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H*4081 Session 110 (1993-1994)
H*4081(Rat #0265, Act #0178) General Bill, By Boan and Wilkins
A Bill to enact the "State Government Accountability and Reform Act of
1993".-short title
04/14/93 House Introduced and read first time HJ-57
04/14/93 House Referred to Committee on Ways and Means HJ-59
05/25/93 House Committee report: Favorable with amendment Ways
and Means HJ-7
05/27/93 House Amended HJ-160
05/27/93 House Read second time HJ-196
05/27/93 House Unanimous consent for third reading on next
legislative day HJ-196
05/28/93 House Read third time and sent to Senate HJ-3
06/01/93 Senate Introduced and read first time SJ-49
06/01/93 Senate Referred to Committee on Finance SJ-49
06/01/93 Senate Recalled from Committee on Finance SJ-87
06/02/93 Senate Read second time SJ-66
06/02/93 Senate Ordered to third reading with notice of
amendments SJ-66
06/03/93 Senate Amended SJ-41
06/03/93 Senate Read third time and returned to House with
amendments SJ-41
06/03/93 House Concurred in Senate amendment and enrolled HJ-72
06/10/93 Ratified R 265
06/16/93 Signed By Governor
06/16/93 Effective date 07/01/93
07/13/93 Copies available
(A178, R265, H4081)
AN ACT TO ENACT THE "STATE GOVERNMENT
ACCOUNTABILITY AND REFORM ACT OF 1993" INCLUDING
PROVISIONS TO PROVIDE A STATEMENT OF INTENT TO ENSURE
AGENCY HEADS ARE HELD ACCOUNTABLE FOR PUBLIC
RESOURCES ENTRUSTED TO THEM, TO PROVIDE THAT THE
BUDGET AND CONTROL BOARD SHALL MONITOR AND
EVALUATE THE IMPLEMENTATION OF THE PROCUREMENT
AND MANAGEMENT REFORMS HEREIN CONTAINED; TO AMEND
SECTION 2-47-50, CODE OF LAWS OF SOUTH CAROLINA, 1976,
RELATING TO THE ESTABLISHMENT OF PERMANENT PROJECTS
BY THE BUDGET AND CONTROL BOARD, SO AS TO ALLOW
AGENCIES AND INSTITUTIONS TO ADVERTISE FOR
ARCHITECTURAL AND ENGINEERING SERVICES PRIOR TO
BOARD APPROVAL OF THE PROJECT SO LONG AS THE
ARCHITECTURAL AND ENGINEERING CONTRACT IS NOT
AWARDED UNTIL AFTER A STATE PROJECT NUMBER HAS BEEN
ASSIGNED; TO ADD SECTION 2-47-55 SO AS TO ESTABLISH THE
ANNUAL PERMANENT IMPROVEMENT PROGRAM (APIP)
REGARDING AN AGENCY'S PERMANENT IMPROVEMENT
PROJECTS AND PROVIDE FOR THE APPROVAL OR DISAPPROVAL
OF THE APIP; TO ADD SECTION 2-47-56 SO AS TO ALLOW
AGENCIES AND INSTITUTIONS TO ACCEPT GIFTS-IN-KIND OF A
VALUE LESS THAN TWO HUNDRED FIFTY THOUSAND DOLLARS
FOR ARCHITECTURAL AND ENGINEERING SERVICES AND
CONSTRUCTION WITH CERTAIN APPROVAL; TO ADD SECTION
8-1-160 SO AS TO PROVIDE THAT STATE AGENCIES MAY
INCREASE OR DECREASE INDIVIDUAL EMPLOYEE SALARIES
BASED ON PERFORMANCE UNDER CERTAIN CONDITIONS, TO
ADD SECTION 8-1-170 SO AS TO AUTHORIZE STATE AGENCIES
TO DEVELOP GROUP PRODUCTIVITY INCENTIVE PROGRAMS,
TO ADD SECTION 8-1-180 SO AS TO PERMIT STATE AGENCIES TO
SPEND PUBLIC FUNDS ON EMPLOYEE AWARDS AND
FUNCTIONS, TO ADD SECTION 8-1-190 SO AS TO AUTHORIZE
THE BUDGET AND CONTROL BOARD TO ENTER INTO PILOT
PROGRAMS FOR INNOVATIONS IN STATE GOVERNMENT; TO
ADD SECTION 8-11-15 SO AS TO ESTABLISH A MINIMUM
THIRTY-SEVEN AND ONE-HALF HOUR WORKWEEK FOR
AGENCY AND INSTITUTION EMPLOYEES WHO WORK FULL
TIME, AND ALLOW THE USE OF ALTERNATIVE SCHEDULING TO
MEET THE AGENCY'S OR INSTITUTION'S SERVICE NEEDS; TO
AMEND SECTION 8-17-320 RELATING TO DEFINITIONS IN
REGARD TO THE STATE EMPLOYEE GRIEVANCE PROCEDURE,
SO AS TO REVISE CERTAIN DEFINITIONS; TO AMEND SECTION
8-17-330, AS AMENDED, RELATING TO STATE AGENCY
EMPLOYEE GRIEVANCE PROCEDURES, SO AS TO FURTHER
PROVIDE FOR CERTAIN SITUATIONS OR ACTIONS WHICH ARE
NOT CONSIDERED GRIEVANCES; TO AMEND SECTION 11-35-20,
RELATING TO THE PURPOSE AND POLICIES OF THE
CONSOLIDATED PROCUREMENT CODE, SO AS TO REVISE THESE
PURPOSES AND POLICIES; TO AMEND SECTION 11-35-45, AS
AMENDED, RELATING TO PAYMENT FOR GOODS AND SERVICES
RECEIVED BY THE STATE SO AS TO REQUIRE VENDORS TO
SPECIFY ON THE INVOICE THAT CERTAIN LATE PAYMENT
PENALTIES ARE APPLICABLE; TO AMEND SECTION 11-35-70,
RELATING TO SCHOOL DISTRICTS BEING SUBJECT TO THE
PROCUREMENT CODE, SO AS TO CORRECT CERTAIN
TECHNICAL REFERENCES AND FURTHER PROVIDE FOR THE
CONDUCT OF PROCUREMENT AUDITS; TO AMEND SECTION
11-35-310, AS AMENDED, RELATING TO DEFINITIONS UNDER
