H*4026 Session 112 (1997-1998)
H*4026(Rat #0245, Act #0153 of 1997) General Bill, By H. Brown
Similar(S 639)
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, TO PROVIDE FOR THE ADMINISTRATIVE RESOLUTION OF CONTROVERSIES,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.-AMENDED TITLE
04/10/97 House Introduced and read first time HJ-126
04/10/97 House Referred to Committee on Ways and Means HJ-128
04/24/97 House Committee report: Favorable Ways and Means HJ-11
04/30/97 House Objection by Rep. Stuart, Moody-Lawrence, Scott &
Kennedy HJ-45
04/30/97 House Read second time HJ-45
04/30/97 House Objection withdrawn by Rep. Scott & Kennedy HJ-46
05/01/97 House Read third time and sent to Senate HJ-18
05/01/97 Senate Introduced and read first time SJ-36
05/01/97 Senate Referred to Committee on Finance SJ-36
05/21/97 Senate Committee report: Favorable with amendment
Finance SJ-30
06/03/97 Senate Read second time SJ-141
06/03/97 Senate Ordered to third reading with notice of
amendments SJ-141
06/04/97 Senate Amended SJ-112
06/04/97 Senate Read third time and returned to House with
amendments SJ-112
06/05/97 House Concurred in Senate amendment and enrolled HJ-57
06/09/97 Ratified R 245
06/13/97 Signed By Governor
06/13/97 Effective date 06/13/97
07/23/97 Copies available
07/23/97 Act No. 153
(A153, R245, H4026)
AN ACT 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, TO PROVIDE FOR THE ADMINISTRATIVE
RESOLUTION OF CONTROVERSIES, 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:
Consolidated Procurement Code revisions
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
governmental 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) All vouchers for payment of purchases of
goods or services shall be delivered to the Comptroller General's office
within thirty work days from acceptance of the goods or services and
proper invoice. After the thirtieth work day, following acceptance or the
postmark 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. Only the lump sum institutions of
higher education are responsible for the payment of all goods or services
within thirty work days after the 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 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 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
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 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, printing systems, and data transmission
equipment; and related software such as operating systems, library and
maintenance routines, and applications programs.
(b) 'telecommunications' means voice, data, message, and video
transmissions, and includes the transmission and switching facilities of
public telecommunications systems, as well as operating and network
software.
(c) 'office systems technology' means office equipment such as
typewriters, duplicating and photocopy machines, paper forms, and
records; microfilm and microfiche equipment and printing equipment and
services.
(d) 'services' means the providing of consultant assistance for any
aspect of information technology, systems, and networks.
(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 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, agency, government corporation, or other
establishment or official of the executive or judicial branch.
Governmental body excludes the General Assembly or its respective
branches or its committees, Legislative Council, the Office of Legislative
Printing and Information Technology Resources, and all local political
subdivisions such as counties, municipalities, school districts, or public
service or special purpose districts or any entity created by act of the
General Assembly for the purpose of erecting monuments or memorials
or commissioning art that is being procured exclusively by private funds.
(19) 'Grant' means the furnishing by the State or the United States
government of assistance, whether financial or otherwise, to 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.
(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.
(25) 'Procurement officer' means any person duly authorized by the
governmental body, in accordance with procedures prescribed by
regulation, to enter into and administer contracts and make written
determinations and findings with respect thereto. The term also includes
an authorized representative of the governmental body within the scope
of his authority.
(26) 'Purchasing agency' means any governmental body other than the
chief procurement officers authorized by this code or by way of
delegation from the chief procurement officers to enter into contracts.
(27) 'Real property' means any land, all things growing on or attached
thereto, and all improvements made thereto including buildings and
structures located thereon.
(28) 'Request for Proposals (RFP)' means a written or published
solicitation issued by an authorized procurement officer for proposals to
provide supplies 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.
(29) 'Services' means the furnishing of labor, time, or effort by a
contractor not required to deliver a specific end product, other than reports
which are merely incidental to required performance. This term includes
consultant services other than architectural, engineering, land surveying,
construction management, and related services. This term does not include
employment agreements or services as defined in Section
11-35-310(1)(d).
(30) 'Subcontractor' means any person having a contract to perform
work or render service to a prime contractor as a part of the prime
contractor's agreement with a governmental body.
(31) 'Supplies' means all personal property including, but not limited
to, equipment, materials, printing, and insurance.
(32) 'State' means state government.
(33) 'State Engineer' means the person holding the position as head of
the state engineer's office.
(34) 'Suspension' means the disqualification of a person to receive
invitations for bids, requests for proposals, or the award of a contract by
the State, for a temporary period pending the completion of an
investigation and any legal proceedings that may ensue because a person
is suspected upon probable cause of engaging in criminal, fraudulent, or
seriously improper conduct or failure or inadequacy of performance
which may lead to debarment.
(35) 'Term Contract' means 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.
(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 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.
At the time of submitting a proposal or bid, the party supplying a bid
or proposal must identify any portions of the proposal or bid considered
by the party to be a trade secret and thus eligible to be withheld from
public inspection and copying. If the information identified by the party
is a trade secret, as defined in Section 30-4-40(a)(1), it may be withheld
from public inspection and copying. If the party fails to identify
information as a trade secret, the entire bid or proposal is to be made
available for public inspection and copying.
