of agency business. For example, agencies may allow for fund raising activities by charitable organizations which are certified by the Secretary of State. Any fund raising activities must be approved by the agency head or his designee and conducted under agency supervision.

19-701.09. Pilot Programs to Create Innovation in State Government.

Notwithstanding other provisions of law, the Budget and Control Board is authorized to enter into pilot programs with individual agencies or groups of agencies in order to create innovations in State government. The Budget and Control Board will monitor the findings and results of pilot programs to determine if legislative recommendations should be provided to the General Assembly.

19-702. Classification Plan.

SCOPE AND PURPOSE

This Regulation governs the establishment, maintenance, and administration of the Classification Plan applicable to all positions in the classified service.

19-702.01. Statements of Policy.

A. The Budget and Control Board designates the State Human Resources Director to administer all Budget and Control Board policies and procedures relating to the Classification Plan.

B. The Office of Human Resources (OHR) shall establish the Classification Plan to consist of (1) all approved classes of positions, (2) the allocation of each position to its proper class, (3) the class specifications for all approved classes of positions, and (4) the Regulations and procedures governing the administration of the Classification Plan.

C. A class shall be established for each broad category of work and its level of difficulty and responsibility.

D. Each class shall be defined by a class specification and shall be assigned to an appropriate pay band.

E. The Office of Human Resources will maintain a list of approved classes.

F. No action shall be taken to fill any position until it has been authorized by the General Assembly and established in accordance with the Classification Plan. When establishing a classified position, OHR assigns a position number, class title, class code, slot number, and pay band.

G. A position may move between the classified and unclassified systems provided the agency does not exceed its respective number of classified and unclassified authorized full-time equivalent (FTE) positions. (Refer to Section 19-704.08.)

H. The Office of Human Resources is authorized to delegate to agencies by written agreement classification programs that are described in this Regulation. Agencies with a delegation agreement shall comply with all State and federal laws and regulations, Budget and Control Board policies and guidelines, and the provisions contained in the delegation agreement. The delegation agreement shall constitute a contractual relationship between OHR and the requesting agency and may be terminated or altered at the discretion of OHR.

I. The State Human Resources Director shall have the authority to make exceptions to these Regulations.

19-702.02. Administration of the Plan.

A. The State Human Resources Director shall administer the Classification Plan.

B. Before an agency fills or alters a position, OHR must approve the following actions:

1. The initial classification of the position;

2. The reclassification of the position; or

3. The creation of new classes and the revision or abolishment of existing classes.

C. The Office of Human Resources shall coordinate periodic studies to ensure that the Classification Plan is current and uniform.

D. As requested, agencies must submit to OHR all current position descriptions, organizational charts, and other information as needed to administer the classification plan.

19-702.03. Class Specifications.

A. Each class specification shall describe in general terms examples of the kind of work and level of responsibility normally assigned positions that may be allocated to the class. The exact duties and responsibilities of positions allocated to any one class may differ; however, all positions allocated to a class shall be sufficiently similar as to kind of work, level of difficulty or responsibility, and qualification requirements.

B. The Office of Human Resources shall develop class specifications which include the following:

1. Class Title and Code

2. General Nature of Work--the brief statement summarizing the work to be performed by individuals in this class.

3. Guidelines for Class Use/Distinguishing Characteristics--the brief statement summarizing the level of work performed, the breadth of job responsibilities, and level of supervision given or received. This section may be omitted if it is not needed for further clarification.

4. Examples of Work--statements of duties that reflect responsibility common to positions in the class, but not necessarily fully descriptive of any one position in the class.

5. Knowledge, Skills and Abilities--a list of individual characteristics each of which is required for the successful performance of one or more job duties of the class, but not necessarily fully descriptive of the requirements for any one position in the class.

6. Necessary Special Requirements--statements of professional or physical requirements, such as licensure or certification, which may be mandatory for some or all positions in the class. This section may be omitted if it is not needed for further clarification.

7. Minimum Requirements--a statement of the minimum combination of education and experience required for the satisfactory performance of the duties of positions in the class, but not necessarily fully descriptive of the education and experience required for any one position in the class. For an equivalency to substitute for the minimum requirements, an agency must submit a written request to the State Human Resources Director for approval.

C. Current class specifications shall be maintained by OHR. The Office of Human Resources will notify agencies of any revisions and additions to the class specifications.

19-702.04. Position Descriptions.

A. The Office of Human Resources shall develop a position description form to be used by agencies in describing assigned duties and other information necessary to determine the proper classification of each position. An agency may develop a position description form which must be approved by OHR prior to implementation.

B. The position description shall serve as a record of the duties assigned to an individual position in a class. The position description is used to compare positions to ensure uniformity of classification and as a basis for other human resources decisions.

C. The position description shall include an accurate description of assigned duties and responsibilities and other pertinent information concerning a position. In contrast to general definitions of the level of work and responsibilities, the position description shall include specific duties and responsibilities assigned to a position, the percentage of time normally devoted to each duty, and the designation of essential and marginal functions.

D. Position descriptions should be updated to reflect any changes in the assigned job duties and responsibilities or any other pertinent information concerning the position. The supervisor should discuss this updated position description with the employee.

