S 639 Session 112 (1997-1998)
S 0639 General Bill, By Drummond and Leatherman
Similar(H 4026)
A BILL TO AMEND CHAPTER 35, TITLE 11, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE SOUTH CAROLINA CONSOLIDATED PROCUREMENT CODE, SO AS TO REVISE
THE SOUTH CAROLINA CONSOLIDATED PROCUREMENT CODE, TO PROVIDE GENERAL
PROVISIONS APPLICABLE TO THE CONSOLIDATED PROCUREMENT CODE, TO PROVIDE FOR
WRITTEN DETERMINATIONS AND FINDINGS REQUIRED BY THIS CODE, TO PROVIDE FOR
DEFINITIONS OF TERMS USED IN THIS CODE, TO PROVIDE FOR PUBLIC ACCESS TO
PROCUREMENT INFORMATION, TO PROVIDE FOR REPORTING THE PURCHASE OF FURNITURE
AND CERTAIN OTHER PURCHASES, TO PROVIDE FOR PROCUREMENT ORGANIZATION AND FOR
EXCEPTIONS, TO PROVIDE FOR THE CREATION OF OFFICES AND FOR THE RESPONSIBILITY
AND AUTHORITY OF THOSE OFFICES UNDER THIS CODE, TO PROVIDE FOR ADVISOR
COMMITTEES AND TRAINING, TO PROVIDE FOR AUDITING AND FISCAL REPORTING, TO
PROVIDE FOR SOURCE SELECTION, CONTRACTS AND AUDITS, TO PROVIDE FOR METHODS OF
SOURCE SELECTION, TO PROVIDE FOR CANCELLATION OF SOLICITATIONS, TO PROVIDE FOR
TYPES AND FORMS OF CONTRACTS, TO PROVIDE FOR INSPECTION OF PLANTS AND PLACES
OF BUSINESS AND AUDIT OF RECORDS, TO PROVIDE FOR DETERMINATIONS AND REPORTS IN
CONNECTION WITH COMPETITIVE SEALED BIDDING, CORRECTION OR WITHDRAWAL OF BIDS,
AND CANCELLATION OF AWARDS, TO PROVIDE FOR REGULATION OF SPECIFICATIONS, TO
PROVIDE FOR CONSTRUCTION, ARCHITECT-ENGINEER, CONSTRUCTION MANAGEMENT AND LAND
SURVEYING SERVICES, TO PROVIDE FOR INDEFINITE DELIVERY CONTRACTS, AND FOR
MODIFICATIONS AND TERMINATION OF CONTRACTS FOR SUPPLIES AND SERVICES, TO
PROVIDE FOR COST PRINCIPLES, SUPPLY MANAGEMENT, WAREHOUSES AND INVENTORY, TO
PROVIDE FOR THE REGULATION OF SALE, LEASE, TRANSFER, AND DISPOSAL OF SURPLUS
SUPPLIES AND OTHER PROPERTY, TO PROVIDE FOR CERTAIN LEGAL AND CONTRACTUAL
REMEDIES, THE ADMINISTRATIVE RESOLUTION OF CONTROVERSIES, AND FOR THE SOUTH
CAROLINA PROCUREMENT REVIEW PANEL, TO PROVIDE FOR INTERGOVERNMENTAL RELATIONS
AND FOR COOPERATIVE PURCHASING, AND TO PROVIDE FOR CERTIFICATION AND
ASSISTANCE TO MINORITY BUSINESSES; TO ADD SECTION 1-11-55 SO AS TO PROVIDE FOR
LEASING OF REAL PROPERTY, TO ADD SECTION 1-11-56 SO AS TO PROVIDE FOR BUDGET
AND CONTROL BOARD MANAGEMENT OF STATE AGENCY LEASING OF SPACE, TO ADD SECTION
1-11-57 SO AS TO PROVIDE FOR THE EXCHANGE OF TITLE TO REAL PROPERTY BY
GOVERNMENTAL BODIES OTHER THAN POLITICAL SUBDIVISIONS, AND TO ADD SECTION
1-11-58 SO AS TO PROVIDE FOR INVENTORY AND ANNUAL REPORTS OF ALL RESIDENTIAL
PROPERTY OWNED BY STATE AGENCIES, AND TO REPEAL SECTIONS 1-1-1110 AND 1-11-35
RELATING TO CERTAIN PROCUREMENT AND INVENTORY PROVISIONS.
04/10/97 Senate Introduced and read first time SJ-8
04/10/97 Senate Referred to Committee on Finance SJ-8
A BILL
TO AMEND CHAPTER 35, TITLE 11, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE SOUTH
CAROLINA CONSOLIDATED PROCUREMENT CODE, SO AS
TO REVISE THE SOUTH CAROLINA CONSOLIDATED
PROCUREMENT CODE, TO PROVIDE GENERAL PROVISIONS
APPLICABLE TO THE CONSOLIDATED PROCUREMENT
CODE, TO PROVIDE FOR WRITTEN DETERMINATIONS AND
FINDINGS REQUIRED BY THIS CODE, TO PROVIDE FOR
DEFINITIONS OF TERMS USED IN THIS CODE, TO PROVIDE
FOR PUBLIC ACCESS TO PROCUREMENT INFORMATION,
TO PROVIDE FOR REPORTING THE PURCHASE OF
FURNITURE AND CERTAIN OTHER PURCHASES, TO
PROVIDE FOR PROCUREMENT ORGANIZATION AND FOR
EXCEPTIONS, TO PROVIDE FOR THE CREATION OF OFFICES
AND FOR THE RESPONSIBILITY AND AUTHORITY OF
THOSE OFFICES UNDER THIS CODE, TO PROVIDE FOR
ADVISOR COMMITTEES AND TRAINING, TO PROVIDE FOR
AUDITING AND FISCAL REPORTING, TO PROVIDE FOR
SOURCE SELECTION, CONTRACTS AND AUDITS, TO
PROVIDE FOR METHODS OF SOURCE SELECTION, TO
PROVIDE FOR CANCELLATION OF SOLICITATIONS, TO
PROVIDE FOR TYPES AND FORMS OF CONTRACTS, TO
PROVIDE FOR INSPECTION OF PLANTS AND PLACES OF
BUSINESS AND AUDIT OF RECORDS, TO PROVIDE FOR
DETERMINATIONS AND REPORTS IN CONNECTION WITH
COMPETITIVE SEALED BIDDING, CORRECTION OR
WITHDRAWAL OF BIDS, AND CANCELLATION OF AWARDS,
TO PROVIDE FOR REGULATION OF SPECIFICATIONS, TO
PROVIDE FOR CONSTRUCTION, ARCHITECT-ENGINEER,
CONSTRUCTION MANAGEMENT AND LAND SURVEYING
SERVICES, TO PROVIDE FOR INDEFINITE DELIVERY
CONTRACTS, AND FOR MODIFICATIONS AND
TERMINATION OF CONTRACTS FOR SUPPLIES AND
SERVICES, TO PROVIDE FOR COST PRINCIPLES, SUPPLY
MANAGEMENT, WAREHOUSES AND INVENTORY, TO
PROVIDE FOR THE REGULATION OF SALE, LEASE,
TRANSFER, AND DISPOSAL OF SURPLUS SUPPLIES AND
OTHER PROPERTY, TO PROVIDE FOR CERTAIN LEGAL AND
CONTRACTUAL REMEDIES, THE ADMINISTRATIVE
RESOLUTION OF CONTROVERSIES, AND FOR THE SOUTH
CAROLINA PROCUREMENT REVIEW PANEL, TO PROVIDE
FOR INTERGOVERNMENTAL RELATIONS AND FOR
COOPERATIVE PURCHASING, AND TO PROVIDE FOR
CERTIFICATION AND ASSISTANCE TO MINORITY
BUSINESSES; TO ADD SECTION 1-11-55 SO AS TO PROVIDE
FOR LEASING OF REAL PROPERTY, TO ADD SECTION
1-11-56 SO AS TO PROVIDE FOR BUDGET AND CONTROL
BOARD MANAGEMENT OF STATE AGENCY LEASING OF
SPACE, TO ADD SECTION 1-11-57 SO AS TO PROVIDE FOR
THE EXCHANGE OF TITLE TO REAL PROPERTY BY
GOVERNMENTAL BODIES OTHER THAN POLITICAL
SUBDIVISIONS, AND TO ADD SECTION 1-11-58 SO AS TO
PROVIDE FOR INVENTORY AND ANNUAL REPORTS OF ALL
RESIDENTIAL PROPERTY OWNED BY STATE AGENCIES,
AND TO REPEAL SECTIONS 1-1-1110 AND 1-11-35 RELATING
TO CERTAIN PROCUREMENT AND INVENTORY
PROVISIONS.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 35, Title 11 of the 1976 Code is amended to
read:
"CHAPTER 35
South Carolina Consolidated Procurement Code
Article 1
General Provisions
Section 11-35-10. This chapter shall be known and may be cited
as the 'South Carolina Consolidated Procurement Code'.
Section 11-35-20. The underlying purposes and policies of this
code are:
(a) to provide increased economy in state procurement activities
and to maximize to the fullest extent practicable the purchasing
values of funds while ensuring that procurements are the most
advantageous to the State and in compliance with the provisions of
the Ethics Government Accountability and Campaign Reform Act;
(b) to foster effective broad-based competition for public
procurement within the free enterprise system;
(c) to develop procurement capability responsive to appropriate
user needs;
(d) to consolidate, clarify, and modernize the law governing
procurement in this State and permit the continued development of
explicit and thoroughly considered procurement policies and
practices;
(e) to require the adoption of competitive procurement laws and
practices by units of state and local governments;
(f) to ensure the fair and equitable treatment of all persons who
deal with the procurement system which will promote increased
public confidence in the procedures followed in public procurement;
(g) to provide safeguards for the maintenance of a procurement
system of quality and integrity with clearly defined rules for ethical
behavior on the part of all persons engaged in the public procurement
process; and
(h) to develop an efficient and effective means of delegating roles
and responsibilities to the various government procurement officers.
Section 11-35-30. Every contract or duty within this code imposes
an obligation of good faith in its negotiation, performance or
enforcement. 'Good faith' means honesty in fact in the conduct or
transaction concerned and the observance of reasonable commercial
standards of fair dealing.
Section 11-35-40. (l) General Application. This code applies
only to contracts solicited or entered into after the effective date of
this code unless the parties agree to its application to a contract
entered into prior to its effective date.
(2) Application to State Procurement. This code shall apply to
every expenditure of funds by this State under contract acting
through a governmental body as herein defined irrespective of the
source of the funds, including federal assistance monies, except as
specified in Section 11-35-40(3) (Compliance with federal
requirements) and except as provided in Article 19
(Intergovernmental Relations). It shall also apply to the disposal of
state supplies as provided in Article 15 (Supply Management). The
provisions of this code shall apply to all procurements of information
technology elements by any governmental body, irrespective of the
source funds whether appropriated or not.
(3) Compliance with Federal Requirements. Where a procurement
involves the expenditure of federal assistance or contract funds, the
government body, shall also comply with such federal law and
authorized regulations as are mandatorily applicable and which are
not presently reflected in the code. Notwithstanding, where federal
assistance or contract funds are used in a procurement by a
governmental body as defined in Section 11-35-310(18),
requirements that are more restrictive than federal requirements shall
be followed.
(4) The acquisition of any facility or capital improvement by a
foundation or eleemosynary organization on behalf of or for the use
of any state agency or institution of higher learning which involves
the use of public funds in the acquisition, financing, construction, or
current or subsequent leasing of the facility or capital improvement
is subject to the provisions of this code in the same manner as any
governmental body. The definition and application of the terms
'acquisition', 'financing', 'construction', and 'leasing' are governed
by standards and principles established by the State Auditor.
Section 11-35-45. (A) Beginning January 1, 1983,
All vouchers for payment of purchases of goods or services
shall be delivered to the Comptroller General's office within thirty
work days from receipt acceptance of the goods or
services and proper invoice whichever is received later
by the agency. After the thirtieth work day, following
acceptance or the post mark on the invoice, the Comptroller
General shall levy an amount not to exceed fifteen percent per annum
from the funds available to the agency, such amount to be applied to
the unpaid balance to be remitted to the vendor unless the vendor
waives imposition of the interest penalty.
(B) All agencies and institutions of the State are required to
comply with the provisions of this section. Beginning July 1,
1983, the Department of Mental Health, the Department of
Disabilities and Special Needs, the Department of Corrections, the
Interagency Council on Public Transportation, and the Sea Grant
Consortium shall process all payments for goods or services through
the office of the Comptroller General. Only the lump sum
institutions of higher education are responsible for the payment of all
goods or services within thirty work days after the receipt
acceptance of the goods or services and proper
invoice, whichever is received later, and shall pay an amount not
to exceed fifteen percent per annum on any unpaid balance which
exceeds the thirty work-day-period, if the vendor specifies on the
statement or the invoice submitted to such institutions that a late
penalty is applicable if not paid within thirty work days after the
receipt acceptance of goods or services.
(C) The Comptroller General shall issue written instructions to the
agencies to carry out the intent of this section. All offices,
institutions, and agencies of state government shall fully cooperate
with the Comptroller General in the implementation of this section.
(D) The thirty-day period shall not begin until the agency, whether
or not the agency processes vouchers through the Comptroller
General, certifies its satisfaction with the received goods or services
and proper invoice.
Section 11-35-50. All political subdivisions of the State shall
adopt ordinances or procedures embodying sound principles of
appropriately competitive procurement no later than July 1, 1983.
The Budget and Control Board, in cooperation with the Procurement
Policy Committee and subdivisions concerned, shall create a task
force to draft model ordinances, regulations and manuals for
consideration by the political subdivisions. The expenses of the task
force shall be funded by the General Assembly. The task force shall
complete its work no later than January 1, 1982. A political
subdivision's failure to adopt appropriate ordinances, procedures or
policies of procurement is not subject to the legal remedies provided
in this code.
Section 11-35-55. A governmental body procuring goods or
services under the consolidated procurement code, and any agency or
department of a political subdivision of this State procuring goods or
services under the consolidated procurement code or its own
procurement code, may not accept any proposals from or procure any
goods or services from an entity which employs or uses inmates of a
correctional system of another state who are not paid at least the
required federal minimum wage for work performed in the
manufacturing, processing, or supplying of those goods or services.
Subarticle 1
Purposes, Construction, and Application
Section 11-35-60. The dissemination of regulations relating to the
implementation of this code shall be in accordance with Sections
1-23-10, et. seq. of the 1976 Code.
Section 11-35-70. Irrespective of the source of funds, any school
district whose budget of total expenditures, including debt service,
exceeds seventy-five million dollars annually is subject to the
provisions of Chapter 35 of Title 11, and shall notify the Director of
the Division Office of General Services of the
Budget and Control Board of its expenditures within ninety days
after the close of its fiscal year. However, if a district has its own
procurement code which is, in the written opinion of the
Division Office of General Services of the State
Budget and Control Board, substantially similar to the provisions of
the South Carolina Consolidated Procurement Code, the district is
exempt from the provisions of the South Carolina Consolidated
Procurement Code except for a procurement audit which must be
performed every three years by an audit firm approved by the
Division Office of General Services. Costs
associated with the internal review and audits are the responsibility
of the school district and will be paid to the entity performing the
audit.
Subarticle 3
Determinations
Section 11-35-210. Written determinations and findings required
by the code shall be retained in an official contract file of the
governmental body administering the contract. Such determinations
shall be documented in sufficient detail to satisfy the requirements of
audit as provided for in Section 11-35-1230.
Subarticle 5
Definitions of Terms Used in this Code
Section 11-35-310. The following words, unless the context
clearly indicates otherwise, shall mean:
(l) 'Information Technology (IT)' means data processing,
telecommunications, and office systems technologies and
services:
(a) 'data processing' means the automated collection, storage,
manipulation, and retrieval of data including: central
processing units for micro, mini and mainframe computers; related
peripheral equipment such as terminals, document scanners, word
processors, intelligent copiers, off-line memory storage, and
printing systems, data transmission equipment; and related software
such as operating systems, library and maintenance routines and
applications programs.
(b) 'telecommunications' means voice, data, message and
video transmissions, and includes the transmission and switching
facilities of public telecommunications systems, as well as operating
and network software.
(c) 'office systems technology' means office equipment such
as typewriters, duplicating and photocopy machines, paper forms and
records; microfilm and microfiche equipment and printing equipment
and services.
(d) 'services' means the providing of consultant assistance for
any aspect of information technology, systems, and networks.
(2) 'Board' means State Budget and Control Board.
(3) 'Business' means any corporation, partnership, individual, sole
proprietorship, joint stock company, joint venture or any other legal
entity.
(4) 'Change order' means any written alteration in specifications,
delivery point, rate of delivery, period of performance, price,
quantity, or other provisions of any contract accomplished by mutual
agreement of the parties to the contract.
(5) 'Chief procurement officer' means (a) the management officer
for information technology, (b) the state engineer for areas of
construction, architectural and engineering, construction
management, and land surveying services, and (c) the materials
management officer for all other procurements.
(6) 'Information Technology Management Officer' means the
person holding the position as the head of the Information
Technology Office of the State.
(7) 'Construction' means the process of building, altering,
repairing, remodeling, improving or demolishing any public structure
or building or other public improvements of any kind to any public
real property. It does not include the routine operation, routine repair
or routine maintenance of existing structures, buildings or real
property.
(8) 'Contract' means all types of state agreements, regardless of
what they may be called, for the procurement or disposal of supplies,
services or construction.
(9) 'Contract modification' means a written order signed by the
procurement officer, directing the contractor to make changes which
the changes clause of the contract authorizes the procurement officer
to order without the consent of the contractor.
(10) 'Contractor' means any person having a contract with a
governmental body.
(11) 'Cost effectiveness' means the ability of a particular product
or service to efficiently provide goods or services to the State. In
determining the cost effectiveness of a particular product or service,
the appropriate chief procurement officer shall list the relevant factors
in the bid notice or solicitation and use only those listed relevant
factors in determining the award.
(12) 'Data' means recorded information, regardless of form or
characteristics.
(13) 'Days' means calendar days. In computing any period of time
prescribed by this code or the ensuing regulations, or by any order of
the Procurement Review Panel, the day of the event from which the
designated period of time begins to run is not included. If the final
day of the designated period falls on a Saturday, Sunday, or a legal
holiday for the state or federal government, then the period shall run
to the end of the next business day.
(14) 'Debarment' means the disqualification of a person to receive
invitations for bids, or requests for proposals, or the award of a
contract by the State, for a specified period of time commensurate
with the seriousness of the offense or the failure or inadequacy of
performance.
(15) 'Designee' means a duly authorized representative of a
person with formal responsibilities under the code.
(16) 'Employee' means an individual drawing a salary from a
governmental body, whether elected or not, and any nonsalaried
individual performing personal services for any governmental body.
(17) 'General Services means the division Office
of the Budget and Control Board.
(18) 'Governmental body' means a 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 this State. Governmental body
excludes the General Assembly, Legislative Council, the Office of
Legislative Printing and Information Technology Resources, and all
local political subdivisions such as counties, municipalities, school
districts, or public service or special purpose districts.
(19) 'Grant' means the furnishing by the State or the United States
government of assistance, whether financial or otherwise, to any
person to support a program authorized by law. It does not include an
award the primary purpose of which is to procure specified end
products, whether in the form of supplies, services, or
construction. A contract resulting from such an award shall not be
deemed a grant but a procurement contract.
(20) 'Invitation for Bids' means a written or published solicitation
issued by an authorized procurement officer for bids to contract for
the procurement or disposal of stated supplies, services or
construction, which will ordinarily result in the award of the contract
to the responsible bidder making the lowest responsive bid.
(21) 'Materials Management Officer' means the person holding
the position as the head of the materials management office of the
State.
(22) 'Office' means a nonmobile place for the regular
transaction of business or performance of a particular service and
staffed by at least one employee on a routine basis.
(23) 'Political subdivision' means all counties, municipalities,
school districts, public service or special purpose districts.