THE PROCUREMENT CODE, SO AS TO REVISE CERTAIN
DEFINITIONS; TO AMEND SECTION 11-35-810, RELATING TO THE
MATERIALS MANAGEMENT OFFICE OF THE DIVISION OF
GENERAL SERVICES SO AS TO DELETE A PROVISION
REQUIRING THE MATERIALS MANAGEMENT OFFICER TO
ANSWER DIRECTLY TO THE DIRECTOR OF THE DIVISION OF
GENERAL SERVICES; TO ADD SECTION 11-35-835 SO AS TO
REQUIRE THE STATE ENGINEER'S OFFICE TO COMPLETE
CERTAIN REVIEWS WITHIN A SPECIFIED TIME; TO ADD
SECTION 11-35-845 SO AS TO ALLOW THOSE GOVERNMENTAL
BODIES WHICH HAVE TOTAL MANAGEMENT CAPABILITY TO
OVERSEE THE ADMINISTRATION OF PERMANENT
IMPROVEMENT PROJECTS; TO AMEND SECTION 11-35-1030,
RELATING TO PROCUREMENT TRAINING AND CERTIFICATION,
SO AS TO CORRECT A TECHNICAL MISTAKE; TO AMEND
SECTION 11-35-1410, RELATING TO DEFINITIONS FOR PURPOSES
OF SOURCE SELECTION AND CONTRACT INFORMATION, SO AS
TO REVISE THE DEFINITION OF RESPONSIVE BIDDER; TO
AMEND SECTION 11-35-1520, AS AMENDED, RELATING TO
COMPETITIVE SEALED BIDDING, SO AS TO INCREASE FROM
TWO THOUSAND FIVE HUNDRED DOLLARS TO TWENTY-FIVE
THOUSAND DOLLARS THE AMOUNT ON WHICH COMPETITIVE
SEALED BIDS ARE REQUIRED AND TO REVISE THE
PROCEDURES FOR COMPETITIVE SEALED BIDDING; TO AMEND
SECTION 11-35-1530, RELATING TO COMPETITIVE SEALED
PROPOSALS, SO AS TO REVISE THE PROCEDURES FOR SUCH
PROPOSALS; TO AMEND SECTION 11-35-1550, RELATING TO
SMALL PURCHASE PROCEDURES, SO AS TO FURTHER PROVIDE
FOR THESE PROCEDURES AND THE DOLLAR AMOUNTS
CONSTITUTING SMALL PURCHASES; TO ADD SECTION
11-35-1825 SO AS TO DIRECT THE DIVISION OF GENERAL
SERVICES TO ESTABLISH A PROCEDURE FOR PRE-QUALIFYING
BIDDERS ON CONSTRUCTION PROJECTS; TO AMEND SECTION
11-35-2010, RELATING TO TYPES AND FORMS OF CONTRACTS,
SO AS TO ALLOW A GOVERNMENTAL BODY TO ENTER INTO
RENTAL CONTRACTS FOR EQUIPMENT, WITHOUT USE OF THE
STATE'S STANDARD EQUIPMENT FORM, WHEN THE EQUIPMENT
IS VALUED AT TEN THOUSAND DOLLARS OR LESS AND THE
CONTRACT DOES NOT EXCEED NINETY DAYS; TO AMEND
SECTION 11-35-2410, RELATING TO FINALITY OF
DETERMINATIONS, SO AS TO FURTHER PROVIDE FOR THE
TYPES OF DETERMINATIONS WHICH ARE CONSIDERED FINAL;
TO AMEND SECTION 11-35-3020, AS AMENDED, RELATING TO
CONSTRUCTION PROCUREMENT PROCEDURES, SO AS TO
REVISE THESE PROCEDURES; TO ADD SECTION 11-35-3025 SO AS
TO ALLOW AGENCIES AND INSTITUTIONS TO APPROVE
CHANGES IN ARCHITECTURAL AND ENGINEERING CONTRACTS
AND CONSTRUCTION CONTRACTS WHEN THE CHANGE DOES
NOT ALTER THE PROJECT'S SCOPE AND DOES NOT EXCEED THE
PROJECT'S BUDGET; TO AMEND SECTION 11-35-3030, RELATING
TO BOND AND SECURITY, SO AS TO FURTHER PROVIDE FOR
THE REQUIREMENTS OF BID SECURITY AND FOR CERTAIN
WAIVERS OF THIS REQUIREMENT; TO AMEND SECTION
11-35-3210, RELATING TO APPLICABILITY AND POLICY OF
ARCHITECT-ENGINEER, CONSTRUCTION MANAGEMENT, AND
LAND SURVEYING SERVICES, SO AS TO FURTHER PROVIDE FOR
THIS APPLICABILITY; TO AMEND SECTION 11-35-3220,
RELATING TO PROCUREMENT PROCEDURES IN REGARD TO
ARCHITECT-ENGINEER, CONSTRUCTION MANAGEMENT, AND
LAND SURVEYING SERVICES, SO AS TO FURTHER PROVIDE FOR
THESE PROCEDURES; TO AMEND SECTION 11-35-3230,
RELATING TO PROCUREMENT PROCEDURES FOR CERTAIN
TYPES OF CONTRACTS, SO AS TO FURTHER PROVIDE FOR
THESE PROCEDURES AND THE MAXIMUM FEES THAT MAY BE
PAID TO ONE PERSON OR FIRM FOR CERTAIN SERVICES; TO
AMEND CHAPTER 35, TITLE 11 OF THE 1976 CODE, RELATING TO
THE CONSOLIDATED PROCUREMENT CODE, BY ADDING
ARTICLE 10 SO AS TO PROVIDE FOR AND REGULATE
INDEFINITE DELIVERY CONTRACTS FOR CERTAIN SERVICES;
TO AMEND ARTICLE 17, CHAPTER 35 OF TITLE 11, RELATING TO
LEGAL AND CONTRACTUAL REMEDIES UNDER THE
PROCUREMENT CODE, SO AS TO REVISE THESE REMEDIES, THE
PROCEDURES FOR OBTAINING THESE REMEDIES, AND FOR THE
MEMBERSHIP, DUTIES, FUNCTIONS, AND PROCEDURES OF THE
PROCUREMENT REVIEW PANEL; AND TO AMEND SECTION
59-103-35, RELATING TO SUBMISSION OF BUDGET OF
INSTITUTIONS OF HIGHER LEARNING, SO AS TO ALLOW PUBLIC
INSTITUTIONS OF HIGHER EDUCATION TO SUBMIT SUMMARY
BUDGETS TO THE COMMISSION ON HIGHER EDUCATION
INSTEAD OF HAVING TO SUBMIT LINE-ITEM BUDGETS.
Be it enacted by the General Assembly of the State of South Carolina:
Citation
SECTION 1. This act may be cited as the "State Government
Accountability and Reform Act of 1993."