E. Agencies shall submit current position descriptions to OHR. Current position descriptions shall be maintained by both the agency and OHR.

19-702.05. Reclassification of Positions.

A. An established position may be reclassified from one class to a different class as a result of a natural or an organizational change in the duties or responsibilities of the position.

B. When reclassifying a filled position, the assignment of new duties or responsibilities should not have the effect of creating a new position.

C. The Office of Human Resources shall approve all reclassifications.

19-702.06. Position Numbering System.

The Office of Human Resources shall develop and maintain a position numbering system that will identify each established position.

19-703. Job Vacancy Announcements.

SCOPE AND PURPOSE

This Regulation governs the announcement of vacancies in all positions in the classified service.

19-703.01. Statements of Policy.

A. The Budget and Control Board designates the Office of Human Resources (OHR) to administer all policies and procedures relating to the South Carolina Code of Laws, Section 8-11-120, Report of Job Vacancies.

B. Applicants selected for hiring must meet the minimum requirements of the class as established by OHR unless the State Human Resources Director has approved an equivalency.

19-703.02. Report of Job Vacancies.

A. All State offices, agencies, departments, and other divisions and branches of State government shall notify, at least five workdays prior to the close of the application period, the Columbia Metro Job Service Office of the South Carolina Employment Security Commission, and the Office of Human Resources of the Budget and Control Board, of a vacancy in any employment position for which recruitment will be undertaken, except those employment positions exempt from the classification and compensation plan under the provisions of Section 8-11-270 of the South Carolina Code of Laws.

B. As established in Section 8-11-120 of the South Carolina Code of Laws, the notification of a vacancy must include the following data:

1. The title of the position and a summary description of the job responsibilities for the vacant position if needed for clarification;

2. The entry salary or State salary range for the vacant position;

3. The name of the agency where the vacant position exists;

4. A description of the application process for the vacant position;

5. Residency requirements, if any, for the vacant position;

6. The class code, the slot, and the position number of the vacant position;

7. The minimum requirements for the vacant position, as well as preferred qualifications, if any:

a. For the purpose of reporting a job vacancy, minimum requirements are the minimum training and experience requirements that are established by the agency for the vacant position. An agency's minimum training and experience requirements shall be either the minimum requirements that OHR has established for the class or additional requirements established by the agency that are directly related to the successful performance of essential job functions as described on the position description. Any additional requirements must exceed the minimum requirements that OHR has established for the class.

b. Preferred qualifications are defined as any other qualifications that are desirable, but not mandatory, for the performance of essential job functions upon entry into the position;

8. The opening and closing dates for applying for the vacant position;

9. A statement certifying that the employing agency is an equal employment opportunity/affirmative action employing agency; and

10. The normal work schedule and whether the position is full-time or part-time.

C. Use of the Human Resources Information System (HRIS) vacancy posting system meets the requirements of Paragraphs A and B of this Section.

19-703.03. Internal Posting and Distribution of Announcements.

The notification must be posted conspicuously within the agency where the vacancy exists. If the vacancy is a promotional opportunity that requires work experience within the agency to qualify for the promotion, notice of the vacancy must be posted in a conspicuous place within the agency for five workdays, and the notice does not have to be sent to the Columbia Metro Job Service Office or to the Office of Human Resources.

19-703.04. Exemptions to Posting Job Announcements.

A. If an emergency situation exists requiring the vacancy to be filled immediately, certification of the emergency must be made to and approved by the agency head or his designee waiving the posting requirement at the agency and State level.

B. When an agency decides to promote an employee one organizational level above the employee's current level, the posting requirement may be waived.

19-703.05. Freedom of Information Act Requests.

A public body may, but is not required to, exempt from disclosure all materials, regardless of form, gathered by the public body during a search to fill an employment position, except that materials relating to not fewer than the final three applicants under consideration for a position must be made available for public inspection and copying. In addition to making available for public inspection and copying the materials described in this item, the public body must disclose, upon request, the number of applicants considered for a position. For the purpose of this item, materials relating to not fewer than the final three applicants, do not include an applicant's income tax returns, medical records, social security number, or information otherwise exempt from disclosure by Section 30-4-40 of the South Carolina Code of Laws.

19-704. Movement and Status.

SCOPE AND PURPOSE

This Regulation governs the movement of classified and unclassified employees and positions. This Regulation also governs the status of classified and unclassified employees except those employees exempt from coverage under the State Employee Grievance Procedure Act.

19-704.01. Statements of Policy.

A. Movement of a person into or between full-time equivalent (FTE) positions may occur by:

1. Initial Employment or Reemployment

2. Promotion

3. Demotion

4. Reassignment

5. Transfer

(Refer to Sections 19-704.02 through 19-704.05.)

B. Movement of a position may occur through a reclassification in the classified system or an unclassified State title change in the unclassified system. (Refer to Sections 19-704.06 and 19-704.07.)

C. A position may move between the classified and unclassified systems provided the agency does not exceed its number of classified and unclassified authorized FTEs. (Refer to Section 19-704.08.)

D. A person who moves into or between an FTE position(s) in the classified system must meet minimum requirements established in the class specification. For an equivalency to substitute for the minimum requirements, an agency must submit a written request to the State Human Resources Director for approval.

