South Carolina Code of Regulations
Chapter 19 - STATE BUDGET AND CONTROL BOARD
Article 4 - OFFICE OF GENERAL SERVICES
Section 19-445.2000 - State Procurement Regulations
Universal Citation: SC Code Regs 19-445.2000
Current through Register Vol. 48, No. 9, September 27, 2024
A. General.
These Regulations issued by the South Carolina State Fiscal Accountability Authority, hereafter referred to as the board, establish policies, procedures, and guidelines relating to the procurement, management, control, and disposal of supplies, services, information technology, and construction, as applicable, under the authority of the South Carolina Consolidated Procurement Code, as amended. These Regulations are designed to achieve maximum practicable uniformity in purchasing throughout state government. Hence, implementation of the Procurement Code by and within governmental bodies, as defined in Section 11-35-310(18) of the Procurement Code, shall be consistent with these Regulations. Nothing contained in these Rules and Regulations shall be construed to waive any rights, remedies or defenses the State might have under any laws of the State of South Carolina.
B. Organizational Authority.
(1) The Chief
Procurement Officers acting on behalf of the board shall have the
responsibility to audit and monitor the implementation of these Regulations and
requirements of the South Carolina Consolidated Procurement Code. In accordance
with Section
11-35-510
of the Code, all rights, powers, duties and authority relating to the
procurement of supplies, services, and information technology and to the
management, control, and warehousing of supplies, construction, information
technology, and services now vested in or exercised by any governmental body
under the provisions of law relating thereto, and regardless of source funding,
are hereby vested in the appropriate chief procurement officers. In exercising
this authority, the chief procurement officers shall afford each using agency
reasonable opportunity to participate in and make recommendations with respect
to procurement matters affecting the using agency. The chief procurement
officers shall be responsible for developing such organizational structure as
necessary to implement the provisions of the Procurement Code and these
Regulations.
(2) Materials
Management Office: The Materials Management Officer is specifically responsible
for:
(a) developing a system of training and
certification for procurement officers of governmental bodies in accordance
with Section
11-35-1030;
(b) recommending differential dollar limits
for direct procurements on the basis of but not limited to the following:
(1) procurement expertise,
(2) commodity,
(3) service,
(4) dollar;
(c) performing procurement audits of
governmental bodies in accordance with Sections
11-35-1230
and
11-35-5340
of the Procurement Code.
(d)
overseeing acquisitions for the State by the State Procurement
Office.
(e) coordinating with the
Information Technology Management Office in accordance with Section
11-35-820;
(f) overseeing the acquisition of
procurements by the State Engineer in accordance with Section
11-35-830.
(3) Office of Information
Technology Management: The Office of Information Technology Management shall be
responsible for all procurements involving information technology pursuant to
Section
11-35-820
of the Procurement Code.
(4) Office
of State Engineer: The Office of State Engineer under the direction and
oversight of the Materials Management Officer shall be responsible for all
procurements involving construction, architectural and engineering,
construction management, and land surveying services pursuant to Section
11-35-830
of the Procurement Code.
C. Definitions
(1) "Head of purchasing agency" means the
agency head, that is, the individual charged with ultimate responsibility for
the administration and operations of the governmental body. Whenever the South
Carolina Consolidated Procurement Code or these Regulations authorize either
the chief procurement officer or the head of the purchasing agency to act, the
head of the purchasing agency is authorized to act only within the limits of
the governmental body's authority under Section
11-35-1210, except
with regard to acts taken pursuant to Section
11-35-1560
and
11-35-1570.
(2) "Procuring Agency" means "purchasing
agency" as defined in Section
11-35-310.
(3) "Certification" means the authority
delegated by the board or the Director of Procurement Services to a
governmental body to make direct procurements not under term contracts.
Certification is granted pursuant to Section
11-35-1210 and
R.19-445.2020.
(4) "Responsible
procurement officer" means the individual employed by either the purchasing
agency or the chief procurement officers, as applicable, assigned to serve as
the procurement officer, as defined in Section
11-35-310,
and responsible for administering the procurement process. Typically, the
responsible procurement officer will be identified by name in the solicitation,
as amended, and any subsequent contracts, as amended.
D. Duty to Report Violations
All governmental bodies shall comply in good faith with all applicable requirements of the consolidated procurement code and these procurement regulations. When any information or allegations concerning improper or illegal conduct regarding a procurement governed by the consolidated procurement code comes to the attention of any employee of the State, immediate notice of the relevant facts shall be transmitted to the appropriate chief procurement officer.
