The Budget and Control Board Procurement Regulations
The Budget and Control Board Procurement Regulations
Amend Chapter 19 of the Rules and Regulations of the 1976 South Carolina Code of Laws,
as amended, by adding the following State Procurement Regulations in Article 4.
ARTICLE 4
Consolidated Procurement Code
19-445.2000. State Procurement Regulations
A. Application
B. Organizational Authority
19-445.2005. Approval of
Internal Procurement Procedures Manual
19-445.2015. Ratification
A. Unauthorized Procurements
19-445.2020. Certification
A. Review Procedures
B. Limitations
19-445.2025. Authority to
Contract for Certain Professional Services
A. Consultant Services
B. Employee Services
C. Employment Services
D. Legal Services
E. Auditing Services
19-445.2030. Competitive
Sealed Bidding-The Invitation for Bids
19-445.2035. Bidders' List
A. Application
B. Bidders' List for Construction
19-445.2040 The Official
State Government Publication
A. Specifications of Publication
B. Availability in Public Libraries
19-445.2045. Receipt and Safeguarding of Bids
A. Procedures Prior to Bid Opening
B. Unidentified Bids
19-445.2050. Bid Opening
A. Procedures
B. Postponement of Bid Opening
C. Disclosure of Bid Information
19-445.2055. Bid Acceptance and Bid Evaluation
19-445.2060. Telegraphic Bids
19-445.2065. Rejection of Bids
A. Application
B. Cancellation of Bids Prior to Award
C. Extension of Bid Acceptance Period
19-445.2070. Rejection of Individual Bids
A. General Application
B. Alternate Bids
C. Nonresponsive Bids
D. Modification of Requirements by Bidder
E. Price Unreasonableness
F. Bid Guarantee Requirement
G. Unsigned Bids
H. Exceptions to Rejection Procedures
19-445.2075. All or None Qualifications
19-445.2085. Correction or Withdrawal of Bids; Cancellation of Awards
A. General Procedures
B. Correction Creates Low Bid
C. Notice of Award
19-445.2090. Award
A. Application
B. Time of Award
C. Notice of Award
19-445.2095. Competitive Sealed Proposals
A. Request for Proposals
B. Receipt and Safeguarding of Proposals
C. Receipt of Proposals
D. Evaluation of Proposals
E. Minor Informalities and Irregularities in Proposals
F. Specified Type of Supplies, Services or Construction
G. Other Applicable Provisions
19-445.2100. Small Purchases and Other Simplified Purchasing Procedures.
A. Authority
Competition and Price Reasonableness
B. Establishment of Blanket Purchase Agreements
C. Calls Against Blanket Purchase Agreement
D. Receipt and Acceptnace of Supplies and Services
E. Review Procedures
19-445.2105. Sole Source
Procurements
A. Application
B. Exceptions
19-445.2110. EmergencyProcurements.
A. Application
B. Definition
C. Limitations
D. Conditions
E. Selection of Method of Procurement
F. General Procedures
G. Written Determination
19-445.2115. Information Technology Procurements
A. Authority and Purpose
B. Organization
19-445.2120. Lease and/or Rental of Office Space and Other Real Property
A. Lease of Non-State-Owned Real Property
B. Lease of State-Owned Real Property
C. Exemptions
19-445.2121. Leasing of
Real Property
A. General Regulations
B. Types of Lease Transactions
C. Exempt Leases
D. Standard Leases
E. Major Leases
F. Leases/Purchases
G. Other Leases
H. Standard Lease Documents
19-445.2125. Responsibility of Bidders and Offerors
A. State Standards of Responsibility
B. Duty of Contractor to Supply Information
C. Demonstration of Responsibility
D. Justification for Contract Award
E. Written Determination of Nonresponsibility
19-445.2130. Prequalification of Supplies and Suppliers
A. Qualified Products Lists
B. Prequalification
19-445.2135. Conditions for Use of Multi-Term Contracts
A. General
B. Objective
C. Rule Inapplicable
D. Conditions for Use
E. Solicitation
F. Award
G. Food Service Contracts
19-445.2140. Specifications
A. Definitions
B. Issuance of Specifications
C. Use of Functional or Performance Descriptions
D. Preference for Commercially Available Products
E. Specifications for Construction
19-445.2145. Construction,
Architect-Engineer, Construction Management, and Land Surveying
Services
A. Method of Construction Contract Administration
B. Construction Procurement - The Invitation for Bids
C. Bonds and Security
D. Architect-Engineer, Construction Management and Land Surveyin Services Procurement
E. Contract Forms
F. Manual for Planning and Execution of State Permanent Improvement Projects
G. Prequalifying Construction Bidding
H. Reference Section 11-35-3310
19-445.2150. Surplus Property Management .
A. Definition, Authority and Mission
B. Reporting and Relocation of Surplus Property
C. Transfer of Surplus Property to Governmental Bodies, Political Subdivisions,
& Eligible Nonprofit Health or Education Institutions
D. Public Sale of Surplus Property
E. Fee Schedule
F. Inventory and Accounting Systems
G. Trade-ln Sales
H. Definition and Sale of Junk
I. Unauthorized Disposal
J. Authority to Debar or Suspend
19-445.2152 Leases, Lease/Payment, Installment Purchase, and Rental of Personal Property
19-445.2155. Intergovernmental Relations
A. Selective Mandatory Opting
19-445.2160. Assistance to Minority Businesses
A. Definitions
B. Certification as a Minority Firm
C. Income Tax Credit
D. Negotiation with Certified South Carolina Based Firms
E. Minority Business Enterprise (MBE) Utilization Plan
F. Progress Payments
G. Reporting Requirements
H. Letter of Credit/Letter of Contract Award
Amend Chapter 19 of the Rules and
Regulations of the 1976 South Carolina Code of Laws, as amended,
by adding the following State Procurement Regulations in Article
4.
ARTICLE 4
Consolidated Procurement Code
19-445.2000. State Procurement
Regulations.
Promulgated under statutory authority
of Chapter 35 of Title 11 of the 1976 Code.
A. Application.
These Regulations issued by the
South Carolina Budget and Control Board, hereafter referred to
as the Board, establish policies, procedures, and guidelines relating
to the procurement, management, control, and disposal of supplies,
services, information technology, and construction, as applicable,
under the authority of the South Carolina Consolidated Procurement
Code, as amended. These Regulations are designed to achieve maximum
practicable uniformity in purchasing throughout state government.
Hence, implementation of the Procurement Code by and within governmental
bodies, as defined in Section 11-35-310(18) of the Procurement
Code, shall be consistent with these Regulations. Nothing contained
in these Rules and Regulations shall be construed to waive any
rights, remedies or defenses the State might have under any laws
of the State of South Carolina. References to the Office of General
Services throughout these Regulations apply equally to its successor,
the Office of General Services of the Division of Operations of
the Budget and Control Board.
B. Organizational Authority.
(1) Division of General Services:
The Director of the Division
of General Services acting on behalf of the Board shall have
the responsibility to audit and monitor the implementation of
these Regulations and requirements of the South Carolina Consolidated
Procurement Code. In accordance with Section 11-35-510 of the
Code, all rights, powers, duties and authority relating to the
procurement of supplies, services, and information technology
and to the management, control, warehousing, sale and disposal
of supplies, construction, information technology, and services
now vested in or exercised by any governmental body under the
provisions of law relating thereto, and regardless of source
funding, are hereby vested in the Division of General Services
through the auspices of the Office of the Director of the Division
of General Services.
The Director of the Division of General
Services shall be responsible for developing such organizational
structure as necessary to implement the provisions of the Procurement
Code and these Regulations.
(2) Materials Management Office:
The Director of the Division
of General Services hereby delegates the following responsibilities
to the Materials Management Officer in accordance with Section
11-35-3810 of the Procurement Code. The Materials Management
Officer therefore is specifically responsible for:
(a) developing a system of training
and certification for procurement officers of governmental bodies
in accordance with Section 11-35-1030;
(b) The Materials Management Officer
is authorized to recommend differential dollar limits for direct
procurements on the basis of but not limited to the following:
(1) procurement expertise,
(2) commodity,
(3) service,
(4) dollar;
(c) performing procurement audits
of governmental bodies in accordance with Sections 11-35-70 and
11-35-1230 of the Procurement Code.
(d) overseeing the acquisition
of goods and services for the State by the State Procurement Office.
(e) overseeing the acquisition
of procurements by the Information Technology Management Office
in accordance with Section 11-35-820;
(f) overseeing the acquisition
of procurements by the State Engineer in accordance with Section
11-35-830; and
(g) overseeing the implementation
and activities of a State Warehousing and Disposal Program in
accordance with Section 11-35-3610 of the Procurement Code.
(3) Office of Information Technology
Management: The Office of Information Technology Management under the direction and
oversight of the Materials Management Officer shall be responsible
for all procurements involving information technology pursuant
to Section 11-35-820 of the Procurement Code.
(4) Office of the State Engineer:
The Office of the State
Engineer under the direction and oversight of the Materials Management
Officer shall be responsible for all procurements involving construction,
architectural and engineering, construction management, and land
surveying services pursuant to Section 11-35-830 of the Procurement
code.
(5) Head of Governmental Body:
The head of a governmental body shall be that individual charged
with responsibility for the administration, operations and procurement
activities of that governmental body.
(6) Procuring Agency:
The agency issuing the solicitation involved.
19-445.2005. Approval
of Internal Procurement Procedures Manual.
All governmental bodies shall develop
an internal procurement procedures manual and forward a copy of
such to the Materials Management Officer. Upon receipt of the
respective governmental body's internal procurement procedures
manual, the Materials Management Office shall be responsible for
the following review:
(1) Determine that written internal
operations procedures as submitted are consistent with the South
Carolina Consolidated Procurement Code and Regulations.
(2) Notify the governmental body
of its findings in writing.
19-445.2015. Ratification
A. Unauthorized Procurements.
The ratification of an act obligating
the State in a contract by any person without the requisite authority
to do so by an appointment or delegation under the procurement
Code rests with the Office of General Services. It is prohibited
for a procurement officer to ratify such acts.
(1) Ratification by a Governmental
Body. The Office of General Services hereby delegates authority
to ratify such acts to the head of the governmental body responsible
for the person committing the act when the value of the contract
is within the dollar limits designated by the Budget and Control
Board for that governmental body.
(2) Ratification by the Materials
Management Officer. The Director of the Office of General
Services may delegate authority to ratify such acts other than
those specified in Item 1 above.
(3) Corrective Action and Liability.
In either case referred to in Items 1 and 2 above, the head of
the governmental body shall prepare a written determination as
to the facts and circumstances surrounding the act, what corrective
action is being taken to prevent reoccurrence, action taken against
the individual committing the act, and documentation that the
price paid is fair and reasonable.
19-445.2020. Certification.