Intent for efficient resource use
SECTION 2. It is the intent of the General Assembly to ensure that the
heads of state agencies, departments, and institutions are held accountable
for the effective and efficient use of the public resources entrusted to them
annually in the appropriation process. Each agency, department, or
institution head is expected to have in place an effective system of
management controls to prevent and detect improper conduct by their
employees. In the event of mismanagement, waste, or abuse allowed by an
agency, department, or institution head, the Governor, constitutional
officer, or governing board is expected to take swift and appropriate action
to correct the matter and regain the public trust.
It is the intent of the General Assembly that agencies and institutions
comply with the provisions of Code Sections 11-35-1520, 1-11-35, and
44-96-140, as amended, relating to vendor preferences. The Division of
General Services shall not be required to audit for compliance with these
sections.
Monitoring of reforms
SECTION 3. The Budget and Control Board shall monitor and evaluate
implementation of the procurement and construction management reforms
contained in this act. The purpose of the evaluation is to:
(1) identify cost savings from the reduced cost of goods and services
procured and also cost savings through increased administrative efficiency;
and
(2) report on whether agencies and institutions are complying with the
provisions of Section 11-35-1560, relating to sole source procurements.
State agencies and institutions shall cooperate with the board in the
collection of data requested by the board to conduct its evaluation. The
board annually shall report to the House Ways and Means and Senate
Finance Committees on the results of their evaluation. The Budget and
Control Board also shall report to the Ways and Means and Senate Finance
Committees on administrative cost savings or organizational changes in the
Division of General Services as a result of the reforms contained in this act.
This reporting requirement ends July 1, 1996.
Advertising for architectural and engineering services
SECTION 4. The first paragraph of Section 2-47-50 of the 1976 Code is
amended to read:
"The board shall establish formally each permanent improvement
project before actions of any sort which implement the project in any way
may be undertaken and no expenditure of any funds for any services or for
any other project purpose contracted for, delivered, or otherwise provided
prior to the date of the formal action of the board to establish the project
shall be approved. State agencies and institutions may advertise and
interview for project architectural and engineering services for a pending
project so long as the architectural and engineering contract is not awarded
until after a state project number is assigned. After the committee has
reviewed the form to be used to request the establishment of permanent
improvement projects and has reviewed the time schedule for considering
such requests as proposed by the board, requests to establish permanent
improvement projects shall be made in such form and at such times as the
board may require."
Annual permanent improvement programs
SECTION 5. The 1976 Code is amended by adding:
"Section 2-47-55. All state agencies responsible for providing and
maintaining physical facilities are required to submit an Annual Permanent
Improvement Program (APIP) to the Joint Bond Review Committee and the
Budget and Control Board. The APIP must include all of the agency's
permanent improvement projects anticipated and proposed to be started in
the upcoming year. The purpose of the APIP process is to provide the
board and the committee with a comprehensive view of each agency's
permanent improvement activities. Agencies must submit an APIP to the
committee and the board on or before June 15 of each year. The APIP
covers the next fiscal year period beginning July 1. The APIP for each
higher education agency, including the technical colleges, must be
submitted through the Commission on Higher Education which must
review the APIP and provide its recommendations to the board and the
committee. The board and the committee may develop policies and
procedures to implement and accomplish the purposes of this section. The
APIP must be approved by August first of the fiscal year for which the
APIP applies.
The State shall define a permanent improvement only in terms of capital
improvements, as defined by generally accepted accounting principles, for
reporting purposes to the State."
Acceptance of gifts-in-kind
SECTION 6. The 1976 Code is amended by adding:
"Section 2-47-56. Each state agency and institution may accept
gifts-in-kind for architectural and engineering services and construction of
a value less than two hundred fifty thousand dollars with the approval of
the Commission of Higher Education or its designated staff, the Director of
the Division of General Services, and the Joint Bond Review Committee or
its designated staff. No other approvals or procedural requirements,
including the provisions of Section 11-35-10, may be imposed on the
acceptance of such gifts."
Employee salaries, productivity incentive programs, awards, and pilot
programs
SECTION 7. The 1976 Code is amended by adding:
"Section 8-1-160. Notwithstanding other provisions of law, state
agencies may increase or decrease individual employee salaries based upon
performance. Such increase or decrease shall be determined by the agency.
Performance increases shall not place an employee's salary above the
maximum of the grade or executive compensation level. Performance
decreases may not place an employee's salary below the minimum of the
grade or executive compensation level. Performance decreases shall be
based on the results of an EPMS evaluation. Employees assessed salary
decreases may seek redress through the state employees' grievance
system.
Section 8-1-170. State agencies are authorized to develop group
productivity incentive programs for the recognition and award of team
accomplishments through group performance. Employees of any
organizational unit within each of the various agencies are eligible to share
equally twenty-five percent of the identified savings resulting from reduced
operational costs in the unit up to a maximum of two thousand dollars per
employee in a fiscal year. The agency shall adopt policies and procedures
to determine unit expenses or base data and for the year of participation in
the group productivity incentive program. Records of proposals, actual
dollar savings, and employee awards will be reported to the Budget and
Control Board or its designee. Any bonus or cash award paid as a group
productivity incentive shall not become a part of the employee's base salary
and shall not be considered as compensation in terms of contributions to
and determination of benefits for any of the state's retirement systems.
Section 8-1-180. State agencies and institutions shall be allowed to
 spend public funds on employee plaques, certificates, and other events,
including meals and similar types of recognition to reward innovations or
improvements by individual employees or employee teams that enhance the
quality of work or productivity or as a part of employee development
programs of their agency or institution. Awards shall be limited to fifty
dollars for each individual.
Section 8-1-190. Notwithstanding other provisions of law, the Budget
and Control Board is authorized to enter into pilot programs with individual
agencies or groups of agencies in order to create innovations in State
Government. The Budget and Control Board will monitor the findings and
results of pilot programs to determine if legislative recommendations
should be provided to the General Assembly."
Minimum workweek
SECTION 8. The 1976 Code is amended by adding:
"Section 8-11-15. The minimum full-time workweek for
employees of state agencies and institutions is thirty-seven and one-half
hours. The agency or institution may vary an employee's work schedule
through the use of alternative scheduling strategies to meet the needs and
service delivery requirements of the agency or institution."
Definitions revised
SECTION 9. Section 8-17-320(11) and (14) of the 1976 Code are
amended to read:
"(11) `Probationary employee' means a full-time or part-time
employee in the initial working test period of employment with the State of
not more than twelve months' duration for noninstructional personnel or the
academic year duration for instructional personnel. An employee who
receives an unsatisfactory performance appraisal during the probationary
period shall be terminated prior to becoming a permanent employee. The
provisions of this item apply to employees hired before June 30, 1993.
(14) `Temporary employee' means a full-time or part-time employee
hired to fill a position for a period not to exceed two years."