(22)(24) 'Procurement' means buying,
purchasing, renting, leasing, or otherwise acquiring any supplies,
services, or construction. It also includes all functions that
pertain to the obtaining of any supply, service or construction,
including description of requirements, selection and solicitation of
sources, preparation and award of contracts, and all phases of
contract administration.
(23)(25) 'Procurement officer' means any
person duly authorized by the governmental body, in accordance with
procedures prescribed by regulation, to enter into and administer
contracts and make written determinations and findings with respect
thereto. The term also includes an authorized representative of the
governmental body within the scope of his authority.
(24)(26) 'Purchasing agency' means any
governmental body other than the chief procurement officers
authorized by this code or by way of delegation from the chief
procurement officers to enter into contracts.
(25)(27) 'Real property' means any land, all
things growing on or attached thereto, and all improvements made
thereto including buildings and structures located thereon.
(26)(28) 'Request for Proposals (RFP)' means
a written or published solicitation issued by an authorized
procurement officer for proposals to provide supplies or services,
which ordinarily result in the award of the contract to the responsible
bidder making the proposal determined to be most advantageous to
the State. The award of the contract must be made on the basis of
evaluation factors which must be stated in the RFP, and which
must include but not be controlled alone by the factor of price
proposed to be charged.
(27)(29) 'Services' means the furnishing of
labor, time, or effort by a contractor not required to deliver a specific
end product, other than reports which are merely incidental to
required performance. This term includes consultant services other
than architectural, engineering, land surveying, construction
management, and related services. This term does not include
employment agreements or services as defined in Section
11-35-310(1)(d).
(28)(30) 'Subcontractor' means any person
having a contract to perform work or render service to a prime
contractor as a part of the prime contractor's agreement with a
governmental body.
(29)(31) 'Supplies' means all personal
property, including, but not limited to,
equipment, materials, printing, and insurance.,
and leases of real property, excluding real property or an interest in
real property other than leasehold interests.
(30)(32) 'State' means state government.
(31)(33) 'State Engineer' means the person
holding the position as head of the state engineer's office.
(32)(34) 'Suspension' means the
disqualification of a person to receive invitations for bids, requests
for proposals, or the award of a contract by the State, for a temporary
period pending the completion of an investigation and any legal
proceedings that may ensue because a person is suspected upon
probable cause of engaging in criminal, fraudulent, or seriously
improper conduct or failure or inadequacy of performance which may
lead to debarment.
(33)(35) 'Term Contract' means a contract
established by the chief procurement officer for a specific product or
service for a specified time and for which it is mandatory that all
governmental bodies procure their requirements for the goods and
services during its term. If a governmental body is offered goods and
services at a price that is at least ten percent less than the term
contract price for the same goods or services, it may purchase from
the vendor offering the lower price after first offering the vendor
holding the term contract the option to meet the lower price. If the
vendor holding the term contract meets the lower price, then the
governmental body must purchase from the contract vendor. A term
contract may be a multi-term contract as provided in Section
11-35-2030.
(34)(36) 'Using agency' means any
governmental body of the State which utilizes any supplies, services,
or construction purchased under this code.
Subarticle 7
Public Access To Procurement Information
Section 11-35-410. Procurement information shall be a public
record to the extent required by Chapter 3 4 of Title
30 (The Freedom of Information Act) with the exception that
commercial or financial information obtained in response to a
'Request for Proposals' or any type of bid solicitation which
is privileged and confidential need not be disclosed.
Privileged and confidential information is information in specific
detail not customarily released to the general public, the release of
which might cause harm to the competitive position of the party
supplying the information. Examples of this type of information
would include:
(l) customer lists;
(2) design recommendations and identification of prospective
problem areas under an RFP;
(3) design concepts, including methods and procedures;
(4) biographical data on key employees of the bidder.
Evaluative documents predecisional in nature such as inter- or
intra-agency memoranda containing technical evaluations and
recommendations are exempted so long as the contract award does
not expressly adopt or incorporate the inter- or intra-agency
memoranda reflecting the predecisional deliberations.
Requests for procurement information pursuant to this section
may only be requested of the winning vendor's proposal or bid. If all
proposals or bids submitted in response to a solicitation are rejected
under applicable sections of this code, such proposals or bids are not
subject to the provisions of this section.
Subarticle 9
Reporting of Furniture and Certain Purchases
Section 11-35-450. (A) The purchase of furniture, floor coverings,
wall coverings, or any other decorative or ornamental item by a
governmental body for at least one of the following uses must be
reported to the governing board, commission, or council of the
respective governmental body, when the cost of the furniture,
covering, or item exceeds five hundred dollars, before the purchase:
(1) in an office or adjoining reception area utilized by an
agency director or assistant agency director;
(2) in a board room or a conference room used as a board
room.
(B) The reports required in subsection (A) must include the item to
be purchased and its price. Upon receiving the reports, the governing
board, commission, or council of the respective governmental body
formally shall approve or disapprove the purchase.
Subarticle 11
Acceptance of Gifts-In-Kind and Certain Services
Section 11-35-475. Governmental bodies may accept gifts-in-kind
of architectural or engineering services, or both, and items of
construction of value less than two hundred fifty thousand dollars
with the approval of the staff of the Commission on Higher
Education, the Director of the Office of General Services, and
designated staff of the Joint Bond Review Committee, provided that
these gifts may not be made or accepted if these gifts are offered with
intent of influencing the judgment of any governmental body. No
other approvals or procedural requirements, including the provisions
of Chapter 35, Title 11, may be imposed on the acceptance of these
gifts.
Article 3
Procurement Organization
Subarticle 1
Committees and Management
Section 11-35-510. 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 state governmental body under the
provisions of law relating thereto, and regardless of source of
funding, are hereby vested in the Division Office of
General Services. This vesting of authority shall be subject to
Sections 11-35-710 (Exemptions), 11-35-1250 (Authority to
Contract for Auditing Services), 11-35-1260 (Authority to Contract
for Legal Services), 11-35-1270 (Authority to Contract for Certain
Services), Section 11-35-1550 (Small Purchases), Section
11-35-1570 (Emergency Procurements), 11-35-3230 (Exception for
Small Architect-Engineer, and Land Surveying Services Contracts),
and Section 11-35-3620 (Management of Warehouses and
Inventory).
Section 11-35-530. The following advisory committees may be
established by the board for the purpose of advising the policy
committee:
(a) The board may appoint a purchasing policies and procedures
advisory committee comprised of state and local government, and
public members in accordance with regulations of the board to
discuss the performance of public purchasing in the State and to
consider specific methods for improvement.
(b) The board may appoint an information technology and
procedures advisory committee comprised of state and local
government and public members in accordance with regulations of
the board to discuss the purchasing performance of information
technology for government in the State and to consider specific
methods for improvement.
(c) The board shall appoint a construction, architect-engineer,
construction management and land surveying services advisory
committee comprised of state and local government and public
members in accordance with regulations of the board to discuss the
purchasing performance of these services in the State and to consider
specific methods of improvement. The advisory committee shall he
comprised of the following; the State Engineer, a state agency
representative, a banker, an attorney, a representative of local
government, a registered architect, a registered engineer, a licensed
building contractor and a licensed subcontractor.
Section 11-35 -540. (l) Authority to Promulgate Regulations.
Except as otherwise provided in this code, the board shall have the
authority and responsibility to promulgate regulations, consistent
with this code, governing the procurement, management,
control, and disposal of any and all supplies, services and
construction to be procured by the State. Such regulations shall be
binding in all procurements made by the State.
(2) Nondelegation. The board shall not delegate its power to
promulgate regulations.
(3) Approval of Operational Procedures. Governmental
bodies shall be authorized to develop internal operational procedures
consistent with this code; provided, that such operational procedures
shall be certified in writing by the appropriate chief procurement
officer as being consistent with this chapter.
(4) The board as a whole or acting through its procurement policy
committee shall consider and decide matters of policy within the
provisions of this code including those referred to it by the chief
procurement officers. The board shall have the power to audit and
monitor the implementation of its regulations and the requirements
of this code.
Subarticle 3
Exemptions
Section 11-35-710. The board, upon the recommendation of the
Division Office of General Services, may exempt
governmental bodies from purchasing certain items through the
respective chief procurement officer's area of responsibility. The
board may exempt specific supplies or services from the purchasing
procedures required in this section and for just cause by unanimous
written decision limit or may withdraw exemptions provided for in
this section. The following exemptions are granted in this chapter:
(1) the construction, maintenance, and repair of
bridges, highways and roads; vehicle and road equipment
maintenance and repair; and any other emergency type parts or
equipment utilized by the Department of Transportation or the
Department of Public Safety;
(2) the purchase of raw materials by the South Carolina
Department of Corrections, Division of Prison Industries;
(3) S.C. State Ports Authority;
(4) Division of Public Railways of the Department of
Commerce;
(5) S.C. Public Service Authority;
(6) expenditure of funds at state institutions of higher learning
derived wholly from athletic or other student contests, from the
activities of student organizations and from the operation of canteens
and bookstores, except as the funds are used for the procurement of
construction, architect-engineer, construction-management and land
surveying services;
(7) livestock, feed, and veterinary supplies;
(8) articles for commercial sale by all governmental bodies;
(9) fresh fruits, vegetables, meats, fish, milk, and
eggs;
(10) South Carolina Arts Commission and South Carolina
Museum Commission for the purchase of one-of-a-kind items such
as paintings, antiques, sculpture and similar objects. Before any
governmental body procures the objects, the head of the purchasing
agency shall prepare a written determination specifying the need for
the objects and the benefits to the State. The South Carolina Arts
Commission shall review the determination and forward a
recommendation to the board for approval;
(11) published books, periodicals, and technical
pamphlets;
(12) South Carolina Research Authority;
(13) the purchase of goods, products, and services by state
offices, departments, institutions, agencies, boards, and commissions
or the political subdivisions of this State from the South Carolina
Department of Corrections, Division of Prison Industries.
Subarticle 5
Offices Created
Section 11-35-810. There is hereby created, within the
Division Office of General Services, a Materials
Management Office to be headed by the Materials Management
Officer.
Section 11-35-820. There is hereby created within the
Division Office of General Services, the Information
Technology Management Office to be headed by the Information
Technology Management Officer. All procurements involving
information technology, and any pre- and post-procurement activities
in this area, shall be conducted in accordance with the regulations
promulgated by the board except as otherwise provided for in this
code by specific reference to the Information Technology
Management Office.
Section 11-35-830. There is hereby created within the
Division Office of General Services, the state
engineer's office to be headed by the State Engineer. All
procurements involving construction, architectural and engineering,
construction management, and land surveying services, as defined in
Section 11-35-2910, and any pre- and post-procurement activities in
this area, shall be conducted in accordance with regulations
promulgated by the board except as otherwise provided for in this
code by specific reference to the state engineer's office.
Section 11-35-835. The Office of State Engineer must review
properly completed schematic design, properly completed design
development, and properly completed construction documents within
a total of forty-five days of submission of documents.
Section 11-35-840. Subject to the regulations of the board, the
chief procurement officers may delegate authority to designees or to
any department, agency, or official.
Section 11-35-845. Each agency of state government that has total
management capability as defined and certified by the
Division Office of General Services shall be allowed
to oversee the administration of permanent improvement projects
with the state engineer's office serving as an audit function. The state
engineer's office shall assist those small agencies who do not have
the necessary expertise in permanent improvements.
Subarticle 7
Advisory Committees and Training
Section 11-35-1010. The chief procurement officers shall
maintain a close and cooperative relationship with the using agencies.
The chief procurement officers shall afford each using agency
reasonable opportunity to participate in and make recommendations
with respect to procurement matters affecting the using agency.
Section 11-35-1020. The chief procurement officers may
appoint advisory groups such as user committees to assist with
respect to specifications and procurement in specific areas and with
respect to any other matters within the authority of the chief
procurement officers. The chief procurement officers shall develop
methods for obtaining necessary and relevant information from the
affected agencies, whether through user committees or by surveys
and other methods. The chief procurement officers shall make every
reasonable effort to ensure that such contracts are developed as will
best suit the interest of the State, giving due emphasis to user needs,
total costs, and open competitive methods of public
purchasing.
Section 11-35-1030. The Division Office of
General Services shall develop a system of training for procurement
in accordance with regulations by the board. Such training shall
encompass the latest techniques and methods of public procurement.
If deemed appropriate by the Division Office of
General Services, such training shall include a requirement for the
certification of the procurement officer of each purchasing agency.
Subarticle 9
Auditing and Fiscal Reporting
Section 11-35-1210. (l) Authority. The board may
assign differential dollar limits below which individual governmental
bodies may make direct procurements not under term contracts. The
Division Office of General Services shall review the
respective governmental body's internal procurement operation, shall
certify in writing that it is consistent with the provisions of this code
and the ensuing regulations, and recommend to the board those dollar
limits for the respective governmental body's procurement not under
term contract.
(2) Policy. Authorizations granted by the board to a governmental
body are subject to the following:
(a) adherence to the provisions of this code and the ensuing
regulations, particularly concerning competitive procurement
methods;
(b) responsiveness to user needs;
(c) obtaining of the best prices for value received.
(3) Adherence to Provisions of the Code. All procurements shall
be subject to all the appropriate
provisions of this code, especially regarding competitive procurement
methods and nonrestrictive specifications.
Section 11-35-1220. The Division Office of
General Services shall prepare statistical data concerning the
procurement, use, and disposition of all supplies,
services, and construction. All using agencies shall furnish
such reports as the Division Office of General
Services may require concerning use, needs, and stocks on
hand, and
the chief procurement officers shall prescribe forms to be used by the
using agencies in requisitioning, ordering, and reporting
supplies, services, and construction. The chief procurement
officers shall limit requests for information to those items necessary
for the effective operation of the purchasing system, but using
agencies shall be required to provide information as requested.
Section 11-35-1230. (l) The Division
Office of General Services through consultation with the
chief procurement officers shall develop written plans for the auditing
of state procurements.
In procurement audits of governmental bodies thereafter, the
auditors from the Division Office of General
Services shall review the adequacy of the system's internal controls
in order to ensure compliance with the requirement of this code and
the ensuing regulations. Any noncompliance discovered through
audit must be transmitted in management letters to the audited
governmental body, the Budget and Control Board. The auditors shall
provide in writing proposed corrective action to governmental bodies.
Based upon audit recommendations of the Division
Office of General Services, the board may revoke
certification as provided for in Section 11-35-1210 and require the
governmental body to make all procurements through the office of
materials management above a dollar limit set by the board until such
time as the board is assured of compliance with this code and its
regulations by that governmental body.
(2) Beginning with the first quarter of fiscal year 1981-82 and
each quarter thereafter, in consultation with the Legislative Audit
Council, the Comptroller General shall assume responsibility for
operation and maintenance of the automated quarterly fiscal reporting
procedures that have been developed under Section 1-1-930. The
Comptroller General shall assume responsibility for providing
quarterly reports to the General Assembly regarding the status of
personnel positions, budgets, transfers and expenditures in all state
agencies, departments and institutions in a format developed in
consultation with the Legislative Audit Council. The Legislative
Audit Council shall periodically review the reporting system and
coordinate legislative information needs with the Office of the
Comptroller General as necessary. All agencies, departments and
institutions of state government shall report to the Comptroller
General the information required under Section 1-1-940.
Beginning in the first quarter of fiscal year 1981-82, the Legislative
Audit Council shall undertake a periodic review of the reporting and
data analysis system developed by the division for reporting both
commodities purchased and those not purchased through the
division's central purchasing system, and shall make
recommendations for incorporating these reporting procedures into
the Statewide Accounting and Reporting System (STARS) as
necessary to reduce unnecessary duplication and improve efficiency,
effectiveness and accountability.
Section 11-35-1240. The board shall prescribe administrative
penalties for violation of the provisions of this code and of
regulations promulgated thereunder, excluding those matters under
the jurisdiction of the Ethics Commission as provided by law.
Violation of these provisions shall be grounds for loss of or
reduction in authority delegated by the board.
Section 11-35-1250. No contract for auditing or accounting
services shall be awarded without the approval of the State Auditor
except where specific statutory authority is otherwise provided.
Section 11-35-1260. No contract for the services of attorneys
shall be awarded without the approval of the State Attorney General
except where specific statutory authority is otherwise provided.
Section 11-35-1270. For the purpose of procuring any
professional services not included in the purchasing authority of this
code and the ensuing regulations, where the person employed is
customarily employed on a fee basis rather than by competitive
bidding (e.g., clergy, dentists, physicians), a governmental body may
act as a purchasing agent and contract on its own behalf for such
services, subject to this code and regulations which may be
established by the board.
Article 5
Source Selection and Contract Formation
Subarticle 1
Definitions
Section 11-35-1410. Unless the context clearly indicates
otherwise:
(1) 'Cost-reimbursement contract' means a contract under which
a contractor is reimbursed for costs which are allowable and allocable
in accordance with the cost principles as provided in Article 13 of
this chapter and a fee, if any.
(2) 'Established catalog price' means the price included in a
catalog, price list, schedule, or other form that:
(a) is regularly maintained by a manufacturer or vendor of an
item;
(b) is either published or otherwise available for inspection by
customers;
(c) states prices at which sales are currently or were last made
to a significant number of buyers constituting the general buying
public for the supplies or services involved.
(3) 'Invitation for bids' means all documents, whether attached or
incorporated by reference, utilized for soliciting bids in accordance
with the procedures set forth in Section 11-35-1520.
(4) 'Purchase description' means specifications or any other
document describing the supplies, services, or construction
to be procured.
(5) 'Request for proposals' means all documents, whether attached
or incorporated by reference, utilized for soliciting proposals.
(6) 'Responsible bidder or offeror' means a person who has the
capability in all respects to perform fully the contract requirements
and the integrity and reliability which will assure good faith
performance which may be substantiated by past performance.
(7) 'Responsive bidder or offeror' means a person who has
submitted a bid or offer which conforms in all material aspects to the
invitation for bids or request for proposals.
Subarticle 3
Methods of Source Selection
Section 11-35-1510. Unless otherwise provided by law, all state
contracts shall be awarded by competitive sealed bidding, pursuant
to Section 11-35-1520, except as provided in:
(1) Section 11-35-1525 (Fixed Priced Bidding);
(2) Section 11-35-1528 (Competitive Best
Value Bidding);
(1)(3) Section 11-35-1250 (Authority to Contract
for Auditing Services);
(2)(4) Section 11-35-1260 (Authority to Contract
for Legal Services);
(3)(5) Section 11-35-1270 (Authority to Contract
for Certain Services);
(4)(6) Section 11-35-1530 (Competitive Sealed
Proposals);
(5)(7) Section 11-35-1540 (Negotiations After
Unsuccessful Competitive Sealed Bidding);
(6)(8) Section 11-35-1550 (Small Purchases);
(7)(9) Section 11-35-1560 (Sole Source
Procurements);
(8)(10) Section 11-35-1570 (Emergency
Procurements);
(11) Section 11-35-1575 (Procurements at Auction);
(9)(12) Section 11-35-1580 (Procurement of
Information Technology);
(10) Section 11-35-1590 (Leasing of Real Property for
Governmental Bodies);
(11)(13) Section 11-35-3020 (Construction
Procurement Procedures);
(12)(14) Section 11-35-3220
(Architect-Engineer, Construction Management and Land Surveying
Services Procurement Procedures);
(13)(15) Section 11-35-3230 (Exception for
Small Architect-Engineer and Land Surveying Services Contracts).
Section 11-35-1520. (l) Condition for Use. Contracts
amounting to twenty-five thousand dollars or more shall be awarded
by competitive sealed bidding except as otherwise provided in
Section 11-35-1510.
(2) Invitation for Bids. An invitation for bids shall be issued in an
efficient and economical manner to at least three qualified
sources on the bidders' lists appropriate for the particular
procurement, and shall include specifications and all contractual
terms and conditions applicable to the procurement. If the list
does not contain three qualified sources, invitations for bids shall
be issued to such qualified sources as are available.
(3) Bidders' Lists. All sources requesting to be put on a bidders'
list shall be so enlisted, unless the chief procurement officer or head
of a purchasing agency makes a written determination that the source
should not be enlisted in accordance with regulations of the board.