A. Review Procedures.
Unless otherwise authorized by
statute, any governmental body that desires to make direct agency
procurements in excess of $5,000.00, shall contact the Materials
Management Officer in writing for a review of the particular agency's
internal procurement procedures manual for certification in any
of the following four areas:
(1) Goods and services;
(2) Consultant services;
(3) Construction and related professional
services;
(4) Information technology.
The Materials Management Officer
shall review the particular governmental body to include, but
not be limited to the following:
(1) Adherence to provisions of the
South Carolina Consolidated Procurement Code and these Regulations;
(2) Procurement staff and training;
(3) Adequate audit trails and purchase
order register;
(4) Evidences of competition;
(5) Small purchase provisions and
purchase order confirmation;
(6) Emergency and sole source procurements;
(7) Source selections;
(8) File documentation of procurements.
Upon favorable review by the Materials
Management Officer and approval by the Budget and Control Board
the particular governmental body may be certified and assigned
a dollar limit below which the certified governmental body may
make direct agency procurements. Such certification shall be
in writing and specify:
(a) The name of the governmental
body;
(b) Any limits or restrictions
on the exercise of the certification; and
(c) The duration of the certification.
B.
Limitations.
Such certification as prescribed
in Subsection A shall be subject to any term contracts established
by the Materials Management Officer which requires mandatory
procurement by all governmental bodies.
19-445.2025. Authority
to Contract for Certain Services.
Subject to the provisions of the
Procurement Code, Section 11-35-1270 shall be implemented in the
following manner: A governmental body needing to procure any
professional services that are not provided for in the purchasing
provisions of the Code or these Regulations and which are customarily
procured on a fee basis rather than by competitive bidding shall
have the authority to do so up to the certified dollar limit assigned
to that agency as per the requirements of Regulation 1919-445.2020.
For procurement of professional services on a fee basis which
exceed the certified dollar amount, the governmental body shall
forward requests for professional services needs to the appropriate
Chief Procurement Officer (i.e., Materials Management Officer,
the State Engineer, or the Information Technology Management
Officer) for processing.
A. Consultant Services.
For the purposes of these Regulations,
consultant services shall be defined as follows:
An individual, partnership, corporation
or any other legally established organization performing consulting
services for or providing consulting advice to the State of South
Carolina, or any governmental body thereof, over whom the State
or governmental body has the right of control as to the result
to be accomplished but not as to the details and means
by which that result is to be accomplished.
Services which fall within this definition
shall be procured in accordance with the Code and these Regulations.
B.
Employee Services.
For the purpose of these Regulations,
employee services shall be defined as follows: An individual
performing services directly for the State of South Carolina,
or any governmental body thereof, over whom the State or governmental
body has the right of control not only as to the result to be
accomplished by the work but also as to the details and means
by which that work is to be accomplished. Services which fall
within this definition shall be procured in accordance with State
personnel policies and procedures.
C. Employment Services.
For the purposes of these Regulations,
employment services shall be defined as follows: An individual
performing services indirectly for the State of South Carolina,
or any governmental body thereof, whose services are obtained
through a private employment agency. The employee-employer relationship
exists between the private employment agency and its employee.
The State, or any governmental body, will contract with the private
employment agency for the services of its employees.
Services which fall within this definition
shall be procured in accordance with the Code and these Regulations.
D. Legal Services.
Prior to the award of any state
contract for the services of attorneys, approval for such services
shall be obtained by the governmental body from the State Attorney
General. Procurement of such services shall be made in accordance
with the Procurement Code and these Regulations.
E.
Auditing Services.
Prior to the award of any state
contract for auditing or accounting services, approval for such
services shall be obtained by the governmental body from the
State Auditor. Procurement of such services shall be made in
accordance with the Procurement Code and these Regulations.
19-445.2030. Competitive
Sealed Bidding The Invitation for Bids.
The invitation for bids shall be
used to initiate a competitive sealed bid procurement and shall
include the following, as applicable:
(1) instructions and information
to bidders concerning the bid submission requirements, including
the time and date set for receipt of bids, the individual to whom
the bid is to be submitted, the address of the office to which
bids are to be delivered, the maximum time for bid acceptance
by the State, and any other special information;
(2) the purchase description,
evaluation factors, delivery or performance schedule, and such
inspection and acceptance requirements as are not included in
the purchase description;
(3) the contract terms and conditions,
including warranty and bonding or other security requirements,
as applicable; and
(4) instructions to bidders to
visibly mark as "confidential" each part of their bid
which they consider to be proprietary information. Bidding time
will be set to provide bidders a reasonable time to prepare their
bids. A minimum of seven (7) days shall be provided unless a
shorter time is deemed necessary for a particular procurement
as determined in writing by the Chief Procurement Officer or the
head of the governmental body or his designee.
19-445.2035. Bidders'
List.
A. Application.
To prevent excessive administrative
costs of procurement, the bidders' list should be used in a way
which will promote competition commensurate with the dollar value
of purchases to be made. Purchases of $25,000 or more require
written solicitation of at least five qualified sources from appropriate
vendors on the bidders' list, as well as the statutorily required
publication of the procurement in the South Carolina Business
Opportunities publication.
Bidders not responding to three
consecutive bid requests from a governmental body will be placed
on an inactive status. Bidders may reapply to the respective
governmental body for reinstatement to the active bidders' list.
A bidder returning a bid marked "no bid" to a governmental
body shall be considered as responding.
Bidders that have either been debarred
or suspended pursuant to Article 17 of the Procurement Code cannot
be placed on a governmental body's bidders' list until the debarment
or suspension period has been fulfilled.
For other good and sufficient reasons
concerning the best interests of the State, the Chief Procurement
Officer or head of the purchasing agency may determine in writing
that a source should not be listed.
B. Bidders' List for Construction.
Bidders' lists for construction,
as defined in Section 11-35-2910(3) of the Procurement Code, shall
not be maintained. Bidders requesting bid documents will be furnished
such when requested in writing and as published in the state
government publication as provided for in Section 11-35-3020(2)(a)
of the Code and Regulation 1919-445.2040.
19-445.2040. The Official
State Government Publication.
A. Specifications of Publication.
The name of the official state
government publication shall be known as the "South Carolina
Business Opportunities." It shall be published by the Office
of General Services at least weekly. The purpose is to provide
a listing of proposed procurements of construction, information
technology, supplies, services and other procurement information
of interest to the business community. The publication will be
available to all interested parties by subscription and distributed
by mail or electronic media. Contents shall be limited to inclusion
of proposed procurements required by regulations and such other
business information as approved by the Director of the Office
of General Services. Publication of proposed procurements of
a classified nature or emergencies may be excluded from publication.
B.
Availability in Public Libraries.
Each
publication of the "South Carolina Business Opportunities"
shall be distributed to public libraries within the State.
19-445.2045. Receipt and Safeguarding of Bids.
A. Procedures Prior to Bid
Opening.
All bids (including modifications)
received prior to the time of opening shall be kept secure and,
except as provided in Subsection B below, unopened in a locked
bid box or safe. If an invitation for bids is cancelled, bids
shall be returned to the bidders. Necessary precautions shall
be taken to insure the security of the bid box or safe. Prior
to bid opening, information concerning the identity and number
of bids received shall be made available only to the state employees,
and then only on a "need to know" basis. When bid samples
are submitted, they shall be handled with sufficient care to
prevent disclosure of characteristics before bid opening.
B.
Unidentified Bids.
Unidentified bids may be opened
solely for the purpose of identification, and then only by an
official specifically designated for this purpose by the Chief
Procurement Officer, the procurement officer of the governmental
body, or a designee of either officer. If a sealed bid is opened
by mistake, the person who opens the bid will immediately write
his signature and position on the envelope and deliver it to
the aforesaid official. This official shall immediately write
on the envelope an explanation of the opening, the date and time
opened, the invitation for bids' number and his signature, and
then shall immediately reseal the envelope.
19-445.2050. Bid Opening.
A.
Procedures.
The procurement officer of the
governmental body or his designee shall decide when the time set
for bid opening has arrived, and shall so declare to those present.
He shall then personally and publicly open all bids received
prior to that time, and read aloud so much thereof as is practicable,
including prices, to those persons present and have the bids recorded.
The amount of each bid and such other relevant information, together
with the name of each bidder, shall be tabulated. The tabulation
shall be open to public inspection.
B. Postponement of Bid
Opening
If it becomes necessary to postpone
a bid opening, the procurement officer shall issue the appropriate
amendments to the solicitation postponing or rescheduling the
bid opening.
C. Disclosure of Bid Information.
Only the information disclosed by the procurement officer of
the governmental body or his designee at bid opening is considered
to be public information under the Freedom of Information Act,
Chapter 4 of Title 30, until the notice of intent to award is
issued.
19-445.2055.
Bid Acceptance and Bid Evaluation.
When necessary for the best interest
of the State, bid criteria to determine acceptability may include
inspection, testing, quality, workmanship, delivery and suitability
for a particular purpose. Those criteria that will affect the
bid price and be considered in evaluation for award shall be
measurable costs to include, but not be limited to, discounts,
transportation costs, total or life cycle costs.
19-445.2060.
Telegraphic Bids.
As a general rule, telegraphic
bids will not be authorized. When, in the judgment of the procurement
officer, the date for the opening of bids will not allow bidders
sufficient time to prepare and submit bids on the prescribed forms
or when prices are subject to frequent changes, sealed telegraphic
bids may be authorized.
19-445.2065.
Rejection of Bids.
A. Application.
Unless there is a compelling reason
to reject one or more bids, award will be made to the lowest responsible
and responsive bidder. Every effort shall be made to anticipate
changes in a requirement prior to the date of opening and to notify
all prospective bidders of any resulting modification or cancellation,
thereby permitting bidders to change their bids and preventing
the unnecessary exposure of bid prices. As a general rule after
opening, an invitation for bids should not be canceled and readvertised
due solely to increased quantities of the items being procured;
award should be made on the initial invitation for bids and the
additional quantity required should be treated as a new procurement.
B.
Cancellation of Bids Prior to Award.
When it is determined prior to
an award, but after opening, that the requirements relating to
the availability and identification of specifications have not
been met, the invitation for bids shall be cancelled. Invitations
for bids may be cancelled after opening, but prior to award,
when such action is consistent with Subsection A above and the
procurement officer determines in writing that:
(1) inadequate or ambiguous specifications
were cited in the invitation;
(2) specifications have been
revised;
(3) the supplies or services
being procured are no longer required;
(4) the invitation did not provide
for consideration of all factors of cost to the State, such as
cost of transportin state furnished property to bidders' plants;
(5) bids received indicate that
the needs of the State can be satisfied by a less expensive article
differing from that on which the bids were invited;
(6) all otherwise acceptable
bids received are at unreasonable prices;
(7) the bids were not independently
arrived at in open competition, were collusive, or were submitted
in bad faith; or
(8) for other reasons, cancellation
is clearly in the best interest of the State. Determinations
to cancel invitations for bids shall state the reasons therefor.
C.
Extension of Bid Acceptance Period.