E. When a person moves into or between an FTE position(s) or when an employee's position is reclassified or has an unclassified State title change, the following types of status apply:

1. Probationary--The status of a full-time or part-time employee occupying all or part of an FTE position in the initial working test period of employment with the State of:

a. Twelve months' duration for noninstructional personnel;

b. The academic year duration for instructional personnel (teachers); or

c. Not more than two full academic years' duration for faculty at State technical colleges.

2. Covered--The status of a full-time or part-time employee occupying all or part of an FTE position who has completed the probationary period and has a "meets" or higher overall rating on the employee's performance evaluation and has grievance rights. If an employee does not receive an evaluation before the performance review date, the employee must be considered to have performed in a satisfactory manner and be a covered employee.

3. Trial--The status of a full-time or part-time covered employee who is in the initial working test period of six months following the movement of the employee or the employee's position to any class or unclassified State title in which the employee has not held permanent status.

F. Permanent Status in a Class or Unclassified State Title

An employee shall attain permanent status in a class or unclassified State title upon completion of a probationary or trial period in that class or unclassified State title. Once attained, permanent status in a class or unclassified State title is retained throughout the employee's continuous State service.

G. Performance Review Dates

For the establishment of an employee's performance review date, refer to Sections 19-715.02 through 19-715.04.

19-704.02. Initial Employment or Reemployment.

A. Initial employment is defined as the employment of a person newly hired into State government in a classified or unclassified FTE position.

B. Reemployment is defined as the employment of a person following a break in service in a classified or unclassified FTE position.

C. Probationary Status

Upon initial employment or reemployment the employee shall be in probationary status.

D. Probationary Period

1. An employee in probationary status must complete a probationary period of:

a. Twelve months' duration for noninstructional personnel;

b. The academic year duration for instructional personnel (teachers); or

c. Not more than two full academic years' duration for faculty at State technical colleges.

2. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in any temporary capacity toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period.

3. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

19-704.03. Promotion.

A. Promotion is defined as the assignment of an employee by the appointing authority from one established position to a different established position:

1. Having a higher State salary range; or

2. For positions without a State salary range, having a higher rate of pay.

B. Probationary or Trial Status

Upon promotion, an employee shall be in probationary or trial status; however, if a covered employee previously held permanent status in the class or unclassified State title to which promoted, the promotion shall be with permanent status in the class or unclassified State title and the employee is not in trial status.

C. Probationary Period

1. An employee in probationary status who is promoted must complete a probationary period of:

a. Twelve months' duration for noninstructional personnel;

b. The academic year duration for instructional personnel (teachers); or

c. Not more than two full academic years' duration for faculty at State technical colleges.

2. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous class or unclassified State title toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period.

3. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

D. Trial Period

A covered employee who is promoted to a position in which he has not held permanent status in the class or unclassified State title must complete a six-month trial period. This period may be extended up to ninety calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

19-704.04. Demotion.

A. Demotion is defined as the assignment of an employee by the appointing authority from one established position to a different established position:

1. Having a lower State salary range; or

2. For employees in positions without a State salary range, assignment of a lower rate of pay to the employee except when the employee's job duties also are decreased for nonpunitive reasons.

B. Probationary or Trial Status

Upon demotion, an employee will be in probationary or trial status; however, if a covered employee previously held permanent status in the class or unclassified State title to which demoted, the demotion shall be with permanent status in the class or unclassified State title and the employee is not in probationary or trial status.

C. Probationary Period

1. An employee in probationary status who is demoted must complete a probationary period of:

a. Twelve months' duration for noninstructional personnel;

b. The academic year duration for instructional personnel (teachers); or

c. Not more than two full academic years' duration for faculty at State technical colleges.

2. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous class or unclassified State title toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period.

3. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

D. Trial Period

A covered employee who is demoted to a position in which he has not held permanent status in the class or unclassified State title must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

19-704.05. Reassignment and Transfer.

A. Reassignment is defined as the movement within an agency of an employee from one position to another position having the same State salary range, or the movement of a position within an agency which does not require reclassification.

B. Transfer is defined as the movement to a different agency of an employee from one position to another position having the same State salary range, or the movement of a position from one agency to another agency which does not require reclassification.

C. Probationary or Trial Status

Upon reassignment or transfer, an employee shall be in probationary or trial status; however, a covered employee with permanent status in the class or unclassified State title is not in probationary or trial status when the reassignment or transfer:

1. Does not change the employee's class or unclassified State title; or

2. Is to a class or unclassified State title in which the employee already holds permanent status in the class or unclassified State title.

D. Probationary Period

1. An employee in probationary status who is reassigned or transferred must complete a probationary period of:

a. Twelve months' duration for noninstructional personnel;

b. The academic year duration for instructional personnel (teachers); or

c. Not more than two full academic years' duration for faculty at State technical colleges.

2. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous class or unclassified State title toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period. If the reassignment or transfer is not to a new class or unclassified State title, the employee's probationary period shall not change.

3. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

E. Trial Period

A covered employee who is reassigned or transferred to a position in which he has not held permanent status in the class or unclassified State title must complete a six-month trial period. This period may be extended by the agency head up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six- month trial period.