Actions or situations not considered grievances
SECTION 10. The fourth paragraph of Section 8-17-330 of the 1976
Code is amended to read:
"No employee shall be disciplined or otherwise prejudiced in
employment for exercising rights or testifying under the plan, and agency
heads shall encourage the use of the plan in the resolution of grievances
arising in the course of public employment. As used in this article,
grievances shall include dismissals, suspensions, involuntary
reassignments, and demotions. Reclassification, reassignments, and
transfers to the same pay grade are not considered grievances. Promotions
shall not be deemed grievances. However, where an allegation is made that
the grievant was excluded from consideration for promotion to a position
greater than one organizational level above his present level for which he
was qualified when the promotional opportunity occurred, and the grievant
applied or would have applied if he had known of the promotion
opportunity, and the state personnel director determines that there is any
material issue of fact or conclusion to be drawn from the facts of the
allegation, then the promotion shall be deemed grievable."
Purposes and policies revised
SECTION 11. Section 11-35-20 of the 1976 Code is amended to read:
"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."
Late payment charges
SECTION 12. Section 11-35-45(B) of the 1976 Code, as last amended by
Act 501 of 1992, is further amended to read:
"(B) All agencies and institutions of the State are required to
comply with the provisions of this section. Beginning July 1, 1983, the
Department of Mental Health, the Department of Mental Retardation, the
Department of Corrections, the Interagency Council on Public
Transportation, and the Sea Grants Consortium shall process all payments
for goods and services through the office of the Comptroller General. Only
the lump sum institutions of higher education are responsible for the
payment of all goods or services within thirty work days after the receipt of
the goods or services, whichever is received later, and shall pay an amount
not to exceed fifteen percent per annum on any unpaid balance which
exceeds the thirty work-day-period, if the vendor specifies on the statement
or the invoice submitted to such institutions that a late penalty is applicable
if not paid within thirty work days after the receipt of goods or
services."
Conduct of procurement audits
SECTION 13. Section 11-35-70 of the 1976 Code is amended to read:
"Section 11-35-70. Irrespective of the source of funds any school
district whose budget of total expenditures, including debt service, exceeds
seventy-five million dollars annually is subject to the provisions of Chapter
35 of Title 11, and shall notify the Director of the Division of General
Services of the Budget and Control Board of its expenditures within ninety
days after the close of its fiscal year. However, if a district has its own
procurement code which is in the written opinion of the Division of
General Services of the State Budget and Control Board substantially
similar to the provisions of the South Carolina Consolidated Procurement
Code, the district is exempt from the provisions of the South Carolina
Consolidated Procurement Code except for a procurement audit which must
be performed every three years by an audit firm approved by the Division
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."
Definition revised
SECTION 14. Section 11-35-310(27) of the 1976 Code is amended to
read:
"(27) `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)."
Definition revised
SECTION 15. Section 11-35-310(33) of the 1976 Code is amended to
read:
"(33) `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 a price that is less than the term contract price for the same
goods or services, it may purchase from the vendor offering the lower price.
A term contract may be a multiterm contract as provided in Section
11-35-2030."
Reporting provision deleted
SECTION 16. Section 11-35-810 of the 1976 Code is amended to
read:
"Section 11-35-810. There is hereby created, within the Division
of General Services, a materials management office to be headed by the
materials management officer."
Reviews required within specified time
SECTION 17. The 1976 Code is amended by adding:
"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."
Overseeing of permanent improvement projects
SECTION 18. The 1976 Code is amended by adding:
"Section 11-35-845. Each agency of state government that has
total management capability as defined and certified by the Division 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."
Technical correction
SECTION 19. Section 11-35-1030 of the 1976 Code is amended to
read:
"Section 11-35-1030. The Division of General Services shall
develop a system of training for procurement in accordance with
regulations by the board. Such training shall encompass the latest
techniques and methods of public procurement. If deemed appropriate by
the Division of General Services, such training shall include a requirement
for the certification of the procurement officer of each purchasing
agency." Definition revised
SECTION 20. Section 11-35-1410(7) of the 1976 Code is amended to
read:
"(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."
Competitive sealed bidding procedures revised
SECTION 21. Section 11-35-1520 of the 1976 Code, as last amended by
Act 442 of 1992, is further amended to read:
"Section 11-35-1520. (1) Condition for Use. Contracts
amounting to twenty-five thousand dollars or more shall be awarded by
competitive sealed bidding except as otherwise provided in Section
11-35-1510.
(2) Invitation for Bids. An invitation for bids shall be issued in an
efficient and economical manner to at least three qualified sources on the
bidders' lists appropriate for the particular procurement, and shall include
specifications and all contractual terms and conditions applicable to the
procurement. If the list does not contain three qualified sources, invitations
for bids shall be issued to such qualified sources as are available.
(3) Bidders' Lists. All sources requesting to be put on a bidder's list
shall be so enlisted, unless the chief procurement officer or head of
purchasing agency makes a written determination that the source should not
be enlisted in accordance with regulations of the board. Decisions to reject
enlistment shall be appealable to the appropriate chief procurement officer
and the Procurement Review Panel as specified in Article 17 of this
chapter. The appropriate chief procurement officer and the heads of
procurement agencies shall ensure that the bidders' lists contain all known
sources interested in bidding on state procurement. The chief procurement
officer shall review periodically the bidders' lists of the various
governmental bodies and shall require the addition to such lists of any
appropriate sources which are not contained therein.
(4) Notice. Adequate notice of the invitation for bids shall be given at
a reasonable time prior to the date set forth therein for the opening of bids.
Such notice shall include utilization of bidders' lists and may include
publications in a newspaper of general circulation in the State such as
`South Carolina Business Opportunities.'
(5) Receipt and Safeguarding of Bids. All bids (including
modifications) received prior to the time of opening shall be kept secure
and unopened in a locked box or safe, except as provided for by regulation
of the board.
(6) Bid Opening. Bids shall be opened publicly in the presence of one
or more witnesses at the time and place designated in the invitation for bids
and in the manner prescribed by regulation of the board. The amount of
each bid, and such other relevant information as may be specified by
regulation, together with the name of each bidder, shall be tabulated. The
tabulation shall be open to the public inspection at that time.
(7) Bid Acceptance and Bid Evaluation. Bids shall be accepted
unconditionally without alteration or correction, except as otherwise
authorized in this code. The invitation for bids shall set forth the
evaluation criteria to be used. No criteria may be used in bid evaluation
that are not set forth in the invitation for bids. Bids shall be evaluated
based on the requirements set forth in the invitation for bids and in
accordance with the regulations of the board.
(8) Correction or withdrawal of Bids; Cancellation of Awards.