Should administrative difficulties
be encountered after bid opening which may delay award beyond
bidders' acceptance periods, the several lowest bidders should
be requested, before expiration of their bids, to extend the bid
acceptance period (with consent of sureties, if any) in order
to avoid the need for readvertisement.
19-445.2070. Rejection
of Individual Bids.
A. General Application.
Any bid which fails to conform
to the essential requirements of the invitation for bids shall
be rejected.
B.
Alternate Bids.
Any bid which does not conform
to the specifications contained or referenced in the invitation
for bids may be rejected unless the invitation authorized the
submission of alternate bids and the supplies offered as alternates
meet the requirements specified in the invitation.
C.
Nonresponsive Bids.
Any bid which fails to conform
to the delivery schedule, to permissible alternates thereto stated
in the invitation for bids, or to other material requirements
of the solicitation may be rejected as nonresponsive.
D.
Modification of Requirements by Bidder.
Ordinarily a bid should be rejected
when the bidder attempts to impose conditions which would modify
requirements of the invitation for bids or limit his liability
to the State, since to allow the bidder to impose such conditions
would be prejudicial to other bidders. For example, bids should
be rejected in which the bidder:
(1) attempts to protect himself
against future changes in conditions, such as increased costs,
if total possible cost to the State cannot be determined;
(2) fails to state a price and
in lieu thereof states that price shall be "price in effect
at time of delivery;"
(3) states a price but qualified
such price as being subject to "price in effect at time of
delivery;"
(4) when not authorized by the
invitation, conditions or qualifies his bid by stipulating that
his bid is to be considered only if, prior to date of award, bidder
receives (or does not receive) award under a separate procurement;
(5) requires the State to determine
that the bidder's product meets state specifications; or
(6) limits the rights of the
State under any contract clause. The lowest responsive and responsible
bidder may be requested to delete objectionable conditions from
his bid provided that these conditions do not go to the substance,
as distinguished from the form, of the bid or work an injustice
on other bidders.
E.
Price Unreasonableness.
Any bid may be rejected if the
procurement officer determines in writing that it is unreasonable
as to price.
F.
Bid Guarantee Requirement.
When a bid guarantee is required
and a bidder fails to furnish it in accordance with the requirements
of the invitation for bids, the bid shall be rejected.
G. Unsigned Bids.
Unsigned bids shall be rejected
unless a representative of the company who has the authority to
sign is present at the bid opening and if discovery is made prior
to the reading of any bids for that procurement, the representative
may be allowed to sign the bid.
H. Exceptions to Rejection Procedures.
Exceptions to Rejection Procedures.
Any bid received after the procurement officer of the governmental
body or his designee has declared that the time set for bid opening
has arrived, shall be rejected unless the bid had been delivered
to the designated purchasing office or the governmental bodies'
mail room which services that purchasing office prior to the bid
opening.
19-445.2075.
All or None Qualifications.
Unless the invitation for bids
so provides, a bid is not rendered nonresponsive by the fact that
the bidder specifies that award will be accepted only on all,
or a specified group, of the items included in the invitation
for bids. However, bidders shall not be permitted to withdraw
or modify "all or none" qualifications after bid opening
since such qualification is substantive and affects the rights
of the other bidders.
19-445.2085. Correction
or Withdrawal of Bids; Cancellation of Awards.
A. General Procedure.
A bidder or offeror must submit
in writing a request to either correct or withdraw a bid to either
the Chief Procurement Officer or the procurement officer of the
governmental body. Each written request must document the fact
that the bidder's or offeror's mistake is clearly an error that
will cause him substantial loss.
B.
Correction Creates Low Bid.
To maintain the integrity of the
competitive sealed bidding system, a bidder shall not be permitted
to correct a bid mistake after bid opening that would cause such
bidder to have the low bid unless the mistake in the judgment
of the procurement officer is clearly evident from examining
the bid document; for example, extension of unit prices or errors
in addition.
C. Notice of Award.
Cancellation of award prior to
performance. When it is determined after an award has been issued
but before performance has begun that the State's requirements
for the goods or services have changed or have not been met, the
award or contract may be canceled and either reawarded or a new
solicitation issued, if the Chief Procurement Officer determines
in writing that:
(1) Inadequate or ambiguous specifications
were cited in the invitation;
(2) Specifications have been revised;
(3) The supplies or services being
procured are no longer required;
(4) The invitation did not provide
for consideration of all factors of cost to the State, such as
cost of transporting state furnished property to bidders' plants;
(5) Bids received indicate that
the needs of the State can be satisfied by a less expensive article
differing from that on which the bids were invited;
(6) The bids were not independently
arrived at in open competition, were collusive, or were submitted
in bad faith;
(7) Administrative error of the
procuring agency discovered prior to performance, or
(8) For other reasons, cancellation
is clearly in the best interest of the State.
19-445.2090. Award.
A. Application.
The contract shall be awarded to
the lowest responsible and responsive bidder whose bid meets the
requirements and criteria set forth in the invitation for bids.
B.
Time of Award.
The procurement officer shall issue
the notice of intent to award or award on the date announced at
the bid opening, unless the procurement officer determines, and
gives notice, that a longer review time is necessary. The procurement
officer shall give notice of a time extension to each bidder by
posting it at the location announced at the bid opening.
C. Notice of Award.
Written notice of award shall be
sent to the successful bidder in procurements over $25,000.00.
Notice of award shall be made available to the public on request
and shall be posted at the location announced at the bid opening.
19-445.2095.
Competitive Sealed Proposals.
A. Request for Proposals.
The provisions of Regulation 1919-445.2035
and Regulations 1919-445.2040 shall apply to implement the requirements
of Section 11-35-1530 (2), Request for Proposals, and Section
11-35-1530 (3), Public Notice.
B. Receipt and Safeguarding
of Proposals.
The provisions of Regulation 1919-445.2045
shall apply for the receipt and safeguarding of proposals.
C. Receipt of Proposals.
For the purposes of implementing
Section 11-35-1530 (4), Receipt of Proposals, the following requirements
shall be followed.
(1) Proposals shall be opened publicly by the procurement officer
of the governmental body or his designee in the presence of one
or more witnesses at the time and place designated in the request
for proposals. A tabulation of those offering a proposal shall
be made public record. Contents of competing offers shall not
be disclosed during the process of negotiation. All offerors
must visibly mark as "confidential" each part of their
proposal which they consider to be proprietary information.
D. Evaluation of Proposals.
Evaluation of Proposals. The provisions
of Regulation 1919-445.2055 shall apply to implement the requirements
of Section 11-35-1530(7), Evaluation Factors.
E. Minor Informalities and
Irregularities in Proposals.
The provisions of Section 11-35-1520(13)
shall apply to competitive sealed proposals.
F.
Specified Types of Supplies, Services or Construction.
Pursuant to Section 11-35-3020(1),
and the approval requirements of Section 11-35-3010, the following
types of supplies, services, or construction may be procured by
competitive sealed proposals:
(1) Architect-Engineer services
and construction services to be awarded in the same contract for
an indefinite delivery of a specialized service (e.g. Hazard waste
remedial action).
(2) Design-Build or Lease-Purchase
contracts where there must be selection criteria in addition to
price.
(3) Energy conservation or other
projects to be financed by vendors who will be paid from the State's
savings.
(4) Supplies, services, or construction,
where consideration of alternative methods or systems would be
advantageous to the State.
G. Other Applicable Provisions.
The provisions of the following Regulations shall apply to competitive
sealed proposals:
(1) Regulation 1919-445.2060, Telegraphic
Bids,
(2) Regulation 1919-445.2065, Rejection
of Bids,
(3) Regulation 1919-445.2070, Rejection
of Individual Bids,
(4) Regulation 1919-445.2075, All
or None Qualifications,
(5) Regulation 1919-445.2085. Correction
or Withdrawal of Bids; Cancellation of Awards, and Cancellation
of Awards Prior to Performance.
(6) Regulation 1919-445.2135, Food
Service Contracts.
19-445.2100.
Small Purchases and Other Simplified Purchasing Procedures.
A. Authority.
Small purchases (under $25,000)
shall be made as provided in Section 11-35-1550, with fractions
of dollars rounded up, e.g., a purchase of $1,500.01 shall be
treated as a purchase of $1,501.00.
B. Establishment of Blanket
Purchase Agreements.
(1) General.
A blanket purchase agreement is a simplified method of filling
anticipated repetitive needs for small quantities of supplies
or services by establishing "charge accounts" with qualified
sources of supply. Blanket purchase agreements are designed to
reduce administrative costs in accomplishing small purchases by
eliminating the need for issuing individual purchase documents.
(2) Alternate Sources.
To the extent practicable, blanket purchase agreements for items
of the same type should be placed concurrently with more than
one supplier. All competitive sources shall be given an equal
opportunity to furnish supplies or services under such agreement.
(3) Terms and Conditions.
Blanket purchase agreements shall contain the following provisions:
(a) Description of agreement-
a statement that the supplier shall furnish supplies or services,
described therein in general terms, if and when requested by the
Procurement Officer, or his authorized representative, during
a specified period and within a stipulated aggregate amount, if
any. Blanket purchase agreements may encompass all items that
the supplier is in a position to furnish.
(b) Extent of Obligation
- a statement that the State is obligated onlt to the ext ent
of authorized calls actually placed against the blanket purchase
agreement.
(c) Notice of individuals
authorized to place calls under the agreement, identified
by organizational componenet, and the dollar limitation per call
for each individual shall be furnished to the supplier by the
Procurement Officer.
(d) Delivery tickets -
a requirement that all shipments under the agreement, except subscriptions
and other charges for newspapers, magazines, or other periodicals,
shall be accompanied by delivery tickets or sales slips which
shall contain the following minimum information:
(1) name of supplier;
(2) blanket purchase agreement
number;
(3) date of call;
(4) call number;
(5) itemized list of supplies
or services furnished;
(6) quantity, unit price, and
extension of each item less applicable discounts (unit price and
extensions need not be shown when incompatible with the use of
automated systems, provided that the invoice is itemized to show
this information); and
(7) date of delivery or shipment.
(e) Invoices - one of
the following statements:
(1) A summary invoice shall
be submitted at least monthly or upon expiration of the blanket
purchase agreement, whichever occurs first, for all deliveries
made during a billing period, identifying the delivery tickets
covered therein, stating their total dollar value, and supported
by receipted copies of the delivery tickets; or
(2) An itemized invoice shall
be submitted at least monthly or upon expiration of the blanket
purchase agreement, whichever occurs first, for all deliveries
made during a billing period and for which payment has not been
received. Such invoices need not be supported by copies of delivery
tickets.
(3) When billing procedures provide
for an individual invoice for each delivery, these invoices shall
be accumulated provided that a consolidated payment will be made
for each specified period; and the period of any discounts will
commence on final date of billinf period or on the date of receipt
of invoices for all deliveries accepted during the billing period,
whicever is later. This procedure should not used if the accumulation
of the individual invoices materially increases the administrative
costs of this purchase method.