19-704.06. Reclassification.

For classified positions, reclassification is defined as the assignment of a position in one class to another class which is the result of a natural or an organizational change in duties or responsibilities of the position. Reclassifications can occur:

A. Upward--The position moves from one class to another class having a higher State salary range.

1. Probationary or Trial Status

Upon upward reclassification, an employee shall be in probationary or trial status; however, if a covered employee previously held permanent status in the class to which reclassified, the upward reclassification shall be with permanent status in the class and the employee is not in trial status.

2. Probationary Period

a. An employee in probationary status whose position is reclassified upward must complete a probationary period of:

(1) Twelve months' duration for noninstructional personnel;

(2) The academic year duration for instructional personnel (teachers); or

(3) Not more than two full academic years' duration for faculty at State technical colleges.

b. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous class toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period.

c. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

3. Trial Period

A covered employee who is reclassified upward to a position in which he has not held permanent status in the class must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

B. Downward--The position moves from one class to another class having a lower State salary range.

1. Probationary or Trial Status

Upon downward reclassification, an employee will be in probationary or trial status; however, if a covered employee previously held permanent status in the class to which reclassified, the downward reclassification shall be with permanent status in the class and the employee is not in trial status.

2. Probationary Period

a. An employee in probationary status whose position is reclassified downward must complete a probationary period of:

(1) Twelve months' duration for noninstructional personnel;

(2) The academic year duration for instructional personnel (teachers); or

(3) Not more than two full academic years' duration for faculty at State technical colleges.

b. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous class toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period.

c. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

3. Trial Period

A covered employee who is reclassified downward to a position in which he has not held permanent status in the class must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

C. Lateral--The position moves from one class to another class having the same State salary range.

1. Probationary or Trial Status

Upon lateral reclassification, an employee shall be in probationary or trial status; however, if a covered employee previously held permanent status in the class to which reclassified, the lateral reclassification shall be with permanent status in the class and the employee is not in trial status.

2. Probationary Period

a. An employee in probationary status whose position is reclassified laterally must complete a probationary period of:

(1) Twelve months' duration for noninstructional personnel;

(2) The academic year duration for instructional personnel (teachers); or

(3) Not more than two full academic years' duration for faculty at State technical colleges.

b. At his discretion the agency head or his designee may count up to six months of continuous satisfactory service in the previous class toward the employee's probationary period which would result in a reduction in the length of the employee's performance review period.

c. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

3. Trial Period

A covered employee who is reclassified laterally to a position in which he has not held permanent status in the class must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

19-704.07. Unclassified State Title Changes.

An unclassified State title change is defined as the assignment of a position in one unclassified State title to another unclassified State title which is the result of a natural or an organizational change in duties or responsibilities of the position. An unclassified State title change can occur:

A. Upward--The position moves from one unclassified State title to another unclassified State title having a higher State salary range or for a position without a State salary range, the position moves from one unclassified State title to another unclassified State title with higher level job duties or responsibilities as defined by the agency.

1. Probationary or Trial Status

Upon upward unclassified State title change, an employee shall be in probationary or trial status; however, if a covered employee previously held permanent status in the unclassified State title to which moved, the upward move shall be with permanent status in the unclassified State title and the employee is not in trial status.

2. Probationary Period

a. An employee in probationary status whose position is moved upward must complete a probationary period of:

(1) Twelve months' duration for noninstructional personnel;

(2) The academic year duration for instructional personnel (teachers); or

(3) Not more than two full academic years' duration for faculty at State technical colleges.

b. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous unclassified State title toward the probationary period which would result in a reduction in the length of the employee's performance review period.

c. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

3. Trial Period

A covered employee whose position is moved upward to an unclassified State title in which he has not held permanent status must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

B. Downward--The position moves from one unclassified State title to another unclassified State title having a lower State salary range or for a position without a State salary range, the position moves from one unclassified State title to another unclassified State title with lower level job duties or responsibilities as defined by the agency.

1. Probationary or Trial Status

Upon downward unclassified State title change, an employee will be in probationary or trial status; however, if a covered employee previously held permanent status in the unclassified State title to which moved, the downward move shall be with permanent status in the unclassified State title and the employee is not in trial status.

2. Probationary Period

a. An employee in probationary status whose position is moved downward must complete a probationary period of:

(1) Twelve months' duration for noninstructional personnel;

(2) The academic year duration for instructional personnel (teachers); or

(3) Not more than two full academic years' duration for faculty at State technical colleges.

b. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous unclassified State title toward the probationary period which would result in a reduction in the length of the employee's performance review period.

c. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

3. Trial Period

A covered employee whose position is moved downward to an unclassified State title in which he has not held permanent status must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

C. Lateral--The position moves from one unclassified State title to another unclassified State title having the same State salary range or an equivalent level of job duties or responsibilities as defined by the agency.

1. Probationary or Trial Status

Upon lateral unclassified State title change, an employee shall be in probationary or trial status; however, if a covered employee previously held permanent status in the unclassified State title to which moved, the lateral move shall be with permanent status in the unclassified State title and the employee is not in trial status.

