A.
Administrative Resolution Of Controversies
1.
Right to protest; procedure; settlement
of protest; administrative review and
decision; notice of decision; finality;
stay of procurement pending; exclusivity
of remedy.
a.
Right to Protest; Exclusive remedy.
(1)
Any prospective bidder, offeror, contractor,
or subcontractor who is aggrieved in
connection with the solicitation of
a contract or award of a contract shall
protest to the Procurement Officer
in the manner stated in Subsection
b. below within fifteen days of the
date of issuance of the Invitation
for Bids or Requests for Proposals
or other solicitation documents, whichever
is applicable or any amendment thereto,
if the amendment is at issue.(2) Any
actual bidder, offeror, contractor,
or subcontractor who is aggrieved in
connection with the intended award
or award of a contract shall protest
to the Procurement Officer in the manner
stated in Subsection b. below within
fifteen days of the date of notification
of award is posted in accordance with
the Code.
(3)
The rights and remedies granted in
this Section to a disappointed bidder,
offeror, contractor, or subcontractor
are to the exclusion of all other rights
and remedies of such disappointed bidder,
offeror, contractor, or subcontractor
against the District at common law
or otherwise for the loss or potential
loss of an award of a contract under
this Procurement Code.
b.
Protest Procedure. A protest under
Subsection a. above shall be in writing,
submitted to the Procurement Officer
and shall set forth the grounds of
the protest and the relief requested
with enough particularity to give notice
of the issues to be decided.
c. Duty
and Authority to Attempt to Settle
Protests. The Procurement Officer
shall have authority, prior to the
commencement of an administrative
review, to settle and resolve by
mutual agreement a protest of an
aggrieved bidder, offeror, contractor
or subcontractor, actual or prospective,
concerning the solicitation or award
of a contract.
d. Administrative
Review and Decision. If the
protest is not resolved by mutual
agreement, the Procurement Officer
shall promptly conduct an administrative
review and shall issue a decision
in writing within ten days of completion
of the review. The decision shall
state the reasons for the action
taken.
e. Notice of
Decision. A copy of the decision
along with a statement of appeal
rights shall be mailed or otherwise
furnished immediately to the
protestor and any other party
intervening. The Procurement
Officer shall also post a copy
of the decision at a date and
place communicated to all parties
participating in the administrative
appeal; and such posted decision
shall indicate the date of posting
on its face and shall be accompanied
by a statement of the right to
appeal.
f.
Finality of Decision. A
decision shall be final and
conclusive, unless fraudulent,
or unless any person adversely
affected by the decision requests,
in writing, a further administrative
review by the Senior Associate
for Management Services within
ten days of the posting of
the decision. The request for
the review will be directed
to the Procurement Officer,
who shall forward the request
to the Senior Associate for
Management Services, and shall
set forth in writing the reasons
why the person disagrees with
the decision of the Procurement
Officer. A person adversely
affected by the decision of
the Senior Associate for Management
Services may request review
and a hearing before the District
Procurement Review Panel. The
request for the review shall
set forth in writing the reasons
why the person disagrees with
the decision of the Senior
Associate for Management Services,
and must be delivered to the
Procurement Officer within
ten days of the posting of
the decision of the Senior Associate for Management
Services. The Procurement Officer shall
forward the request to the District
Procurement Review Panel for its consideration.
g.
Stay of Procurement During Protest. The
District shall not proceed further
with the solicitation or award of the
contract until a decision is rendered
by the Procurement Officer; or in the
event of timely appeal to the Senior
Associate for Management Services until
a decision is rendered by the Senior
Associate for Management Services;
or in the event of timely appeal to
the District Procurement Review Panel
until a decision is rendered by the
District Procurement Review Panel;
provided, however, that the solicitation
or award of a protested contract will
not be stayed if the Procurement Officer,
after consultation with the Senior
Associate for Management Services and
the Superintendent, makes a written
determination that the solicitation
or award of the contract without delay
is necessary to protect the best interests
of the District.
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2.
Posting of Bond or Irrevocable Letter
of Credit. The District may
request that the Procurement Officer
require any bidder or offeror who files
an action protesting the intended award
or award of a contract and valued at
one million dollars or more to post
with the Procurement Officer a bond
or irrevocable letter of credit payable
to the District in an amount equal
to one percent of the total potential
value of the contract as determined
by the Procurement Officer. The Procurement
Officer's decision to require a bond
or irrevocable letter of credit is
not subject to challenge through a
protest filed under Section IX.A.1.