Correction or withdrawal of inadvertently erroneous bids before bid
opening, withdrawal of inadvertently erroneous bids after award, or
cancellation and reaward of awards or contracts, after award but prior to
performance may be permitted in accordance with regulations promulgated
by the board. After bid opening no changes in bid prices or other
provisions of bids prejudicial to the interest of the State or fair competition
shall be permitted. Except as otherwise provided by regulation, all
decisions to permit the correction or withdrawal of bids, or to cancel
awards or contracts, after award but prior to performance shall be supported
by written determination of appropriateness made by the chief procurement
officers or head of a purchasing agency.
(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 witnessed by all interested parties.
These are the only conditions under which any in-state preference is
shown.
(e) Competitive procurements made by any governmental body must
be made from a responsive and responsible vendor resident in South
Carolina:
(i) for procurements under two million, five hundred thousand
dollars, if the bid does not exceed the lowest qualified bid from a
nonresident vendor by more than two percent of the latter bid, and if the
resident vendor has made written claim for the preference at the time the
bid was submitted;
(ii) for procurements in excess of two million, five hundred thousand
dollars, if the bid does not exceed the lowest qualified bid from a
nonresident vendor by more than one percent of the latter bid, and if the
resident vendor has made written claim for the preference at the time the
bid was submitted. A vendor is considered to be a resident of this State if
the vendor is (a) an individual, partnership, association, or corporation that
is authorized to transact business within the State, (b) maintains an office in
the State, (c) maintains an inventory for expendable items which are
representative of the general type of commodities on which the bid is
submitted and located in South Carolina at the time of the bid having a total
value of ten thousand dollars or more based on the bid price, but not to
exceed the amount of the contract, or is a manufacturer which is
headquartered and has at least a ten million dollar payroll in South Carolina
and the product is made or processed from raw materials into a finished end
product by such manufacturer or an affiliate (as defined in Section 1563 of
the Internal Revenue Code) of such manufacturer, and (d) has paid all
assessed taxes.
Preferences under this subsection do not apply against a resident vendor
whether or not he made written claim for the preference at the time of bid.
Preferences under this subsection do not apply to contracts procured under
Section 11-35-1530 nor to prime contractors or subcontractors as relates to
the procurement of construction under Section 11-35-3020 nor to a vendor
of goods whether in quantity or not when the price of a single unit of the
item involved is more than ten thousand dollars.
(10) Award. Unless there is a compelling reason to reject bids as
prescribed by regulation of the board, notice of an intended award of a
contract to the lowest responsive and responsible bidder 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. The
invitation for bids and the posted notice must contain a statement of a
bidder's right to protest under Section 11-35-4210(1) and the date and
location of posting must be announced at bid opening. When a contract has
a total or potential value in excess of fifty thousand dollars in addition to
the posted notice, notice of an intended award must be given to all bidders
responding to the solicitation by first-class mail to the name and address on
the bid documents. Such mailed notice must contain a statement of the
bidder's right to protest under Section 11-35-4210(1).
When a contract has a total or potential value in excess of fifty thousand
dollars, sixteen days after notice is given the agency may enter a contract
with the bidder named in the notice in accordance with the provisions of
this code and of the bid solicited. A determination of responsibility must
be made before award in accordance with Section 11-35-1810.
(11) Multi-Step Sealed Bidding. When it is considered initially
impractical to prepare a purchase description to support an award based on
price, an invitation for bids may be issued requesting the submission of
unpriced offers to be followed by an invitation for bids limited to those
bidders whose offers have been qualified under the criteria set forth in the
first solicitation.
(12) Provisions Not to Apply. The provisions of this section shall not
apply to maintenance services for aircraft of the South Carolina
Aeronautics Commission.
(13) Minor Informalities and Irregularities in Bids. A minor
informality or irregularity is one which is merely a matter of form or is
some immaterial variation from the exact requirements of the invitation for
bids having no effect or merely a trivial or negligible effect on total bid
price, quality, quantity, or delivery of the supplies or performance of the
contract, and the correction or waiver of which would not affect the relative
standing of, or be otherwise prejudicial to, bidders. The procurement
officer shall either give the bidder an opportunity to cure any deficiency
resulting from a minor informality or irregularity in a bid or waive any such
deficiency when it is to the advantage of the State. Such communication or
determination shall be in writing. Examples of minor informalities or
irregularities include, but are not limited to:
(a) failure of a bidder to return the number of copies of signed bids
required by the solicitation;
(b) failure of a bidder to furnish the required information concerning
the number of the bidder's employees or failure to make a representation
concerning its size;
(c) failure of a bidder to sign its bid, but only if the firm submitting
the bid has formally adopted or authorized the execution of documents by
typewritten, printed, or rubber stamped signature and submits evidence of
such authorization, and the bid carries such a signature or the unsigned bid
is accompanied by other material indicating the bidder's intention to be
bound by the unsigned document, such as the submission of a bid guarantee
with the bid or a letter signed by the bidder with the bid referring to and
identifying the bid itself;
(d) failure of a bidder to acknowledge receipt of an amendment to a
solicitation, but only if (i) the bid received indicates in some way that the
bidder received the amendment, such as where the amendment added
another item to the solicitation and the bidder submitted a bid, thereon
provided that the bidder states under oath that it received the amendment
prior to bidding and that the bidder will stand by its bid price or (ii) the
amendment has no effect or merely a trivial or negligible effect on price,
quality, quantity, delivery, or the relative standing of 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."
Competitive sealed proposal procedures revised
SECTION 22. Section 11-35-1530 of the 1976 Code is amended to
read:
"Section 11-35-1530. (1) Conditions for Use. When the chief
procurement officer, or the head of a purchasing agency, determines in
writing that the use of competitive sealed bidding is either not practicable
or not advantageous to the State, a contract may be entered into by
competitive sealed proposals subject to the provisions of Section
11-35-1520 and the ensuing regulations, unless otherwise provided for in
this section. Subject to the requirements of Section 11-35-3220, the board
may provide by regulation that it is either not practicable or not
advantageous to the State to procure specified types of supplies, services,
or construction by competitive sealed bidding.
(2) Request for Proposal. Proposals shall be solicited from at least
three qualified sources, when such sources are available, through a request
for proposals.
(3) Public Notice. Adequate public notice of the request for proposals
shall be given in the same manner as provided in Section
11-35-1520(4).
(4) Receipt of Proposals. Proposals shall be opened publicly in
accordance with regulations of the board. A tabulation of proposals shall
be prepared in accordance with regulations promulgated by the board and
shall be open for public inspection after contract award.
(5) 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 prospective offerors shall be ranked from most
qualified to least qualified on the basis of the information provided.
Proposals shall then be solicited from at least the top two prospective
offerors by means of a request for proposals. The failure of a prospective
offeror to be selected to receive the request for proposals shall not be
grounds for protest under Section 11-35-4210.