2. Probationary Period

a. An employee in probationary status whose position is moved laterally must complete a probationary period of:

(1) Twelve months' duration for noninstructional personnel;

(2) The academic year duration for instructional personnel (teachers); or

(3) Not more than two full academic years' duration for faculty at State technical colleges.

b. At his discretion, the agency head or his designee may count up to six months of continuous satisfactory service in the previous unclassified State title toward the probationary period which would result in a reduction in the length of the employee's performance review period.

c. An employee who performs unsatisfactorily during the probationary period must be terminated before becoming a covered employee.

3. Trial Period

A covered employee whose position is moved laterally to an unclassified State title in which he has not held permanent must complete a six-month trial period. This period may be extended up to 90 calendar days upon written notification to the employee of the extension prior to the end of the six-month trial period.

19-704.08. Movement Between Classified Service and Unclassified Service.

A. Classified Service to Unclassified Service

1. Movement of the Employee

a. When an employee moves from a classified position to an unclassified position with a State salary range, the employee's status will be governed by Regulations 19-704.03 through 19-704.05 concerning the promotion, demotion, reassignment, or transfer of an unclassified employee.

b. When an employee moves from a classified position to an unclassified position without a State salary range, the agency shall determine whether the new position has a higher, lower, or equivalent level of job duties or responsibilities than the former position. Based on that determination, the movement will be a promotion, demotion, reassignment, or transfer, and the employee's status will be governed by Sections 19-704.03 through 19-704.05.

2. Movement of the Position

a. When the position an employee occupies moves from the classified service to the unclassified service, the employee's status will be governed by Regulation 19-704.07 concerning the movement of unclassified positions.

b. When the position an employee occupies moves from classified service to become an unclassified position without a State salary range, the agency shall determine whether the new position has a higher, lower, or equivalent level of job duties or responsibilities than the former position. Based on that determination, the employee's status will be governed by Section 19-704.07 concerning the movement of unclassified positions.

B. Unclassified Service to Classified Service

1. Movement of the Employee

a. When an employee moves from an unclassified position with a State salary range to a classified position, the employee's status will be governed by Sections 19-704.03 through 19-704.05 concerning the promotion, demotion, reassignment, or transfer of classified employees.

b. When an employee moves from an unclassified position without a State salary range to a classified position, the agency shall determine whether the new position has a higher, lower, or equivalent level of job duties or responsibilities than the former position. Based on that determination, the movement will be a promotion, demotion, reassignment, or transfer, and the employee's status will be governed by Sections 19-704.03 through 19-704.05.

2. Movement of the Position

a. When the position an employee occupies moves from the unclassified service to the classified service, the employee's status will be governed by Section 19-704.06 concerning the reclassification of positions.

b. When the position an employee occupies changes from an unclassified position without a State salary range to become a classified position, the agency shall determine whether the new position has a higher, lower, or equivalent level of job duties or responsibilities than the former position. Based on that determination, the employee's status will be governed by Section 19-704.06 concerning the reclassification of positions.

19-705. Classified Employee Pay Plan.

SCOPE AND PURPOSE

This Regulation governs the establishment, maintenance, and administration of the Pay Plan applicable to all positions in the classified service.

19-705.01. Statements of Policy.

A. The Budget and Control Board designates the State Human Resources Director to administer all Budget and Control Board policies and procedures relating to the Pay Plan.

B. The Office of Human Resources (OHR) shall establish and maintain a Pay Plan to consist of (1) the official classification listing, (2) the official pay schedule, and (3) the Regulations and procedures governing the administration of the Pay Plan.

C. In an agency whose agency head is reviewed by the Agency Head Salary Commission, no employee may receive a salary in excess of 95% of the midpoint of the agency head's salary range or the agency head's actual salary, whichever is greater, except on approval of the Budget and Control Board. Higher education technical colleges, colleges, and universities shall be exempt from this requirement.

D. The Office of Human Resources is authorized to delegate to agencies by written agreement pay programs that are described in this Regulation. Agencies with a delegation agreement shall comply with all State and federal laws and regulations, Budget and Control Board policies and guidelines, and the provisions contained in the delegation agreement. The delegation agreement shall constitute a contractual relationship between OHR and the requesting agency and may be terminated or altered at the discretion of OHR.

E. When an employee moves from an unclassified position to a classified position, the employee's pay will be governed by the classified pay plan.

F. An agency requests for or implementation of an increase in salary shall be requested or implemented when sufficient funds are available. The State Human Resources Director may require submission of appropriate documentation attesting to the availability of funding.

G. The South Carolina Constitution prohibits an agency from granting extra compensation, fee, or allowance to any public officer, agent, servant, or contractor after services rendered, or contract made, nor authorize payment or part payment of any claim under any contract not authorized by law.

H. An agency shall maintain documentation appropriate for the administration of this Regulation.

I. Prior to implementation, agencies shall develop any written policies described in these Regulations to govern the administration of salary increases and decreases.

J. The State Human Resources Director shall have the authority to make exceptions to Section 19-705.

19-705.02. Administration of the Pay Plan.

A. The Office of Human Resources periodically shall conduct studies for the purpose of making recommendations that will maintain a competitive Pay Plan.