The bond or irrevocable letter of credit
shall be conditioned upon the payment
of all reasonable reimbursement costs
which may be adjudged against the bidder
or offeror filing the protest in the
administrative hearing in which the
action is brought and in any subsequent
appellate court proceeding. For protests
of intended award or award of a contract
of the purchasing agency's request
for sole source or emergency procurements,
the bond or irrevocable letter of credit
shall be in an amount equal to one
percent of the District's estimate
of the contract amount for the sole
source or emergency procurement requested.
In lieu of a bond or irrevocable letter
of credit, the Procurement Officer
may accept a cashier's check or money
order in the amount of the bond or
irrevocable letter of credit. If, after
completion of the administrative hearing
process and any court proceedings,
the District prevails, it may request
that the Procurement Review Panel allow
it to recover all reasonable reimbursement
costs and charges associated with the
protest which shall be included in
the final order or judgment, excluding
attorney's fees. Upon payment of such
costs and charges by the bidder or
offeror protesting the intended award
or award of a contract, the bond, irrevocable
letter of credit, cashier's check,
or money order shall be returned to
the bidder or offeror. Failure to pay
such costs and charges by the bidder
or offeror protesting the intended
award or award of a contract shall
result in the forfeiture of the bond,
irrevocable letter of credit, cashier's
check, or money order to the extent
necessary to cover the payment of all
reasonable reimbursement costs adjudged
against the protesting bidder or offeror.
If the bidder or offeror prevails in
the protest, the cost of providing
the bond, irrevocable letter of credit
or cashier's check may be sought from
the District.
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3.
Authority to Debar or Suspend.
a.
Authority. After reasonable notice
of debarment to the person or firm
involved, and a reasonable opportunity
for such person or firm to be heard,
the Procurement Officer shall have
the authority to debar a person for
cause from consideration for award
of contracts, provided that doing so
is in the best interest of the District
and there is probable cause for debarment.
The Procurement Officer may also suspend
a person or firm from consideration
for award of contracts during an investigation
where there is probable cause for debarment.
The period of debarment or suspension
shall be for a period as set forth
by the Procurement Officer.
b. Causes
for Debarment or Suspension. The
causes for debarment or suspension
shall include, but not be limited
to, the following:
(1)
conviction for commission of a criminal
offense as an incident to obtaining
or attempting to obtain a public or
private contract or subcontract, or
in the performance of such contract
or subcontract;(2) conviction, under
state or federal statutes of embezzlement,
theft, forgery, bribery, falsification
or destruction of records, receiving
stolen property or any other offense
indicating a lack of business integrity
or professional honesty which currently,
seriously and directly affects responsibility
as a contractor;(3) conviction, under
state or federal antitrust laws arising
out of the submission of bids or proposals;(4)
violation of contract provisions, as
set forth below, of a character which
is regarded by the Procurement Officer
to be so serious as to justify debarment
action:(a) deliberate failure without
good cause to perform in accordance
with the specifications or within the
time limit provided in the contract;
or(b) a recent record of failure to
perform or of unsatisfactory performance
in accordance with the terms of one
or more contracts; provided, that failure
to perform or unsatisfactory performance
caused by acts beyond the control of
the contractor shall not be considered
to be a basis for debarment;(5) violation
of an Order of the District Procurement
Review Panel; and
(6)
any other cause the Procurement Officer
determines to be so serious and compelling
as to affect responsibility as a contractor,
including debarment by another governmental
entity for any cause listed herein.
c.
Decision. The Procurement Officer
shall issue a written decision to debar
or suspend within ten days of the completion
of his administrative review. The decision
shall state the specific reasons for
the action taken, if any, and the period
of debarment or suspension.
d. Notice
of Decision. A copy of the decision
shall be mailed or otherwise furnished
immediately to the debarred or suspended
person and any other party intervening.
The notice must include a statement
of the person's right to appeal.
In addition, the Procurement Officer
must post a copy of the decision
at a time and place communicated
to all parties participating in the
administrative review, and such copy
must include the posting date annotated
on its face and a statement of the
appeal rights.
e.
Finality of Decision. A decision
shall be final and conclusive, unless
fraudulent, or unless the debarred
or suspended person requests further
administrative review by the Senior
Associate for Management Services within
ten days of the posting of the decision.