Decisions to reject enlistment shall be appealable to the appropriate
chief procurement officer and the Procurement Review Panel as
specified in Article 17 of this chapter. The appropriate chief
procurement officer and the heads of procurement agencies shall
ensure that the bidders' lists contain all known sources interested in
bidding on state procurements. The chief procurement officer shall
review periodically the bidders' lists of the various governmental
bodies and shall require the addition to such lists of any appropriate
sources which are not contained therein.
(4)(3) Notice. Adequate notice of the invitation for
bids shall be given at a reasonable time prior to the date set forth
therein for the opening of bids. Such notice shall include utilization
of bidders' lists and may shall include publications
in a newspaper of general circulation in the State such as 'South
Carolina Business Opportunities' or through a means of central
electronic advertising as approved by the Office of General
Services.
(5)(4) Receipt and Safeguarding of Bids. All
bids (including modifications) received prior to the time of opening
shall be kept secure and unopened in a locked box or safe,
except as provided for by regulation of the board.
(6)(5) Bid Opening. Bids shall be opened
publicly in the presence of one or more witnesses at the time and
place designated in the invitation for bids and in the manner
prescribed by regulation of the board. The amount of each bid, and
such other relevant information as may be specified by regulation,
together with the name of each bidder, shall be tabulated. The
tabulation shall be open to the public inspection at that time.
(7)(6) Bid Acceptance and Bid Evaluation. Bids
shall be accepted unconditionally without alteration or correction,
except as otherwise authorized in this code. The invitation for bids
shall set forth the evaluation criteria to be used. No criteria may be
used in bid evaluation that are not set forth in the invitation for bids.
Bids shall be evaluated based on the requirements set forth in the
invitation for bids and in accordance with the regulations of the
board.
(8)(7) Correction or Withdrawal of Bids;
Cancellation of Awards. Correction or withdrawal of inadvertently
erroneous bids before bid opening, withdrawal of inadvertently
erroneous bids after award, or cancellation and reaward of awards or
contracts, after award but prior to performance may be permitted in
accordance with regulations promulgated by the board. After bid
opening no changes in bid prices or other provisions of bids
prejudicial to the interest of the State or fair competition shall be
permitted. Except as otherwise provided by regulation, all decisions
to permit the correction or withdrawal of bids, or to cancel awards,
or contracts, after award but prior to performance shall be supported
by a written determination of appropriateness made by the chief
procurement officers or head of a purchasing agency.
(8) Discussion with Bidders. As provided in
the invitation for bids, discussions may be conducted with apparent
responsive bidders for the purpose of clarification to assure full
understanding of the requirements of the invitation for bids. All bids,
in the procuring agency's sole judgment, needing clarification shall
be accorded such an opportunity. Clarification of any bidder's bid
must be documented in writing by the procurement officer and shall
be included with the bid. Documentation concerning the clarification
shall be subject to disclosure upon request as required by Section
11-35-410.
(9) Tie Bids. If two or more bidders are tied in price while
otherwise meeting all of the required conditions, awards are
determined as follows:
(a) If there is a South Carolina firm tied with an out-of-state
firm, the award must be made automatically to the South Carolina
firm.
(b) Tie bids involving South Carolina produced or
manufactured products, when known, and items produced or
manufactured out of the State must be resolved in favor of the South
Carolina commodity.
(c) Tie bids involving South Carolina firms must be resolved
in favor of the South Carolina firm located in the same taxing
jurisdiction as the governmental body's consuming location.
(d) Tie bids involving South Carolina firms in the same taxing
jurisdiction as the governmental body's consuming location must be
resolved by the flip of a coin in the office of the chief procurement
officer or the head of a purchasing agency or either officer's
designee witnessed by all interested parties.
(e) In all other situations where bids are tied, the award
will be made by the purchasing agency to the tied bidder offering the
quickest delivery time, or if the tied bidders have offered the same
delivery time, the tie shall be resolved by the flip of a coin in the
office of the chief procurement officer or the head of a purchasing
agency or either officer's designee witnessed by all interested
parties.
These are the only conditions under which any in-state
preferences is shown.
(e) Competitive procurements made by any governmental body
must be made from a responsive and responsible vendor resident in
South Carolina:
(i) for procurements under two million, five hundred
thousand dollars, if the bid does not exceed the lowest qualified bid
from a nonresident vendor by more than two percent of the latter bid,
and if the resident vendor has made written claim for the preference
at the time the bid was submitted;
(ii) for procurements in excess of two million, five
hundred thousand dollars, if the bid does not exceed the lowest
qualified bid from a nonresident vendor by more than one percent of
the latter bid, and if the resident vendor has made written claim for
the preference at the time the bid was submitted. A vendor is
considered to be a resident of this State if the vendor is;(a) an
individual, partnership, association, or corporation that is authorized
to transact business within the State, (b) maintains an office in the
State, (c) maintains an inventory for expendable items which are
representative of the general type of commodities on which the bid
is submitted and located in South Carolina at the time of the bid
having a total value of ten thousand dollars or more based on the bid
price, but not to exceed the amount of the contract, or is a
manufacturer which is headquartered and has at least a ten million
dollar payroll in South Carolina and the product is made or processed
from raw materials into a finished end product by such manufacturer
or an affiliate (as defined in Section 1563 of the Internal Revenue
Code) of such manufacturer, and (d) has paid all assessed taxes.
Preferences under this subsection do not apply against a resident
vendor whether or not he made written claim for the preference at the
time of bid. Preferences under this subsection do not apply to
contracts procured under Section 11-35-1530 nor to prime contractors
or subcontractors as relates to the construction procurement of
construction under Section 11-35-3020 nor to a vendor of goods
whether in quantity or not when the price of a single unit of the item
involved is more than ten thousand dollars.
(10) Award. Unless there is a compelling reason to reject
bids as prescribed by regulation of the board, notice of an intended
award of a contract to the lowest responsive and responsible
bidder bidders whose bid meets the requirements set
forth in the invitation for bids shall be given by posting such notice
at a location specified in the invitation for bids. Prior to the
posting of the award, the procuring agency may negotiate with the
lowest responsive and responsible bidder to lower his bid within the
scope of the invitation for bids. The invitation for bids and the
posted notice must contain a statement of a bidder's right to protest
under Section 11-35-4210(1) and the date and location of posting
must be announced at bid opening. When a contract has a total or
potential value in excess of fifty thousand dollars, in addition to the
posted notice, notice of an intended award must be given to all
bidders responding to the solicitation by first-class mail to the
name and address on the bid documents, except when
only one response is received. Such mailed notice must
contain a statement of the bidder's right to protest under Section
11-35-4210(1).
When a contract has a total or potential value in excess of fifty
thousand dollars, sixteen days after notice is given the agency may
enter a contract with the bidder named in the notice in accordance
with the provisions of this code and of the bid solicited. When
only one response is received, the notice of intended award and the
sixteen-day delay of award may be waived. A determination of
responsibility must be made before award in accordance with Section
11-35-1810.
(11) Multi-Step Sealed Bidding. When it is considered
initially impractical to prepare a purchase description to support an
award based on price, an invitation for bids may be issued requesting
the submission of unpriced offers to be followed by an invitation for
bids limited to those bidders whose offers have been qualified under
the criteria set forth in the first solicitation.
(11) Request for Qualifications. Prior to soliciting bids, the
procuring agency, acting through the authorized procurement officer,
may issue a request for qualifications from prospective bidders. Such
request shall contain at a minimum a description of the goods or
services to be solicited by the invitation for bids, the general scope of
the work, the deadline for submission of information, and how
prospective bidders may apply for consideration. The request shall
require information concerning the prospective bidders' product
specifications, qualifications, experience, and ability to perform the
requirements of the contract. Adequate public notice of the request
for qualifications shall be given in the manner provided in Section
11-35-1520(3). The use of the request for qualifications is subject to
the approval of the Office of General Services.
After receipt of the responses to the request for qualifications from
prospective bidders, the prospective bidders shall be ranked from
most qualified to least qualified on the basis of the information
provided. Bids shall then be solicited from at least the top two
prospective bidders by means of an invitation for bids. The failure of
a prospective bidder to be selected to receive the invitation for bids
shall not be grounds for protest under Section 11-35-4210.
(12) Provisions not to Apply. The provisions of this section
shall not apply to maintenance services for aircraft of the Division of
Aeronautics of the Department of Commerce.
(13) Minor Informalities and Irregularities in Bids. A minor
informality or irregularity is one which is merely a matter of form or
is some immaterial variation from the exact requirements of the
invitation for bids having no effect or merely a trivial or negligible
effect on total bid price, quality, quantity, or delivery of the supplies
or performance of the contract, and the correction or waiver of which
would not affect the relative standing of, or be
otherwise prejudicial to, bidders. The procurement
officer shall either give the bidder an opportunity to cure any
deficiency resulting from a minor informality or irregularity in a bid
or waive any such deficiency when it is to the advantage of the State.
Such communication or determination shall be in writing. Examples
of minor informalities or irregularities include, but are not limited to:
(a) failure of a bidder to return the number of copies of signed
bids required by the solicitation;
(b) failure of a bidder to furnish the required information
concerning the number of the bidder's employees or failure to make
a representation concerning its size;
(c) failure of a bidder to sign its bid, but only if the firm
submitting the bid has formally adopted or authorized the execution
of documents by typewritten, printed, or rubber stamped signature
and submits evidence of such authorization, and the bid carries such
a signature or the unsigned bid is accompanied by other material
indicating the bidder's intention to be bound by the unsigned
document, such as the submission of a bid guarantee with the bid or
a letter signed by the bidder with the bid referring to and identifying
the bid itself;
(d) failure of a bidder to acknowledge receipt of an
amendment to a solicitation, but only if:
(i) the bid received indicates in some way that the bidder
received the amendment, such as where the amendment added
another item to the solicitation and the bidder submitted a bid,
thereon, provided that the bidder states under oath that it received the
amendment prior to bidding and that the bidder will stand by its bid
price or,
(ii) the amendment has no effect on price or quantity
or merely a trivial or negligible effect on price,
quality, quantity, or delivery, or
and the relative standing of bidders is not
prejudicial to bidders, such as an amendment correcting a
typographical mistake in the name of the governmental body;
(e) failure of a bidder to furnish an affidavit concerning
affiliates;
(f) failure of a bidder to execute the certifications with respect
to Equal Opportunity and Affirmative Action Programs;
(g) failure of a bidder to furnish cut sheets or product
literature;
(h) failure of a bidder to furnish certificates of insurance;
(i) failure of a bidder to furnish financial statements;
(j) failure of a bidder to furnish references;
(k) failure of a bidder to furnish its bidder number; and
(l) notwithstanding Section 40-11-180, the failure of a bidder
to indicate his contractor's license number or other evidence of
licensure, provided that no contract shall be awarded to the bidder
unless and until the bidder is properly licensed under the laws of
South Carolina.
Section 11-35-1524. (A) As used in this section, unless the
context indicates otherwise, the terms below have the following
meanings:
(1) 'Made' means to assemble, fabricate, or process
component parts into a finished end-product the value of which
assembly, fabrication or processing is a significant portion of the
value of the finished end-product.
(2) 'Manufacture' means to make or process raw materials into
a finished end-product.
(3) 'Grown' means to produce, cultivate, raise or harvest,
timber, agricultural produce, or livestock, on the land, or to cultivate,
raise, catch, or harvest products or food from the water which results
in an end-product that is locally derived from the product cultivated,
raised, caught or harvested.
(4) 'End-product' means the item sought by the governmental
body of the State and described in the solicitation including all
component parts and in final form and ready for the use intended by
the governmental body.
(5) 'Unreasonable Cost' means:
(a) the cost of an item from a resident vendor or an
end-product made, manufactured or grown in South Carolina is
unreasonable if the bid exceeds by more than five percent the lowest
qualified bid on the same item or end-product which is made,
manufactured, or grown in other states of the United States, or in a
foreign country or territory;
(b) the cost of an end-product made, manufactured, or
grown in other states of the United States is unreasonable if the bid
exceeds by more than two percent the lowest qualified bid on the
same or similar end-product which is made, manufactured, or grown
in a foreign country or territory;
(6) 'Resident vendor' means a vendor who is considered to be
a resident of this State if the vendor:
(a) is an individual, partnership, association, or
corporation that is authorized to transact business within the State,
(b) maintains an office in the State,
(c) maintains an inventory for expendable items which are
representative of the general type of commodities on which the bid
is submitted and located in South Carolina at the time of the bid
having a total value of ten thousand dollars or more based on the bid
price, but not to exceed the amount of the contract, or is a
manufacturer which is headquartered and has at least a ten million
dollar payroll in South Carolina and the product is made or processed
from raw materials into a finished end product by such manufacturer
or an affiliate (as defined in Section 1563 of the Internal Revenue
Code) of such manufacturer, and
(d) has paid all assessed taxes.
(B) Application. Competitive procurements made by governmental
bodies shall be made from vendors resident to South Carolina or
vendors who bid end-products made, manufactured, or grown in
South Carolina or in the United States if available, provided that (1)
the bidder has certified in writing in the bid that he or she is resident
to the State, or (2) the bidder has certified in writing in the bid that
the end-product was made, manufactured, or grown in South Carolina
or in the United States, (3) the end-product is available, and (4) the
cost of the end-product is not unreasonable. In order to receive the
award the vendor must be a responsible and responsive bidder, and
the bid must otherwise comply with the Procurement Code and
Regulations.
In the case of a request for resident vendor status, this requirement
shall apply to the entire solicitation. In the case of a request for
end-product status, this requirement shall apply to each line item or
each lot in a solicitation to which a separate, responsive bid may be
made.
(C) Exceptions. This section shall not apply:
(1) to any procurements conducted under Article 9 of the code;
(2) to any prime contractor or subcontractor providing
materials or services relating to permanent improvements to real
estate;
(3) to any solicitation, bid, offer, or procurement when the
price of a single unit of the end-product is more than $10,000,
whether or not more than one unit is bid or offered;
(4) to any solicitation, bid, offer or procurement where the
contract award is less than $10,000; or
(5) to any solicitation conducted under Section 11-35-1530 of
the code.
(D) Enforcement. A bidder shall be suspended or debarred from
doing business with the State in accordance with Section 11-35-4220
of the South Carolina Consolidated Procurement Code if the chief
procurement officer determines that the certification made by the
bidder as to the resident vendor request or the origin of the
end-product was filed under false pretenses and is not valid. In
addition, if the bidder with the invalid certification of origin was
awarded the contract he shall also pay the State of South Carolina the
amount by which the bid based on the invalid certification exceeded
the lowest responsible and responsive bid that would have been
selected but for the invalid certification.
If a bidder has not requested the preference he will neither be
entitled to claim any preference against another bidder nor will he be
protected from application of another bidders' claim to a preference
against his bid in determining contract award.
Section 11-35-1525. (1) Conditions for Use. When
a purchasing agency determines in writing that the use of competitive
sealed bidding is either not practicable or not advantageous to the
State, a contract may be entered into by competitive fixed price
bidding subject to the provisions of Section 11-35-1520 and the
ensuing regulations, unless otherwise provided for in this section.
(2) Fixed Price Bidding. The purpose of fixed price bidding is to
provide multiple sources of supply for specific goods or services
based on a pre-set maximum price which the State will pay for such
goods or services.
(3) Public Notice. Adequate public notice of the solicitation
shall be given in the same manner as provided in Section
11-35-1520(3).
(4) Pricing. The State shall establish, prior to issuance of the fixed
price bid, a maximum amount the State will pay for the goods or
services desired.
(5) Evaluation. Vendors' responses to the fixed price bid will be
reviewed to determine if they are responsive and responsible.
(6) Discussion with Responsive Bidders. Discussions may be
conducted with apparent responsive bidders to assure understanding
of the requirements of the fixed price bid. All bidders, whose bids,
in the procuring agency's sole judgment, need clarification shall be
accorded such an opportunity.
(7) Award. Award must be made to all responsive and responsible
bidders to the state's request for competitive fixed price bidding. The
contract file shall contain the basis on which the award is made and
must be sufficient to satisfy external audit.
(8) Bids Received after Award. Bidders not responding to the
initial fixed price bid may be added to the awarded vendors' list
provided the bidder furnishes evidence of responsibility and
responsiveness to the state's original fixed price bid as authorized by
the solicitation.
(9) Remedies. The failure of a specific offeror to receive business,
once it has been added to the awarded vendors' list, shall not be
grounds for a contract controversy under Section 11-35-4230.
Section 11-35-1528. (1) Conditions for Use. When
a purchasing agency determines in writing that the use of competitive
sealed bidding is either not practicable or not advantageous to the
State, a contract may be entered into by competitive best value
bidding subject to the provisions of Section 11-35-1520 and the
ensuing regulations, unless otherwise provided for in this section.
(2) Best Value Bidding. The purpose of best value bidding is to
allow factors other than price to be considered in the determination
of award for specific goods or services based on pre-determined
criteria identified by the State.
(3) Public Notice. Adequate public notice of the request for the
solicitation shall be given in the same manner as provided in Section
11-35-1520(3).
(4) Bid Opening. At bid opening, the only information that will be
released is the names of the participating bidders. Cost information
will be provided after the ranking of bidders and the issuance of
award.
(5) Evaluation Factors. The best value bid shall state the factors
to be used in determination of award and the numerical weighting for
each factor. Cost must be a factor in determination of award and
cannot be weighted at less than sixty percent. Best value bid
evaluation factors may include, but are not limited to, any of the
following as determined by the purchasing agency in its sole
discretion and not subject to protest.
(a) operational costs that the State would incur if the bid is
accepted;
(b) quality of the product or service, or its technical
competency;
(c) reliability of delivery and implementation schedules;
(d) maximum facilitation of data exchange and systems
integration;
(e) warranties, guarantees, and return policy;
(f) vendor financial stability;
(g) consistency of the proposed solution with the state's
planning documents and announced strategic program direction;
(h) quality and effectiveness of business solution and
approach;
(i) industry and program experience;
(j) prior record of vendor performance;
(k) vendor expertise with engagement of similar scope and
complexity;
(l) extent and quality of the proposed participation and
acceptance by all user groups;
(m) proven development methodologies and tools; and
(n) innovative use of current technologies and quality results.
(6) Discussion with Responsive Bidders. Discussions may be
conducted with apparent responsive bidders to assure understanding
of the best value bid. All bidders, whose bids, in the procuring
agency's sole judgment, need clarification shall be accorded such an
opportunity.
(7) Selection and Ranking. Bids shall be evaluated by using only
the criteria stated in the best value bid and by adhering to the
weighting as assigned. All evaluation factors, other than cost, will be
considered prior to determining the effect of cost on the score for
each participating bidder. Once the evaluation is complete, all
responsive bidders shall be ranked from most advantageous to least
advantageous to the State, considering only the evaluation factors
stated in the best value bid.
(8) Award. Award must be made to the responsive and responsible
bidder whose bid is determined, in writing, to be most advantageous
to the State, taking into consideration all evaluation factors set forth
in the best value bid. The contract file shall contain the basis on
which the award is made and must be sufficient to satisfy external
audit.
Section 11-35-1530. (l) Conditions for Use. When the
chief procurement officer, or the head of a purchasing agency
determines in writing that the use of competitive sealed bidding is
either not practicable or not advantageous to the State, a contract may
be entered into by competitive sealed proposals subject to the
provisions of Section 11-35-1520 and the ensuing regulations, unless
otherwise provided for in this section. Subject to the requirements of
Section 11-35-3220, the board may provide by regulation that it is
either not practicable or not advantageous to the State to procure
specified types of supplies, services, or construction by competitive
sealed bidding. (2) Request for Proposal. Proposals shall
be solicited from at least three qualified sources, when such sources
are available, through a request for proposals.
(3)(2) Public Notice. Adequate public notice of
the request for proposals shall be given in the same manner as
provided in Section 11-35-1520(4) (3).