B. An employee shall be paid within the pay bands in the official pay schedule and in accordance with the provisions of this Regulation.

C. An employee shall not be paid in excess of the maximum of the pay band for a class, unless such payment is authorized by this Regulation.

D. Any pay action which requires approval from OHR must receive such approval prior to an agency effecting the action.

E. Prior to submission to OHR for approval, the agency human resources shall review all proposed pay changes to determine that they are in compliance with the provisions of this Regulation.

19-705.03. Hiring Salaries.

A. Hiring at the Minimum--An employee must be paid at least the minimum of the pay band for the class to which hired.

B. Hiring Above the Minimum

1. Exceptional Qualifications--If an individual is exceptionally qualified for the position, OHR may authorize a salary for the individual at a rate above the minimum of the pay band for the class based on written justification submitted by the agency.

2. Special Hire Rate--Based on written justification submitted by the agency, the Office of Human Resources may approve a special hire rate when experience has shown that recruitment of qualified applicants for selected positions in a class has not been possible at the minimum of the pay band.

19-705.04. Salary Increases.

A. Agencies shall develop written policies to govern the administration of salary increases for employees.

B. Legislative Increase--General and Merit Increases shall be provided to employees in accordance with the provisions of the annual Appropriation Act.

C. In-Band Salary Increase--Written justification for awarding an in-band salary increase shall be maintained by the employing agency. An employee's salary may be increased within his current pay band for the following reasons:

1. Performance Increase--An agency may increase an employee's salary based upon performance in accordance with Section 8-1-160 of the South Carolina Code of Laws. Such increase shall be determined by the agency. A performance increase shall not place an employee's salary above the maximum of the pay band.

2. Additional Skills or Knowledge Increase--An in-band increase may be granted when an employee gains additional skills or knowledge directly related to the job. An employee's salary may be increased by up to 15% for the acquisition of additional skills or knowledge, provided such increase does not place the employee's salary above the maximum of the pay band. For an increase of more than 15%, the agency must submit written justification to OHR for approval.

3. Additional Job Duties or Responsibilities Increase--An in-band increase may be granted when an employee is assigned additional job duties or broader responsibilities, either within his current position or as a reassignment to another position in the same pay band in the employing agency. An employee's salary may be increased by up to 15% for the recognition of the additional job duties or responsibilities, provided such increase does not place the employee's salary above the maximum of the pay band. For an increase of more than 15%, the agency must submit written justification to OHR for approval. Should the additional job duties or responsibilities be removed from the employee within six months of the date that the salary increase was awarded, the salary may be reduced by up to the amount of the additional job duties or responsibilities increase. (For removal of additional job duties or responsibilities, refer to Section 19-705.05 B. 2.)

4. Transfer Increase--An in-band increase may be granted when an employee accepts a position within another agency which is in the same pay band as his current position. An employee's salary may be increased by up to 15% for the recognition of a transfer, provided such increase does not place the employee's salary above the maximum of the pay band.

5. Retention Increase--An in-band increase may be granted when an employee has a bona fide job offer from another employer, either within or outside of State government, and an agency wishes to retain the services of this employee in his current position. An employee's salary may be increased by up to 15% for the purpose of retention, provided such increase does not place the employee's salary above the maximum of the pay band. For an increase of more than 15% for employees who have bona fide job offers outside of State government, the agency must submit written justification to OHR for approval. An employee shall receive no more than one retention increase in a one-year period.

D. Salary Increases Resulting from Upward Band Changes--An employee's salary may be increased as a result of movement to a higher pay band for the following reasons:

1. Promotional Increase

a. Upon promotion, the employee must be paid at least the minimum of the pay band of the class to which promoted.

b. Upon promotion, an employee's salary may be increased by up to 15% of his salary prior to promotion, or to the midpoint of the new pay band, whichever is greater. For an increase of more than 15% and above the midpoint of the pay band, the agency must submit written justification to OHR for approval. Such increase shall not place the employee's salary above the maximum of the new pay band.

2. Reclassification Increase

a. When an employee's position is reclassified to a class with a higher pay band, the employee's salary shall be increased to at least the minimum of the pay band of the class to which reclassified.

b. Upon reclassification, an employee's salary may be increased by up to 15% of the salary prior to reclassification, provided such increase does not place the employee's salary above the maximum of the new pay band. For an increase of more than 15%, the agency must submit written justification to OHR for approval.

3. Reallocation Increase--When OHR reallocates a class to a higher pay band:

a. An employee in that class shall receive a salary increase at least to the new minimum of the new pay band; or

b. An employee in that class may receive up to a 15% salary adjustment provided such increase does not place an employee's salary above the maximum of the new pay band.

E. An employee is not eligible to receive a salary increase upon downward reclassification or demotion.

F. Return from Leave Without Pay--An employee who has returned from an authorized leave of absence without pay shall be paid at the same rate being paid at the time leave was granted, except that the employee shall be granted any legislative increases authorized during the employee's leave of absence. In determining the amount of adjustment that the employee shall be granted, the same implementation instructions that applied to all employees in that class shall be followed.

19-705.05. Salary Decreases.