(4) An invoice for subscriptions
or other charges for newspapers, magazines, or other periodicals
shall show the starting and ending dates and shall state either
that orders have been placed in effect or will be placed in effect
upon receipt of payment.
B. Competition Under Blanket
Purchase Agreement.
Calls against blanket purchase
agreements shall be placed after prices are obtained. When concurrent
agreements for similar items are in effect, calls shall be equitably
distributed. In those instances where there is an insufficient
number of BPAs for any given class of supplies or services to
assure adequate competition, the individual placing the order
shall solicit quotations from other sources.
C. Calls Against Blanket Purchase
Agreement.
Calls against blanket purchase
agreements generally will be made orally, except that informal
correspondence may be used when ordering against agreements outside
the local trade area. Written calls may be executed on State Purchase
Order Form. Documentation of calls shall be limited to essential
information. Forms may be developed for this purpose locally and
be compatible with the Comptroller General's Office STARS system.
D. Receipt and Acceptance of
Supplies or Services.
Acceptance of supplies or services
shall be indicated by signature and date on the appropriate form
by the authorized State representative after verification and
notation of any exceptions.
E. Review Procedures.
The governmental body shall review
blanket purchase agreement files at least semiannually to assure
that authorized procedures are being followed. Blanket purchase
agreements shall be issued for a period of no longer than 12 months.
19-445.2105.
Sole Source Procurements.
A. Application.
The provisions of this Regulation
shall apply to all sole source procurements unless emergency conditions
exist as defined in Regulation 1919-445.2110.
B.
Exceptions.
Sole source procurement is not
permissible unless there is only a single supplier. The following
are examples of circumstances which could necessitate sole source
procurement:
(1) where the compatibility of
equipment, accessories, or replacement parts is the paramount
consideration;
(2) where a sole supplier's item
is needed for trial use or testing;
(3) where the item is one of a
kind.
The determination as to whether
a procurement shall be made as a sole source shall be made by
either the Chief Procurement Officer, the head of a governmental
body, or designee of either office above the level of the procurement
officer. Any delegation of authority by either the Chief Procurement
Officer or the head of a governmental body, with respect to sole
source determinations shall be submitted in writing to the Materials
Management Officer. Such determination and the basis therefor
shall be in writing. Such officer may specify the application
of such determination and the duration of its effectiveness.
In cases of reasonable doubt, competition should be solicited.
Any request by a governmental body that a procurement be restricted
to one potential contractor shall be accompanied by an explanation
as to why no other will be suitable or acceptable to meet the
need.
19-445.2110.
Emergency Procurements.
A. Application.
The provisions of this Regulation
apply to every procurement made under emergency conditions that
will not permit other source selection methods to be used.
B. Definition.
An emergency condition is a situation
which creates a threat to public health, welfare, or safety such
as may arise by reason of floods, epidemics, riots, equipment
failure, fire loss, or such other reason as may be proclaimed
by either the Chief Procurement Officer or the head of a governmental
body or a designee of either office. The existence of such conditions
must create an immediate and serious need for supplies, services,
or construction that cannot be met through normal procurement
methods and the lack of which would seriously threaten: (1) the
functioning of State government; (2) the preservation or protection
of property; or (3) the health or safety of any person.
C. Limitations.
Emergency procurement shall be
limited to those supplies, services, or construction items necessary
to meet the emergency.
D. Conditions.
Any governmental body may make
emergency procurements when an emergency condition arises and
the need cannot be met through normal procurement methods, provided
that whenever practical, approval by either the head of a governmental
body or his designee or the Chief Procurement Officer shall be
obtained prior to the procurement.
E. Selection of Method of Procurement.
The procedure used shall be selected
to assure that the required supplies, services, or construction
items are procured in time to meet the emergency. Given this
constraint, such competition as is practical shall be obtained.
F. General Procedures.
Competitive sealed bidding is unsuccessful
when bids received pursuant to an Invitation for Bids are unreasonable,
noncompetitive, or the low bid exceeds available funds as certified
by the appropriate fiscal officer, and time or other circumstances
will not permit the delay required to resolicit competitive sealed
bids. If emergency conditions exist after an unsuccessful attempt
to use competitive sealed bidding, an emergency procurement may
be made.
G. Written Determination.
The Chief Procurement Officer or
the head of the governmental body or a designee of either office
shall make a written determination stating the basis for an emergency
procurement and for the selection of the particular contractor.
19-445.2115.
Information Technology Procurements.
A. Authority and Purpose.
Every governmental body, whether
using State appropriations or other funds, shall rent, purchase,
or lease any information technology, or software, or contract
for consulting or other services in the field of information
technology only in accordance with these Regulations.
B. Organization.
Every governmental body shall develop
in coordination with the Division of General Services a master
plan for Information Technology procurements as defined in Section
11-35-310 of the Procurement Code. Subject to the approval of
the master plan by the Division of General Services, acquisition
of Information Technology by governmental bodies shall be through
the Information Technology Management Office.
19-445.2120.
Lease and/or Rental of Office Space and Other Real Property.
A. Lease of Non State Owned
Real Property.
No governmental body shall contract
for the lease, rental, or use of non-State-owned real property
without approval of the Division of General Services, except
as specified in Subsection C. Requests shall be directed to the
Division of General Services, Real Property Management Section.
The Division of General Services shall negotiate all leases of
non-State-owned real property unless the governmental body has
been certified by the Materials Management Office.
B. Lease of State owned Real
Property.
No governmental body shall contract
with any commercial entity or other governmental body for the
lease, rental, or use of State-owned real property whether it
be titled in the name of the State of South Carolina or any governmental
body, without approval of the Division of General Services, except
as specified in Subsection C. Requests shall be directed to the
Division of General Services, Real Property Management Section.
The Division of General Services shall negotiate all leases of
State-owned real property unless the governmental body has been
certified by the Materials Management Office.
C. Exemptions.
The Budget and Control Board may
exempt governmental bodies from leasing State owned and/or non-State
owned real property through the leasing procedure herein required
provided, however, that annual reports be filed with the Office
of General Services, Real Property Management Section, prior to
July 1 of each year. Annual reports shall contain copies of all
existing leases of State-owned and non-State-owned real property.
The Budget and Control Board may limit or withdraw any exemptions
provided for in this Regulation.
19-445.2121. Leasing of
Real Property
A. General Regulations
(1) The Division of General Services
shall be accountable for the procurement of leased real property
for governmental bodies in accordance with the regulations promulgated
by the board.
(2) All leases shall require
the written approval of the Division of General Services, except
when such lease is exempt from approval as provided in Regulation
1919-445.2120 Subsection C or otherwise exempted by the Budget
and Control Board.
(3) Before approving any lease,
Division of General Services shall:
(a) assure that all appropriate
approvals have been obtained
(b) verify that adequate funds
exist for the lease payments
(c) verify that lease payments
represent no more than fair market rental;
(d) verify that upfitting costs
represent no more than current market costs;
(e) verify that a multi-year
financial plan has been submitted by the requesting agency for
review by the Budget and Control Board's budget office.
(4) All requests for leased real
property by governmental bodies and agencies shall be submitted
to the Division of General Services on a "Request for Space
Form" provided by the Division.
(a) This form shall include,
but not be limited to:
1. The purpose for which the
space will be used.
2. Any special requirements
or needs with written justifica-tion (computer rooms, etc.).
3. Parking requirements and
justification.
4. The general location or
area desired.
5. A multi-year financial plan
for review by the Board's budget office.
(b) The amount of office space
desired shall be computed and justified using the standards specified
in Section 11-35-1590.
(c) Other types of space (warehouse,
laboratory, etc.) shall require a written letter of justification
from the requesting agency or governmental body and shall include
documentation of mar-ket standards for use of this type space.
The Division of General Services shall be accountable for investigating
the existing space or any other information given in the justifica-tion.
(d) The "Request for Space
Form" or any other document re-questing space or justifying
the need for space shall be certified by the Director of the
requesting agency or govern-mental body.
(5) An agency or governmental
body desiring to renew an existing lease is responsible for notifying
the Office of Property Manage-ment in writing of its intention
to do so at least 60 days before the renewal deadline as stated
in the lease. Upon approval by appro-priate boards and the Division
of General Services, the govern-mental body or agency shall notify
the Lessor that it has elected to exercise its right of renewal
pursuant to the lease. The Division of General Services may send
each a renewal request form and a reminder notice well in advance
of these deadlines.
(6) Under no circumstances will
the requesting governmental body or state agency contact or negotiate
lease terms with any real estate agency, broker, builder, owner,
or representative in reference to space needs without the prior
written consent of the Division of General Services.
(7) The Division of General Services
will begin investigation of available rental space within ten
(10) working days after receiving the "Request for Space
Form".
(8) When processing requests
for space, the Division of General Services will first determine
whether appropriate state-owned or state-leased space is available
before exploring commercial space alternatives. If such space
is available, the Division of General Services will direct the
requesting agency or governmental body to occupy said space.
If state-owned or state-leased space is unavail-able or inappropriate,
the Division of General Services shall begin a formal solicitation
process to secure proposals for commercial space from as many
qualified developers and/or brokers as is practicable.
(9) Rental rates will be determined
by the Division of General Services for all leases by use of
standard acceptable market rent analysis methods established
by the International Association of Assessing Officers, the American
Institute of Real Estate Apprais-ers, or other professional appraisal
organizations.
B. TYPES OF LEASE TRANSACTIONS
All state leases will be categorized
as one of the following five types:
1. Exempt Leases-Those
leases exempted in accordance with Regulation 1919-445.2120 subsection
C or otherwise exempted by the Budget and Control Board.
2. Standard Leases-All
leases which commit less than $l million in a five year period
and which do not involve equity accrual.
3. Major Leases-Any lease
which commits $l million or more in a five year period but which
is otherwise standard in all respects.
4. Lease/Purchases-All
lease transactions which include clauses providing for equity
accrual and/or transfer.
5. Other Leases-All leases
which are not encompassed by the first four categories. At its
discretion, the Division of General Services may place any proposed
lease transaction in this category if it involves complex issues
or methodologies which warrant special handling.
C. EXEMPT LEASES
All exempt leases will be administered
in accordance with regulations and procedures outlined in 1919-445.2120
or Budget and Control Board directives.
D. STANDARD LEASES
(1) The Division of General Services
will be responsible for managing all aspects of soliciting lease
proposals from commercial entities. In all solicitations, the
Division is required to assure that equitable competition occurs
in the broadest market practicable.
(2) The Division of General Services
will review all proposals from prospective Lessors with the agency
or governmental body. The Division will recommend the proposal
which offers the most cost effective terms and conditions to the
agency or governmental body after satisfying subjective criteria
such as parking, location require-ments, special needs, etc. If
the agency accepts the recommenda-tion, General Services will
make the selection and begin negotia-tions to finalize the lease
transaction.
(3) If the agency or governmental
body cannot accept the Division of General Services recommendation,
the dispute shall be referred to the Budget and Control Board,
which will make the final determi-nation.
