Indicates Matter Stricken
Indicates New Matter
The Senate assembled at 12:00 Noon, the hour to which it stood adjourned, and was called to order by the PRESIDENT.
A quorum being present, the proceedings were opened with a devotion by the Chaplain as follows:
Beloved, hear another of our Heavenly Father's promises recorded in Hebrews, Chapter 8:10:
"I will put my laws in their mind, and write them on their hearts, and I will be their God, and they shall be my people."
Let us pray.
Father, we are hungry for a word like this recorded in the Epistle to the Hebrews - "They shall be my people because I will be their God..." with my word in their hearts.
Give us perceptive minds to know how wonderful it will be for all of us because we have Your word in our hearts!
Amen!
At 12:05 P.M., Senator MARTIN made the point that a quorum was not present. It was ascertained that a quorum was not present.
Senator MARTIN moved that a Call of the Senate be made. The following Senators answered the Call:
Alexander Anderson Bryant Campsen Cleary Courson Cromer Drummond Elliott Fair Ford Gregory Grooms Hawkins Hayes Hutto Jackson Knotts Land Leatherman Leventis Lourie Malloy Martin Matthews McConnell McGill Moore O'Dell Patterson Peeler Pinckney Rankin Richardson Ritchie Ryberg Scott Setzler Sheheen Short Thomas Verdin Williams
A quorum being present, the Senate resumed.
The PRESIDENT called for Petitions, Memorials, Presentments of Grand Juries and such like papers.
The following appointments were transmitted by the Honorable Mark C. Sanford:
Initial Appointment, Central Drought Response Committee, with term to commence March 1, 2004, and to expire March 1, 2008
Power Generation:
William M. Stroud, Wylie Hydro Plant, 2701 Gray Rock, Fort Mill, S.C. 29708
Referred to the Committee on Agriculture and Natural Resources.
Reappointment, South Carolina State Board of Financial Institutions, with term to commence June 30, 2006, and to expire June 30, 2010
Licensed Consumer Finance:
Jonathan Foster, 109 Red Berry Lane, Easley, S.C. 29642
Referred to the Committee on Banking and Insurance.
Reappointment, South Carolina State Board of Financial Institutions, with term to commence June 30, 2006, and to expire June 30, 2010
Credit Unions:
William Baker Varn, SPC Cooperative Credit Union, P.O. Box 1355, Hartsville, S.C. 29551
Referred to the Committee on Banking and Insurance.
Reappointment, South Carolina Prisoner of War Commission, with term to commence July 1, 2005, and to expire July 1, 2009
3rd Congressional District:
Talmadge P. Callison, 2719 Country Farm Rd., Greenwood, S.C. 29646
Referred to the General Committee.
Initial Appointment, South Carolina State Commission for Minority Affairs, with term to commence June 30, 2005, and to expire June 30, 2009
1st Congressional District:
Fred Lincoln, 133 Sarah Lincoln Road, Wando, S.C. 29492 VICE Thaddeus Bell
Referred to the Committee on Judiciary.
Initial Appointment, South Carolina State Board of Cosmetology, with term to commence March 20, 2005, and to expire March 20, 2009
Cosmetologist:
Kristy Olson McMillan, 5096 Old York Course, Hollywood, S.C. 29455 VICE Pat Adams
Referred to the Committee on Labor, Commerce and Industry.
On motion of Senator THOMAS, with unanimous consent, the following Regulation No. 3045 was recalled from the Committee on Banking and Insurance.
Document No. 3045
Agency: Office of the Attorney General
SUBJECT: Securities
Received by Lieutenant Governor March 9, 2006
Referred to the Committee on Judiciary
Legislative Review Expiration February 13, 2007
On motion of Senator THOMAS, with unanimous consent, Regulation No. 3045 was committed to the Committee on Judiciary.
Senator ANDERSON introduced Dr. Charles B. Thomas of Greenville, S.C., Doctor of the Day.
On motion of Senator McCONNELL, at 12:05 P.M., Senator J. VERNE SMITH was granted a leave of absence for this week.
At 2:20 P.M., Senator MATTHEWS requested a leave of absence from 10:00 - 4:00 P.M. on Wednesday.
Senator ELLIOTT rose for an Expression of Personal Interest.