A. Agencies shall develop written policies to govern the administration of salary decreases for employees.

B. In-Band Salary Decreases--Written justification for effecting any salary decrease shall be maintained by the employing agency. An employee's salary may be decreased within his current pay band for the following reasons:

1. Performance Decrease--An agency may decrease an employee's salary based upon performance in accordance with Section 8-1-160 of the South Carolina Code of Laws. Such decrease shall be determined by the agency. Performance decreases must not place an employee's salary below the minimum of the pay band. Performance decreases must be based on the results of an Employee Performance Management System (EPMS) evaluation.

2. Removal of Additional Job Duties or Responsibilities

Should the additional job duties or responsibilities which justified an additional job duties or responsibilities increase be removed from an employee within six months of the date that the salary increase was awarded or prior to the end of the trial period, the salary may be reduced by up to the amount of additional job duties or responsibilities increase. Such decrease in salary is not grievable or appealable under the State Employee Grievance Procedure Act.

3. Assignment of Lower Level Responsibilities

a. Voluntary Reason--An employee who is voluntarily assigned lower level responsibilities or moved to a position in his current pay band with lower level responsibilities than his current position, may, at the discretion of the agency head or his designee, be paid at any rate within the pay band provided the rate is equal to or below the current salary and provided the employee signs a written statement indicating agreement to the salary decrease. The signed document should be maintained by the agency.

b. Involuntary Reason--An employee who is involuntarily assigned lower level responsibilities or moved to a position in his current pay band with lower level responsibilities than his current position, shall not have his salary reduced for a period of one year from the date of the action unless an exception is approved by the Budget and Control Board or his designee. After the expiration of the one-year period, with the approval of the agency head, the employee's salary may be reduced no more than 15% or to the midpoint of the pay band, whichever is lower. If the employee's salary is allowed to remain above the maximum of the lower pay band, the employee shall not be eligible for pay increases unless:

(1) Subsequent pay adjustments establish the maximum of the pay band above the employee's rate of pay; or

(2) The employee is subsequently promoted or his position is reclassified and his current rate of pay is below the maximum for the pay band for the class to which promoted or reclassified.

C. Salary Decreases Resulting from Downward Band Changes--Written justification for effecting any salary decrease shall be maintained by the employing agency. An employee's salary may be decreased as a result of movement to a lower pay band for the following reasons:

1. Demotion and Downward Reclassification Decreases

a. Voluntary Reason--An employee who voluntarily has his position reclassified to a class with a lower pay band or is demoted to a position in a lower pay band, may, at the discretion of the agency head or his designee, be paid at a salary equal to or below the current salary. However, the rate must be within the lower pay band and the employee must sign a written statement indicating agreement to the salary decrease. The signed document should be maintained by the agency.

b. Disciplinary or Performance Reason--An employee who, as the result of a disciplinary action or unsatisfactory rating on an EPMS evaluation, has his position reclassified to a class with a lower pay band or is demoted to a position in a lower pay band, may, at the discretion of the agency head, be paid at a rate equal to or below the current salary, but within the lower pay band.

c. Involuntary or Non-Disciplinary Reason--When a covered employee is demoted due to involuntary or non-disciplinary reasons or when an occupied position is reclassified to a class in a lower pay band for these reasons, the employee's salary shall not be reduced for a period of one year from the date of the demotion or downward reclassification unless an exception is approved by the Budget and Control Board. After the expiration of the one-year period, with the approval of the agency head, the employee's salary may be reduced no more than 15% or to the midpoint of the pay band, whichever is lower. If the employee's salary is allowed to remain above the maximum of the lower pay band, the employee shall not be eligible for pay increases unless:

(1) Subsequent pay adjustments establish the maximum of the pay band above the employee's rate of pay; or

(2) The employee is subsequently promoted or his position is reclassified and his current rate of pay is below the maximum for the pay band for the class to which promoted or reclassified.

d. An employee who is promoted or his position is reclassified upward, and subsequently demoted or his position is reclassified downward prior to attaining permanent status in a class of a higher pay band, shall have a reduction in pay as follows:

(1) When an employee is demoted or his position is reclassified to the previous class or to a class with the same pay band held prior to promotion or reclassification, or to a class with a lower pay band, the employee's salary will be reduced by the amount previously received upon promotion or upward reclassification provided the salary will not exceed the maximum of the pay band for the class to which demoted or downwardly reclassified.

(2) When an employee is demoted or his position is reclassified downward to a class having a higher pay band than the original position, the employee's salary will be reduced by the amount previously received upon promotion or reclassification and the employee's new salary will be established in accordance with Section 19-705.04 D.

2. Downward Band Reallocation

When a class is reallocated to a lower pay band, the pay of an employee shall not be changed as a result of this action for a period of one year from the date of the action unless an exception is approved by the Budget and Control Board. After the expiration of the one-year period, with the approval of the agency head, the employee's salary may be reduced no more than 15% or to the midpoint of the pay band, whichever is lower. If the employee's salary exceeds the maximum of the new pay band, the employee shall not be eligible for pay increases of any type unless:

a. Subsequent pay adjustments establish the maximum of the pay band above the employee's rate of pay; or

b. The employee is subsequently promoted or his position is reclassified, and his current rate of pay is below the maximum of the pay band for the class to which promoted or reclassified.