(4) Evaluation criteria shall include
total cost (including rental pay-ments, upfitting costs, escalations,
additional rents, operating, and all other costs) and location.
Other subjective criteria such as parking and other special needs
may be included. Total cost shall be given the highest weight
of any single factor.
(5) Before making a recommendation,
the Division of General Ser-vices shall verify that:
(a) all prior approvals have
been obtained;
(b) adequate funds exist for
the lease payments;
(c) lease payments are no more
than fair market rental; and
(d) upfitting costs are no more
than reasonable market costs.
(6) The Division of General Services
may reject the agency's request for additional space and/or space
at a specific location.
E. MAJOR LEASES
(1) All regulations and procedures
for standard leases will apply to all major leases.
(2) Whenever a major lease is
under consideration, the Division of General Services will develop
a complete written analysis compar-ing the total cost projected
for the alternatives under considera-tion.
(3) All major leases must be
approved by the Joint Bond Review Committee and the Budget and
Control Board before a final lease contract is awarded.
F. LEASE/PURCHASES
All regulations and procedures for
major leases will apply to lease/ purchase transactions.
G. OTHER LEASES
(1) At its discretion, the Division
of General Services may place any proposed lease transaction
in this category if it involves complex issues or methodologies
which warrant special handling.
(2) The Division of General Services
shall determine which of the above regulations are applicable
to any special lease situation and may adopt additional procedures
to meet special needs on a case by case basis.
H. STANDARD LEASE DOCUMENTS
(1) The Division of General Services
will be responsible for drafting and updating the state standard
lease document. The document will address but not be limited to
the following:
Parties Exemptions Terms
Covenants Location Services
Architectural Barriers
Annual Lease Payment Default
Untenantable Conditions Cancellation
Privelege Assignment
Occupancy Date Minor Repairs
Subordination
Options to Renew Additional
Provisions Notices
(2) The state standard lease
document will be used in all lease negotiations unless a substitute
document is approved in advance by the Division of General Services.
(3) The state lease document
will incorporate cancellation provisions including a right to
cancel in the event of a (a) non-appropriation of funds for the
renting agency, (b) dissolution of the agency and (c) the availability
of public space in substitution for private space being leased
by the agency.
(4) The Division of General Services
shall also be responsible for drafting and updating a standard
lease document for the leasing of public space between state
agencies or others. This document will address, but will not
be limited to, the items required in the state standard lease
document.
Definitions
Lease -
A written document in which the rights
to use and occupancy of land or structures are transferred by
the owner to another for a specified period of time in return
for a specified rent. [1]
Lease/Purchase -
A method of buying real property
through installment or lease payments. It is based on a legal
arrangement in which the unit of government becomes a tenant
in a facility that is nominally owned by another entity. The
relationship is termed a lease because the agency does not actually
receive title to the facility until all required payments are
made to the entity which financed the construction. ["Advanced
Construction and Financing Methods", Building on Experience,
US Dept. ofJustice]
Market Rent - The rental income that a property
would most probably command in the open market; indicated by
current rents paid and asked for compara-ble space as of the date
of the appraisal. [1]
Upfitting -
The finishing work done to complete
interior office space including, but not iimited to, acoustical
ceiling, carpeting, painting, interior walls, lighting, etc.
Escalation Clause -
A clause in an agreement that provides
for the adjustment of a price or rent based on some event or
index; e.g., a provision to increase rent if expenses increase.
[1]
[1] The Dictionary of Real Estate Appraisal, American Institute of Real Estate Appraisers.
19-445.2125.
Responsibility of Bidders and Offerors.
A. State Standards of Responsibility.
Factors to be considered in determining
whether the state standards of responsibility have been met include
whether a prospective contractor has:
(1) available the appropriate
financial, material, equipment, facility, and personnel resources
and expertise, or the ability to obtain them, necessary to indicate
its capability to meet all contractual requirements;
(2) a satisfactory record of performance;
(3) a satisfactory record of integrity;
(4) qualified legally to contract
with the State; and
(5) supplied all necessary information
in connection with the inquiry concerning responsibility.
B.
Duty of Contractor to Supply Information.
The prospective contractor shall
supply information requested by the procurement officer concerning
the responsibility of such contractor. If such contractor fails
to supply the requested information, the procurement officer
shall base the determination of responsibility upon any available
information or may find the prospective contractor non-responsible
if such failure is unreasonable.
C. Demonstration of Responsibility.
The prospective contractor may
demonstrate the availability of necessary financing, equipment,
facilities, expertise, and personnel by submitting upon request:
(1) evidence that such contractor
possesses such necessary items;
(2) acceptable plans to subcontract
for such necessary items; or
(3) a documented commitment
from, or explicit arrangement with, a satisfactory source to provide
the necessary items.
D.
Justification for Contract Award.
Before awarding a contract, the
procurement officer must be satisfied that the prospective contractor
is responsible.
E. Written Determination
of Nonresponsibility.
If a bidder or offeror who otherwise
would have been awarded a contract is found nonresponsible, a
written determination of nonresponsibility setting forth the
basis of the findings shall be prepared by the Chief Procurement
Officer or the procurement officer of the governmental body.
A copy of the determination shall be sent promptly to the nonresponsible
bidder or offeror. The final determination shall be made part
of the procurement file.
1919-445.2130.
Prequalification of Supplies and Suppliers.
A. Qualified Products Lists.
A qualified products list may be
developed with the approval of the Chief Procurement Officer or
the procurement officer of the governmental body authorized to
develop qualified products lists, when testing or examination
of the supplies or construction items prior to issuance of the
solicitation is desirable or necessary in order to best satisfy
state requirements. The procedures for the inclusion of a product
on the qualified products list ("QPL") must be available
to prospective vendors for consideration of their product to
the list.
B.
Prequalification.
Prospective suppliers may be prequalified
for bidder lists, and distribution of the solicitation may be
limited to prequalified suppliers. Suppliers who meet the prequalification
standards at any time shall be added to the prequalified list
for subsequent solicitations. The fact that a prospective supplier
has been prequalified does not necessarily represent a finding
of responsibility.
19-445.2135.
Conditions for Use of Multi Term Contracts.
A. General.
A multi-term contract is appropriate
when it is in the best interest of the State to obtain uninterrupted
services extending over one fiscal period, where the performance
of such services involves high start-up costs, or when a changeover
of service contracts involves high phase-in/phase-out costs during
a transition period. The multi-term method of contracting is
also appropriate when special production of definite quantities
of supplies for more than one fiscal period is necessary to best
meet state needs but funds are available only for the initial
fiscal period. Special production refers to production for contract
performance when it requires alteration in the contractor's facilities
or operations involving high start-up costs. The contractual
obligation of both parties in each fiscal period succeeding the
first is subject to the appropriation and availability of funds
thereof. The contract shall provide that, in the event that funds
are not available for any succeeding fiscal period, the remainder
of such contract shall be cancelled.
B. Objective.
The objective of the multi-term
contract is to promote economy and efficiency in procurement by
obtaining the benefits of sustained volume production and consequent
low prices, and by increasing competitive participation in procurements
which involve special production with consequent high start-up
costs and in the procurement of services which involve high start-up
costs or high phase-in/phase-out costs during changeover of service
contracts.
C. Rule Inapplicable.
This Regulation 1919-445.2135 applies
only to contracts for supplies or services described in Subsection
A of this Regulation and does not apply to any other contract
including, but not limited to, contracts for construction and
leases of real property.
D.
Conditions for Use.
The maximum time for any multi-term
contract is five (5) years unless otherwise approved by the Board.
A multi-term contract may be used when it is determined in writing
by the Procurement Officer of the governmental body that:
(1) special production of definite
quantities or the furnishing of long-term services are required
to meet state needs; or
(2) a multi-term contract will
serve the best interests of the state by encouraging effective
competition or otherwise promoting economies in state procurement.
The following factors are among those
relevant to such a determination:
(1) firms which are not willing
or able to compete because of high start-up costs or capital investment
in facility expansion will be encouraged to participate in the
competition when they are assured of recouping such costs during
the period of contract performance;
(2) lower production cost because
of larger quantity or service requirements, and substantial continuity
of production or performance over a longer period of time, can
be expected to result in lower unit prices;
(3) stabilization of the contractor's
work force over a longer period of time may promote economy and
consistent quality;
(4) the cost and burden of contract
solicitation, award, and administration of the procurement may
be reduced.
E.
Solicitation.
The
solicitation shall state:
(1) the estimated amount of supplies
or services required for the proposed contract period;
(2) that a unit price shall be
given for each supply or service, and that such unit prices shall
be the same throughout the contract (except to the extent price
adjustments may be provided in the solicitation and resulting
contract);
(3) that the multi-term contract
will be cancelled only if funds are not appropriated or otherwise
made available to support continuation of performance in any
fiscal period succeeding the first; however, this does not affect
either the state's rights or the contractor's rights under any
termination clause in the contract;
(4) that the procurement officer
of the governmental body must notify the contractor on a timely
basis that the funds are, or are not, available for the continuation
of the contract for each succeeding fiscal period;
(5) whether bidders or offerors
may submit prices for: (a) the first fiscal period only; (b)
the entire time of performance only; or (c) both the first fiscal
period and the entire time of performance;
(6) that a multi-term contract
may be awarded and how award will be determined including, if
prices for the first fiscal period and entire time of performance
are submitted, how such prices will be compared; and
(7) that, in the event of cancellation
as provided in (5) (c) of this Subsection, the contractor will
be reimbursed the unamortized, reasonably incurred, nonrecurring
costs.
F.
Award.
Award shall be made as stated in
the solicitation and permitted under the source selection method
utilized. Care should be taken when evaluating multi-term prices
against prices for the first fiscal period that award on the basis
of prices for the first period does not permit the successful
bidder or offerer to "buy in", that is give such bidder
or offeror an undue competitive advantage in subsequent procurements.
G.
Food Service Contracts.
Any food service contracts entered
into by any governmental body shall be solicited under Code Section
11-35-1530, Competitive Sealed Proposals, and Regulation 1919-445.2095.
A review panel composed of one representative each from the governmental
body, the Materials Management Office, and the Commission on Higher
Education shall review such proposals and approve it prior to
contract award.
19-445.2140.
Specifications.
A. Definitions.
(1) "Brand Name Specification"
means a specification
limited to one or more items by manufacturers' names or catalogue
number.
(2) "Brand Name or Equal
Specification" means a specification which uses one or
more manufacturer's names or catalogue numbers to describe the
standard of quality, performance, and other characteristics needed
to meet state requirements, and which provides for the submission
of equivalent products.
(3) "Qualified Products
List" means an approved
list of supplies, services, or construction items described by
model or catalogue number, which, prior to competitive solicitation,
the State has determined will meet the applicable specification
requirements.
(4)
"Specification" means any description of the
physical, functional, or performance characteristics, or of the
nature of a supply, service or construction item. A specification
includes, as appropriate, requirements for inspecting, testing,
or preparing a supply, service or construction item for delivery.