(4)(3) Receipt of Proposals. Proposals shall be
opened publicly in accordance with regulations of the board. A
tabulation of proposals shall be prepared in accordance with
regulations promulgated by the board and shall be open for public
inspection after contract award.
(5)(4) Request for Qualifications. Prior to
soliciting proposals, the procuring agency, acting through the
authorized procurement officer, may issue a request for qualifications
from prospective offerors. Such request shall contain at a minimum
a description of the goods or services to be solicited by the request
for proposals and the general scope of the work and shall state the
deadline for submission of information and how prospective offerors
may apply for consideration. The request shall require information
only on their qualifications, experience, and ability to perform the
requirements of the contract.
After receipt of the responses to the request for qualifications from
prospective offerors, the perspective offerors shall be ranked from
most qualified to least qualified on the basis of the information
provided. Proposals shall then be solicited from at least the top two
prospective offerors by means of a request for proposals. The failure
of a prospective offeror to be selected to receive the request for
proposals shall not be grounds for protest under Section 11-35-4210.
(6) Public Notice. Adequate public notice of the request for
qualifications shall be given in the manner provided in Section
11-35-1520(4).
(7)(5) Evaluation Factors. The request for
proposals shall state the relative importance of the factors to be
considered in evaluating proposals but shall not require a numerical
weighting for each factor. Price may but need not be an initial
evaluation factor.
(8)(6) Discussion with Responsive
Offerors. As provided in the request for proposals, discussions may
be conducted with apparent responsive offerors who
submit proposals for the purpose of clarification to assure full
understanding of the requirements of the request for proposals. All
offerors, whose proposals, in the procuring agency's sole judgment,
need clarification shall be accorded such an opportunity.
(9)(7) Selection and Ranking. Proposals shall be
evaluated using only the criteria stated in the request for proposals
and there must be adherence to any weightings that have been
previously assigned. Once evaluation is complete, all responsive
offerors shall be ranked from most advantageous to least
advantageous to the State, considering only the evaluation factors
stated in the request for proposals. If price is an initial evaluation
factor, award shall be made in accordance with Section
11-35-1530(10)(9) below.
If price is not an initial evaluation factor, negotiations shall be
conducted with the top ranked responsive offeror for performance of
the contract at a price which, in the sole opinion of the procuring
agency, is fair and reasonable to the State. Should the procurement
official representing the procurement agency be unable to negotiate
a contract at a price which, in the sole opinion of the procuring
agency, is fair and reasonable to the State, negotiations shall be
formally terminated with the top ranked responsive offeror and
negotiations commenced with the second most advantageous
responsive offeror, and then the third and so on until a satisfactory
contract has been negotiated. In conducting negotiations, there must
be no disclosure of any information derived from proposals submitted
by competing offerors.
(8) Negotiations. Whether price was an evaluation factor or
not, the procuring agency, through the appropriate procurement
official, may, in its sole discretion and not subject to challenge
through a protest filed under Section 11-35-4210, proceed in any of
the manners indicated below:
(a) negotiate price with the highest ranked offeror. If a
satisfactory price cannot be agreed upon, price negotiations may be
conducted, in the sole discretion of the procuring agency, with the
second, and then the third, and so on, ranked offerors to such level of
ranking as determined by the procuring agency in its sole discretion;
or
(b) negotiate with the highest ranking offeror on matters
affecting the scope of the contract, so long as the overall nature and
intent of the contract is not changed. If a satisfactory contract cannot
be negotiated with the highest ranking offeror, negotiations may be
conducted, in the sole discretion of the procuring agency, with the
second, and then the third, and so on, ranked offerors to such level of
ranking as determined by the procuring agency in its sole discretion;
or
(c) during the negotiation process as outlined in subsections
(a) and (b) above, if an agency is unsuccessful in its first round of
negotiations, it may reopen negotiations with any offeror with whom
it previously negotiated.
(d) If, after following the procedures set forth in Section
11-35-1530(8), a contract is not able to be negotiated, the scope of
the request for proposals may be changed in an effort to reduce the
cost to a fair and reasonable amount, and all responsive offerors must
be allowed to submit their best and final offers.
In conducting negotiations, there must be no disclosure of any
confidential information derived from proposals and negotiations
submitted by competing offerors.
(10)(9) Award. Award must be made to the
responsive offeror whose proposal is determined in writing to be the
most advantageous to the State, taking into consideration price and
the evaluation factors set forth in the request for proposals, unless the
procuring agency determines to utilize one of the options provided in
Section 11-35-1530(8) (11). The contract file shall
contain the basis on which the award is made and must be sufficient
to satisfy external audit. Procedures and requirements for the
notification of intent to award the contract shall be the same as those
stated in Section 11-35-1520(10).
(11) Other. If, after following the procedures set forth in
Section 11-35-1530(9), a contract is not able to be negotiated, the
scope of the request for proposals may be changed in an effort to
reduce the cost of to a fair and reasonable amount, and all responsive
offerors must be allowed to submit their best and final offers.
Where price was an initial evaluation factor, the procuring agency,
through the appropriate procurement official, may, in its sole
discretion and not subject to challenge through a protest filed under
Section 11-35-4210, proceed in any of the manners indicated below:
(1) negotiate price with the highest scoring offeror. If a
satisfactory price cannot be agreed upon, price negotiations may be
conducted, in the sole discretion of the procuring agency, with the
second, and then the third, and so on, ranked offerors to such level of
ranking as determined by the procuring agency in its sole discretion;
or
(2) negotiate with the highest ranking offeror on matters
affecting the scope of the contract, so long as the overall nature and
intent of the contract is not changed. If a satisfactory contract cannot
be negotiated with the highest ranking offeror, negotiations may be
conducted, in the sole discretion of the procuring agency, with the
second, and then the third, and so on, ranked offerors to such level of
ranking as determined by the procuring agency in its sole discretion;
or
(3) change the scope of the request for proposals and give all
responsive offerors an opportunity to submit best and final offers.
If the agency chooses any of these options, and is still unable to
award a contract, it may repeat any of the procedures outlined herein
until a proposed contract is successfully achieved.
Section 11-35-1540. When bids received pursuant to an
invitation for bids under Section 11-35-1520 are considered
unreasonable by the procuring agency, or are not
independently reached in open competition, or the low bid exceeds
available funds as certified by the appropriate fiscal officer, and it is
determined in writing by the chief procurement officer, the head of
a purchasing agency, or the designee of either officer above the level
of procurement officer, that time or other circumstances will not
permit the delay required to resolicit competitive sealed bids, a
contract may be negotiated pursuant to this section, provided that:
(l) each responsible bidder who submitted a bid under the original
solicitation is notified of the determination and is given reasonable
opportunity to negotiate;
(2) the negotiated price is lower than the lowest rejected bid by any
responsible and responsive bidder under the original solicitation;
(3) the negotiated price is the lowest negotiated price offered by
any responsible and responsive offeror.
Section 11-35-1550. (A) Authority. (1) The
following small purchase procedures may be utilized in conducting
procurements for governmental bodies that are less than twenty-five
thousand dollars in actual or potential value. An agency may conduct
its own procurement under five thousand dollars in actual or potential
value, and an agency that has received procurement certification
pursuant to Section 11-35-1210 to handle the type and estimated
value of the procurement may conduct the procurement under its own
authority in accordance with the procedures prescribed in this
section; however, procurement requirements must not be artificially
divided by governmental bodies so as to constitute a small purchase
under this section.
(B)(1)(2) Competition and Price Reasonableness. (a)
Purchases Not in Excess of one thousand five hundred dollars.
Small purchases not exceeding one thousand five hundred dollars
may be accomplished without securing competitive quotations if the
prices are considered to be reasonable. The purchasing office shall
annotate the purchase requisition: 'Price is fair and reasonable' and
sign. The purchases must be distributed equitably among qualified
suppliers. When practical, a quotation must be solicited from other
than the previous supplier before placing a repeat order. The
administrative cost of verifying the reasonableness of the price of
purchase 'not in excess of' may more than offset potential savings in
detecting instances of overpricing. Action to verify the
reasonableness of the price need be taken only when the procurement
officer of the governmental body suspects that the price may not be
reasonable, comparison to previous price paid, or personal
knowledge of the item involved.
(2)(b) Purchases from one thousand five hundred
one dollars to five thousand dollars. Solicitations of verbal or written
quotes from a minimum of three qualified sources of supply must be
made and documentation of the quotes attached to the purchase
requisition. The award shall be made to the lowest responsive and
responsible source.
(3)(c) Purchases from five thousand one dollars
to ten thousand dollars. Solicitation of written quotes from a
minimum of three qualified sources of supply must be made and
documentation of the quotes attached to the purchase requisition. The
award must be made to the lowest responsive and responsible
sources.
(4)(d) Purchases from ten thousand one dollars
to twenty-five thousand dollars. Written solicitation of written
quotes, bids, or proposals from a minimum of five
qualified sources of supply shall be made. The procurement must
be advertised at least once in the South Carolina Business
Opportunities publication or through a means of central
electronic advertising as approved by the Office of General
Services. A copy of the written solicitation and written quotes
must be attached to the purchase requisition. The award shall be
made to the lowest responsive and responsible source or, when
a request for proposal process is used, the highest ranking offeror.
(C)(3) Protest rights. The provisions of Section
11-35-4210 do not apply to contracts awarded under the procedures
set forth in this section.
(D)(4) All competitive procurements above
twenty-five thousand dollars must be advertised at least once in the
'South Carolina Business Opportunities' publication or through
a means of central electronic advertising as approved by the Office
of General Services. Governmental bodies may charge vendors
the cost incurred for copying and mailing bid or proposal documents
requested in response to a procurement advertised in the 'South
Carolina Business Opportunities' publication. (Effective
January 1, 1994)
Section 11-35-1560. A contract may be awarded for a supply,
service, or construction item without competition when, under
regulations promulgated by the board, the chief procurement officer,
the head of a purchasing agency, or a designee of either officer,
above the level of the procurement officer, determines in writing that
there is only one source for the required supply, service, or
construction item.
These regulations must include the requirements contained in this
paragraph. Written documentation must include the determination
and basis for the proposed sole source procurement. Any delegation
of authority by either the chief procurement officer or the head of a
governmental body with respect to sole source determinations must
be submitted in writing to the materials management officer. In cases
of reasonable doubt, competition must be solicited. Any decision by
a governmental body that a procurement be restricted to one potential
vendor must be accompanied by an explanation as to why no other
will be suitable or acceptable to meet the need.
Any violation of these regulations by a purchasing agency shall,
upon recommendation of the Division Office of
General Services with approval of the majority of the Budget and
Control Board, result in the temporary suspension not to exceed one
year of the violating agency's ability to procure supplies, services, or
construction items under this section.
Section 11-35-1570. Notwithstanding any other provision of
this code, the chief procurement officer, the head of a purchasing
agency, or a designee of either officer may make or authorize others
to make emergency procurements only when there exists an
immediate threat to public health, welfare, critical economy and
efficiency, or safety under emergency conditions as defined in
regulations promulgated by the board; and provided, that such
emergency procurements shall be made with as much competition as
is practicable under the circumstances. A written determination of the
basis for the emergency and for the selection of the particular
contractor shall be included in the contract file.
Section 11-35-1575. A governmental body having
knowledge of an auction may elect to participate. The governmental
body shall (a) survey the needed items being offered at auction to
ascertain their condition and usefulness, (b) determine a fair market
value for new like items through informal quotes, (c) determine the
fair market value from similar items considering age and useful life,
and (d) estimated repair cost and delivery cost, if any, of the desired
items. Using this information, the governmental body shall
determine the maximum price that it can pay for each item desired.
At the auction, the governmental body shall not exceed the maximum
price so determined.
Section 11-35-1580. (l) Information Technology Management
Office. The Information Technology Management Office shall be
responsible for:
(a) assessing the need for and use of information technology;
(b) administering all procurement and contracting activities
undertaken for governmental bodies involving information
technology in accordance with this chapter;
(c) providing for the disposal of all information technology
property surplus to the needs of a using agency;
(d) evaluating the use and management of information
technology;
(e) operating a comprehensive inventory and accounting
reporting system for information technology;
(f) developing policies and standards for the management of
information technology in state government;
(g) initiating a state plan for the management and use of
information technology;
(h) providing management and technical assistance to state
agencies in using information technology; and
(i) establishing a referral service for state agencies seeking
technical assistance or information technology services.
(2) Exemptions from the Requirements of this section. The office
may establish by regulation categories of procurement for
information technology which shall be exempted from the
requirements of this section.
(3) Training and Certification. The office may establish a training
and certification program in accordance with Section 11-35-1030.
(4) Requirements for Publications. All invitations to compete
for information technology procurements shall be formally advertised
in an official state government publication. The manner in which this
official state government publication shall be published, the content
of the publication itself, the frequency of the publication, the method
for subscription to the publication; and the manner by which the
publication will be distributed shall be established by regulation of
the board.
Section 11-35-1590. (l) Designation of Board as
Single Central Broker. The board is hereby designated as the single
central broker for the leasing of real property for governmental
bodies. No governmental body shall enter into any lease agreement
or renew any existing lease except in accordance with the provisions
of this Section.
(2) Notification as to Need When State-Owned Property if
Unavailable. When any governmental body needs to acquire real
property for its operations or any part thereof and state-owned
property is not available, it shall notify the Division of General
Services of its requirement on rental request forms prepared by the
division. Such forms shall indicate the amount and location of space
desired, the purpose for which it shall be used, the proposed date of
occupancy and such other information as the division may require.
Upon receipt of any such request, the division shall conduct an
investigation of available rental space which would adequately meet
the governmental body's requirements, including specific locations
which may be suggested and preferred by the governmental body
concerned. When suitable space has been located which the
governmental body and the division agree meets necessary
requirements and standards for state leasing as prescribed in
regulations of the board as provided for in subsection (3) of this
Section, the division shall give its written approval to the
governmental body to enter into a lease agreement. In the event the
governmental body and the division fail to reach agreement with
regard to the appropriate property for leasing, the controversy shall
be referred to the board which shall make a final determination on the
matter. All proposed lease renewals shall be submitted to the division
by the time specified by the division.
(3) Promulgation of Regulations. The board shall promulgate
regulations to implement the provisions of this Section which shall
include:
(a) Procedures for governmental bodies to apply for rental
space.
(b) Flexible cost standards for rental space.
(c) Procedures for competitive bidding where feasible.
Section 11-35-1600. The State Budget and Control Board,
in an effort to ensure that funds authorized and appropriated for rent
are used in the most efficient manner, is directed to develop a
program to manage the leasing of all public and private space of state
agencies. In accordance with Section 11-35-1590, the boards
regulations, upon General Assembly approval, shall include
procedures for:
(1) assessing and evaluating agency needs, including the authority
to require agency justification for any request to lease public or
private space;
(2) establishing standards for the quality and quantity of space to
be leased by a requesting agency;
(3) devising and requiring the use of a standard lease form
(approved by the Attorney General) with provisions which assert and
protect the state's prerogatives including, but not limited to, a right
of cancellation in the event of:
(a) a nonappropriation for the renting agency,
(b) a dissolution of the agency, and
(c) the availability of public space in substitution for private
space being leased by the agency;
(4) rejecting an agency's request for additional space or space at
a specific location, or both;
(5) directing agencies to be located in public space, when
available, before private space can be leased;
(6) requiring the agency to submit a multi-year financial plan for
review by the board's budget office with copies sent to Ways and
Means Committee and Senate Finance Committee, before any new
lease for space is entered into; and
(7) requiring prior review by the Joint Bond Review Committee
and the requirement of Budget and Control Board approval before the
adoption of any new lease that commits more than one million dollars
in a five-year period.
Subarticle 5
Cancellation of Invitations for Bids or Requests for
Proposals
Solicitations
Section 11-35-1710. Any An invitation for bids, a
request for proposals, or other solicitation under this
code may be cancelled, or any or all bids or proposals may be
rejected in whole or part as may be specified in the solicitation, when
it is in the best interest of the State. The reasons for rejection,
supported with documentation sufficient to satisfy external audit,
shall be made a part of the contract file.
Subarticle 7
Responsibility of Bidders and Offerors
Section 11-35-1810. (l) Determination of Responsibility.
Responsibility of the bidder or offeror shall be ascertained for each
contract let by the State based upon full disclosure to the procurement
officer concerning capacity to meet the terms of the contracts and
based upon past record of performance for similar contracts. The
board shall be by regulation establish standards of
responsibility that shall be enforced in all state contracts.
(2) Determination of Nonresponsibility. A written determination
of nonresponsibility of a bidder or offeror shall be made in
accordance with regulations promulgated by the board. The
unreasonable failure of a bidder or offeror to supply information
promptly in connection with an inquiry with respect to responsibility
may be grounds for a determination of nonresponsibility with respect
to such bidder or offeror.
(3) Right of Nondisclosure. Except as otherwise provided by law,
information furnished by a bidder or offeror pursuant to this section
shall not be disclosed outside of the offices of the board, the Office
of the Attorney General, or the purchasing agency without prior
written consent by the bidder or offeror.
Section 11-35-1820. The board shall be authorized to provide
by regulation for prequalification of suppliers or supplies.
Section 11-35-1825. The state engineer's office shall develop
a procedure and a list of criteria for pre-qualifying construction
bidders. The criteria shall include, but not be limited to, prior
performance, recent past references on all aspects of performance,
financial stability, and experience on similar construction projects. A
governmental body may use the pre-qualification process only for
projects where the construction involved is unique in nature or
over ten million dollars in value as determined by and
subject to the approval of the state engineer's office. All
prequalification projects shall be and under the
supervision of the state engineer's office, unless the project falls
within the governmental body's procurement certification limits.
When the prequalification process is employed, only those bidders
who are prequalified through this procedure are entitled to submit a
bid for the project. The determination of which bidders are
prequalified, and thereby entitled to bid, is not protestable under
Section 11-35-4210 or any other provision of this code.
Section 11-35-1830. (l) Contractor Certification. A contractor
shall, except as provided in subsection (3) of this section, submit cost
or pricing data and shall certify that, to the best of his knowledge and
belief, the cost or pricing data submitted is accurate, complete, and
current as of mutually determined specified date prior to the date of:
(a) the pricing of any contract awarded by competitive sealed
proposals pursuant to Section 11-35-1530 or pursuant to the sole
source procurement authority as provided in Section 11-35-1560
where the total contract price exceeds an amount established by the
board in regulations; or
(b) the pricing of any change order or contract modification
which exceeds an amount established by the board in regulations.
(2) Price Adjustment. Any contract, change order or contract
modification under which a certificate is required shall contain a
provision that the price to the State, including profit or fee, shall be
adjusted to exclude any significant sums by which the State finds that
such price was increased because the contractor furnished cost or
pricing data was inaccurate, incomplete, or not current as of
the date agreed upon between parties.
(3) Cost or Pricing Data Not Required. The requirements of this
section shall not apply to contracts:
(a) where the contract price is based on adequate price
competition;
(b) where the contract price is based on established catalog
prices or market prices;
(c) where contract prices are set by law or regulations; or
(d) where it is determined in writing in accordance with
regulations promulgated by the board that the requirements of this
section may be waived and the reasons for such waiver are stated in
writing.
Subarticle 9
Types and Forms of Contracts
Section 11-35-2010. (l) Types of Contracts. Subject to the
limitations of this section, any type of contract which will promote
the best interests of the State may be used, except that the use of a
cost-plus-a-percentage-of-cost contract shall be approved by the
board Office of General Services. A cost-reimbursement
contract, including a cost-plus-a-percentage-of-cost contract, shall be
used only when a determination sufficient for external audit is
prepared showing that such contract is likely to be less costly to the
State than any other type or that it is impracticable to obtain the
supplies, services or construction required except under such a
contract.
(2) Contract forms. The board shall promulgate by regulation the
form of the contracts to be used in connection with state purchasing
and construction. The forms as shall be developed for Article 9 of
this chapter shall be printed as a part of those regulations. A
governmental body may enter into a contract or agreement without
using the form promulgated pursuant to the board's regulation when
the contract or agreement is for the rental of equipment valued at ten
thousand dollars or less and the duration of the contract or agreement
does not exceed ninety days.