The following were introduced:
S. 1280 (Word version) -- Senator Ryberg: A SENATE RESOLUTION CONGRATULATING THE AIKEN COUNTY ROBOTICS TEAM ON WINNING THE 2006 ENGINEERING INSPIRATION AWARD, HONORING THEIR COMMITMENT AND DEDICATION TO ENGINEERING AND CREATIVITY, AND WISHING THEM MUCH SUCCESS IN THE FUTURE.
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The Senate Resolution was adopted.
S. 1281 (Word version) -- Senator Patterson: A CONCURRENT RESOLUTION TO RECOGNIZE AND COMMEND DIVA GIRLZ, INC., A SOUTH CAROLINA COMPANY ORGANIZED FOR THE EMPOWERMENT OF WOMEN AND ITS FOUNDER, MS. WOODEENA (DINA) CURRY, FOR ALL THEIR TRULY WONDERFUL EFFORTS IN AIDING AND ASSISTING VICTIMS OF HURRICANE KATRINA WHO HAVE RELOCATED TO SOUTH CAROLINA.
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The Concurrent Resolution was adopted, ordered sent to the House.
S. 1282 (Word version) -- Senator Anderson: A CONCURRENT RESOLUTION TO CONGRATULATE THE GREENVILLE HIGH SCHOOL RED RAIDERS VARSITY BOYS BASKETBALL TEAM ON ITS IMPRESSIVE 2006 CLASS AAA STATE CHAMPIONSHIP TITLE AND TO HONOR THE PLAYERS AND THEIR COACH, DONDI MCGOWAN, ON AN EXCEPTIONAL SEASON.
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The Concurrent Resolution was adopted, ordered sent to the House.
S. 1283 (Word version) -- Senators Leatherman and Peeler: A BILL TO AMEND SECTION 12-6-545, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE APPLICATION OF THE REDUCED STATE MARGINAL INDIVIDUAL INCOME TAX RATE TO THE ACTIVE TRADE OR BUSINESS INCOME OF A PASS-THROUGH BUSINESS, SO AS TO MAKE THIS APPLICATION AT THE ELECTION OF THE TAXPAYER, TO PROVIDE A MINIMUM FIVE YEARS FOR THIS ELECTION, TO PROVIDE ADDITIONAL DEFINITIONS FOR THIS APPLICATION, AND TO PROVIDE A "SAFE HARBOR" AMOUNT IN DETERMINING THE NONPERSONAL SERVICE PORTION OF ACTIVE TRADE OR BUSINESS INCOME IN A PASS-THROUGH BUSINESS WITH GROSS INCOME OF LESS THAN ONE MILLION DOLLARS AND TAXABLE INCOME OF LESS THAN ONE HUNDRED THOUSAND DOLLARS.
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Read the first time and referred to the Committee on Finance.
S. 1284 (Word version) -- Senator Hawkins: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTIONS 56-5-3010 AND 56-5-3020 SO AS TO ESTABLISH THE CRIMES OF VEHICULAR HOMICIDE AND VEHICULAR GREAT BODILY INJURY, AND TO PROVIDE PENALTIES FOR BOTH CRIMES.
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Read the first time and referred to the Committee on Judiciary.
S. 1285 (Word version) -- Senator Ryberg: A BILL TO AMEND SECTION 44-76-40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO IMMUNITY FROM CIVIL LIABILITY FOR PERSONS ADMINISTERING, USING, ACQUIRING, OR PRESCRIBING AN AUTOMATED EXTERNAL DEFIBRILLATOR (AED), SO AS TO PROVIDE SUCH IMMUNITY FOR PERSONS PROVIDING TRAINING FOR CARDIOPULMONARY RESUSCITATION THAT INCLUDES TRAINING IN THE USE OF AED'S.
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Read the first time and referred to the Committee on Judiciary.
S. 1286 (Word version) -- Senators Ritchie and Hayes: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-875 SO AS TO PROVIDE THAT THE COURT MAY ORDER A NONCUSTODIAL PARENT WHO IS UNEMPLOYED OR UNDEREMPLOYED TO PARTICIPATE IN AN EMPLOYMENT TRAINING PROGRAM OR PUBLIC SERVICE EMPLOYMENT, TO PROVIDED THAT UPON FAILURE OF THE PARENT TO COMPLY WITH SUCH AN ORDER, THE COURT MAY ISSUE A WARRANT FOR THE PARENT'S ARREST; AND TO PROVIDE THAT COURT ADMINISTRATION SHALL APPROVE THE ELIGIBILITY CRITERIA, ACCOUNTABILITY, AND IMPLEMENTATION PROGRAM OF SUCH A PROGRAM.