Unless the context requires otherwise, the terms "specification"
and "purchase description" are used interchangeably
throughout the Regulations.
(5) "Specification for
a Common or General Use Item" means
a specification which has been developed and approved for repeated
use in procurements.
B.
Issuance of Specifications.
The purpose of a specification
is to serve as a basis for obtaining a supply, service, or construction
item adequate and suitable for the State's needs in a cost effective
manner, taking into account, to the extent practicable, the cost
of ownership and operation as well as initial acquisition costs.
It is the policy of the State that specifications permit maximum
practicable competition consistent with this purpose. Specification
shall be drafted with the objective of clearly describing the
State's requirements. All specifications shall be written in a
non-restrictive manner as to describe the requirements to be
met.
C.
Use of Functional or Performance Descriptions.
Specifications shall, to the extent
practicable, emphasize functional or performance criteria while
limiting design or other detailed physical descriptions to those
necessary to meet the needs of the State. To facilitate the use
of such criteria, using agencies shall endeavor to include as
a part of their purchase requisitions the principal functional
or performance needs to be met. It is recognized, however, that
the preference for use of functional or performance specifications
is primarily applicable to the procurement of supplies and services.
Such preference is often not practicable in construction, apart
from the procurement of supply type items for a construction project.
D.
Preference for Commercially Available Products.
It is the general policy of this
State to procure standard commercial products whenever practicable.
In developing specifications, accepted commercial standards shall
be used and unique requirements shall be avoided, to the extent
practicable.
E. Specifications for Construction.
Specifications for construction
shall be prepared on a project-by-project basis by the Architect
and/or Engineer.
19-445.2145. Construction,
Architect Engineer, Construction Management, and Land Surveying
Services.
A.
Method of Construction Contract Administration.
This Subsection contains provisions
applicable to the selection of the appropriate method of administration
for construction contracts, that is, the contracting method and
configuration which is most advantageous to the State and will
result in the most timely, economical, and otherwise successful
completion of the construction project.
(1) Selecting the Method of
Construction Contracting.
In selecting the construction
contracting method, the governmental body should consider the
results achieved on similar projects in the past and the methods
used. Consideration should be given to all appropriate and effective
methods and their comparative advantages and disadvantages and
how they might be adapted or combined to fulfill state requirements.
(2) Flexibility.
The governmental body, shall have
sufficient flexibility in formulating the project delivery approach
on a particular project to fulfill the State's needs. In each
instance, consideration should be given to all the appropriate
and effective means of obtaining both the design and construction
of the project.
(3) Criteria for Selection.
Before choosing the construction
contracting method, a careful assessment must be made by the purchasing
agency of requirements the project must satisfy and those other
characteristics that would be in the best interest of the State.
The amount and type of financing
available for the project is relevant to the selection of the
appropriate construction contracting method including what sources
of funding are available. The governmental body should consider
whether a price can be obtained that is fair and reasonable when
considered together with the benefit to the State potentially
obtainable from such a contract.
(4) Governmental Body Determination.
The governmental body shall make
a written determination that must be reviewed by the Chief Procurement
Officer. The determination shall describe the construction contracting
method chosen and set forth the facts and considerations which
led to the selection of that method. This determination shall
demonstrate that the requirements and financing of the project
were all considered in making the selection.
B. Construction Procurement
The Invitation for Bids.
The provision of Regulation 1919-445.2040
shall apply to implement the requirements of Section 11-35-3020(2)(a),
Invitation for Bids.
C. Bonds and Security.
(1) Bid Security.
Bid Security shall be a certified cashier's check or a bond provided
by a surety company licensed in South Carolina with an "A"
minimum rating of performance as stated in the most current publication
of "Best Key Rating Guide, Property Liability", which
company shows a financial strength rating of at least five (5)
times the contract price. In the case of a construction contract
under $100,000, the agency may, with the approval of the Office
of the State Engineer, allow the use of a "B" rated
bond when bid security is required. Each bond shall be accompanied
by a "Power of Attorney" authorizing the attorney-in-fact
to bind the surety.
(2) Contract Performance and
Payment Bonds. The contractor
shall provide a certified cashier's check in the full amount of
the Performance and Payment Bonds or may provide, and pay for
the cost of, Performance and Payment Bonds in the form of AIA
Document A311 "PERFORMANCE BOND AND LABOR AND MATERIAL BOND".
Each bond shall be in the full amount of the Contract Sum, issued
by a Surety Company licensed in South Carolina with an "A"
minimum rating of performance as stated in the most current publication
of "Best Key Rating Guide, Property Liability", which
company shows a financial strength rating of at least five (5)
times the contract price. In the case of construction under $100,000,
the agency may, with the approval of the Office of the State Engineer,
allow the use of a "B" rated bond when bid security
is required. Each bond shall be accompanied by a "Power
of Attorney" authorizing the attorney-in-fact to bind the
surety.
D.
Architect Engineer, Construction Management and Land Surveying
Services Procurement.
(1) The Advertisement of Project
Description.
The provisions of Regulation
1919-445.2040 shall apply to implement the requirements of Code
Section 11-35-3220(2), Advertisement of Project Description.
(2) State Engineer's Office
Review.
The Office of the State Engineer
will provide forms in the Manual for Planning and Execution of
State Permanent Improvements Projects for use by governmental
bodies in submitting a contract for approval pursuant to Section
11-35-3220 (8) of the Code.
E. Contract Forms.
Pursuant to Code Section 11-35-2010(2),
the following Contract Forms, whose AIA Edition, if any, is designated
in the Manual for Planning and Execution of State Permanent Improvement,
shall be used, as applicable.
(1) Contracts for Services may
be as follows:
(a) Land surveyor: The
agency may use a letter contract written for each individual project.
The format and description of services shall be approved by the
State Engineer.
(b) Architect-Engineer:
The agency may use AIA Document B141, with Article 12, Other
Conditions or Services as prepared by the State Engineer and Article
13 prepared by the agency or Architect-Engineer.
(c) Architect-Engineer/Construction-Management:
For the Architect-Engineer, the agency may use B141/CM, with
Article 15 prepared by the State Engineer and Article 16 prepared
by the agency or Architect-Engineer. For the managers, it may
use AIA Document B801, with Article 16 prepared by the State Engineer
and Article 17 prepared by the agency or construction manager.
(d) Construction:
the agency may use AIA Document A101, 1987 Edition or AIA Document
A101/CM. Other contract forms may be used as are approved by
the State Engineer.
(e) For Contracts under
Procurement Code Section 11-35-3230, the agency may use a letter
contract written for each individual project. The format and
description of services shall be as approved by the State Engineer.
(f) For Construction under
Procurement Code Section 11-35-1550, the agency may use a letter
contract written for each individual project. The format and
description of services shall be as approved by the State Engineer.
(2) Bidding Documents may be as
follows:
(a) Instruction to bidders may
be AIA Document A701, with Article 9 prepared by the State Engineer
and Article 10 prepared by the agency or Architect-Engineer.
(b) General Conditions of the
Contract for Construction may be AIA Document A201, with Supplementary
Conditions Part 2 prepared by the agency or Architect-Engineer;
or AIA A201/CM, with Supplementary Conditions Part 1 prepared
by the state Engineer and Supplementary Conditions Part 2 prepared
by the agency or Architect-Engineer /Construction Manager.
(c) Bid Form and Change Order
prepared by the State Engineer may be used.
(d) Construction under Procurement
Code Section 11-35-1550 and 11-35-1530 may be in a format and
description of services approved by the State Engineer."
F.
Manual for Planning and Execution of State Permanent Improvements
Projects.
For the purpose of these Regulations
and Code Section 11-35-3240, a manual of procedures to be followed
by governmental bodies for planning and execution of state permanent
improvement projects is prepared and furnished by the Office of
General Services, and included in this regulation. Part II of
this manual, covering the procurement of construction for the
projects, will be the responsibility of the Office of the State
Engineer.
G. Prequalifying Construction
Bidders.
In accordance with Section 11-35-1825,
the State Engineer's Office shall develop a procedure and a list
of criteria for prequalifying construction bidders, and shall
include it in the Manual for Planning and Execution of State Permanent
Improvements.
H.
Indefinite Delivery Construction Contracts.
With regard to Section 11-35-3310,
the State Engineer's Office will establish working procedures
for indefinite delivery construction contracts, and shall include
them in the Manual for Planning and Execution of State Permanent
Improvements.
19-445.2150. Surplus Property Management
A. Definition, Authority and
Mission.
(1) Definition.
Surplus property is all State-owned
supplies and equipment, not in actual public use, with remaining
useful life and available for disposal. This definition and the
ensuing regulations exclude the disposal of solid and hazardous
wastes as defined by any federal, state or local statutes and
regulations. Property so defined as solid or hazardous waste shall
not be relocated, nor title assumed under the authority of these
regulations.
(2) Authority.
The disposition of all surplus
property shall be conducted by the Division of General Service's
Surplus Property Management Office (SPMO) at such places and in
such manner determined most advantageous to the State, except
as defined in Section 11-35-1580 of the Procurement Code. All
governmental bodies must identify surplus items and declare them
as such, and report them in writing to the Materials Management
Officer or the Information Technology Management Officer (ITMO),
or the designee of either, within one hundred and eighty (180)
days from the date they become surplus. The SPMO shall deposit
the proceeds from such disposition, less expense of the disposition,
in the State's General Fund unless a governmental body makes a
written request to retain such proceeds, less cost of disposition,
for the purchase of like kind property and the Materials Management
Officer or ITMO, or the designee of either, approves such request.
(3) Mission
The primary mission of the Surplus
Property Management Program shall be to receive, warehouse and
dispose of the State's surplus property in the best interest
of the State. The central warehousing of State surplus property
will allow all State governmental bodies and other political
subdivisions one location to acquire needed property which otherwise
might escape the system and be sold to the public.
The purpose of this program is
to provide the following:
(1) elimination of costs related
to the warehousing, insurance and accounting systems necessary
to fulfill an agency's surplus property responsibility,
(2) maximization of proceeds
by disposing of property as soon as possible after it becomes
excess to an agency's needs,
(3) establishment of priorities
in the disposal process that encourage keeping assets in public
use as long as possible,
(4) conversion of unneeded
fixed assets into available funds on a timely basis for offsetting
the cost of new like equipment .
B. Reporting and Relocation
of Surplus Property.
(1) Reporting.
Within ninety (90) days from
the date property becomes surplus, it must be reported to the
SPMO on a turn-in document (TID) designed by the SPMO. The description,
model or serial number, acquisition cost, date of purchase and
agency ID number shall be listed for each item.
Upon receipt of the TID, the
SPMO will screen the property to determine whether it is surplus
or junk as defined in these regulations.
(2) Property Relocation.
Surplus property reported shall
be scheduled for relocation to the SPMO, Boston Avenue, West Columbia;
or, upon consultation and agreement with the generating governmental
body, remain at the governmental body's site if deemed by the
SPMO to be a more cost-effective method for disposal. All costs
associated with relocation of property will be borne by the SPMO,
except property as defined in these regulations under Subsection
C, Item 2, A and B.