(6) Public Notice. Adequate public notice of the request for
qualifications shall be given in the manner provided in Section
11-35-1520(4).
(7) Evaluation Factors. The request for proposals shall state the
relative importance of the factors to be considered in evaluating proposals
but shall not require a numerical weighting for each factor. Price may but
need not be an initial evaluation factor.
(8) Discussion with Responsive Offerors. As provided in the request
for proposals, discussions may be conducted with responsive offerors who
submit proposals for the purpose of clarification to assure full
understanding of the requirements of the request for proposals. All
offerors, whose proposals in the procuring agency's sole judgment need
clarification shall be accorded such an opportunity.
(9) Selection and Ranking. Proposals shall be evaluated using only
the criteria stated in the request for proposals and there must be adherence
to any weightings that have been previously assigned. Once evaluation is
complete, all responsive offerors shall be ranked from most advantageous
to least advantageous to the State, considering only the evaluation factors
stated in the request for proposals. If price is an initial evaluation factor,
award shall be made in accordance with Section 11-35-1530(10) below.
If price is not an initial evaluation factor, negotiations shall be
conducted with the top ranked responsive offeror for performance of the
contract at a price which, in the sole opinion of the procuring agency, is fair
and reasonable to the State. Should the procurement official representing
the procurement agency be unable to negotiate a contract at a price which,
in the sole opinion of the procuring agency, is fair and reasonable to the
State, negotiations shall be formally terminated with the top ranked
responsive offeror and negotiations commenced with the second most
advantageous responsive offeror, and then the third and so on until a
satisfactory contract has been negotiated. In conducting negotiations, there
must be no disclosure of any information derived from proposals submitted
by competing offerors.
(10) 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(11). The contract file shall
contain the basis on which the award is made and must be sufficient to
satisfy external audit. Procedures and requirements for the notification of
intent to award the contract shall be the same as those stated in Section
11-35-1520(10).
(11) Other. If, after following the procedures set forth in Section
11-35-1530(9), a contract is not able to be negotiated, the scope of the
request for proposals may be changed in an effort to reduce the cost to a
fair and reasonable amount, and all responsive offerors must be allowed to
submit their best and final offers. Where price was an initial evaluation
factor, the procuring agency, through the appropriate procurement official
may, in its sole discretion and not subject to challenge through a protest
filed under Section 11-35-4210, proceed in any of the manners indicated
below:
(1) negotiate price with the highest scoring offeror. If a satisfactory
price cannot be agreed upon, price negotiations may be conducted in the
sole discretion of the procuring agency with the second, and then the third,
and so on, ranked offerors to such level of ranking as determined by the
procuring agency in its sole discretion; or
(2) negotiate with the highest ranking offeror on matters affecting the
scope of the contract so long as the overall nature and intent of the contract
is not changed. If a satisfactory contract cannot be negotiated with the
highest ranking offeror, negotiations may be conducted in the sole
discretion of the procuring agency with the second, and then the third, and
so on, ranked offerors to such level of ranking as determined by the
procuring agency in its sole discretion; or
(3) change the scope of the request for proposals and give all
responsive offerors an opportunity to submit best and final offers.
If the agency chooses any of these options, and is still unable to award a
contract, it may repeat any of the procedures outlined herein until a
proposed contract is successfully achieved."
Small purchases
SECTION 23. Section 11-35-1550 of the 1976 Code is amended to
read:
"Section 11-35-1550. (1) Authority. The following small
purchase procedures may be utilized in conducting procurements for
governmental bodies that are less than $25,000.00 in actual or potential
value. Any agency may conduct its own procurement under $5,000.00 in
actual or potential value, and any 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 herein;
provided, however, that procurement requirements shall 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 $1,500.00. Small purchases not
exceeding $1,500.00 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. Such purchases shall be distributed equitably among qualified
suppliers. When practical, a quotation will be solicited from other than the
previous supplier prior to 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.
Therefore, 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, e.g., comparison to previous price paid,
personal knowledge of the item involved.
(b) Purchases from $1,501.00 to $5,000.00. Solicitations of verbal or
written quotes from a minimum of three qualified sources of supply shall 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 $5,001.00 to $10,000.00. Solicitation of written
quotes from a minimum of three qualified sources of supply shall be made
and documentation of the quotes attached to the purchase requisition. The
award shall be made to the lowest responsive and responsible sources.
(d) Purchases from $10,001.00 to $25,000.00. Written solicitation of
written quotes from a minimum of five qualified sources of supply shall be
made. The procurement shall be advertised at least once in the South
Carolina Business Opportunities publication. A copy of the written
solicitation and written quotes shall be attached to the purchase requisition.
The award shall be made to the lowest responsive and responsible
source.
(3) Protest Rights. The provisions of Section 11-35-4210 shall not
apply to contracts awarded under the procedures set forth in this
section."
Pre-qualifying construction bidders
SECTION 24. The 1976 Code is amended by adding:
"Section 11-35-1825. The State Engineer's Office shall develop a
procedure and a list of criteria for pre-qualifying construction bidders. The
criteria shall include, but not be limited to, prior performance, recent past
references on all aspects of performance, financial stability, and experience
on similar construction projects. A governmental body may use the
pre-qualification process only for projects where the construction involved
is unique in nature as determined by the State Engineer's Office, and under
the supervision of the State Engineer's Office unless the project falls within
the governmental body's procurement certification limits.
When the prequalification process is employed, only those bidders who
are pre-qualified through this procedure are entitled to submit a bid for the
project. The determination of which bidders are pre-qualified, and thereby
entitled to bid, is not protestable under Section 11-35-4210 or any other
provision of this code."
Equipment rental contracts
SECTION 25. Section 11-35-2010(2) of the 1976 Code is amended to
read:
"(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."
Determinations considered final
SECTION 26. Section 11-35-2410 of the 1976 Code is amended to
read:
"Section 11-35-2410. The determinations required by Section
11-35-1520(8) (Competitive Sealed Bidding: Correction or Withdrawal of
Bids; Cancellation of Awards), Section 11-35-1530(1) (Competitive Sealed
Proposals, Conditions for Use), 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 11-35-1830(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 shall review samples of such determinations
periodically and issue reports and recommendations on the appropriateness
of the determinations made."