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Read the first time and referred to the Committee on Judiciary.
S. 1287 (Word version) -- Senator Verdin: A BILL TO AMEND SECTION 56-23-85, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DRIVER INSTRUCTOR PERMITS, SO AS TO PROVIDE THAT PRIVATE HIGH SCHOOL INSTRUCTORS ARE NOT REQUIRED TO PAY A FEE FOR A DRIVER INSTRUCTOR PERMIT.
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Read the first time and referred to the Committee on Transportation.
S. 1288 (Word version) -- Senators Elliott and Leatherman: A BILL TO AMEND SECTION 61-6-2010, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO TEMPORARY PERMITS TO SELL ALCOHOLIC LIQUOR, BEER, AND WINE FOR ON-PREMISES CONSUMPTION AND BEER AND WINE FOR OFF-PREMISES CONSUMPTION UPON A FAVORABLE REFERENDUM VOTE, SO AS TO REVISE THE ANNUAL FEE FOR A FIFTY-TWO WEEK TEMPORARY PERMIT FOR THE SALE OF ALCOHOLIC LIQUOR BY THE DRINK FOR ON-PREMISES CONSUMPTION AND BASE THIS FEE ON THE SEATING CAPACITY OF THE ESTABLISHMENT.
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Read the first time and referred to the Committee on Judiciary.
S. 1289 (Word version) -- Senators Campsen, McConnell, Thomas, Grooms, Verdin, Cleary, Knotts, Scott and Ryberg: A BILL TO AMEND CHAPTER 10, TITLE 4 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A LOCAL OPTION SALES TAX, BY ADDING ARTICLE 7 SO AS TO ALLOW A COUNTY TO ENACT A LOCAL OPTION SALES TAX IN ORDER TO EXEMPT HOMESTEADS FROM PROPERTY TAXES IMPOSED FOR SCHOOL OPERATIONS.
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Read the first time and referred to the Committee on Judiciary.
S. 1290 (Word version) -- Senators Campsen, McConnell, Thomas, Grooms, Verdin, Cleary, Knotts, Scott and Ryberg: A JOINT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 3, ARTICLE X OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO PROPERTY TAX EXEMPTIONS, SO AS TO ALLOW THE GOVERNING BODY OF A COUNTY TO IMPOSE A SALES AND USE TAX TO EXEMPT HOMESTEADS FROM PROPERTY TAX LEVIED IN THE COUNTY FOR SCHOOL OPERATIONS, TO ALLOW THIS EXEMPTION ONLY PURSUANT TO A REFERENDUM HELD IN THE COUNTY IN THE MANNER THAT THE GENERAL ASSEMBLY PROVIDES BY LAW, AND TO PROVIDE THAT AFTER THIS EXEMPTION TAKES EFFECT, EXCEPT WHERE A MORE RESTRICTIVE LIMIT ON ANNUAL INCREASES APPLIES, THE RATE OF PROPERTY TAX IMPOSED IN THE COUNTY FOR SCHOOL OPERATIONS MUST NOT BE INCREASED BY AN ANNUAL RATE THAT EXCEEDS THE COMBINED PERCENTAGE INCREASE IN STATE PERSONAL INCOME GROWTH AND STATE POPULATION IN THE MOST RECENT YEAR FOR WHICH THIS DATA IS AVAILABLE.
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Read the first time and referred to the Committee on Judiciary.
S. 1291 (Word version) -- Senators Campsen, McConnell, Knotts, Grooms, Cleary, Scott and Thomas: A BILL ENACTING THE LOCAL OPTION PROPERTY TAX RELIEF ACT BY AMENDING THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING ARTICLES 7 AND 9 IN CHAPTER 10 OF TITLE 4 SO AS TO AUTHORIZE THE IMPOSITION OF A SALES AND USE TAX IN A COUNTY UPON REFERENDUM APPROVAL IN ORDER TO USE THE REVENUE TO EXEMPT HOMESTEADS IN THE COUNTY FROM PROPERTY TAXES IMPOSED FOR SCHOOL OPERATIONS AND BY AUTHORIZING THE IMPOSITION OF CAPITAL PROJECTS FEES IN A COUNTY UPON REFERENDUM APPROVAL, SPECIFYING THE FEES TO BE IMPOSED, CREDITS ALLOWED AGAINST THESE FEES, AND THE USES OF THE REVENUES OF THESE FEES, INCLUDING A CREDIT AGAINST PROPERTY TAXES IMPOSED TO SERVICE BONDED INDEBTEDNESS.