At such time as property is officially
received by the SPMO, title will pass to the Division of General
Services and shall be accounted for as described herein. Governmental
bodies shall delete insurance coverage on such property. The
SPMO shall carry sufficient insurance to ensure these assets are
safeguarded against loss. Governmental bodies shall delete such
property from their fixed asset records at this point of transfer.
Upon disposal of the property,
the proceeds, less cost of disposition, will be returned to the
authorized revenue center if so requested and authorized in accordance
with these regulations.
If determined to be junk, disposal
will be the responsibility of the generating governmental body
in accordance with Section 11-35-4020 of the Procurement Code.
C. Transfer of Surplus Property
to Governmental Bodies, Political Subdivisions, and Eligible
Nonprofit Health or Education Institutions.
(1) Eligibility.
The SPMO's primary role shall
be to relocate surplus property to eligible governmental bodies,
political subdivisions and nonprofit health and educational institutions.
The Manager of Supply and Surplus Property Management shall be
responsible for determining an applicant's eligibility prior to
any transfer of property.
The term governmental bodies
means any State government department, commission, council, board,
bureau, committee, institution, college, university, technical
school, legislative body, agency government corporation, or other
establishment or official of the executive, judicial, or legislative
branches of the State. Governmental body excludes the General
Assembly and all local political subdivisions such as counties,
municipalities, school districts or public service or special
purpose districts.
The term political subdivisions
includes counties, municipalities, school districts or public
service or special purpose districts.
The term eligible nonprofit health
or educational institutions means tax-exempt entities, duly incorporated
as such by the State.
The SPMO will maintain sufficient
records to support the eligibility status of these entities.
(2) Determination of Sale
Price.
The sale price for all items
will be established by the Manager of Supply and Surplus Property
Management, or the Manager's designee. The Manager or the Manager's
designee shall have the final authority to accept or reject bids
received via public sale. The following categories and methods
will be used:
(a) Vehicles: NADA loan value
shall be used for the sale price. In certain instances, the most
recent public sale figures and consultation with the generating
governmental body shall be the basis for a sale price.
(b) Boats, motors, heavy equipment,
farm equipment, airplanes and other items with an acquisition
cost in excess of $5,000: The sale price shall be set from the
most recent public sale figures and/or any other method necessary
to establish a reasonable value including consultation with the
generating governmental body.
(c) Miscellaneous items with
an acquisition cost of $5,000 or less such as office furniture
and machines, shop equipment, cafeteria equipment, etc: A sale
price will be assessed in accordance with the following schedule.
Sale prices shall be rounded to the nearest dollar:
Condition
New or no repairs necessary.
Used - Repairs of 10% or less
of AC necessary.
Used - Repairs of 11 % to 50%
of AC necessary.
Used - Repairs of 51% to 75%
of AC necessary.
Used - Spare parts only
Price
75%
of acquisition cost (AC) or current fair market value.
50% of
AC or current fair market value.
20% of AC or fair market value.
10% of AC or current fair market value.
5% of AC or current
fair market value.
This schedule will be evaluated
periodically by the SPMO to ensure that maximum values are obtained.
(3) Terms and Conditions on
Property Transferred from Warehouse.
For any purchases made under
this subsection, the purchasing entity will certify that all items
acquired will be for the sole benefit of the buying institution
and that no personal use will be involved. This certification
will be formalized by the agreement signed at the time eligibility
is established. The following terms and conditions will be set
forth therein:
(1) Property must be placed
into public use within one (1) year of acquisition and remain
in use one (1) year from the date placed into actual use.
(2) Property which becomes unusable
may be disposed of prior to the one-year limitation with the approval
of the SPMO.
A utilization visit may be made
by authorized personnel of the SPMO. All vehicles and property
with an acquisition cost in excess of $5,000 require a utilization
review during the twelve-month period from date of transfer to
ensure the property is in public use.
(a) Any misuse of property
will be reported in writing to the SPMO's State Surplus Property
Supervisor or his successor by the utilization staff of the SPMO.
The State Surplus Property Supervisor or his successor will consult
with the designee of the Materials Management Officer or the
ITMO who shall have the authority to suspend all further purchases
until a determination can be made under Subsection B. If warranted,
the matter shall be referred to the proper law enforcement authority
for full investigation.
(b) Upon determination that
misuse of property has occurred, purchasing privileges will be
terminated and not restored until the buying governmental body,
political subdivision, or nonprofit health or educational institution
pays to the SPMO the fair market value of the item(s) misused
or returns the misused property to the SPMO.
(4) Disposition Cycles
for Surplus Property.
A nine-week cycle shall be used
for the disposal process of surplus property. Time frames and
disposal priorities shall be as follows:
(a) Beginning with the Monday
following the week during which the property is received by the
SPMO, governmental bodies will have a two-week priority period
in which to purchase surplus items.
(b) Political subdivisions
and nonprofit health or educational institutions will be allowed
to purchase during the remaining seven (7) weeks. Governmental
bodies will also be allowed to purchase during this time period,
but without priority.
D.
Public Sale of Surplus Property.
(1) Public Sale Cycle.
Upon completion of the nine-week
disposal cycle, the remaining items shall be made available to
the public, on a first come, first served basis, at the same
price offered in the disposal cycle for a period of four (4) weeks.
Governmental bodies, political subdivisions, and nonprofit health
and educational institutions shall be allowed to purchase in
this cycle, but without priority.
(2)
Final Disposition by Competitive Public Sale.
Upon completion of the public
sale cycle, all surplus property shall be offered through competitive
sealed bids or public auction.
When surplus property is sold
via the competitive sealed bid process, notification of such sale
shall be given through a Notice of Sale to be posted at the SPMO
at least fifteen (15) days prior to the bid opening date. The
sale shall also be announced through advertisement in newspapers
of general circulation and/or the South Carolina Business Opportunities
publication. The Notice of Sale shall list the supplies or property
offered for sale; designate the location and how property may
be inspected; and state the terms and conditions of sale and instructions
to bidders including the place, date, and time set for bid opening.
Bids shall be opened publicly.
Award shall be made in accordance
with the provisions set forth in the Notice of Sale and to the
highest responsive and responsible bidder provided that the price
offered by such bidder is deemed reasonable by the designee of
the MMO or ITMO, or his designee. Where such price is not deemed
reasonable, the bids may be rejected in whole, or in part, and
the sale negotiated beginning with the highest bidder provided
the negotiated sale price is higher than the highest responsive
and responsible bid. In the event of a tie bid the award will
be made in accordance with the tie bid procedure set forth in
Section 11-35-1520(9) of the Consolidated Procurement Code.
Property may also be sold at
a public auction by an experienced auctioneer. The Notice of Sale
shall include, at a minimum, all terms and conditions of the
sale and a statement clarifying the authority of the designee
of the MMO or ITMO, or his designee, to reject any and all bids.
(3) Other Means of Disposal.
Some types and classes of items
can be sold or disposed of more economically by some other means
of disposal including barter. In such cases, and also where the
nature of the supply or unusual circumstances necessitate its
sale to be restricted or controlled, the Materials Management
Officer may employ such other means, including but not limited
to appraisal, provided the Materials Management Officer makes
a written determination that such procedure is advantageous to
the State.
E.
Fee Schedule.
The State Surplus Property
Management Program will operate solely from service charges retained
from the sale of surplus property. The Board shall establish
a fee schedule sufficient to fund all program costs and it shall
be reviewed by the Board as required to ensure the adequacy and
equity of the Program.
F.
Inventory and Accounting Systems.
(1) Forms.
Turn-in documents designed by
the Surplus Property Office shall be used by all governmental
bodies for reporting surplus property to the SPMO. It shall be
the responsibility of the generating governmental body to obtain
these forms and to furnish all information required on the form.
Items received by the SPMO shall be physically checked by the
SPMO against the turn-in document and a signed receipt issued
to the governmental body.
(2) Tagging.
Items received by the SPMO shall
be assigned an inventory number and data including generating
governmental body, name, description of property, quantity, original
acquisition cost, date purchased, serial or model number and other
relevant information entered into an automated inventory system.
Inventory tags listing all necessary information shall be attached
to each item.
(3) Display.
Items shall be displayed in locations
with other like commodities to allow for easy viewing.
(4) Issuing property.
All items sold by the SPMO to
governmental bodies, political subdivisions and nonprofit health
or educational institutions shall be recorded on a Bill of Sale
and all required information shall be listed on the document.
The Bill of Sale must be signed by the signatory authority of
the governmental body, political subdivision or nonprofit health
or educational institution as defined in Subsection C, Item 1
of these regulations. At the time of sale, the eligible entity
shall receive a copy of the Bill of Sale.
(5) Invoicing.
Invoices shall be generated and
mailed to the acquiring agency. All cash and accounts receivable
transaction records shall be property maintained. All transfers
of funds to various accounts will be performed in accordance
with these regulations.
(6) Deletions.
Items shall be deleted from the
SPMO's inventory simultaneously with the invoicing process.
(7) Property sold to the public
shall be paid for in full at the time of purchase.
Transactions shall be documented
by a Bill of Sale enumerating all conditions of the sale i.e.,
"as is, where is," etc. and must be signed by the purchaser.
Personal checks with proper identification, certified checks,
or money orders made payable to the State of South Carolina shall
be accepted as a form of payment. No cash shall be accepted. A
copy of the Bill of Sale shall be presented to the purchaser and
a copy along with the payment shall be forwarded to the Internal
Operations Cashier. Two copies shall be retained internally by
the SPMO, one as the source document for updating the computer
records and the other for filing.
G. Trade In Sales.
Governmental bodies may trade in
personal property, whose original unit purchase price did not
exceed $5,000, the trade in value of which must be applied to
the purchase of new items. When the original unit purchase price
exceeds $5,000, the governmental body shall refer the matter to
the Materials Management Officer, the ITMO, or the designee of
either, for disposition.
The Materials Management Officer
or the ITMO, or the designee of either, shall have the authority
to determine whether the property shall be traded in and the value
applied to the purchase of new like items or classified as surplus
and sold in accordance with the provisions of Section 11-35-3820
of the Procurement Code. When the original purchase price exceeds
$100,000, the Materials Management Officer or the ITMO, or the
designee of either, shall make a written determination as to its
reasonableness and report such trade-in transaction to the Board
as information.
H.
Definition and Sale of Junk.
Junk is State-owned supplies and
equipment having no remaining useful life in public service or
the cost to repair or to refurbish the property in order to return
it to public use would exceed the value of like used equipment
with remaining useful life.
Section 11-35-4020 of the Procurement
Code shall be strictly enforced pertaining to junk items. It shall
be the responsibility of the SPMO to inspect and/or declare items
as junk. Upon declaration as junk, if the owning agency determines
to sell the property, it shall advertise the property in a newspaper
of general circulation for fifteen (15) days in advance of sale.