Section 11-35-2020. The chief procurement officer, the head of
a purchasing agency, or a designee of either officer may
require that:
(l) the proposed contractor's accounting system shall permit
timely development of all necessary cost data in the form required by
the specific contract type contemplated;
(2) the proposed contractor's accounting system is adequate to
allocate costs in accordance with generally accepted accounting
principles.
Section 11-35-2030. (l) Specified Period. Unless otherwise
provided by law, a contract for supplies or services shall not be
entered into for any period of more than one year unless approved in
a manner prescribed by regulation of the board; provided, that the
term of the contract and conditions of renewal or extension, if any,
are included in the solicitation and funds are available for the first
fiscal period at the time of contracting. Payment and performance
obligations for succeeding fiscal periods shall be subject to the
availability and appropriation of funds therefor.
(2) Determination Prior to Use. Prior to the utilization of a
multi-term contract, it shall be determined in writing by the
appropriate governmental body:
(a) that estimated requirements cover the period of the contract
and are reasonably firm and continuing;
(b) that such a contract will serve the best interests of the State
by encouraging effective competition or otherwise promoting
economies in state procurement.
(3) Cancellation Due to Unavailability of Funds in Succeeding
Fiscal Periods. When funds are not appropriated or otherwise made
available to support continuation of performance in a subsequent
fiscal period, the contract shall be canceled.
(4) The maximum time for any multi-term contract is five
years. Contract terms of up to seven years may be approved by the
Director of the Office of General Services. Contracts exceeding
seven years must be approved by the Budget and Control Board.
Section 11-35-2040. Any contract entered into prior to July
30, 1981, by a governmental body as defined in Item (18) of Section
11-35-310 of the 1976 Code and which is proposed to be renewed
must be renewed in accordance with the provisions of the South
Carolina Consolidated Procurement Code (Chapter 35 of Title 11 of
the 1976 Code).
Subarticle 11
Inspection of Plant and Audit of Records
Section 11-35-2210. The Division Office of
General Services shall be authorized, at reasonable times, to inspect
the part of the plant or place of business of a contractor or any
subcontractor which is related to the performance of any contract
awarded or to be awarded by the State.
Section 11-35-2220. (l) Audit of Cost or Pricing Data. All
state contracts shall contain a clause setting forth the state's right at
reasonable times and places to audit the books and records of any
contractor or subcontractor who has submitted cost or pricing data
pursuant to Section 11-35-1830 to the extent that such books and
records relate to such cost or pricing data. The contract shall further
set forth that the contractor or subcontractor who receives a contract,
change order, or contract modification for which cost or pricing data
is required, shall maintain such books and records that relate to such
cost or pricing data for three years from the date of final payment
under the contract, unless a shorter period is otherwise authorized in
writing by the chief procurement officer; provided, however, that
such records shall be retained for additional periods of time beyond
this three-year period upon request of the chief procurement officer.
(2) Contract Audit. The State shall be entitled to audit the books
and records of a contractor or any subcontractor under any negotiated
contract or subcontract other than a firm fixed price contract to the
extent that such books and records relate to the performance of such
contract or subcontract. Such books and records shall be maintained
by the contractor for a period of three years from the date of final
payment under the prime contract and by the subcontractor for a
period of three years from the date of final payment under the
subcontract, unless a shorter period is otherwise authorized in writing
by the chief procurement officer.
Subarticle 13
Determinations and Reports
Section 11-35-2410. The determinations required by Section
11-35-1520(8)(7) (Competitive Sealed Bidding:
Correction or Withdrawal of Bids; Cancellation of Awards),
Section 11-35-1520(11) (Competitive Sealed Bidding: Request
for Qualifications), Section 11-35-1525(1) (Competitive Fixed Price
Bidding: Conditions for Use), Section 11-35-1528(1) (Competitive
Best Value Bidding: Conditions for Use), Section 11-35-1528(8)
(Competitive Best Value Bidding; Award), Section
11-35-1530(1) (Competitive Sealed Proposals, Conditions for Use),
Section 11-35-1530(4) (Competitive Sealed Proposals: Request
for Qualifications), Section 11-35-1530(8) (Competitive Sealed
Proposals: Negotiations), Section 11-35-1530(9) (Competitive
Sealed Proposals, Selection and Ranking of Prospective Offerors),
Section 11-35-1530(10) (Competitive Sealed Proposals Award),
Section 11-35-1540 (Negotiations After Unsuccessful Competitive
Sealed Bidding), Section 11-35-1560 (Sole Source Procurement),
Section 11-35-1570 (Emergency Procurement), Section
11-35-1810(2) (Responsibility of Bidders and Offerors,
Determination of Nonresponsibility), Section 11-35-1825
(Prequalification of Construction Bidders), Section
11-35-1830(3) (Cost or Pricing Data, Cost or Pricing Data Not
Required), Section 11-35-2010 (Types and Forms of Contracts),
Section 11-35-2020 (Approval of Accounting System), Section
11-35-2030(2) (Multi-Term Contracts, Determination Prior to Use),
Section 11-35-3220(5) (Procurement Procedure, Selection and
Ranking of the Five Most Qualified), and Section 11-35-4210(7)
(Stay of Procurement During Protests. Decision to Proceed) shall be
final and conclusive unless they are clearly erroneous, arbitrary,
capricious, or contrary to law. The chief procurement officers or
their designees shall review samples of such determinations
periodically, and issue reports and recommendations on the
appropriateness of the determinations made.
Section 11-35-2420. When any information or allegations
concerning anticompetitive practices among any bidders or offerors,
come to the attention of any employee of the State, immediate notice
of the relevant facts shall be transmitted to the Attorney General.
Section 11-35-2430. All procurement records of governmental
bodies shall be retained and disposed of in accordance with records
retention guidelines and schedules approved by the Department of
Archives and History after consultation with the Attorney General.
All retained documents shall be made available to the Attorney
General or a designee upon request and proper receipt therefor.
Section 11-35-2440. (l) Contents of Records. Any
governmental body as defined in Section 11-35-310(18) shall submit
quarterly a record listing all contracts made under Section
11-35-1560 (Sole Source Procurement) or Section 11-35-1570
(Emergency Procurements) to the chief procurement officers. The
record shall contain:
(a) each contractor's name;
(b) the amount and type of each contract;
(c) a listing of supplies, services, or construction
procured under each contract.
The chief procurement officers shall maintain these records for five
years.
(2) Publication of Records. A copy of the record shall be
submitted to the board on an annual basis and shall be available for
public inspection.
Article 7
Specifications
Subarticle 1
Definitions
Section 11-35-2610. As used in this article, the term
'specifications' means any technical or purchase description or other
description of the physical or functional characteristics, or of the
nature of a supply, service, or construction item. It may also
include a description of any requirement for inspecting,
testing, or preparing a supply, service, or
construction item for delivery.
Subarticle 3
Specifications
Section 11-35-2710. The board shall promulgate regulations
governing the preparation, maintenance, and content of
specifications for supplies, services, and construction
required by the State.
Section 11-35-2720. The chief procurement officers shall
prepare or review, issue, revise, and maintain the
specifications for supplies, services, and construction
required by the State, except for supplies, services, and
construction items procured by the governmental bodies pursuant to
Sections 11-35-1550, 11-35-1570, and 11-35-3230, the specification
for which shall be prepared and maintained by the using agencies in
accordance with the provisions of this article and regulations
promulgated hereunder and monitored periodically by the chief
procurement officers.
Section 11-35-2730. All specifications shall be drafted so as to
assure cost effective procurement of the state's actual needs and shall
not be unduly restrictive.
Section 11-35-2740. The chief procurement officers shall obtain
advice and assistance from the personnel of the using agencies in the
development of specifications, whether through user committees or
through the advisory committees, and may delegate in writing to a
using agency the authority to prepare and utilize its own
specifications. Specifications shall be drawn in such a manner as to
insure ensure maximally cost effective procurement,
consistent with regulations promulgated by the board.
Section 11-35-2750. The requirements of this article regarding
the nonrestrictiveness of specifications apply to each solicitation and
include, among other things, all specifications prepared by architects,
engineers, designers, draftsmen, and land surveyors for state
contracts.
Article 9
Construction, Architect-Engineer, Construction
Management,
and Land Surveying Services
Subarticle 1
Definitions
Section 11-35-2910. (l) 'Architect-engineer and land surveying
services' are those professional services associated with the practice
of architecture, professional engineering, land surveying, landscape
architecture, and interior design pertaining to construction,
as defined by the laws of this State, as well as incidental services that
members of these professions and those in their employ may logically
or justifiably perform, including studies, investigations, surveys,
evaluations, consultations, planning, programming conceptual
designs, plans and specifications, cost estimates, inspections, shop
drawing reviews, sample recommendations, preparation of operating
and maintenance manuals, and other related services.
(2) 'Construction' means the process of building, altering,
repairing, remodeling, improving, or demolishing any public
structure or building or other public improvements of any kind to any
public real property. It does not include the routine operation, routine
repair, or routine maintenance of existing structures, buildings, or real
property.
(3) 'Construction management services' are those professional
services associated with a system in which the using agency directly
contracts with a professional construction manager to provide that
group of management activities required to plan, schedule,
coordinate, and manage the design and construction plan of
a state project in a manner that contributes to the control of time, cost,
and quality of construction as specified in the construction
management contract.
Subarticle 3
Method of Construction Contracting Administration
Construction Services
Section 11-35-3010. (l) Selection of Method. The method of
construction contracting administration used for a state construction
project by a using agency shall be determined to be that method
which is most advantageous to the State and will result in the most
timely, economical, and successful completion of the construction
project. The using agency shall select in accordance with regulations
of the board the appropriate method of construction contracting
administration for a particular project and shall state in writing the
facts and considerations which led to the selection of that particular
method.
(2) State Engineer's Office Review. The using agency shall
submit its written report stating the facts and considerations which
led to the selection of the particular method of construction
contracting administration to the state engineer's office for its review.
(3) Approval or Disagreement by State Engineer's Office. The
state engineer's office shall have ten days to review the data
submitted by the using agency to determine its position with respect
to the particular method of construction contracting administration
recommended for approval by the using agency, and to notify the
using agency of its decision in writing. If the state engineer's office
disagrees with the method selected, it may contest such by submitting
the matter to the board for decision. Written notification by the state
engineer's office to the using agency of its intention to contest the
method selected shall include the reasons therefor. The board shall
hear any such contests at its next regularly scheduled meeting
subsequent to notification of the using agency. If the board rules in
support of the state engineer's office position, the using agency shall
receive written notification of the decision. If the board rules in
support of the using agency, the using agency shall be notified in
writing and thereby be authorized to use that method of construction
contracting administration as previously recommended by the using
agency on the particular construction project.
Section 11-35-3020. (l) Source Selection. All state
construction contracts shall be awarded by competitive sealed
bidding pursuant to the procedures set forth in Section 11-35-1520
subject to the exceptions enumerated in subsection (2) of this section
and except as provided in Sections 11-35-1550, 11-35-1560, and
11-35-1570. Competitive sealed proposals as provided in Section
11-35-1530 and multi-step sealed bidding as provided in Section
11-35-1520(11) shall not be used, except in such cases and in
accordance with criteria as may be authorized and prescribed by
regulation of the board.
(2) Exceptions in Competitive Sealed Bidding Procedures. The
process of competitive sealed bidding as required by subsection (l) of
this section shall be performed in accordance with the procedures
outlined in Article 5 of this code subject to the following exceptions:
(a) Invitation for Bids. In lieu of Section 11-35-1520(2),
Section 11-35-1520(3) and Section 11-35-1520(4), invitations for
bids for each state construction project subject to subsection (l) of
this section shall be made in the following manner. Each using
agency shall be responsible for developing a formal invitation for
bids for each state construction project subject to subsection (l) of
this section. The invitation shall include, but not be limited to, all
contractual terms and conditions applicable to the procurement. A
copy of each invitation for bids shall be filed with the state engineer's
office and shall be formally advertised in an official state government
publication. The manner in which this official state government
publication shall be published, the content of the publication itself,
the frequency of the publication, the method of subscription to the
publication, and the manner by which the publication will be
distributed shall be established by regulation of the board.
(b) Bid Acceptance. In lieu of Section 11-35-1520(7), the
following provision applies. Bids must be accepted unconditionally
without alteration or correction, except as otherwise authorized in this
code. The using agency's invitation for bids shall set forth all
requirements of the bid, including, but not limited to:
(i) The using agency, in consultation with the
architect-engineer assigned to the project, shall identify by specialty
in the invitation for bids all subcontractors, as defined by applicable
documents of the American Institute of Architects, who are expected
to perform work or render service to for the prime
contractor to or about the construction when those subcontractors'
contracts are each expected to exceed three percent of the prime
contractor's total base bid. In addition, the using agency, in
consultation with the architect-engineer assigned to the project, may
identify by specialty in the invitation for bids any subcontractors who
are expected to perform work which is vital to the project. The
determination of which subcontractors are included in the list
provided in the invitation for bids is not protestable under Section
11-35-4210 or any other provision of this code. Any bidder in
response to an invitation for bids shall set forth in his bid the name of
each subcontractor so only those subcontractors that will
perform the work as identified in the invitation for bids. If the
bidder determines to use his own employees to perform any portion
of the work for which he would otherwise be required to list a
subcontractor and if the bidder is qualified to perform such work
under the terms of the invitation for bids, the bidder shall list himself
in the appropriate place in his bid and not subcontract any of that
work except with the approval of the using agency for good cause
shown.
(ii) Failure to complete the list provided in the invitation
for bids renders the bidder's bid unresponsive.
(iii) No prime contractor whose bid is accepted shall
substitute any person as subcontractor in place of the subcontractor
listed in the original bid, except for one or more of the following
reasons:
(a) upon a showing satisfactory to the using
agency by the contractor that a subcontractor who was listed is not
financially responsible;
(b) upon a showing satisfactory to the using
agency by the contractor that the scope of work bid by a listed
subcontractor did not include a portion of the work required in the
plans and specifications, and the exclusion is not clearly set forth in
the listed subcontractor's original bid;
(c) upon a showing satisfactory to the using
agency made by the contractor within four working days of the bid
opening that the subcontractor was listed as a result of an inadvertent
clerical error;
(d) upon a showing satisfactory to the using
agency by the contractor that the listed subcontractor failed or refused
to submit a performance and payment bond when requested by the
prime contractor after the subcontractor had represented to the prime
contractor that he could obtain a performance and payment bond;
(e) upon a showing satisfactory to the using
agency by the contractor that the listed subcontractor is required to
be licensed and does not have the license by the time it is required by
law;
(f) when the listed subcontractor fails or refuses
to perform his subcontract;
(g) when the work of the listed subcontractor is
found by the using agency to be substantially unsatisfactory;
(h) upon mutual agreement of the contractor and
subcontractor;
(i) with the consent of the using agency for good
cause shown.
The request for substitution must be made to the using agency in
writing. This written request does not give rise to any private right of
action against the prime contractor in the absence of actual malice.
(iv) Where substitution is allowed, the prime contractor,
before obtaining prices from any other subcontractor, must attempt
in good faith to negotiate a subcontract with at least one
subcontractor whose bid was received prior to the submission of the
prime contractor's bid. Nothing in this section affects a contractor's
ability to request withdrawal of a bid in accordance with the
provisions if of this code and the regulations
promulgated under it.
(v) The using agency shall send all responsive bidders a
copy of the bid tabulation within ten working days following the bid
opening.
(c) In lieu of Section 11-35-1520(10) the following provisions
apply. Unless there is a compelling reason to reject bids as prescribed
by regulation of the board, notice of an intended award of a contract
to the lowest responsive and responsible bidder whose bid meets the
requirements set forth in the invitation for bids shall be given by
posting such notice at a location which has been specified in the
invitation for bids. The invitation for bids and the posted notice must
contain a statement of the bidder's right to protest under Section
11-35-4210(1) and the date and location of posting must be
announced at bid opening. In addition to posting notice as provided
above, the using agency shall promptly send all responsive bidders
a copy of the notice of intended award and of the bid tabulation. Such
mailed notice must indicate the posting date and must contain a
statement of the bidder's right to protest under Section
11-35-4210(1).
Sixteen days after notice is given the agency may enter into a
contract with the bidder named in the notice in accordance with the
provisions of this code and of the bid solicited. A determination of
responsibility must be made before award in accordance with Section
11-35-1810.
If, at bid opening, only one bid is received and determined to
be responsive and responsible and within the agency's construction
budget, award may be made without the sixteen-day waiting
period.
(d) Negotiations After Unsuccessful Competitive Sealed
Bidding. In lieu of Section 11-35-1540, the following provisions
apply:
(1) When bids received pursuant to an invitation for
bids exceed available funds or were not independently reached in
open competition and it is determined in writing by the chief
procurement officer or his designee that time or other circumstances
will not permit the delay required to resolicit competitive sealed bids,
a contract may be negotiated pursuant to this section with the lowest
responsible and responsive bidder, provided that the lowest base bid
does not exceed available funds by an amount greater than five
percent of the construction budget established for that portion of the
work. The using agency may change the scope of the work to reduce
the cost to be within the established construction budget.
When bids received pursuant to an invitation for bids exceed
available funds and it is determined in writing by the agency that
circumstances will not permit the delay required to resolicit
competitive sealed bids, a contract may be negotiated pursuant to this
section with the lowest responsible and responsive bidder, provided
that this base bid, less any deductive alternates, does not exceed
available funds by an amount greater than five percent of the
construction budget established for that portion of the work. The
using agency may change the scope of the work to reduce the cost to
be within the established construction budget but shall not reduce the
cost below the established construction budget more than ten percent
without a written request by the agency and the written approval of
the chief procurement officer based on the best interest of the
State.
(2) When the lowest base bid received pursuant to an
invitation for bids exceeds approved available funds and the using
agency is able to identify additional funds for the project, as certified
by the appropriate fiscal officers, in the amount of the difference
between the lowest base bid and the approved available funds for the
project, the using agency shall submit its request to use such
additional funds to the board and the Joint Bond Review Committee
in accordance with Sections 3A and 3B of Act 761 of 1976 which
were added pursuant to Sections 2-47-40, and 2-47-50.
Section 11-35-3025. Each agency of state government shall be
allowed to approve and pay for amendments to
architectural/engineering contracts and change orders to construction
contracts, within agency certification, which do not alter the original
scope or intent of the project, and which do not exceed the previously
approved project budget.
Section 11-35-3030. (l) Bid Security. (a) Requirement for Bid
Security. Bid security is required for all competitive sealed bidding
for construction contracts in excess of one hundred thousand dollars
and such other contracts as may be prescribed by the state engineer's
office. Bid security is a bond provided by a surety company meeting
the criteria established by the regulations of the board or otherwise
supplied in a form which may be established by regulation of the
board.
(b) Amount of Bid Security. Bid security shall be in an
amount equal to at least five percent of the amount of the bid at a
minimum.
(c) Rejection of Bids for Noncompliance with Bid Security
Requirements. When the invitation for bids requires security,
noncompliance requires that the bid be rejected except that a bidder
who fails to provide bid security in the proper amount or a bid bond
with the proper rating shall be given one working day from bid
opening to cure such deficiencies. If the bidder cannot cure these
deficiencies within one working day of bid opening, his bid shall be
rejected.
(d) Withdrawal of Bids. After the bids are opened, they shall
be irrevocable for the period specified in the invitation for bids. If a
bidder is permitted to withdraw its bid before bid opening pursuant
to Section 11-35-1520(8) no action shall be had against the bidder or
the bid security.
(2) Contract Performance Payment Bonds. (a) When
Required-Amounts. When a construction contract is awarded
pursuant to Section 11-35-3020, the following bonds or security shall
be delivered to the using agency and shall become binding on the
parties upon the execution of the contract:
(i) a performance bond satisfactory to the State, executed
by a surety company meeting the criteria established by the board in
regulations, or otherwise secured in a manner satisfactory to the
State, in an amount equal to one hundred percent of the price
specified in the contract;
(ii) a payment bond satisfactory to the State, executed by
a surety company meeting the criteria established by the board in
regulations, or otherwise secured in a manner satisfactory to the
State, for the protection of all persons supplying labor and material
to the contractor or its subcontractors for the performance of the work
provided for in the contract. The bond shall be in an amount equal to
one hundred percent of the contract price.