The request for review will be directed
to the Procurement Officer, who shall
forward the request to the Senior Associate
for Management Services, and shall
be in writing, setting forth the reasons
why the person disagrees with the decision
of the Procurement Officer. The person
may also request a review and hearing
before the Procurement Review Panel.
The request for the review shall set
forth in writing the reasons why the
person disagrees with the decision
of the Senior Associate for Management
Services, and must be delivered to
the Procurement Officer within ten
days of the posting of the decision
of the Senior Associate for Management
Services. The Procurement Officer shall
forward the request to the District
Procurement Review Panel for its consideration.
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4.
Authority to Resolve Contract and Breach
of Contract Controversies.
a.
Applicability. This section applies
to controversies between the District
and a contractor or subcontractor when
the subcontractor is the real party
in interest, which arises under or
by virtue of a contract between them.
This includes without limitation controversies
based upon breach of contract, mistake,
misrepresentation or other cause for
contract modification or recession.
b.
Request for Resolution; Time for filing. Either
the District or the contractor, or
subcontractor when the subcontractor
is the real party in interest, may
initiate resolution proceedings before
the Procurement Officer by submitting
a request for resolution in writing
setting forth the general nature
of the controversy and the relief
requested with enough particularity
to give notice to the issues to be
decided. A request for resolution
of contract controversy must be filed
within one year of the date the contractor
last performs work under the contract;
provided however, that in the case
of latent defects a request for resolution
of a contract controversy must be
filed within one year of the date
the requesting party first knows
or should know of the grounds giving
rise to the request for resolution.
c.
Duty and Authority to Attempt to Settle
Contract Controversies. Prior
to the commencement of an administrative
review, the Procurement Officer
shall attempt to settle by mutual
agreement a contract controversy.
The Procurement Officer shall have
the authority to approve any settlement
reached by mutual agreement.
d. Administrative Review
and Decision. If, in the
opinion of the Procurement Officer,
after reasonable attempt, a protest
cannot be settled by mutual agreement,
the Procurement Officer shall
promptly conduct an administrative
review and shall issue a decision
in writing within ten days of
completion of the review. The
decision shall state the reasons
for the action taken.
e.
Notice of Decision. A copy
of the decision and a statement
of appeal rights shall be mailed
or otherwise furnished immediately
to all parties participating
in the administrative review
proceedings. The Procurement
Officer shall also post a copy
of the decision at a time and
place communicated to all parties
participating in the review
and such posted decision shall
indicate the date of posting
on its face and shall be accompanied
by a statement of the right
to appeal.
f.
Finality of Decision. A decision
shall be final and conclusive, unless
fraudulent, or unless any person adversely
affected requests a further review,
in writing, setting forth the reasons
why the person disagrees with the decision,
to the Procurement Officer within ten
days of the posting of the decision.
The request for review shall be directed
to the Procurement Officer and shall
be in writing, setting forth the reasons
why the person disagrees with the decision
of the Procurement Officer. The Procurement
Officer shall forward the request for
further administrative review to the
Senior Associate for Management Services.
The person may also request a review
and hearing before the District Procurement
Review Panel. The request for the review
shall set forth in writing the reasons
why the person disagrees with the decision
of the Senior Associate for Management
Services, and must be delivered to
the Procurement Officer within ten
days of the posting of the decision
of the Senior Associate for Management
Services. The Procurement Officer shall
forward the request to the District
Procurement Review Panel for its consideration.
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B.
Remedies:
1.
Solicitations or Awards in Violation
of the Law.
a.
Applicability. The provisions of
this section apply where it is determined
by either the Procurement Officer,
the Senior Associate for Management
Services, or the District Procurement
Review Panel upon administrative review
that a solicitation or award of a contract
is in violation of law. The remedies
set forth herein may be granted after
review, by the Procurement Officer,
Senior Associate for Management Services,
or District Procurement Review Panel.
b.
Remedies Prior To Award. If,
prior to award of a contract, it
is determined that a solicitation
or proposed contract is in violation
of law, the solicitation or proposed
contract may be:
(1)
canceled:
(2)
revised to comply with the law and
rebid; or,
(3)
awarded in a manner that complies with
the provisions of this Code.
c.
Remedies After Award. If, after
an award of a contract, it is determined
that the solicitation or award is in
violation of law;
(1)
the contract may be ratified and affirmed,
provided it is in the best interest
of the District; or
(2)
the contract may be terminated and
the payment of such damages, if any,
as may be provided in the contract,
may be awarded.
d.