I. Unauthorized Disposal.
(1) The ratification of
an act of unauthorized and/or improper disposal of State property
by any persons without the requisite authority to do so by an
appointment or delegation under the Procurement Code rests with
the Materials Management Officer.
(2) Corrective Action and
Liability.
In all cases, the head of the
governmental body shall prepare a written determination describing
the facts and circumstances surrounding the act, corrective action
being taken to prevent recurrence, and action taken against the
individual committing the act and shall report the matter in writing
to the Materials Management Officer within ten (10) days after
the determination.
J.
Authority to Debar or Suspend.
The procedures and policies set
forth in Section 11-35-4220 of the Procurement Code shall apply
to the disposal of State property. The authority to debar a person
from participation in the public sales of State-owned property
shall rest with the Materials Management Officer.
19-445.2152.
Leases, Lease/Payment, Installment Purchase, and Rental of
Personal Property.
A. Justification.
A governmental body proposing to
enter into an agreement other than an outright purchase is responsible
for the justification of such action. Lease, lease/purchase,
installment purchase, or rental agreements are subject to the
procedures of the Procurement Code and these Regulations.
B. Procedures.
Upon written justification by the
procurement officer of the governmental body of such alternate
method, the following procedures will be followed:
(1) The State of South Carolina
Standard Equipment Agreement will be used in all cases unless
modifications are approved by the Director of the Office of General
Services or his designee. Except in the case of rentals where
the value of the equipment is $10,000.00 or less and the rental
agreement does not exceed 90 days (consecutive renewals not permitted)
the use of the South Carolina Standard Equipment Agreement Form
may be waived; however, its use in these cases is encouraged.
(2) Installment purchases
will require the governmental body to submit both a justification
and purchase requisition to the Materials Management Officer or
his designee for processing.
(3) All lease/purchase and
installment sales contracts must contain an explicitly stated
rate of interest to be incurred by the State under the contract.
19-445.2155. Intergovernmental
Relations.
A. Selective Mandatory Opting.
Local political subdivisions such
as counties, municipalities, school districts, public service
or special purpose districts and the Federal Government may purchase
from or through the State at any time. When the Materials Management
Officer determines prior to establishment of a contract that localities
must mandatorily opt in or out of the contract, the following
procedures shall be followed:
(1) Sixty (60) days prior to establishment
of a particular contract, the Materials Management Office shall
publicly notify local political subdivisions of the mandatory
opting requirement; and
(2) Require local political subdivisions
to advise the Materials Management Officer within 30 days of its
desire to participate in the contract.
19-445.2160. Assistance
to Minority Businesses.
A. Definitions.
(1) "Minority Person"
means a United States
citizen who is economically and socially disadvantaged.
(2) "Social disadvantaged
individuals" means those individuals who have been subject
to racial or ethnic prejudice or cultural bias because of their
identification as members of a certain group, without regard to
their individual qualities. Such groups include, but are not
limited to, Black Americans, Hispanic Americans, Native Americans
(including American Indians, Eskimos, Aleuts and Native Hawaiians),
Asian Pacific Americans, Women and other minorities to be designated
by the board of designated agency.
(3) "Economically disadvantaged
individuals" means
those socially disadvantaged individuals whose ability to compete
in the free enterprise system has been impaired due to diminished
capital and credit opportunities as compared to others in the
same business area who are not socially disadvantaged.
(4)
"A socially and economically disadvantaged small business"
means any small business concern which:
(a) At a minimum is fifty-one
(51) percent owned by one or more citizens of the United States
who are determined to be socially and economically disadvantaged and
who also exercise control over the business.
(b) In the case of a corporation,
at a minimum, fifty-one (51) percent of all classes of voting
stock of such corporation must be owned by an individual or individuals
determined to be socially and economically disadvantaged who also exercise
control over the business.
(c) In the case of a partnership,
at a minimum, fifty-one (51) percent of the partnership interest
must be owned by an individual or individuals determined to be
socially and economically disadvantaged who also exercise control
over the business.
(5) "Small Business" means a concern, including it affiliates,
that is independently owned and operated, not dominant in the field of
operation in which it is bidding on government contracts, and qualified
as a small business under the criteria and size standards in 13 C.F.R
Section 121 (1989). Such a concern is "not dominant in its field of operation"
when it does not exercise a controlling or major influence on a national basis
in a kind of business activity in which a number of business concerns are primarily
engaged. In determining whether dominance exists, consideration shall be given to
all appropriate factors, including volume of business, number of employees, financial
resources, competitive status or position, ownership or control of materials,
processes, patents, license agreements, facilities, sales territory, and nature of
business activity.
(6) "Minority Business Enterprise" is a business which has been certified as
a socially and economically disadvantaged small business.
(7) "OSMBA" means the Office of Small and Minority Business Assistance.
B. Certification as a Minority Business Enterprise (MBE).
(1) A business seeking certification as a Minority Business Enterprise must submit
to OSMBA an application and any supporting documentation as may be required.
(2) Certification Process. The Certification Board within OSMBA will determine if
the business is controlled and operated by socially and economically disadvantaged
individuals. Upon recommendation of the Certification Board, OSMBA will certify the
business as a socially and economically disadvantaged small business and issue a
Certification as authorized by Section 11-35-5270 of the Procurement Code.
C. Certification Board/Procedures
(1) The certification board, as defined below, is responsible for reviewing files
and applications in order to determine whether a business should be recommended for
approval or disapproval by the Director of the OSMBA (hereinafter referred to as the
Director) as a certified business in compliance with Article 21.
(2) The certification board shall be comprised of three (3) members of the Office in
which the OSMBA is located and is chaired by a member selected by the Director. The
board will meet at the request of the Director.
(3) Applications for certification must be addressed to the Director. Upon receipt,
OSMBA shall conduct an investigation of the applicant and provide the results to the
Certification Board. Failure to furnish requested information will be grounds for
denial or revocation of certification.
D. Eligibility
In order for a firm to be certified, it must be found to be a small independent
business owned and controlled by a person or persons who are socially and economically
disadvantaged. The following factors will be considered in determining whether the
applicant is eligible for certification:
(1) Small Business
The business must meet the definition of small business contained
in Subsection A hereof.
(2) Independent Business
a. Recognition of the business as a separate entity for tax
or corporate purposes in not necessarily sufficient for certification under Article 21.
In determining whether an applicant for certification is an independent business, OSMBA
shall consider all relevant factors, including the date the business was established,
the adequacy of its resources, and relationships with other businesses.
A joint venture is eligible if one of the certified business partners of the joint
venture meets the standards of a socially and economically disadvantaged small business
and this partner's share in the ownership, control and management responsibilities, risks
and profits of the joint venture is at least 51 percent, and this partner is also
responsible for a clearly defined portion of the work to be performed.
(3) Ownership and Control
a. The business must be 51 percent owned by socially
and economically disadvantaged persons. The OSMBA will examine closely any recent
transfers of ownership interests to insure that such transfers are not to be made for
the sole purpose of obtaining certification.
b. Ownership shall be real, substantial and continuing and shall go beyond the pro
forma structure of the firm as reflected in its ownership documents. The minority
owners shall enjoy the customary incidents of ownership and shall share in the risks
and profits commensurate with their ownership interest, as demonstrated by an
examination of the substance rather than form of ownership arrangements.
c. The contribution of capital or expertise by the minority or women owners to
acquire their interest in the business shall be real and substantial. Examples of
insufficient contributions include gifts, inheritance, a promise to contribute
capital, a note payable to the business or its owners who are not socially
disadvantaged and economically disadvantaged, or the participation as an employee,
rather than a manager.
d. The minority owners must have management responsibilities and capabilities
including the ability to hire and fire personnel at the highest level and to
exercise financial control. A previous and/or continuing employer/employee
relationship between or among present owners is carefully reviewed.
e. Where the actual management of the firm is contracted out to individuals other
than the owner, those persons who have the ultimate power to hire and fire the
managers can, for the purpose of this part, be considered as controlling the
business.
f. Any relationship between a business that is applying for certification under
Article 21 and a business which is not certified will be carefully reviewed to
determine if there are conflicts with the ownership and control requirements of
this section.
g. All securities which constitute ownership and/or control of a business for
purposes of establishing it as a Minority shall be held directly by minorities. No
securities held in trust, or by any guardian for a minor, shall be considered in
determining ownership or control
(4) Socially Disadvantaged
The only factor to be considered in determining whether a firm is socially disadvantaged
is membership in a minority group which is listed in Subsection A hereof. Membership
shall be established on the basis of the individual's claim that he or she is a
member of one of the minority groups included in the definition of socially
disadvantaged in Subsection A above and is so regarded by that particular group.
(5) Economically Disadvantaged
a. OSMBA will make a determination of whether a firm is socially disadvantaged
before proceeding to make a determination of economic disadvantage. If OSMBA determines
that the business owner is not socially disadvantaged, it is not necessary to make
the economically disadvantaged determination.
b. OSMBA may consider as evidence of the business owner's economic disadvantage the
following: unequal access to credit or capital; acquisition of credit under
unfavorable circumstances; difficulty in meeting requirements to receive government
contracts; discrimination by potential clients; exclusion from business or
professional organizations; and other similar factors which have restricted the
owner's business development.
c. In determining the degree of diminished credit and capital opportunities of a
socially disadvantaged individual, consideration will be given to both the
disadvantaged individual and the business with which he or she is affiliated.
d. In considering the economic disadvantages of businesses and owners, OSMBA
will make a comparative judgement about relative disadvantage. The test is not
absolute deprivation, but rather whether the individuals and businesses owned by
such individuals are disadvantaged in this respect.
e. It is the responsibility of an applicant business and its owner(s) to provide
information to OSMBA about its economic situation when it seeks certifcation. OSMBA
will be making a judgement about whether the applicant business and its socially
disadvantaged owner(s) are in a more difficult economic situation than most
businesses (including establishing businesses) and owners who are not socially
disadvantaged. OSMBA is not required to make a detailed, point-to-point, accountant
like comparison of the business involved.
E. Decertification
OSMBA reserves the right to cancel a certification at any time if a business becomes
ineligible after certification. OSMBA will take action to ensure that only firms
meeting the eligibility requirements stated herein qualify for certification. OSMBA
will also review the eligibility of businesses with existing certifications to ensure
that they remain eligible. A business organization's ownership or control can change
over time resulting in a once eligible business becoming ineligible. Certified
businesses must notify OSMBA, in writing within 30 days, of changes in organization,
ownership or control. When OSMBA determines that an existing business may no longer
be eligible, it will file a Complaint with the Certification Board, and send a copy
of the Complaint by certified mailto the business. Upon receipt of such a complaint,
the Certification Board shall conduct a hearing in accordance with the procedures set
forth in the Administrative Procedures Act (1-23-310, et. seq., Code of Laws of South
Carolina, 1976, as amended).
Preliminary Fiscal Impact Statement
The Office of Small and Minority Business estimates that there will be no additional
costs incurred by the State and its political subdivisions in complying with the
proposed amendment to Regulation 19-445.2160.