(iii) in the case of a construction contract valued at one
hundred thousand dollars or less, the using agency may waive the
requirements of (i) and (ii) above, provided that the using agency has
protected the State.
(b) Authority to Require Additional Bonds. Nothing in
subsection (2) of this section shall be construed to limit the authority
of the board to require a performance bond or other security in
addition to these bonds, or in circumstances other than specified in
item (a) of such subsection in accordance with regulations
promulgated by the board.
(c) Suits on Payment Bonds--Right to Institute. Every person
who has furnished labor or material to the contractor or its
subcontractors for the work specified in the contract, in respect of
which a payment bond is furnished under this section, and who has
not been paid in full therefor before the expiration of a period of
ninety days after the day on which the last of the labor was done or
performed by such person or material was furnished or supplied by
such person for which such claim is made, shall have the right to sue
on the payment bond for the amount, or the balance thereof, unpaid
at the time of institution of such suit and to prosecute such action for
the sum or sums justly due such person. Any person having a direct
contractual relationship with a subcontractor of the contractor, but no
contractual relationship expressed or implied with the contractor
furnishing such payment bond, shall have a right of action on the
payment bond upon giving written notice to the contractor within
ninety days from the date on which such person did or performed the
last of the labor or furnished or supplied the last of the material upon
which such claim is made, stating with substantial accuracy the
amount claimed and the name of the party to whom the material was
furnished or supplied or for whom the labor was done or performed.
Such written notice to the contractor shall be personally served or
served by mailing the same by registered or certified mail, postage
prepaid, in an envelope addressed to the contractor at any place the
contractor maintains an office or conducts its business.
(d) Suits on Payment Bonds-Where and When Brought. Every
suit instituted upon a payment bond shall be brought in a court of
competent jurisdiction for the county or circuit in which the
construction contract was to be performed, but no such suit shall be
commenced after the expiration of one year after the day on which
the last of the labor was performed or material was supplied by the
person bringing suit. The obligee named in the bond need not be
joined as a party in any such suit.
(3) Bonds Forms and Copies. (a) Bond Forms. The board
shall promulgate by regulation the form of the bonds required by this
section.
(b) Certified Copies of Bonds. Any person may request and
obtain from the using agency a certified copy of a bond upon
payment of the cost of reproduction of the bond and postage, if any.
A certified copy of a bond shall be prima facie evidence of the
contents, execution, and delivery of the original.
(4) Retention. (a) Maximum amount to be withheld. In any
contract or subcontract for construction which contract or subcontract
provides for progress payments in installments based upon an
estimated percentage of completion, with a percentage of the
contract's proceeds to be retained by the State or general contractor
pending completion of the contract or subcontract, the retained
amount of each progress payment or installment shall be no more
than five percent. Upon substantial completion of a project, the
agency may withhold three times the value of the uncompleted work
as estimated by the owner's representative, in addition to any retained
amounts, until final completion and final payment.
(b) Release of Retained Funds. When the work to be
performed on a state construction project or pursuant to a state
construction contract is to be performed by multiple prime
contractors or by a prime contractor and multiple subcontractors, the
work contracted to be done by each individual contractor or
subcontractor will be considered a separate division of the contract
for the purpose of retention. As each such division of the contract is
certified as having been completed, that portion of the retained funds
which is allocable to the completed division of the contract shall be
released forthwith to the prime contractor, who shall, within ten days
of its receipt, release to the subcontractor responsible for the
completed work the full amount of any retention previously withheld
from him by the prime contractor.
Section 11-35-3040. (l) Contract Clauses. State construction
contracts and subcontracts promulgated by regulation pursuant to
Section 11-35-2010(2) may include clauses providing for adjustments
in prices, time of performance and other appropriate contract
provisions including, but not limited to:
(a) the unilateral right of a governmental body to order in
writing:
(i) all changes in the work within the scope of the
contract, and
(ii) all changes in the time of performance of the contract
that do not alter the scope of the contract work;
(b) variations occurring between estimated quantities of work
in the contract and actual quantities;
(c) suspension of work ordered by the governmental body;
(d) site conditions differing from those indicated in the
contract or ordinarily encountered, except that differing site condition
clauses promulgated by the board need not be included in a contract:
(i) when the contract is negotiated; or
(ii) when the parties have otherwise agreed with respect to
the risk of differing site conditions.
(2) Price Adjustments. (a) Adjustments in price pursuant to
clauses promulgated under subsection (l) of this section shall be
computed and documented with a written determination. The price
adjustment agreed upon shall approximate the actual cost to the
contractor and all costs incurred by the contractor shall be justifiably
compared with prevailing industry standards, including reasonable
profit. Costs shall be properly itemized and supported by
substantiating data sufficient to permit evaluation before
commencement of the pertinent performance or as soon thereafter as
practicable, and shall be arrived at through whichever one of the
following ways is the most valid approximation of the actual cost to
the contractor:
(i) by unit prices specified in the contract or subsequently
agreed upon;
(ii) by the costs attributable to the events or situations
under such clauses with adjustment of profits or fee, all as specified
in the contract or subsequently agreed upon;
(iii) by agreement on a fixed price adjustment;
(iv) in such other manner as the contracting parties may
mutually agree; or
(v) in the absence of agreement by the parties, through
unilateral determination by the governmental body of the costs
attributable to the events or situations under such clauses, with
adjustment of profit or fee, all as computed by the governmental body
in accordance with applicable sections of the regulations issued under
this chapter and subject to the provisions of Article 17 of this chapter.
(b) A contractor shall be required to submit cost or pricing
data if any adjustment in contract price is subject to the provisions of
Section 11-35-1830.
(3) Additional Contract Clauses. The construction contracts and
subcontracts promulgated pursuant to Section 11-35-2010(2) may
include clauses providing for appropriate remedies which cover as a
minimum:
(a) specified excuses for delay or nonperformance;
(b) termination of the contract for default;
(c) termination of the contract in whole or in part for the
convenience of the governmental body.
(4) Modification of Required Clauses. The chief procurement
officer may vary the clauses promulgated by the board under
subsection (l) and subsection (3) of this section for inclusion in any
particular construction contract; provided, that any variations are
supported by a written determination that states the circumstances
justifying such variations; and provided, further, that notice of any
such material variation be stated in the invitation for bids.
Section 11-35-3050. The board may promulgate regulations
setting forth cost principles which shall be used to determine the
allowability of incurred costs for the purpose of reimbursing costs
under provisions in construction contracts which provide for the
reimbursement of costs.
Section 11-35-3060. Every contract modification, change order,
or contract price adjustment under a construction contract with the
State shall be subject to the procedures outlined in Sections 3A and
3B of Act 761 of 1976 which were added pursuant to Sections
2-47-40, and 2-47-50.
Subarticle 5
Architect-Engineer, Construction Management, and Land
Surveying Services
Section 11-35-3210. (l) Applicability. Architect-engineer,
construction management, and land surveying services shall be
procured as provided in Section 11-35-3220 except as authorized by
Sections 11-35-1560, 11-35-1570, and 11-35-3230.
(2) Policy. It is the policy of this State to announce publicly all
requirements for architect-engineer, construction management, and
land surveying services and to negotiate contracts for such services
on the basis of demonstrated competence and qualification for the
particular type of services required, and at fair and reasonable
prices.
Section 11-35-3220. (l) Agency Selection Committee. Each
using agency shall establish its own architect-engineer, construction
management, and land surveying services selection
committee hereinafter referred to as the agency selection committee,
which shall be composed of those individuals whom the agency head
determines to be qualified to make an informed decision as to the
most competent and qualified firm for the proposed project. The head
of the using agency or his qualified, responsible designee shall sit as
a permanent member of the agency selection committee for the
purpose of coordinating and accounting for the committee's work. To
assist an agency selection committee in the selection of firms to be
employed for significant or highly technical projects and to facilitate
prompt selections, the agency selection committee may invite the
state engineer or his designee to sit as a nonvoting member of the
committee.
(2) Advertisement of Project Description. The agency selection
committee shall be responsible for:
(a) developing a description of the proposed project,
(b) enumerating all required professional services for that
project, and
(c) preparing a formal invitation to firms for submission of
information.
The invitation shall include, but not be limited to,
the project title, the general scope of work, a description of all
professional services required for that project, the submission
deadline, and how interested firms may apply for consideration. The
agency selection committee shall file a copy of the project description
and the invitation with the state engineer's office. The invitation shall
be formally advertised in an official state government publication.
The manner in which this official state government publication shall
be published, the content of the publication itself, the frequency of
the publication, the method for subscription to the publication, and
the manner by which the publication will be distributed shall be
established by regulation of the board.
(3) Response to Invitation. The date for submission of information
from interested persons or firms in response to an invitation shall be
not less than fifteen days after publication of the invitation. Interested
architect-engineer, construction management, and land surveying
persons or firms shall be required to respond to the invitation with the
submission of a current and accurate Federal Standard Form 254,
Architect-Engineer and Related Services Questionnaire, and Federal
Standard Form 255, Architect-Engineer and Related Services
Questionnaire for Specific Project, or such similar information as the
board may prescribe by regulation, and any other information which
the particular invitation may require.
(4) Interviews with Interested Firms. Following receipt of
information from all interested persons and firms, the agency
selection committee shall hold interviews with at least five persons
or firms who have responded to the committee's advertisement and
who are deemed most qualified on the basis of information available
prior to the interviews. A list of firms selected for interview shall
be sent to all firms that submitted information in response to the
advertisement, prior to the date selected for the interviews. If
less than five persons or firms have responded to the advertisement,
the committee shall hold interviews with those that did respond. The
agency selection committee's determination as to which will be
interviewed shall be in writing and shall be based upon its review and
evaluation of all submitted materials. The written report of the
committee shall specifically list the names of all persons and firms
that responded to the advertisement and enumerate the reasons of the
committee for selecting those to be interviewed. The purpose of the
interviews shall be to provide such further information as may be
required by the agency selection committee to fully acquaint itself
with the relative qualifications of the several interested firms.
(5) Selection and Ranking of the Five Most Qualified. The agency
selection committee shall evaluate each of the persons or firms
interviewed in view of their:
(a) past performance;
(b) the ability of professional personnel;
(c) willingness demonstrated ability to meet
time and budget requirements;
(d) location;
(e) recent, current, and projected workloads of the firms;
(f) creativity and insight related to the project; and
(g) related experience on similar projects.
Based upon these evaluations, the agency selection committee shall
select the five persons or firms which, in its judgment, are the best
qualified, ranking the five in priority order. The agency selection
committee's report ranking the five chosen persons or firms shall be
in writing and shall include data substantiating its determinations.
(6) Notice of Selection and Ranking. When it is determined by
the agency that the ranking report is final by the agency,
written notification of the election and order of preference
immediately shall be immediately sent to all
firms interviewed. of those that responded to the agency
selection committee's invitation to submit information.
(7) Negotiation of Contract. The governing body of the using
agency or its designee shall negotiate a contract for services with the
most qualified person or firm at a compensation which is fair and
reasonable to the State. Should the governing body of the using
agency or its designee be unable to negotiate a satisfactory contract
with this person or firm, negotiations shall be formally terminated.
Negotiations shall commence in the same manner with the second
and then the third, fourth and fifth most qualified until a satisfactory
contract has been negotiated. If no agreement is reached with one of
the five, additional persons or firms in order of their competence and
qualifications shall be selected after consultation with the agency
selection committee, and negotiations shall be continued in the same
manner until agreement is reached.
(8) State Engineer's Office Review. The head of the using agency
shall submit the following documents to the state engineer's office
for its review:
(a) the written report of the agency selection committee,
listing the persons or firms that responded to the invitation to submit
information and enumerating the reasons of the committee for
selecting the particular ones to be interviewed;
(b) the written ranking report of the agency selection
committee and all data substantiating the determinations made in that
report;
(c) the tentative contract between the using agency and the
selected person or firm.
(9) Approval or Disagreement by State Engineer's Office. The
state engineer's office shall have ten days to review the data
submitted by the agency selection committee, to determine the
volume of work previously awarded to the firm by the State, with the
object of effecting an equitable distributions
distribution of contracts among qualified firms, and to
determine its position with respect to the particular person or firm
recommended for approval by the agency. If the state engineer's
office disagrees with the proposal, it may contest the proposal by
submitting the matter to the board for decision. In the event of
approval, the state engineer's office shall immediately notify in
writing the using agency and the person or firm selected of the award
and thereby authorize the using agency to execute a contract with the
selected person or firm. In the event of disagreement, the state
engineer's office shall immediately notify the using agency in writing
of its intention to contest the ranking and the reasons therefor. All
contract negotiations by the governing body shall be suspended
pending a decision by the board concerning a contested ranking. The
board shall hear any such contests at its next regularly scheduled
meeting subsequent to notification of the using agency. If the board
rules in support of the state engineer's office position, the using
agency shall submit the name of another person or firm to the state
engineer's office for consideration, selected in accordance with the
procedures prescribed herein. If the board rules in support of the
using agency, the using agency shall be notified in writing and
thereby authorized to execute a contract with the selected person or
firm.
Section 11-35-3230. (1) Procurement Procedures for Certain
Contracts. All governmental bodies securing architect-engineer or
land surveying service which is estimated not to exceed eighteen
thousand twenty-five thousand dollars may employ the
architects, engineers, or land surveyors by direct negotiation and
selection, taking into account:
(a) the nature of the project,
(b) the proximity of the architect-engineer or land surveying
services to the project,
(c) the capability of the architect, engineer, or land surveyor
to produce the required service within a reasonable time,
(d) past performance, and
(e) ability to meet project budget requirements.
(2) Maximum Fees Payable to One Person or Firm. Fees paid
during the twenty-four month period immediately preceding
negotiation of the contract by any single governmental body for
professional services performed by any one architectural-engineering
or land surveying firm pursuant to Section 11-35-3230(1) shall not
exceed fifty-four thousand seventy-five thousand
dollars. All persons or firms seeking to render professional services
pursuant to this section shall furnish the governmental body with
whom the firm is negotiating a list of professional services, including
fees paid therefor, performed for the governmental body during the
fiscal year immediately preceding the fiscal year in which the
negotiations are occurring and during the fiscal year in which the
negotiations are occurring.
(3) Approval of Contracts by State Engineer's Office. All contracts
negotiated pursuant to this section shall be submitted for approval to
the state engineer's office in accordance with regulations to be
established by the board prior to the awarding and execution of the
contracts.
(4) Splitting of Larger Projects Prohibited. No using agency may
break a project into small projects for the purpose of circumventing
the provisions of Section 11-35-3220 and this section.
Section 11-35-3240. As relates to this code and the ensuing
regulations, a 'Manual for Planning and Execution of State Permanent
Improvements' shall be published by the board or its designee for use
by governmental bodies and included in the regulations of the board.
The manual may be revised as the board deems necessary.
Section 11-35-3245. No architect or engineer performing design
work, or construction manager performing construction management
services as described in Section 11-35-2910(3), pursuant to a contract
awarded under any provision of this chapter may perform other work
on that project as a contractor or subcontractor either directly or
through a business in which he or his architectural engineering or
construction management firm has greater than a five percent interest.
For purposes of this section, safety compliance and other incidental
construction support activities performed by the construction
manager are not considered work performed as a contractor or
subcontractor. Should the construction manager perform or be
responsible for safety compliance and other incidental construction
support activities, and these support activities are in noncompliance
with the provisions of Section 41-15-210, then the construction
management firm is subject to all applicable fines and penalties.
Article 10
Indefinite Delivery Contracts
Section 11-35-3310. (1) General Applicability. Indefinite
delivery contracts may be awarded on an as-needed basis for
construction related services pursuant to the procedures set
forth in Section 11-35-3020 and for architectural-engineering and
land surveying services pursuant to Section 11-35-3220. When
either of these two types of contracts is awarded, they shall be limited
to a total expenditure of $200,000 for a two year period with
individual project expenditures not to exceed $100,000.
(a) Construction Services. When construction services
contracts are awarded, each contract shall be limited to a total
expenditure of seven hundred fifty thousand dollars for a two-year
period with individual project expenditures not to exceed one
hundred fifty thousand dollars.
(b) Architectural-engineering and Land Surveying Services.
When architectural-engineering and land surveying services contracts
are awarded, each contract shall be limited to a total expenditure of
three hundred thousand dollars for a two-year period with individual
project expenditures not to exceed one hundred thousand dollars.
(2) Grant or Other Funded Research Projects. A government
body may establish an indefinite delivery contract pursuant to the
procedures set forth in Section 11-35-3020 for use on an as-needed
basis for construction or renovation funded by grant or other
nonappropriated funds given for research projects. A contract
established under this section shall be limited to a total expenditure
of $250,000 for a two year period with individual project fees not to
exceed $100,000.
(3)(2) Small Indefinite Delivery Contracts. Small
indefinite delivery contracts for architectural-engineering and land
surveying services may be procured as provided in Section
11-35-3230. A contract established under this section shall be
subject to and included in the limitations for individual and total
contract amounts provided in Section 11-35-3230, and any
regulations promulgated thereunder.
Article 11
Modifications and Termination of Contracts
for Supplies and Services
Section 11-35-3410. (l) Contract Clauses. The board may
promulgate regulations requiring the inclusion in state supplies and
services contracts of clauses providing for adjustments in prices, time
of performance or other contract provisions, as appropriate, and
covering the following subjects:
(a) the unilateral right of a governmental body to order in
writing changes in the work within the scope of the contract and
temporary stopping of the work or delaying performance;
(b) variations occurring between estimated quantities of work
in a contract and actual quantities.
(2)(a) Price Adjustments. Adjustments in price pursuant to
clauses promulgated under subsection (l) of this section shall be
computed and documented with a written determination. The price
adjustment agreed upon shall approximate the actual cost to the
contractor, and all costs incurred by the contractor shall be justifiable
compared with prevailing industry standards, including a reasonable
profit. Costs shall be properly itemized and supported by
substantiating data sufficient to permit evaluation before
commencement of the pertinent performance or as soon thereafter as
practicable, and shall be arrived at through whichever one of the
following ways is the most valid approximation of the actual cost to
the contractor:
(i) by unit prices specified in the contract or subsequently
agreed upon;
(ii) by the costs attributable to the events or situations
under such clauses with adjustment for profit or fee, all specified in
the contract or subsequently agreed upon;
(iii) by agreement on a fixed price adjustment;
(iv) by rates determined by the Public Service Commission
and set forth in the applicable tariffs;
(v) in such other manner as the contracting parties may
mutually agree; or
(vi) in the absence of agreement by the parties, through
unilateral determination by the governmental body of the costs
attributable to the events or situations under such clauses, with
adjustment of profit or fee, all as computed by the governmental body
in accordance with applicable sections of the regulations issued under
Article 13 of this chapter and subject to the provisions of Article 17
of this chapter.
(b) A contractor shall be required to submit cost or pricing
data if any adjustment in contract price is subject to the provisions of
Section 11-35-1830.
(3) Additional Contract Clauses. The board shall be authorized to
promulgate regulations requiring the inclusion in state supplies and
services contracts of clauses providing for appropriate remedies and
covering the following subjects:
(a) specified excuses for delay or nonperformance;
(b) termination of the contract for default;
(c) termination of the contract in whole or in part for the
convenience of the governmental body.
(4) Modification of Clauses. The chief procurement officer may
vary the clauses promulgated by the board under subsection (l) and
subsection (3) of this section for inclusion in any particular state
contract; provided, that any variations are supported by a written
determination that states the circumstances justifying such variations;
and provided, further, that notice of any such material variations shall
be stated in the invitation for bids or request for proposals .
Article 13
Cost Principles
Section 11-35-3510. The board may promulgate regulations
setting forth cost principles which shall be used to determine the
allowability of incurred costs for the purpose of reimbursing costs
under provisions in supplies and services contracts which provide for
the reimbursement of costs.