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 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 be 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
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 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 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 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 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 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 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 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 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 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. (1) The 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 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 and the Budget and Control Board. The
auditors shall provide in writing proposed corrective action to
governmental bodies. Based upon audit recommendations of the 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) The Division of Budget Analysis, or other office or division within
the Budget and Control Board, in consultation with the Comptroller
General, shall assume responsibility for operation and maintenance of the
automated quarterly fiscal reporting procedures. The Comptroller General
and the Division of Budget Analysis, or other office or division within the
Budget and Control Board, 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
and the Division of Budget Analysis, or other office or division within the
Budget and Control Board, as necessary. All agencies, departments, and
institutions of state government shall report to the Comptroller General
and the Division of Budget Analysis, or other office or division within the
Budget and Control Board, any required information. 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);
(3) Section 11-35-1250 (Authority to Contract for Auditing Services);
(4) Section 11-35-1260 (Authority to Contract for Legal Services);
(5) Section 11-35-1270 (Authority to Contract for Certain Services);
(6) Section 11-35-1530 (Competitive Sealed Proposals);
(7) Section 11-35-1540 (Negotiations After Unsuccessful Competitive Sealed Bidding);
(8) Section 11-35-1550 (Small Purchases);
(9) Section 11-35-1560 (Sole Source Procurements);
(10) Section 11-35-1570 (Emergency Procurements);
(11) Section 11-35-1575 (Procurements at Auction);
(12) Section 11-35-1580 (Procurement of Information Technology);
(13) Section 11-35-3020 (Construction Procurement Procedures);
(14) Section 11-35-3220 (Architect-Engineer, Construction Management and Land Surveying Services Procurement Procedures);
(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 and shall include specifications and all
contractual terms and conditions applicable to the procurement.
(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 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.
(4) Receipt and Safeguarding of Bids. All bids (including
modifications) received prior to the time of opening shall be kept secure
and unopened, except as provided for by regulation of the board.
(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.
(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.
(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 reward 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.
(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 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,
except when only one response is received. Such 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) 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 be
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 quality or delivery, and 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) A preference of seven percent must be
provided to vendors who are residents of South Carolina or whose
products are made, manufactured, or grown in South Carolina as set forth
in this section.
(B) 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 seven 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.
(C) 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.
(D) 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 thirty thousand dollars,
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 ten thousand dollars; or
(5) to any solicitation conducted under Section 11-35-1530 of the
code.
(E) 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 bidder's claim to a preference against his bid
in determining contract award.
(F) If a vendor qualifies as a resident vendor and is bidding a product
made, manufactured, or grown in South Carolina, an additional three
percent preference must be given if claimed by the bidder.
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 preset 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 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) Public Notice. Adequate public notice of the request for proposals
shall be given in the same manner as provided in Section 11-35-1520(3).
(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.
(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.
(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 evaluation factor.
(6) Discussion with Offerors. As provided in the request for
proposals, discussions may be conducted with apparent responsive
offerors 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.
(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(9) below.
(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; or
(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.
(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). 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).
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. 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.
(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.
(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.
(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.
(d) Purchases from ten thousand one dollars to twenty-five
thousand dollars. Written solicitation of written quotes, bids, or proposals
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.
(3) Protest rights. The provisions of Section 11-35-4210 do not apply
to contracts awarded under the procedures set forth in this section.
(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.
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 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.
Subarticle 5
Cancellation of Solicitations
Section 11-35-1710. Any 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 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 prequalifying 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 prequalification 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 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 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.
Subarticle 11
Inspection of Plant and Audit of Records
Section 11-35-2210. The 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(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 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
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 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 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 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 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.
(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) 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, written notification of the election
immediately shall be sent to all firms interviewed.
(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
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 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 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 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.
(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) 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
Section 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 Office of General Services.
Such sales shall be held at such places and in such manner as in the
judgment of the Office of General Services 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 Office of General
Services all surplus personal property not in actual public use held by that
agency for sale. The 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 procurement or lease of like items.
The trade-in value of such personal property shall not exceed an amount
as specified in regulations promulgated by the 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 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 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 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 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 solicited under
Article 5 of this code and valued at one million dollars or more to post
with the appropriate chief procurement officer a bond or irrevocable letter
of credit 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 or irrevocable letter of credit is not appealable
under Section 11-35-4210. The bond or irrevocable letter of credit 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 or irrevocable letter of credit 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 or irrevocable letter of credit, the appropriate
chief procurement officer may accept a cashier's check or money order in
the amount of the bond or irrevocable letter of credit. 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, irrevocable letter of credit, 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, irrevocable
letter of credit, 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, irrevocable letter of credit or
cashier's check may be sought from the agency requesting the bond or
irrevocable letter of credit.
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
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 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 11-35-4410(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.
Section 11-35-4320. Remedies available in a contract controversy
brought under the provisions of Section 11-35-4230. 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.
However, thirty days notice of a proposed multi-state solicitation shall
be provided through central advertising and such contracts may be only
awarded to manufacturers who will be distributing the products to South
Carolina governmental bodies through South Carolina vendors.
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) Ensuring that the State shall not be required to sacrifice quality
of goods or services.
(5) Ensuring 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 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 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 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 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 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 board 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) wilful violation of any provision of this article.
(7) After a period of one year, the SMBAO may reissue a certificate
of eligibility provided acceptable evidence has been presented to the
commission that the conditions which caused the revocation have been
corrected.
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."
Real property leasing, exchange, and inventory
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."
Repeal
SECTION 3. Sections 1-1-1110, and 1-11-35 of the 1976 Code are
repealed.
Time effective
SECTION 4. This act takes effect upon approval by the Governor.
Approved the 13th day of June, 1997. |