19-705.06. Special Salary Adjustments.

The State Human Resources Director is authorized to approve pay actions outside the provisions of Section 19-705.04 and 19-705.05 if circumstances warrant such approval.

19-705.07. Compensation Not Included in Base Salary.

A. Temporary Salary Adjustment--The Office of Human Resources is authorized to approve a temporary salary adjustment for an employee in a full-time equivalent (FTE) position if circumstances warrant such approval. The temporary salary adjustment must be removed when the circumstances that warranted such an increase are no longer present.

B. Shift Differential Pay--The Office of Human Resources may approve the additional payment of a shift differential for an employee assigned to an evening, night, weekend, rotating, or split shift, provided that the majority of hours assigned during the shift are other than 8:00 a.m. to 5:00 p.m., Monday through Friday. The employee's pay shall be adjusted by the amount approved, even if such amount increases the employee's salary above the maximum of the pay band for the class.

C. On-Call Pay--On-call pay is pay by the employing agency for an employee to remain available to return to work within a specified period of time. The Office of Human Resources must approve on-call pay for employees.

D. Call Back Pay--Call back pay is pay by the employing agency for an employee to report to work either before or after normal duty hours to perform emergency services. Each agency shall determine which groups of employees shall be subject to call back. Nonexempt employees shall be compensated for hours worked as a result of a call back at their regular hourly rate plus any shift differential for which they might be eligible and such time shall be counted in computing any overtime that may be due. When an employee to be called back for emergency services which require less than two hours on the job, or when no work is available when he reports, the employee shall be compensated a minimum of two hours. An employee shall not receive call back pay if:

1. The call back has been canceled and the employee received notice in advance not to report to work, or

2. The employee refuses alternate work that is offered upon reporting to work.

E. Special Assignment Pay--The Office of Human Resources may approve additional compensation to an employee for periods of time when he is on special assignment if circumstances warrant such approval based on guidelines established by OHR.

F. Market or Geographic Differential Pay--The Office of Human Resources may approve Market or Geographic Differential Pay for an employee for periods of time when circumstances warrant such approval.

G. Bonuses--The General Assembly has authorized various programs through which agencies may award bonuses to employees. Agencies shall comply with guidelines established by the Budget and Control Board in the administration of bonus programs.

H. Longevity Pay

The Longevity Salary Increase Program was discontinued in 1986. Individuals awarded longevity increases prior to the discontinuance of the program will continue to receive such previously awarded increases until termination of employment with State government. To calculate a salary increase for an employee who is presently receiving longevity pay, an agency shall:

1. Deduct the longevity increase from the total compensation;

2. Calculate the increase on the reduced salary in accordance with applicable provisions of Section 19-705.03; and

3. Add the longevity increase to the new salary.

19-705.08. Effective Dates of Salary Changes.

A. The effective date of all salary changes provided in this Regulation shall be no earlier than the date the action is approved by the appropriate authority.

B. Retroactivity

Agencies must comply with Article III, Section 30 of the South Carolina Constitution regarding retroactivity.

C. Concurrent Increases

1. When general increases and other salary increases are awarded on the same date, the general increase shall be applied prior to any other salary increases.

2. When performance pay increases under Section 8-11-940 of the South Carolina Code of Laws and salary increases other than general increases are awarded on the same date, the performance pay increases shall be applied prior to any other salary increases.

D. Budgetary Limitations

In the case of budgetary limitations, OHR may approve exceptions to those salary increases that require approval by OHR regarding the effective date of salary increases based on written justification provided by the agency. Agencies should document internally the need to make exceptions regarding the effective date of salary increases for those increases for which they have approval authority.

19-706. Establishment of Unclassified Positions and the Unclassified Employee Pay Plan.

SCOPE AND PURPOSE

This Regulation governs the establishment, maintenance, and administration of the Unclassified Pay Plan applicable to all unclassified positions, except athletics coaches and unclassified employees in the athletics department of post secondary educational institutions as defined in Section 59-107-10 of the South Carolina Code of Laws except the technical education colleges.

19-706.01. Categories of Unclassified Positions.

A. An unclassified position is a full-time equivalent (FTE) position that has been assigned to an unclassified State title and falls under one of the following categories: 1) agency head covered by the Agency Head Salary Commission, 2) Executive Compensation System, 3) academic personnel, or 4) unclassified other.

B. The compensation of agency heads covered by the Agency Head Salary Commission is addressed in Section 19-706.04 A.

C. The compensation of employees in positions covered by the Executive Compensation System is governed by Section 19-706.04 B.

D. Academic personnel are defined by Section 8-11-220 of the South Carolina Code of Laws as "presidents, provosts, vice presidents, deans, teaching and research staffs, and others of academic rank employed by the State educational institutions of higher learning, or medical institutions of education and research." The compensation of employees in positions in the category of academic personnel is governed by Section 19-706.04 C. Presidents who are covered by the Agency Head Salary Commission are not subject to the Regulations pertaining to academic personnel.

E. Positions in the category of Unclassified Other include:

1. Agency heads not covered by the Agency Head Salary Commission;

2. Designated