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Read the first time and referred to the Committee on Judiciary.
H. 4572 (Word version) -- Reps. Witherspoon, Frye, Rhoad and Loftis: A BILL TO AMEND SECTION 50-1-60, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DIVISION OF THE STATE INTO GAME ZONES, SO AS TO REVISE AND REDUCE THE NUMBER OF THESE GAME ZONES; TO AMEND SECTION 50-11-120, AS AMENDED, RELATING TO HUNTING SEASON FOR SMALL GAME, SO AS TO FURTHER PROVIDE FOR THESE SEASONS BASED ON THE REVISED GAME ZONES AS PROVIDED FOR ABOVE; TO AMEND SECTION 50-11-150, AS AMENDED, RELATING TO BAG LIMITS, SO AS TO FURTHER PROVIDE FOR THESE BAG LIMITS BASED ON THE REVISED GAME ZONES; TO AMEND SECTION 50-11-310, AS AMENDED, RELATING TO OPEN SEASON FOR ANTLERED DEER, SO AS TO FURTHER PROVIDE FOR THESE OPEN SEASONS BASED ON THE REVISED GAME ZONES; TO AMEND SECTION 50-11-335, AS AMENDED, RELATING TO BAG LIMITS ON ANTLERED DEER, SO AS TO FURTHER PROVIDE FOR THESE BAG LIMITS FOR DEER BASED ON THE REVISED GAME ZONES; TO AMEND SECTION 50-11-350, AS AMENDED, RELATING TO PENALTIES FOR ILLEGALLY TAKING, POSSESSING, OR KILLING DEER IN CERTAIN GAME ZONES, SO AS TO REVISE REFERENCES TO PARTICULAR GAME ZONES; TO AMEND SECTION 50-11-520, AS AMENDED, RELATING TO SPECIAL STUDIES OF GAME ZONES STOCKED WITH WILD TURKEY, SO AS TO REVISE REFERENCES TO PARTICULAR GAME ZONES AND FURTHER TO PROVIDE FOR THE SEASON FOR HUNTING AND TAKING MALE WILD TURKEYS; TO AMEND SECTION 50-11-708, RELATING TO THE UNLAWFUL USE OF ARTIFICIAL LIGHTS IN GAME ZONE 6, SO AS TO REVISE THESE PROVISIONS, MAKE THEM APPLICABLE TO ALL GAME ZONES, AND PROVIDE PENALTIES FOR VIOLATIONS; AND TO REPEAL SECTIONS 50-11-90, 50-11-555, 50-11-560, 50-11-700, 50-11-703, 50-11-704, 50-11-705, 50-11-706, AND 50-13-360 ALL RELATING TO VARIOUS WILDLIFE AND FISH AND GAME PROVISIONS.
Read the first time and referred to the Committee on Fish, Game and Forestry.
H. 4801 (Word version) -- Rep. Delleney: A BILL TO AMEND SECTION 14-11-310, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO MASTERS-IN-EQUITY FEES, SO AS TO REVISE THE MAXIMUM COMMISSION ON CERTAIN SALES OF LAND AND THE FEE FOR PREPARATION OF A DEED.
Read the first time and referred to the Committee on Judiciary.
H. 4821 (Word version) -- Reps. Clemmons, Barfield, Edge, Hardwick and Witherspoon: A CONCURRENT RESOLUTION TO REQUEST THAT THE DEPARTMENT OF TRANSPORTATION NAME THE PORTION OF HIGHWAY 139 IN HORRY COUNTY FROM ITS INTERSECTION WITH UNITED STATES HIGHWAY 701 IN THE TOWN OF LORIS TO ITS INTERSECTION WITH CANE BRANCH ROAD IN THE CITY OF CONWAY THE "AUSTIN M. ENZOR MEMORIAL HIGHWAY" AND TO ERECT APPROPRIATE MARKERS OR SIGNS ALONG THIS HIGHWAY THAT CONTAIN THE WORDS "AUSTIN M. ENZOR MEMORIAL HIGHWAY".
The Concurrent Resolution was introduced and referred to the Committee on Transportation.