Article 15
Supply Management
Subarticle 1
Warehouses and Inventory
Section 11-35-3620. Until such time as the General Assembly
may act upon the warehousing and inventory management plan, all
powers and responsibilities for management of warehouses and
inventory shall be vested in the agency owning, renting, or
leasing the warehouses or inventory.
Subarticle 3
Regulations For Sale, Lease, Transfer, and Disposal
11-35-3810. Subject to existing provisions of law, the board shall
promulgate regulations governing:
(l) the sale, lease, or disposal of surplus supplies by public
auction, competitive sealed bidding, or other appropriate
methods designated by such regulations;
(2) the transfer of excess supplies between agencies and
departments.
Section 11-35-3820. Except as provided in Section 11-35-1580
and Section 11-35-3830 and the regulations pursuant thereto, the sale
of all state owned supplies, property, or personal property
not in actual public use shall be conducted and directed by the
Division Office of General Services. Such sales
shall be held at such places and in such manner as in the judgment of
the Division Office of General Services will
shall be most advantageous to the State. Unless otherwise
determined, sales shall be by either public auction or competitive
sealed bid to the highest bidder. Each governmental body shall
inventory and report to the Division Office of General
Services all surplus personal property not in actual public use
held by that agency for sale. The Division Office of
General Services shall deposit the proceeds from such sales, less
expense of the sales, in the state general fund or as otherwise directed
by regulation. This policy and procedure shall apply to all
governmental bodies unless exempt by law.
Section 11-35-3830. (l) Trade-in Value. Unless otherwise
provided by law, governmental bodies may trade-in personal property
the trade-in value of which may be applied to the purchase
procurement or lease of new like items. The trade-in
value of such personal property shall not exceed an amount as
specified in regulations promulgated by the board.
(2) Approval of Trade-in Sales. When the trade-in value of
personal property of a governmental body exceeds the specified
amount, the board shall have the authority to determine whether:
(a) the subject personal property shall be traded in and the
value applied to the purchase of new like items; or
(b) the property shall be classified as surplus and sold in
accordance with the provisions of Section 11-35-3820. The board's
determination shall be in writing and be subject to the provisions of
this chapter.
(3) Record of Trade-in Sales. Governmental bodies shall submit
quarterly to the materials management officer a record listing all trade
in sales made under subsections (l) and (2) of this section.
Section 11-35-3840. The Division Office of
General Services of the State Budget and Control Board may license
for public sale publications and materials pertaining to training
programs and information technology products which are developed
during the normal course of the Division's Office's
activities. Such items shall be licensed at such reasonable costs as are
established in accordance with the cost of the items. All proceeds
from the sale of the publications and materials shall be placed in a
revenue account and expended for the cost of providing such
services.
Subarticle 5
Continuation of Current Provisions of Law
Section 11-35-4010. Nothing contained in this article shall
affect or limit the legal right and authority which any principal
referred to in this article may have by law to act for itself in any
matter coming within the purview of this article.
Section 11-35-4020. Governmental bodies approved by the
board may sell any supplies owned by it after such supplies have
become entirely unserviceable and can properly be classified as
'junk', in accordance with procedures established by the
Division Office of General Services. All sales of
unserviceable supplies by the governmental body shall be made in
public to the highest bidder, after advertising for fifteen days, and the
funds from such sales shall be credited to the account of the
governmental body owning and disposing of such unserviceable
supplies.
Article 17
Legal and Contractual Remedies
Subarticle 1
Administrative Resolution Of Controversies
Section 11-35-4210. (l) Right to Protest; Exclusive Remedy.
Any prospective bidder, offeror, contractor, or subcontractor who is
aggrieved in connection with the solicitation of a contract shall
protest to the appropriate chief procurement officer in the manner
stated in subsection (2) below within fifteen days of the date of
issuance of the Invitation For Bids or Requests for Proposals or other
solicitation documents, whichever is applicable, or any amendment
thereto, if the amendment is at issue.
Any actual bidder, offeror, contractor, or subcontractor who is
aggrieved in connection with the intended award or award of a
contract shall protest to the appropriate chief procurement officer in
the manner stated in subsection (2) below within fifteen days of the
date notification of award is posted in accordance with this code.
The rights and remedies granted in this article to a disappointed
bidder, offeror, contractor, or subcontractor are to the exclusion of all
other rights and remedies of such disappointed bidder, offeror,
contractor, or subcontractor against the State at common law or
otherwise for the loss or potential loss of an award of a contract under
the South Carolina Consolidated Procurement Code.
(2) Protest Procedure. A protest under subsection (1) above shall
be in writing, submitted to the appropriate chief procurement officer,
and shall set forth the grounds of the protest and the relief requested
with enough particularity to give notice of the issues to be decided.
(3) Duty and Authority to Attempt to Settle Protests. Prior to
commencement of an administrative review as provided in subsection
(4), the appropriate chief procurement officer, the head of the
purchasing agency, or designees thereof shall attempt to settle by
mutual agreement a protest of an aggrieved bidder, offeror,
contractor, or subcontractor, actual or prospective, concerning the
solicitation or award of the contract. The appropriate chief
procurement officer, the head of the purchasing agency, or designees
thereof shall have the authority to approve any settlement reached by
mutual agreement.
(4) Administrative Review and Decision. If in the opinion of the
appropriate chief procurement officer, after reasonable attempt, a
protest cannot be settled by mutual agreement, the appropriate chief
procurement officer shall promptly conduct an administrative review
and shall issue a decision in writing within ten days of completion of
the review. The decision shall state the reasons for the action taken.
(5) Notice of Decision. A copy of the decision under subsection
(4) of this section along with a statement of appeal rights under
Section 11-35-4210(6) shall be mailed or otherwise furnished
immediately to the protestant and any other party intervening. The
appropriate chief procurement officer shall also post a copy of the
decision at a date and place communicated to all parties participating
in the administrative review, and such posted decision shall indicate
the date of posting on its face and shall be accompanied by a
statement of the right to appeal provided in Section 11-35-4210(6).
(6) Finality of Decision. A decision under subsection (4) of this
section shall be final and conclusive, unless fraudulent, or unless any
person adversely affected by the decision requests a further
administrative review by the Procurement Review Panel under
Section 11-35-4410(1) within ten working days of posting of
the decision in accordance with Section 11-35-4210(5). The request
for review shall be directed to the appropriate chief procurement
officer, who shall forward the request to the panel, or to the
Procurement Review Panel and shall be in writing, setting forth the
reasons why the person disagrees with the decision of the appropriate
chief procurement officer. The person may also request a hearing
before the Procurement Review Panel.
(7) Stay of Procurement During Protests. In the event of a timely
protest under subsection (1) above, the State shall not proceed further
with the solicitation or award of the contract until a decision is
rendered by the appropriate chief procurement officer, or, in the event
of timely appeal to the Procurement Review Panel, until a decision
is rendered by the panel; provided, however, that solicitation or
award of a protested contract will not be stayed if the appropriate
chief procurement officer, after consultation with the head of the
using agency, makes a written determination that the solicitation or
award of the contract without delay is necessary to protect the best
interests of the State.
Section 11-35-4215. The agency may request that the
appropriate chief procurement officer require any bidder or offeror
who files an action protesting the intended award or award of a
contract valued at one million dollars or more to post with the
appropriate chief procurement officer a bond payable to the State of
South Carolina in an amount equal to one percent of the total
potential value of the contract as determined by the appropriate chief
procurement officer. The chief procurement officer's decision to
require a bond is not appealable under Section 11-35-4210. The
bond shall be conditioned upon the payment of all reasonable
reimbursement costs which may be adjudged against the bidder or
offeror filing the protest in the administrative hearing in which the
action is brought and in any subsequent appellate court proceeding.
For protests of intended award or award of a contract of the
purchasing agency's request for sole source or emergency
procurements, the bond shall be in an amount equal to one percent of
the requesting agency's estimate of the contract amount for the sole
source or emergency procurement requested. In lieu of a bond, the
appropriate chief procurement officer may accept a cashier's check
or money order in the amount of the bond. If, after completion of
the administrative hearing process and any appellate court
proceedings, the agency prevails, it may request that the Procurement
Review Panel allow it to recover all reasonable reimbursement costs
and charges associated with the protest which shall be included in the
final order or judgment, excluding attorney's fees. Upon payment of
such costs and charges by the bidder or offeror protesting the
intended award or award of a contract, the bond, cashier's check, or
money order shall be returned to the bidder or offeror. Failure to pay
such costs and charges by the bidder or offeror protesting the
intended award or award of a contract shall result in the forfeiture of
the bond, cashier's check, or money order to the extent necessary to
cover the payment of all reasonable reimbursement costs adjudged
against the protesting bidder or offeror. If the bidder or offeror
prevails in the protest, the cost of providing the bond or cashier check
may be sought from the agency requesting the bond.
Section 11-35-4220. (l) Authority. After reasonable notice to
the person or firm involved, and a reasonable opportunity for such
person or firm to be heard, the appropriate chief procurement officer
shall have the authority to debar a person for cause from
consideration for award of contracts, provided that doing so is in the
best interest of the State and there is probable cause for debarment.
The appropriate chief procurement officer may also suspend a person
or firm from consideration for award of contracts during an
investigation where there is probable cause for debarment. The period
of debarment or suspension shall be as prescribed by the appropriate
chief procurement officer.
(2) Causes for Debarment or Suspension. The causes for
debarment or suspension shall include, but not be limited to,
the following:
(a) conviction for commission of a criminal offense as an
incident to obtaining or attempting to obtain a public or private
contract or subcontract, or in the performance of such contract or
subcontract;
(b) conviction under state or federal statutes of embezzlement,
theft, forgery, bribery, falsification or destruction of records,
receiving stolen property, or any other offense indicating a lack of
business integrity or professional honesty which currently, seriously,
and directly affects responsibility as a state contractor;
(c) conviction under state or federal antitrust laws arising out
of the submission of bids or proposals;
(d) violation of contract provisions, as set forth below, of a
character which is regarded by the appropriate chief procurement
officer to be so serious as to justify debarment action:
(i) deliberate failure without good cause to perform in
accordance with the specifications or within the time limit provided
in the contract; or
(ii) a recent record of failure to perform or of unsatisfactory
performance in accordance with the terms of one or more contracts;
provided, that failure to perform or unsatisfactory performance
caused by acts beyond the control of the contractor shall not be
considered to be a basis for debarment;
(e) violation of an order of the Procurement Review Panel;
and
(f) any other cause the appropriate chief procurement officer
determines to be so serious and compelling as to affect responsibility
as a state contractor, including debarment by another governmental
entity for any cause listed herein.
(3) Decision. The appropriate chief procurement officer shall issue
a written decision to debar or suspend within ten days of the
completion of his administrative review of the matter. The decision
shall state the action taken, the specific reasons therefore, and the
period of debarment or suspension, if any.
(4) Notice of Decision. A copy of the decision under subsection
(3) of this section and a statement of appeal rights under Section
11-35-4220(5) shall be mailed or otherwise furnished immediately to
the debarred or suspended person and any other party intervening.
The appropriate chief procurement officer shall also post a copy of
the decision at a time and place communicated to all parties
participating in the administrative review and such posted decision
shall indicate the date of posting on its face and shall be accompanied
by a statement of the right to appeal provided in Section
11-35-4220(5).
(5) Finality of Decision. A decision under subsection (3) of this
section shall be final and conclusive, unless fraudulent, or unless the
debarred or suspended person requests further administrative review
by the Procurement Review Panel under Section 11-35-4410(1),
within ten working days of the posting of the decision in
accordance with Section 11-35-4220(4). The request for review shall
be directed to the appropriate chief procurement officer, who shall
forward the request to the Panel, or to the Procurement Review Panel
and shall be in writing, setting forth the reasons why the person
disagrees with the decision of the appropriate chief procurement
officer. The person may also request a hearing before the
Procurement Review Panel.
Section 11-35-4230. (l) Applicability. This section applies to
controversies between the State and a contractor or subcontractor
when the subcontractor is the real party in interest, which arise under
or by virtue of a contract between them including, but not limited to,
controversies based upon breach of contract, mistake,
misrepresentation, or other cause for contract modification or
recision. The procedure set forth in this section shall constitute the
exclusive means of resolving a controversy between the State and a
contractor or subcontractor concerning a contract solicited and
awarded under the provisions of the South Carolina Consolidated
Procurement Code.
(2) Request for Resolution; Time for Filing. Either the contracting
state agency or the contractor or subcontractor when the
subcontractor is the real party in interest may initiate resolution
proceedings before the appropriate chief procurement officer by
submitting a request for resolution to the appropriate chief
procurement officer in writing setting forth the general nature of the
controversy and the relief requested with enough particularity to give
notice of the issues to be decided. A request for resolution of contract
controversy must be filed within one year of the date the contractor
last performs work under the contract; provided, however, that in the
case of latent defects a request for resolution of a contract
controversy must be filed within one year of the date the requesting
party first knows or should know of the grounds giving rise to the
request for resolution.
(3) Duty and Authority to Attempt to Settle Contract
Controversies. Prior to commencement of an administrative review
as provided in subsection (4), the appropriate chief procurement
officer shall attempt to settle by mutual agreement a contract
controversy brought under this section. The appropriate chief
procurement officer shall have the authority to approve any
settlement reached by mutual agreement.
(4) Administrative Review and Decision. If, in the opinion of the
appropriate chief procurement officer, after reasonable attempt, a
contract controversy cannot be settled by mutual agreement, the
appropriate chief procurement officer shall promptly conduct an
administrative review and shall issue a decision in writing within ten
days of completion of the review. The decision shall state the reasons
for the action taken.
(5) Notice of Decision. A copy of the decision under subsection
(4) of this section and a statement of appeal rights under Section
11-35-4230(6) shall be mailed or otherwise furnished immediately to
all parties participating in the administrative review proceedings. The
appropriate chief procurement officer shall also post a copy of the
decision at a time and place communicated to all parties participating
in the administrative review, and such posted decision shall indicate
the date of posting on its face and shall be accompanied by a
statement of the right to appeal provided in Section 11-35-4230 (6).
(6) Finality of Decision. A decision under subsection (4) of this
section shall be final and conclusive, unless fraudulent, or unless any
person adversely affected requests a further administrative review by
the Procurement Review Panel under Section 11-35-4410 (1) within
ten working days of the posting of the decision in accordance
with Section 11-35-4230 (5). The request for review shall be directed
to the appropriate chief procurement officer who shall forward the
request to the panel or to the Procurement Review Panel and shall be
in writing setting forth the reasons why the person disagrees with the
decision of the appropriate chief procurement officer. The person
may also request a hearing before the Procurement Review Panel.
Subarticle 2
Remedies
Section 11-35-4310. (1) Applicability. The provisions of this
section apply where it is determined by either the appropriate chief
procurement officer or the Procurement Review Panel, upon
administrative review, that a solicitation or award of a contract is in
violation of the law. The remedies set forth herein may be granted by
either the appropriate chief procurement officer after review under
Section 11-35-4210 or by the Procurement Review Panel after review
under Section 11-31-4410 (1) 11-35-4410(1).
(2) Remedies Prior to Award. If, prior to award of a contract, it is
determined that a solicitation or proposed award of a contract is in
violation of law, then the solicitation or proposed award may be:
(a) canceled;
(b) revised to comply with the law and rebid; or
(c) awarded in a manner that complies with the provisions of
this code.
(3) Remedies After Award. If, after an award of a contract, it is
determined that the solicitation or award is in violation of law;
(a) the contract may be ratified and affirmed, provided it is in
the best interests of the State; or
(b) the contract may be terminated and the payment of such
damages, if any, as may be provided in the contract, may be awarded.
(4) Entitlement to Costs. In addition to or in lieu of any other
relief, when a protest submitted under Section 11-35-4210 is
sustained, and it is determined that the protesting bidder or offeror
should have been awarded the contract under the solicitation but is
not, then the protesting bidder or offeror may request and be awarded
a reasonable reimbursement amount, including reimbursement of its
reasonable bid preparation costs.
In addition to or in lieu of any other relief, when an agency
prevails in a protest filed with a chief procurement officer or appeal
filed with the Procurement Review Panel under Section 11-35-4210,
the agency may request that the Procurement Review Panel award it
a reasonable reimbursement amount for costs incurred in defending
the protest or appeal.
Section 11-35-4320. Remedies available in a contract
controversy brought under the provisions of Section 11-35-4230,
the. The appropriate chief procurement officer
or the Procurement Review Panel, in the case of review under Section
11-35-4410(1), may award such relief as is necessary to resolve the
controversy as allowed by the terms of the contract or by applicable
law.
Section 11-35-4330. (1) Signature on Protest Constitutes
Certificate. The signature of an attorney or party on a request for
review, protest, motion, or other document constitutes a certificate by
the signer that the signer has read such document, that to the best of
the signer's knowledge, information, and belief formed after
reasonable inquiry, it is well grounded in fact and is warranted by
existing law or a good faith argument for the extension, modification,
or reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass, limit competition, or to cause
unnecessary delay or needless increase in the cost of the procurement
or of the litigation.
(2) Sanctions for Violations. If a request for review, protest,
pleading, motion, or other document is signed in violation of this
subsection on or after appeal to the Procurement Review Panel, the
Procurement Review Panel, upon motion or upon it's own initiative,
may impose upon the person who signed it, a represented party, or
both, an appropriate sanction, which may include an order to pay to
the other party or parties the amount of the reasonable expenses
incurred because of the filing of the protest, pleading, motion, or
other paper, including a reasonable attorney's fee.
Subarticle 3
Review Panel
Section 11-35-4410. (l) Creation. There is hereby created the
South Carolina Procurement Review Panel which shall be charged
with the responsibility to review and determine de novo:
(a) requests for review of written determinations of the chief
procurement officers under Sections 11-35-4210 (6), 11-35-4220 (5),
and 11-35-4230 (6); and
(b) requests for review of other written determinations,
decisions, policies, and procedures as arise from or concern the
procurement of supplies, services, or construction procured in
accordance with the provisions of this code and the ensuing
regulations; provided that any matter which could have been brought
before the chief procurement officers in a timely and appropriate
manner under Sections 11-35-4210, 11-35-4220, or 11-35-4230, but
was not, shall not be the subject of review under this paragraph.
Requests for review under this paragraph shall be submitted to the
Procurement Review Panel in writing, setting forth the grounds,
within fifteen days of the date of such written determinations,
decisions, policies, and procedures.
(2) Membership. The panel shall be composed of:
(a) [Deleted]
(b) [Deleted]
(c) [Deleted]
(d) the chairman, or his designee, of the Procurement Policy
Committee;
(e) five members appointed by the Governor from the State at
large who shall be representative of the professions governed by this
title including, but not limited to:
(i) Goods and services.
(ii) Information technology procurements.
(iii) Construction.
(iv) Architects and engineers.
(v) Construction management.
(vi) Land surveying services.
(f) two state employees appointed by the Governor.
(3) Chairperson and Meetings. The panel shall elect a chairman
from the members at large and shall meet as often as necessary to
afford a swift resolution of the controversies submitted to it. Five
members present and voting shall constitute a quorum. At-large
members of the panel shall be paid per diem, mileage, and
subsistence as provided by law for members of boards, commissions,
and committees. State employee members shall be reimbursed for
meals, lodging, and travel in accordance with current state
allowances.
(4) Jurisdiction. Notwithstanding the provisions of Section
1-23-10 et. seq. or any other provisions of law, the Procurement
Review Panel shall be vested with the authority to:
(a) establish its own rules and procedures for the conduct of
its business and the holding of its hearings;
(b) issue subpoenas;
(c) interview any person it deems necessary; and
(d) record all determinations.
(5) Procedure. Within fifteen days of receiving a grievance filed
under Sections 11-35-4210(6), 11-35-4220(5), 11-35-4230(6), or
11-35-4410(1)(b), the chairman shall convene the review panel to
conduct an administrative review. The review panel shall record its
determination within thirty days and shall communicate its decision
to those involved in the determination. In the alternative, the
chairman, within ten days, may appoint a hearing officer to conduct
the administrative review and report his recommendations to the
review panel for its determination. If a hearing officer is appointed,
his report shall be submitted to the review panel within ten days after
his appointment, and the review panel must still record its decision
within thirty days after being convened for this purpose.