Construction procurement procedures revised
SECTION 27. Section 11-35-3020 of the 1976 Code, as last amended by
Act 442 of 1992, is further amended to read:
"Section 11-35-3020. (1) 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 (1) 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 (1) 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 (1) 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 architectural and engineering firm hired by the agency must
determine the significant subcontractors needed for the project, without
percentages or dollars, on a project-by-project basis. It is mandatory that
these significant subcontractors be included in the invitation for bids and
the response to the invitation for bids. Any bidder in response to an
invitation for bids shall set forth in his bid the name and location of the
place of business of each significant subcontractor as referenced in
appropriate documents of the American Institute of Architects (with no
percentages or dollars) on a project-by-project basis and include these in
the bid documents as mandatory to be supplied with the bid. If the prime
contractor 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 prime contractor is qualified to perform such work under the
terms of the invitation for bids, the prime contractor shall indicate this 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 comply with the listing requirements of subitem (i)
above 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.
(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 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. 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.
(d) Negotiations After Unsuccessful Competitive Sealed Bidding.
In lieu of Section 11-35-1540, the following provisions apply:
(1) When bids received pursuant to an invitation for bids exceed
available funds or were not independently reached in open competition and
it is determined in writing by the chief procurement officer or his designee
that time or other circumstances will not permit the delay required to
resolicit competitive sealed bids, a contract may be negotiated pursuant to
this section with the lowest responsible and responsive bidder, provided
that the lowest base bid does not exceed available funds by an amount
greater than five percent of the construction budget established for that
portion of the work. The using agency may change the scope of the work
to reduce the cost to be within the established construction budget.
(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."
Changes in architectural, engineering, and construction
contracts
SECTION 28. The 1976 Code is amended by adding:
"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."
Bid security revisions
SECTION 29. Section 11-35-3030(1)(a) of the 1976 Code is amended to
read:
"(1) 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
shall be 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."
Curing of deficiencies
SECTION 30. Section 11-35-3030(1)(c) of the 1976 Code is amended to
read:
"(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."
Waiver of requirements
SECTION 31. Section 11-35-3030(2)(a) of the 1976 Code is amended by
adding at the end:
"(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."
Applicability of certain provisions
SECTION 32. Section 11-35-3210(1) of the 1976 Code is amended to
read:
"(1) 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."
Procedures revised
SECTION 33. Section 11-35-3220(3), (5), and (6) of the 1976 Code are
amended to read:
"(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.
(5) Selection and Ranking of the Five Most Qualified. The agency
selection committee shall evaluate each of the persons or firms interviewed
in view of their:
(a) past performance;
(b) the ability of professional personnel;
(c) willingness to meet time and budget requirements;
(d) location;
(e) recent, current, and projected work loads 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 that the
ranking report is final by the agency, written notification of the election and
order of preference shall be immediately sent to all of those that responded
to the agency selection committee's invitation to submit
information."
Procedures and maximum fees to any one person revised
SECTION 34. Section 11-35-3230 of the 1976 Code is amended to
read:
"Section 11-35-3230. (1) Procurement Procedures for Certain
Contracts. All governmental bodies securing architect-engineer or land
surveying service which is estimated not to exceed eighteen thousand
dollars may employ the architects, engineers, or land surveyors by direct
negotiation and selection, taking into account (a) the nature of the project,
(b) the proximity of the architect-engineer or land surveying services to the
project, (c) the capability of the architect, engineer, or land surveyor to
produce the required service within a reasonable time, (d) past
performance, and (e) ability to meet project budget requirements.
(2) Maximum Fees Payable to One Person or Firm. Fees paid during
the twenty-four month period immediately preceding negotiation of the
contract by any single governmental body for professional services
performed by any one architectural-engineering or land surveying firm
pursuant to Section 11-35-3230(1) shall not exceed fifty-four thousand
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."
Indefinite delivery contracts
SECTION 35. Chapter 35, Title 11 of the 1976 Code is amended by
adding:
"Article 10
Indefinite Delivery Contracts
Section 11-35-3310. Indefinite Delivery Contracts for Construction
Items, Architectural-Engineering and Land Surveying Services.
(1) General Applicability. Indefinite delivery contracts may be
awarded on an as-needed basis for construction related services pursuant to
the procedures set forth in Section 11-35-3020 and for
architectural-engineering and land surveying services pursuant to Section
11-35-3220. When either of these two types of contracts is awarded they
shall be limited to a total expenditure of $200,000 for a two-year period
with individual project expenditures not to exceed $100,000.
(2) Grant or Other Funded Research Projects. A government body may
establish an indefinite delivery contract pursuant to the procedures set forth
in Section 11-35-3020 for use on an as-needed basis for construction or
renovation funded by grant or other nonappropriated funds given for
research projects. A contract established under this section shall be limited
to a total expenditure of $250,000 for a two-year period with individual
project fees not to exceed $100,000.
(3) 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."
Legal and contractual remedies revised, procurement review panel
membership, functions, and procedures revised
SECTION 36. Article 17, Chapter 35 of Title 11 of the 1976 Code is
amended to read:
"Article 17
Legal and Contractual Remedies
Subarticle I
Administrative Resolution of
Controversies
Section 11-35-4210. (1) 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 a purchasing
agency, or designees thereof shall attempt to settle by mutual agreement a
protest of an aggrieved bidder, offeror, contractor, or subcontractor, actual
or prospective, concerning the solicitation or award of the contract. The
appropriate Chief Procurement Officer, the head of the purchasing agency,
or designees thereof shall have the authority to approve any settlement
reached by mutual agreement.
(4) Administrative Review and Decision. If in the opinion of the
Appropriate Chief Procurement Officer, after reasonable attempt, a protest
cannot be settled by mutual agreement, the appropriate Chief Procurement
Officer shall promptly conduct an administrative review and shall issue a
decision in writing within ten days of completion of the review. The
decision shall state the reasons for the action taken. (5) Notice of Decision. A copy of the decision under subsection (4) of
this section along with a statement of appeal rights under Section
11-35-4210(6) shall be mailed or otherwise furnished immediately to the
protestant and any other party intervening. The appropriate chief
procurement officer shall also post a copy of the decision at a date and
place communicated to all parties participating in the administrative
review, and such posted decision shall indicate the date of posting on its
face and shall be accompanied by a statement of the right to appeal
provided in Section 11-35-4210(6).
(6) Finality of Decision. A decision under subsection (4) of this section
shall be final and conclusive, unless fraudulent, or unless any person
adversely affected by the decision requests a further administrative review
by the Procurement Review Panel, under Section 11-35-4410(1) within ten
working days of posting of the decision in accordance with Section
11-35-4210(5). The request for review shall be directed to the appropriate
Chief Procurement Officer, who shall forward the request to the Panel, or to
the Procurement Review Panel and shall be in writing, setting forth the
reasons why the person disagrees with the decision of the appropriate Chief
Procurement Officer. The person may also request a hearing before the
Procurement Review Panel.