H. 4827 (Word version) -- Rep. J. E. Smith: A CONCURRENT RESOLUTION TO ENCOURAGE PRIVATE HEALTH INSURANCE COMPANIES AND EMPLOYERS TO INCLUDE INSURANCE COVERAGE FOR THE SCREENING AND DETECTION OF COLORECTAL CANCER, AND TO ENCOURAGE ALL CITIZENS OF SOUTH CAROLINA TO BECOME BETTER EDUCATED ABOUT THE HEALTH BENEFITS AND HEALTH CARE COST BENEFITS OF EARLY CANCER DETECTION THROUGH COLORECTAL SCREENING.
The Concurrent Resolution was introduced and referred to the Committee on Medical Affairs.
H. 4855 (Word version) -- Agriculture, Natural Resources and Environmental Affairs Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF NATURAL RESOURCES, RELATING TO HUNTING IN WILDLIFE MANAGEMENT AREAS, DESIGNATED AS REGULATION DOCUMENT NUMBER 3040, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.
Read the first time and referred to the Committee on Fish, Game and Forestry.
H. 4856 (Word version) -- Agriculture, Natural Resources and Environmental Affairs Committee: A JOINT RESOLUTION TO APPROVE REGULATIONS OF THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, RELATING TO HAZARDOUS WASTE MANAGEMENT REGULATIONS, DESIGNATED AS REGULATION DOCUMENT NUMBER 3003, PURSUANT TO THE PROVISIONS OF ARTICLE 1, CHAPTER 23, TITLE 1 OF THE 1976 CODE.
Read the first time and referred to the Committee on Medical Affairs.
H. 4898 (Word version) -- Reps. Miller, Anderson, Agnew, Allen, Altman, Anthony, Bailey, Bales, Ballentine, Bannister, Barfield, Battle, Bingham, Bowers, Brady, Branham, Breeland, G. Brown, J. Brown, R. Brown, Cato, Ceips, Chalk, Chellis, Clark, Clemmons, Clyburn, Coates, Cobb-Hunter, Coleman, Cooper, Cotty, Dantzler, Davenport, Delleney, Duncan, Edge, Emory, Frye, Funderburk, Govan, Hagood, Haley, Hamilton, Hardwick, Harrell, Harrison, Harvin, Haskins, Hayes, Herbkersman, J. Hines, M. Hines, Hinson, Hiott, Hodges, Hosey, Howard, Huggins, Jefferson, Jennings, Kennedy, Kirsh, Leach, Limehouse, Littlejohn, Loftis, Lucas, Mack, Mahaffey, Martin, McCraw, McGee, McLeod, Merrill, Mitchell, Moody-Lawrence, J. H. Neal, J. M. Neal, Neilson, Norman, Ott, Owens, Parks, Perry, Phillips, Pinson, E. H. Pitts, M. A. Pitts, Rhoad, Rice, Rivers, Rutherford, Sandifer, Scarborough, Scott, Simrill, Sinclair, Skelton, D. C. Smith, F. N. Smith, G. M. Smith, G. R. Smith, J. E. Smith, J. R. Smith, W. D. Smith, Stewart, Talley, Taylor, Thompson, Toole, Townsend, Tripp, Umphlett, Vaughn, Vick, Viers, Walker, Weeks, Whipper, White, Whitmire, Witherspoon and Young: A CONCURRENT RESOLUTION TO REQUEST THAT THE GEORGETOWN COUNTY COUNCIL AND THE SOUTH CAROLINA DEPARTMENT OF NATURAL RESOURCES NAME THE SAMPIT RIVER BOAT PARK LANDING PROJECT THE "CARROLL ASHMORE CAMPBELL MARINE COMPLEX" IN HONOR OF ONE OF THE PALMETTO STATE'S MOST BELOVED LEADERS.
The Concurrent Resolution was introduced and referred to the Committee on Fish, Game and Forestry.
H. 4900 (Word version) -- Rep. Vaughn: A CONCURRENT RESOLUTION TO RECOGNIZE AND HONOR BEN H. DILLARD OF GREENVILLE COUNTY FOR HIS TWENTY-SEVEN YEARS OF DEDICATION AND SERVICE TO THE COMMUNITY AS A SOIL AND WATER CONSERVATION DISTRICT COMMISSIONER AND AS AN ADVOCATE FOR THE PROTECTION OF NATURAL RESOURCES.
The Concurrent Resolution was adopted, ordered returned to the House.