E. Application of the Procurement Code.
(1) Other Required Approvals. Approval
pursuant to the Code or regulations does not substitute for any other approval
required by law. For example, if the Procurement Code applies to an acquisition
and the overall arrangement involves either construction or the granting or
acquiring any interest in real property, other independent processes or
approval may be required by law, e.g., Sections
1-11-55,
1-11-56,
1-11-58,
1-11-65,
or Chapter 47 of Title 2.
(2)
Multiple Instruments Not Determinative. The application of the Code does not
depend on whether the parties memorialize the overall transaction into one or
more contractual instruments. As a remedial statute, the Consolidated
Procurement Code should be construed liberally to carry out its purposes.
(Section
11-35-20)
Accordingly, when multiple written agreements are part of an overall
transaction to accomplish an overall purpose, the documents will be considered
together for purposes of determining whether the Consolidated Procurement Code
applies, even if the instruments have not been executed simultaneously or the
parties are not the same.
(3)
Revenue generating contracts. The Consolidated Procurement Code "applies to
every procurement . . . by this State under contract acting through a
governmental body . . .." (Section
11-35-40(2)
) "The term 'contract' means "all types of state agreements, regardless of what
they may be called, for the procurement . . . of . . . supplies, services,
information technology, or construction." (Section
11-35-310(8)
) In pertinent part, the term "procurement" is defined as "buying, purchasing,
renting, leasing, or otherwise acquiring any . . . construction." (Section
11-35-310(25)
(emphasis added.) Accordingly, the Procurement Code applies even though the
governmental body does not make a payment of money. Without limitation,
examples of such contracts include revenue-generating contracts, concession
agreements, and contracts structured as a design-build-finance-operate-maintain
project. (Section
11-35-2910(8)
)
(4) Financed Construction. The
Consolidated Procurement Code "applies to every procurement . . . by this State
under contract acting through a governmental body . . .." (Section
11-35-40(2)
) The term "contract" means "all types of state agreements, regardless of what
they may be called, for the procurement . . . of . . . construction." (Section
11-35-310(18)
) In pertinent part, the term "procurement" is defined as "buying, purchasing,
renting, leasing, or otherwise acquiring any . . . construction." (Section
11-35-310(25)
(emphasis added)) The term "construction" is defined as "the process of
building . . . any . . . public improvements of any kind to real property."
(Section
11-35-310(7)
) Read together, and absent an applicable exclusion (e.g., gifts) or exemption
(e.g., Section
11-35-710
), the Procurement Code applies to every acquisition of the process of
improving real property by a governmental body, whether or not the acquisition
involves an expenditure of money. Such acquisitions may be memorialized in a
number of related agreements and, without limitation, may be structured as an
in-kind exchange, lease-purchase, lease with purchase option, lease-lease-back,
sale-lease-back, installment-purchase, or so-called
public-private-partnership.
(5)
Acquisition involving an interest in real property. Generally, the Procurement
Code does not apply to an acquisition solely of an interest in real property.
For example, the Procurement Code does not apply to an acquisition of land,
even though it includes pre-existing improvements and fixtures (i.e., not
built-to-suit), nor does it apply to an acquisition of a leasehold estate, even
though it includes complementary subordinate supplies, services, information
technology, or construction (e.g., landlord-performed tenant improvements for a
lease not-to-own, building security, janitorial services). In contrast, the
Procurement Code does apply to an acquisition of an interest in real property
if the transaction also involves a substantial acquisition of supplies,
services, information technology, or construction. For example, and without
limitation, the Procurement Code would apply to an acquisition of food
services, even though it involved the agency leasing its land to the
contractor. As another example, as discussed in R.19-445.2000E(4), a
lease-purchase of custom-built, new construction must be acquired pursuant to
the Procurement Code. While not necessarily conclusive, the primary objective
of the transaction may be determinative.
F. Notice.
(1) When adequate public notice is required
by Article 5, the notice must contain sufficient information to allow a
prospective offeror to make an informed business judgment as to whether she
should compete (or would have competed) for the contract. At minimum the notice
must contain the following information, as applicable:
(a) a description of the item(s) to be
acquired;
(b) how to obtain a copy
of the solicitation document or the anticipated contract;
(c) when and where responses are due;
and
(d) the place of performance or
delivery.
(2) In
addition to the information above, the notices required by Section
11-35-1560
and Section
11-35-1570
must include the contract dollar amount of the proposed contract.
Disclaimer: These regulations may not be the most recent version. South Carolina may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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