(7) Stay of Procurement During Protests. In the event of a timely
protest under subsection (1) above, the State shall not proceed further with
the solicitation or award of the contract until a decision is rendered by the
appropriate Chief Procurement Officer, or in the event of timely appeal to
the Procurement Review Panel until a decision is rendered by the panel;
provided, however, that solicitation or award of a protested contract will
not be stayed if the appropriate Chief Procurement Officer, after
consultation with the head of the using agency, makes a written
determination that the solicitation or award of the contract without delay is
necessary to protect the best interests of the State.
Section 11-35-4220. (1) 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 therefor, and the period of debarment or
suspension, if any.
(4) Notice of Decision. A copy of the decision under subsection (3) of
this section and a statement of appeal rights under Section 11-35-4220(5)
shall be mailed or otherwise furnished immediately to the debarred or
suspended person and any other party intervening. The appropriate Chief
Procurement officer shall also post a copy of the decision at a time and
place communicated to all parties participating in the administrative review
and such posted decision shall indicate the date of posting on its face and
shall be accompanied by a statement of the right to appeal provided in
Section 11-35-4220(5).
(5) Finality of Decision. A decision under subsection (3) of this section
shall be final and conclusive, unless fraudulent, or unless the debarred or
suspended person requests further administrative review by the
Procurement Review Panel under Section 11-35-4410(1), within ten
working days of the posting of the decision in accordance with Section
11-35-4220(4). The requesonfor 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. (1) Applicability. This section applies to
controversies between the State and a contractor or subcontractor when the
subcontractor is the real party in interest, which arise under or by virtue of a
contract between them including, but not limited to, controversies based
upon breach of contract, mistake, misrepresentation, or other cause for
contract modification or recision. The procedure set forth in this section
shall constitute the exclusive means of resolving a controversy between the
State and a contractor or subcontractor concerning a contract solicited and
awarded under the provisions of the South Carolina Consolidated
Procurement Code.
(2) Request for Resolution; Time for Filing. Either the contracting state
agency or the contractor or subcontractor when the subcontractor is the real
party in interest may initiate resolution proceedings before the appropriate
Chief Procurement Officer by submitting a request for resolution to the
appropriate Chief Procurement Officer in writing setting forth the general
nature of the controversy and the relief requested with enough particularity
to give notice of the issues to be decided. A request for resolution of
contract controversy must be filed within one year of the date the contractor
last performs work under the contract; provided, however, that in the case
of latent defects a request for resolution of a contract controversy must be
filed within one year of the date the requesting party first knows or should
know of the grounds giving rise to the request for resolution.
(3) Duty and Authority to Attempt to Settle Contract Controversies.
Prior to commencement of an administrative review as provided in
subsection (4), the appropriate Chief Procurement Officer shall attempt to
settle by mutual agreement a contract controversy brought under this
section. The appropriate Chief Procurement Officer shall have the
authority to approve any settlement reached by mutual agreement.
(4) Administrative Review and Decision. If, in the opinion of the
appropriate Chief Procurement Officer, after reasonable attempt, a contract
controversy cannot be settled by mutual agreement, the appropriate Chief
Procurement Officer shall promptly conduct an administrative review and
shall issue a decision in writing within ten days of completion of the
review. The decision shall state the reasons for the action taken.
(5) Notice of Decision. A copy of the decision under subsection (4) of
this section and a statement of appeal rights under Section 11-35-4230(6)
shall be mailed or otherwise furnished immediately to all parties
participating in the administrative review proceedings. The appropriate
Chief Procurement Officer shall also post a copy of the decision at a time
and place communicated to all parties participating in the administrative
review, and such posted decision shall indicate the date of posting on its
face and shall be accompanied by a statement of the right to appeal
provided in Section 11-35-4230(6).
(6) Finality of Decision. A decision under subsection (4) of this section
shall be final and conclusive unless fraudulent or unless any person
adversely affected requests a further administrative review by the
Procurement Review Panel under Section 11-35-4410(1) within ten
working days of the posting of the decision in accordance with Section
11-35-4230(5). The request for review shall be directed to the appropriate
Chief Procurement Officer who shall forward the request to the Panel or to
the Procurement Review Panel and shall be in writing setting forth the
reasons why the person disagrees with the decision of the appropriate Chief
Procurement Officer. The person may also request a hearing before the
Procurement Review Panel.
Subarticle 2
Remedies
Section 11-35-4310. Solicitations or Awards in Violation of the
Law.
(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. Contract Controversies, 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. Frivolous Protests. (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 Violation. 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 its 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. (1) 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 procurement;
(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 Sections 1-23-10 et
seq. or any other provision 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."
Summary budgets
SECTION 37. Section 59-103-35 of the 1976 Code is amended to
read:
"Section 59-103-35. All public institutions of higher learning
shall submit summary budgets to the commission in the manner set forth in
this section. The State Board for Technical and Comprehensive Education
shall submit a summary budget to the commission representing the total
request of all area-wide technical and comprehensive educational
institutions. The budget submitted by each institution and the State Board
for Technical and Comprehensive Education must include all state funds,
federal grants, tuition, and fees other than funds derived wholly from
athletic or other student contests, from the activities of student
organizations, from approved private practice plans, and from the operation
of canteens and bookstores which may be retained by the institutions and
be used as determined by the respective governing boards, subject to annual
audit by the State. Fees established by the respective governing boards for
programs, activities, and projects not covered by appropriations or other
revenues may be retained and used by each institution as previously
determined by the respective governing boards, subject to annual audit by
the State.
Supplemental appropriations requests from any public institution of
higher education must be submitted first to the commission. If the
commission does not concur in the requests the affected institution may
request a hearing on the requests before the appropriate committee of the
General Assembly. The commission may appear at the hearing and present
its own recommendations and findings to the same committee.
No new program may be undertaken by any public institution of higher
education without the approval of the commission. The provisions of this
chapter apply to all college parallel, transferable, and associate degree
programs of technical and comprehensive education institutions. All other
programs and offerings of technical and comprehensive education
institutions are excluded from this chapter. The commission has the
authority to recommend the termination of an existing program at any
institution within the purview of this chapter. An appeal from this
recommendation must be made by the governing board of an affected
institution within sixty days to the Senate Education Committee and the
House Education and Public Works Committee which shall hear the parties
to the appeal. If both committees refuse to concur in the recommendation
for termination, the program must not be terminated pursuant to the
recommendation of the commission which is the subject of this appeal. A
decision must be reached by the committees within one hundred twenty
days from the date of the filing of the appeal."
Applicability of provisions
SECTION 38. The provisions of this act relating to the requirements for
protesting the solicitation or award of a contract are effective for bids or
proposals solicited on or after July 1, 1993.
Time effective
SECTION 39. This act takes effect July 1, 1993.
Approved the 16th day of June, 1993. | 
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