Entitlement to Costs. In addition
to or in lieu of any other relief,
when a protest submitted is sustained,
and it is determined that the protesting
bidder or offeror should have been
awarded the contract under the solicitation
but is not, then the protesting bidder
or offeror may request and be awarded
a reasonable reimbursement amount,
including reimbursement of its reasonable
bid preparation costs.
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2.
Contract Controversies. In
any contract controversy brought under
the provisions of Section IX.A.4. (Authority
to Resolve Contract and Breach of Contract
Controversies) the Procurement Officer,
Senior Associate for Management Services,
or District Procurement Review Panel
may award such relief as is necessary
to resolve the controversy as allowed
by the terms of the contract or the
applicable law.
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3.
Frivolous Protests:
a.
Signature on Protest Constitutes Certificate. The
signature of an attorney or party on
a request for review, protest, motion,
or other document constitutes a certificate
by the signer that the signer has read
such document, that to the best of
the signer's knowledge, information,
and belief formed after reasonable
inquiry, it is well grounded in fact
and is warranted by existing law or
a good faith argument for the extension,
modification, or reversal of existing
law, and that it is not interposed
for any improper purpose, such as to
harass, limit competition, or to cause
unnecessary delay or needless increase
in the cost of the procurement or of
the litigation.
b.
Sanctions for Violation. If a request
for review, protest, pleading, motion,
or other document is signed in violation
of this subsection on or after appeal
to the District Procurement Review
Panel, the District Procurement Review
Panel, upon motion or upon its own
initiative, may impose upon the person
who signed it, a represented party,
or both, an appropriate sanction, which
may include an order to pay to the
other party or parties the amount of
the reasonable expenses incurred because
of the filing of the protest, pleading,
motion, or other paper, including a
reasonable attorney's fee.
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C.
Review Panel
1.
District Procurement Review Panel.
a.
Creation. The District Procurement
Review Panel shall be charged with
the responsibility to review and determine
de novo:
(1)
requests for review of written determinations
of the Senior Associate for Management
Services under Sections IX.A.1.f.,
IX.A.3.e. and IX.A.4.f.; and
(2)
requests for review of other written
determination of written determinations,
decisions, policies,, and procedures
as arise from or concern procurement
of supplies, or services procured in
accordance with the provision of this
Code and any regulations drafted by
the District; provided, however, that
any matter which could have been brought
before the Procurement Officer and
Senior Associate for Management Services
in a timely and appropriate manner
under Sections IX.A.1., IX.A.3. or
IX.A.4, but was not, shall not be the
subject of review. Requests for review
pursuant to this provision shall be
directed to the Procurement Officer
and shall be in writing, setting forth
the grounds, within fifteen days of
the date of such written determinations,
decisions, policies and procedures.
The Procurement Officer shall forward
the request to the District Procurement
Review Panel.
b.
Membership. The panel shall be
composed of five members, all of whom
shall be lay citizens.
c. Chairperson
and Meetings. The chairperson
of the panel shall be appointed by
the chairperson of the Board. The
panel shall meet as often as necessary
to afford a swift resolution of the
controversies submitted to it. Three
members present and voting shall
constitute a quorum.
d.
Administrative Support. The
panel shall receive such administrative
and clerical support as is necessary
for the orderly transaction of
business.
e.
Jurisdiction. The District
Procurement Review Panel shall
be vested with authority to:
(1)
establish its own rules and procedures
for the conduct of its business and
holding of its hearings;(2) interview
any person it deems necessary;(3) review
all written decisions rendered or such
other documents or evidence submitted
or deemed necessary;(4) record all
determinations; and
(5)
make a report and recommendation to
the Board.
f.
Procedure. Within fifteen days
of receiving a grievance filed under
Sections IX.A.1.f., IX.A.3.e., IX.A.4.f.
or IX.C.1.a.(2), the chairperson shall
convene the review panel to conduct
an administrative review of the determinations
rendered. The panel shall within thirty
days record its determination and make
a report and recommendation to the
Board. The Board may affirm, alter
or reject the recommendation of the
panel. The Board, through its chairperson,
shall communicate its decision to those
involved in the determination.
g.
Finality. The decision of the Board
is final as to administrative review
and may be appealed to the Circuit
Court under the provisions of the South
Carolina Administrative Act.
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