South Carolina law provides a statutory procedure for the submission and resolution of bid protests. Under section 11-35-4210 of South Carolina’s Consolidated Procurement Code and section 19-445 of South Carolina’s procurement regulations, bid protests relating to procurements greater than $50,000 may be initiated with a letter directed to the appropriate chief procurement officer (“CPO”).
Filing the protest
A protest must be in writing and must set forth the grounds of protest and the relief requested with enough particularity to give notice of the issues to be decided. S.C. Code Ann. § 11-35-4210(2).
As with federal procurements and those of many other states, the deadline for the submission of a bid protest is short. If challenging the terms of a solicitation, a prospective bidder must file the protest within 15 days of the issue date of the invitation for bids or request for proposals. If an amendment to the solicitation is at issue, the protest must be filed within 15 days of the amendment.
The deadline for protesting the award or intended award of a contract is even shorter. Unsuccessful bidders must file such protests within 10 days of the date of award or notification of intent to award, whichever is earlier. The protest can be amended after it is filed, but such amendments must be filed within 15 days after the date of award. S.C. Code Ann. § 11-35-4210(1)(b).
A protest bond is not required for protests to the terms of a solicitation. A bond is not automatically required for post-award protests but the CPO can require a bond or an irrevocable letter of credit if the agency requests one and if the contract at issue is: (a) solicited under Article 5 of South Carolina’s Consolidated Procurement Code; and (b) valued at $1 million or more. Article 5 includes sections 11-35-1410 to 11-35-2440 of the South Carolina Code. If the CPO requires a bond, it must be in an amount equal to one percent of the potential contract value. S.C. Code Ann. § 11-35-4215. The CPO’s decision to require a bond is not appealable.
How protests are resolved
Before a protest is considered on its merits, South Carolina law directs the CPO to make a “reasonable attempt” to settle the protest by mutual agreement with the protester. Settlement negotiations can take place with the CPO, the head of the purchasing agency, or their designees, and the CPO has authority to approve any mutually agreeable settlements. S.C. Code Ann. § 11-35-4210(3).
If a protest cannot be settled at the outset, the CPO is required to promptly conduct an “administrative review.” S.C. Code Ann. § 11-35-4210(4). This review must begin no later than 15 business days after the deadline for receiving the protest. The CPO must issue a written decision resolving the protest within 10 days of completing the administrative review and must “state the reasons for the actions taken.” The decision must be mailed “or otherwise furnished” to the protester any intervening parties immediately. It must also be posted at a date and place communicated to all parties participating in the administrative review and must contain a statement of the protester’s appeal rights. S.C. Code Ann. § 11-35-4210(5).
Appeals to the Procurement Review Panel
What are the protester’s appeal rights? A party that is adversely affected by a CPO’s decision on a bid protest may seek administrative review with South Carolina’s Procurement Review Panel, which is comprised of two South Carolina employees and five individuals from private industry. The members of the Procurement Review Panel are appointed by the Governor.
A written request for further administrative review must be submitted within 10 days of the posting of the CPO’s decision. The request should describe the reasons behind the protestor’s disagreement with the CPO’s decision and should be sent to the CPO, who will forward the request to the Procurement Review Panel. S.C. Code Ann. § 11-35-4210(6). An appeal must be limited to issues raised in the protest and cannot raise new protest grounds, even if those grounds are newly discovered.
The Procurement Review Panel has authority to establish rules of procedure, to issue subpoenas, to conduct interviews, and to record its determinations. The Panel is required to convene in response to a bid protest within 15 days of receiving the request to conduct an administrative review or to schedule a hearing to facilitate the administrative review. The Panel reviews the CPO’s decision under a de novo standard of review. The Panel must record its determination within 10 working days, unless the matter is designated as complex, in which case the Panel 30 days to record its determination. S.C. Code Ann. § 11-35-4410(5).
The decision of the Procurement Review Panel may be appealed to the circuit court. S.C. Code Ann. § 11-35-4410(6). The circuit court’s review generally is confined to the record before the Procurement Review Panel and the court may overturn the Panel’s decision only in accordance with the specific grounds listed in South Carolina’s Administrative Procedures Act. See S.C. Code Ann. § 1-23-380.
Automatic stay of contract awards
A timely filed bid protest imposes an automatic stay that stops the procurement or the award of a contract until 10 days after the CPO posts its administrative review decision. The automatic stay remains in effect during an appeal to the Procurement Review Panel.
The agency involved in the solicitation and/or the party who was awarded the contract may request a lift of the stay. The stay may be lifted if the CPO, in consultation with the head of the agency, determines that the immediate solicitation or award of the contract is necessary to protect the best interests of the state. S.C. Code Ann. § 11-35-4210(7).
There is no automatic stay when a protest action is filed in the circuit court.
Recovery of protest costs
If it is determined that the protestor should have been awarded the contract under the solicitation but was not, the protestor may request and be awarded a reasonable reimbursement amount, including reimbursement of bid preparation costs and the costs of providing a bond or other security at the agency’s request. S.C. Code Ann. § 11-35-4310(4).
If the Procurement Review Panel determines that a protest was frivolous, the Panel may require the protesting party to pay the fees and/or costs of the parties who responded to the protest. A protest is “frivolous” if it is not well grounded in fact; is not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and is posed for an improper purpose, such as to harass, limit competition, or cause unnecessary delay. S.C. Code Ann. § 11-35-4330.
Access to procurement documents
Documents relating to the solicitation and award of ongoing procurements are available on the website for South Carolina’s Procurement Services: http://www.procurementlaw.sc.gov/PS/PS-index.phtm. If considering protesting an award or intent to award, a FOIA request should be made to the procurement officer immediately for all publicly available documents. If the state withholds documents from the FOIA request as confidential or as containing trade secrets, a protective order may be requested pursuant to S.C. Reg. 19-445.2200.