(6) Finality. The decision of the Procurement Review Panel is
final as to administrative review and may be appealed to the circuit
court under the provisions of the South Carolina Administrative
Procedures Act.
Article 19
Intergovernmental Relations
Subarticle 1
Definitions
Section 11-35-4610. As used in this article, unless the context
clearly indicates otherwise:
(l) 'Cooperative purchasing' means procurement conducted by, or
on behalf of, more than one public procurement unit, or by a public
procurement unit with an external procurement activity.
(2) 'External procurement activity' means:
(a) any buying organization not located in this State which
would qualify as a public procurement unit;
(b) buying by the United States government.
(3) 'Local public procurement unit' means any political
subdivision or unit thereof which expends public funds for the
procurement of supplies, services, or construction.
(4) 'Mandatory opting' is the requirement for a local procurement
unit to choose whether to utilize a state contract before it is
established as prescribed in regulation by the board.
(5) 'Public procurement unit' means either a local public
procurement unit or a state public procurement unit.
(6) 'State public procurement unit' means the offices of the chief
procurement officers and any other purchasing agency of this State.
Subarticle 3
Cooperative Purchasing
Section 11-35-4810. Any public procurement unit may
participate in, sponsor, conduct, or administer a cooperative
purchasing agreement for the procurement of any supplies,
services, or construction with one or more public
procurement units or external procurement activities in accordance
with an agreement entered into between the participants. Such
cooperative purchasing may include, but is not limited to, joint or
multi-party contracts between public procurement units and
open-ended state public procurement unit contracts which shall be
made available to local public procurement units, except as provided
in Section 11-35-4820 or except as may otherwise be limited by the
board through regulations. Procurements pursuant to this section
are not subject to this code, but will be conducted under terms and
conditions which embody sound procurement principles of an
appropriately competitive procurement, as approved by the Office of
General Services, that are mutually agreeable to the participants.
Governmental bodies of this State may not enter into purchasing
agreements solely with other governmental bodies of this State as
defined in this code pursuant to this section.
Section 11-35-4815. Any state public procurement unit may
participate in any federal contract or pricing agreement for the
procurement of supplies or equipment, or both, as allowed by the
federal agency administering the contract upon the approval of the
Office of General Services provided that:
(a) the procurement does not violate any term of a term contract as
defined in Section 11-35-310(35), of this code; and
(b) the pricing provided by the contract is at or below a level the
State could reasonably expect to obtain through its contract.
Section 11-35-4820. As prescribed in regulation by the board,
any local public procurement unit may purchase from or through the
State at any time; provided, however, that the board may impose a
requirement upon the localities for mandatory opting in or out of any
particular contract before it is established. Mandatory opting shall be
imposed only where it is necessary to obtain more cost effective
contracts for the State.
Section 11-35-4830. Any public procurement unit may sell to,
acquire from, or use any supplies belonging to another public
procurement unit or external procurement activity in accordance with
the requirements of Articles 5 and 15 of this chapter; provided, that
such procurement shall take place only when the procuring entities
have good reason to expect the intergovernmental procurement to be
more cost effective than doing their own procurement.
Section 11-35-4840. Any public procurement unit may enter
into an agreement in accordance with the requirements of Articles 5
and 15 of this chapter with any other public procurement unit or
external procurement activity for the cooperative use of supplies or
services under the terms agreed upon between the parties; provided,
that such cooperative use of supplies or services shall take place only
when the public procurement units have good reason to expect the
cooperative use to be more cost effective than utilizing their own
supplies and services.
Section 11-35-4850. Any public procurement unit may enter
into agreements for the common use or lease of warehousing
facilities, capital equipment, and other facilities with another
public procurement unit or an external procurement activity under the
terms agreed upon between the parties.
Section 11-35-4860. (l) Supply of Personnel. Any public
procurement unit is authorized, in its discretion, upon written request
from another public procurement unit or external procurement
activity, to provide personnel services to the requesting public
procurement unit or external procurement activity with or without
pay by the recipient governmental unit as may be agreed upon by the
parties involved.
(2) Supply of Services. The informational, technical, and
other services of any public procurement unit may be made available
to any other public procurement unit or external procurement activity
provided that the requirements of the public procurement unit
tendering the services shall have precedence over the requesting
public procurement unit or external procurement activity. The
payment shall be in accordance with an agreement between the
parties.
(3) State Information Services. Upon request, the chief
procurement officers may make available to public procurement units
or external procurement activities the following services among
others:
(a) standard forms;
(b) printed manuals;
(c) product specifications and standards;
(d) quality assurance testing services and methods;
(e) qualified product lists;
(f) source information;
(g) common use commodities listings;
(h) supplier prequalification information;
(i) supplier performance ratings;
(j) debarred and suspended bidders lists;
(k) forms for invitations for bids, requests for proposals,
instruction to bidders, general contract provisions and other contract
forms;
(l) contracts or published summaries thereof, including price
and time of delivery information.
(4) State Technical Services. The State, through the chief
procurement officers, may provide the following technical services
among others:
(a) development of products specifications;
(b) development of quality assurance test methods, including
receiving, inspection, and acceptance procedures;
(c) use of product testing and inspection facilities;
(d) use of personnel training programs.
(5) Fees. The chief procurement officers may enter into
contractual arrangements and publish a schedule of fees for the
services provided under subsections (3) and (4) of this section.
Section 11-35-4870. All payments from any public procurement
unit or external procurement activity received by a public
procurement unit supplying personnel or services shall be governed
by any provisions of law concerning nonbudgeted revenue of the
recipient entity.
Section 11-35-4880. Where the public procurement unit or
external procurement activity administering a cooperative purchase
complies with the requirements of this code, any public procurement
unit participating in such a purchase shall be deemed to have
complied with this code. Public procurement units shall not enter into
a cooperative purchasing agreement for the purpose of circumventing
this code.
Section 11-35-4890. To the extent possible, the chief
procurement officers may collect information concerning the type,
cost, quality, and quantity of commonly used supplies,
services, or construction being procured or used by local
public procurement units, which shall be required to respond
appropriately as a precondition for participation in state contracts as
governed by regulations promulgated by the board. The chief
procurement officers shall make available all such information to any
public procurement unit upon request.
Article 21
Assistance to Minority Businesses
Subarticle 1
Definitions and Certification
Section 11-35-5010. The board may promulgate regulations
establishing detailed definitions of the following terms using, in
addition to the criteria set forth in this section, such other criteria as
it may deem desirable.
(l) 'Minority person' for the purpose of this article, means a
United States citizen who is economically and socially
disadvantaged.
(a) '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, and other minorities to be designated by the
board or designated agency.
(b) '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.
(2) A 'socially and economically disadvantaged small business'
means any small business concern which:
(a) is at least fifty-one percent owned by one or more citizens
of the United States who are determined to be socially and
economically disadvantaged.
(b) in the case of a concern which is a corporation, fifty-one
percent of all classes of voting stock of such corporation must be
owned by an individual determined to be socially and economically
disadvantaged.
(c) in the case of a concern which is a partnership, fifty-one
percent of the partnership interest must be owned by an individual or
individuals determined to be socially and economically
disadvantaged and whose management and daily business operations
are controlled by individuals determined to be socially and
economically disadvantaged. Such individuals must be involved in
the daily management and operations of the business concerned.
Subarticle 3
Assistance to Minority Businesses
Section 11-35-5210. (l) Statement of Policy. The South
Carolina General Assembly declares that business firms owned and
operated by minority persons have been historically restricted from
full participation in our free enterprise system to a degree
disproportionate to other businesses. The General Assembly believes
that it is in the state's best interest to assist minority-owned
businesses to develop fully as a part of the state's policies and
programs which are designed to promote balanced economic and
community growth throughout the State. The General Assembly,
therefore, wishes to ensure that those businesses owned and operated
by minorities are afforded the opportunity to fully participate in the
overall procurement process of the State. The General Assembly,
therefore, takes this leadership role in setting procedures that will
result in awarding contracts and subcontracts to minority business
firms in order to enhance minority capital ownership, overall state
economic development and reduce dependency on the part of
minorities.
(2) Implementation. Chief procurement officers shall implement
the policy set forth in subsection (l) of this section in accordance with
the provisions of Section 11-35-5220.
Section 11-35-5220. (l) Assistance from the Chief Procurement
Officers. The chief procurement officers shall provide appropriate
staffs to assist minority businesses with the procurement procedures
developed pursuant to this code.
(2) Special Publications. The chief procurement officers in
cooperation with other appropriate private and state agencies may
issue supplementary instructions designed to assist minority
businesses with the state procurement procedures.
(3) Source Lists. Chief procurement officers shall maintain special
source lists of minority business firms detailing the products and
services which they provide. These lists shall be made available to
agency purchasing personnel.
(4) Solicitation Mailing Lists. The chief procurement officers shall
include and identify minority business on the state's bidders' list and
shall ensure that these firms are solicited on an equal basis within
nonminority firms.
(5) Training Programs. The chief procurement officers shall work
with appropriate state offices and minority groups in conducting
seminars to assist minority business owners in learning how to do
business with the State.
Section 11-35-5230. (A) The board shall promulgate regulations
that designate such procurement contracts as it may deem appropriate
for negotiation with certified, South Carolina-based minority firms,
as defined by this subarticle. Among the criteria that shall be used to
determine such designations are:
(l) The total dollar value of procurement in South Carolina.
(2) The availability of South Carolina-based minority firms.
(3) The potential for breaking the contracts into smaller units,
where necessary, to accommodate such firms.
(4) Insuring that the State shall not be required to sacrifice
quality of goods or services.
(5) Insuring that the price shall have been determined to be fair
and reasonable, and competitive both to the State and to the
contractor and results in no loss to the State.
(B)(l) Firms with state contracts that subcontract with minority
firms shall be eligible for an income tax credit equal to four percent
of the payments to minority subcontractors for work pursuant to a
state contract. Such subcontractors must be certified as to the criteria
of a minority firm as defined in Section 11-35-5010 of this code and
any regulations which may be promulgated thereunder.
(2) The tax credit is limited to a maximum of twenty-five
thousand dollars annually. A firm shall be eligible to claim a tax
credit for a period of five years from the date the first income tax
credit is claimed.
(3) Any firm desiring to be certified as a minority firm shall
make application to the Small and Minority Business Assistance
Office (SMBAO) as defined by Section 11-35-5270, on such forms
as may be prescribed by that office.
(4) Firms claiming the income tax credit shall maintain
evidence of work performed for a state contract by minority
subcontractors and shall present such evidence on a form and in a
manner prescribed by the Department of Revenue and
Taxation at the time of filing its state income tax return and claim
such credit at the time of filing. All records shall be available for
audit by the Department of Revenue and Taxation in
accordance with prevailing tax statutes.
Section 11-35-5240. (l) In order to emphasize the use of
minority small businesses, each agency director shall develop a
Minority Business Enterprise (MBE) Utilization Plan. The MBE
Utilization Plan shall include ,but not be limited to:
(a) The name of the governmental body;
(b) A policy statement expressing a commitment by the
governmental body to use MBE's in all aspects of procurement;
(c) The name of the coordinator responsible for monitoring the
MBE Utilization Plan;
(d) Goals that include a reasonable percentage of each
governmental body's total procurements directed toward minority
vendors.
(e) Solicitation of qualified minority vendors, a current list of
which shall be supplied by the Division Office of
General Services, in each commodity category for which such
minority vendor is qualified. The current listing of qualified minority
vendors shall be made available by the Division
Office of General Services on a timely basis;
(f) Procedures to be used when it is necessary to divide total
project requirements into smaller tasks which will permit increased
MBE participation;
(g) Procedures to be used when the governmental body
subcontracts the scope of service to another governmental body; the
responsible governmental body may set goals for the subcontractor
in accordance with the MBE goal and the responsible governmental
body may allow the subcontractor to present a MBE Utilization Plan
detailing its procedure to obtain minority business enterprise
participation.
(2) MBE utilization plans shall be submitted to the SMBAO for
approval not later than July thirtieth, annually. Progress reports shall
be submitted to the SMBAO not later than ten days after the end of
each fiscal quarter.
(a) Number of minority firms solicited;
(b) Number of minority bids received;
(c) Dollar amount of minority bids awarded.
Section 11-35-5250. (l) Progress Payments. The chief
procurement officers may make special provisions for progress
payments, and letters of credit, as deemed reasonable to assist
minority businesses to carry out the terms of a state contract pursuant
to regulations which may be promulgated by the board.
(2) Letter of Contract Award. When a minority business firm
certified by the Department of Revenue and Taxation receives
a contract with the State, the appropriate chief procurement officer
shall furnish a letter, upon request, stating the dollar value and
duration of, and other information about the contract, which may be
used by the minority firm in negotiating lines of credit with lending
institutions.
Section 11-35-5260. Each governmental body shall report
annually in writing to the Division of Operations of the
Budget and Control board annually; no later than August
fifteenth, in a format prescribed by the division; the total dollar
volume of business that was contracted either directly or through
subcontractors with certified small, minority, and women-owned
businesses during the previous fiscal year. These records shall be
maintained to evaluate the progress of this program.
concerning the number and dollar value of contracts awarded to
eligible minority businesses during the preceding fiscal year. These
records shall be maintained to evaluate the progress of this
program.
Section 11-35-5270. A Small and Minority Business Assistance
Office (SMBAO) shall be established to assist the board and the
Department of Revenue in carrying out the intent of this article. The
responsibilities of the office shall include, but not be limited
to, the following:
(l) Assist the chief procurement officers and governmental bodies
in developing policies and procedures which will facilitate awarding
contracts to small and minority firms;
(2) Assist the chief procurement officers in aiding small and
minority-owned firms and community-based business in developing
organizations to provide technical assistance to minority firms;
(3) Assist with the procurement and management training for small
and minority firm owners;
(4) Assist in the identification of responsive small and minority
firms;
(5) Receive and process applications to be registered as a minority
firm in accordance with Section 11-35-5230(B);
(6) The SMBAO may revoke the certification of any firm which
has been found to have engaged in any of the following:
(a) fraud or deceit in obtaining the certification;
(b) furnishing of substantially inaccurate or incomplete
information concerning ownership or financial status;
(c) failure to report changes which affect the requirements for
certification;
(d) gross negligence, incompetence, financial
irresponsibility, or misconduct in the practice of his
business; or
(e) willful violation of any provision of this article.
(7) After a period of one year, the SMBAO may reissue a
certificate of eligibility provided acceptable evidence has been
presented to the commission that the conditions which caused the
revocation have been corrected.
The Governor shall evaluate the role of this office within two years
from the date of its creation and shall request recommendations of the
State Reorganization Commission. The Governor may propose a
more appropriate location of the office should the findings warrant
change."
SECTION 2. The 1976 Code is amended by adding:
"Section 1-11-55. (1) 'Governmental body' means a 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 this State. Governmental body excludes the General
Assembly, Legislative Council, the Office of Legislative Printing and
Information Technology Resources, and all local political
subdivisions such as counties, municipalities, school districts, or
public service or special purpose districts.
(2) The Budget and Control Board is hereby designated as the
single central broker for the leasing of real property for governmental
bodies. No governmental body shall enter into any lease agreement
or renew any existing lease except in accordance with the provisions
of this section.
(3) When any governmental body needs to acquire real property
for its operations or any part thereof and state-owned property is not
available, it shall notify the Office of General Services of its
requirement on rental request forms prepared by the office. Such
forms shall indicate the amount and location of space desired, the
purpose for which it shall be used, the proposed date of occupancy
and such other information as General Services may require. Upon
receipt of any such request, General Services shall conduct an
investigation of available rental space which would adequately meet
the governmental body's requirements, including specific locations
which may be suggested and preferred by the governmental body
concerned. When suitable space has been located which the
governmental body and the office agree meets necessary
requirements and standards for state leasing as prescribed in
procedures of the board as provided for in subsection (5) of this
section, General Services shall give its written approval to the
governmental body to enter into a lease agreement. All proposed
lease renewals shall be submitted to General Services by the time
specified by General Services.
(4) The board shall adopt procedures to be used for governmental
bodies to apply for rental space, for acquiring leased space, and for
leasing state-owned space to nonstate lessees.
(5) Any participant in a property transaction proposed to be
entered who maintains that a procedure provided for in this section
has not been properly followed, may request review of the transaction
by the Director of the Office of General Services or his designee.
Section 1-11-56. The State Budget and Control Board, in an
effort to ensure that funds authorized and appropriated for rent are
used in the most efficient manner, is directed to develop a program
to manage the leasing of all public and private space of state
agencies. The board's regulations, upon General Assembly approval,
shall include procedures for:
(1) assessing and evaluating agency needs, including the authority
to require agency justification for any request to lease public or
private space;
(2) establishing standards for the quality and quantity of space to
be leased by a requesting agency;
(3) devising and requiring the use of a standard lease form
(approved by the Attorney General) with provisions which assert and
protect the state's prerogatives including, but not limited to, a right
of cancellation in the event of:
(a) a nonappropriation for the renting agency,
(b) a dissolution of the agency, and
(c) the availability of public space in substitution for private
space being leased by the agency;
(4) rejecting an agency's request for additional space or space at
a specific location, or both;
(5) directing agencies to be located in public space, when
available, before private space can be leased;
(6) requiring the agency to submit a multi-year financial plan for
review by the board's budget office with copies sent to Ways and
Means Committee and Senate Finance Committee, before any new
lease for space is entered into; and requiring prior review by the Joint
Bond Review Committee and the requirement of Budget and Control
Board approval before the adoption of any new lease that commits
more than one million dollars in a five-year period; and
(7) requiring prior review by the Joint Bond Review Committee
and the requirement of Budget and Control Board approval before the
adoption of any new lease that commits more than one million dollars
in a five-year period.
Section 1-11-57. (1) All transactions involving the exchange of
title to real property, made for or by any governmental bodies,
excluding political subdivisions of the State, must be approved by
and recorded with the State Budget and Control Board. Upon
approval of an acquisition of title by any governmental body by the
Budget and Control Board, there must be recorded simultaneously
with the deed, a certificate of acceptance, which acknowledges the
board's approval of the acquisition. The county recording authority
cannot accept for recording any deed not accompanied by a
certificate of acceptance. The board may exempt a governmental
body from the provisions of this subsection.
(2) All state agencies, departments, and institutions authorized by
law to accept gifts of tangible personal property shall have executed
by its governing body an acknowledgment of acceptance prior to
transfer of the tangible personal property to the agency, department,
or institution.
Section. 1-11-58. (1) Every state agency, as defined by Section
1-19-40, shall annually perform an inventory and prepare a report of
all residential and surplus real property owned by it. The report shall
be submitted to the State Budget and Control Board, Office of
General Services, on or before June thirtieth and shall indicate current
use, current value, and projected use of the property. Property not
currently being utilized for necessary agency operations shall be
made available for sale and funds received from the sale of the
property shall revert to the general fund.
(2) The Office of General Services will review the annual reports
addressing real property submitted to it and determine the real
property which is surplus to the State. A central listing of such
property will be maintained for reference in reviewing subsequent
property acquisition needs of agencies.
(3) Upon receipt of a request by an agency to acquire additional
property, the Office of General Services shall review the surplus
property list to determine if the agency's needs can be met from
existing state-owned property. If such property is identified, the
Office of General Services shall act as broker in transferring the
property to the requesting agency under terms and conditions that are
mutually agreeable to the agencies involved.
(4) The Budget and Control Board may authorize the Office of
General Services to sell any unassigned surplus real property. The
Office of General Services shall have the discretion to determine the
method of disposal to be used, which possible methods include:
auction, sealed bids, listing the property with a private broker or any
other method determined by the Office of General Services to be
commercially reasonable considering the type and location of
property involved."
SECTION 3. Sections 1-1-1110, and 1-11-35 of the 1976 Code are
repealed.
SECTION 4. This act takes effect upon approval by the Governor.
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