H. 4901 (Word version) -- Rep. Bowers: A CONCURRENT RESOLUTION TO CONGRATULATE MR. AND MRS. LUTHER STEWART OF VARNVILLE ON THEIR TWENTY-FIFTH WEDDING ANNIVERSARY ON APRIL 11, 2006, AND TO EXTEND BEST WISHES TO THE ENTIRE STEWART FAMILY ON THIS WONDERFUL OCCASION.
The Concurrent Resolution was adopted, ordered returned to the House.
H. 4902 (Word version) -- Reps. J. Brown, Agnew, Allen, Altman, Anderson, Anthony, Bailey, Bales, Ballentine, Bannister, Barfield, Battle, Bingham, Bowers, Brady, Branham, Breeland, G. Brown, R. Brown, Cato, Ceips, Chalk, Chellis, Clark, Clemmons, Clyburn, Coates, Cobb-Hunter, Coleman, Cooper, Cotty, Dantzler, Davenport, Delleney, Duncan, Edge, Emory, Frye, Funderburk, Govan, Hagood, Haley, Hamilton, Hardwick, Harrell, Harrison, Harvin, Haskins, Hayes, Herbkersman, J. Hines, M. Hines, Hinson, Hiott, Hodges, Hosey, Howard, Huggins, Jefferson, Jennings, Kennedy, Kirsh, Leach, Limehouse, Littlejohn, Loftis, Lucas, Mack, Mahaffey, Martin, McCraw, McGee, McLeod, Merrill, Miller, Mitchell, Moody-Lawrence, J. H. Neal, J. M. Neal, Neilson, Norman, Ott, Owens, Parks, Perry, Phillips, Pinson, E. H. Pitts, M. A. Pitts, Rhoad, Rice, Rivers, Rutherford, Sandifer, Scarborough, Scott, Simrill, Sinclair, Skelton, D. C. Smith, F. N. Smith, G. M. Smith, G. R. Smith, J. E. Smith, J. R. Smith, W. D. Smith, Stewart, Talley, Taylor, Thompson, Toole, Townsend, Tripp, Umphlett, Vaughn, Vick, Viers, Walker, Weeks, Whipper, White, Whitmire, Witherspoon and Young: A CONCURRENT RESOLUTION TO RECOGNIZE AND COMMEND DIVA GIRLZ, INC., A SOUTH CAROLINA COMPANY ORGANIZED FOR THE EMPOWERMENT OF WOMEN AND ITS FOUNDER, MS. WOODEENA (DINA) CURRY, FOR ALL THEIR TRULY WONDERFUL EFFORTS IN AIDING AND ASSISTING VICTIMS OF HURRICANE KATRINA WHO HAVE RELOCATED TO SOUTH CAROLINA.
The Concurrent Resolution was adopted, ordered returned to the House.
H. 4903 (Word version) -- Reps. J. Brown, Agnew, Allen, Altman, Anderson, Anthony, Bailey, Bales, Ballentine, Bannister, Barfield, Battle, Bingham, Bowers, Brady, Branham, Breeland, G. Brown, R. Brown, Cato, Ceips, Chalk, Chellis, Clark, Clemmons, Clyburn, Coates, Cobb-Hunter, Coleman, Cooper, Cotty, Dantzler, Davenport, Delleney, Duncan, Edge, Emory, Frye, Funderburk, Govan, Hagood, Haley, Hamilton, Hardwick, Harrell, Harrison, Harvin, Haskins, Hayes, Herbkersman, J. Hines, M. Hines, Hinson, Hiott, Hodges, Hosey, Howard, Huggins, Jefferson, Jennings, Kennedy, Kirsh, Leach, Limehouse, Littlejohn, Loftis, Lucas, Mack, Mahaffey, Martin, McCraw, McGee, McLeod, Merrill, Miller, Mitchell, Moody-Lawrence, J. H. Neal, J. M. Neal, Neilson, Norman, Ott, Owens, Parks, Perry, Phillips, Pinson, E. H. Pitts, M. A. Pitts, Rhoad, Rice, Rivers, Rutherford, Sandifer, Scarborough, Scott, Simrill, Sinclair, Skelton, D. C. Smith, F. N. Smith, G. M. Smith, G. R. Smith, J. E. Smith, J. R. Smith, W. D. Smith, Stewart, Talley, Taylor, Thompson, Toole, Townsend, Tripp, Umphlett, Vaughn, Vick, Viers, Walker, Weeks, Whipper, White, Whitmire, Witherspoon and Young: A CONCURRENT RESOLUTION TO RECOGNIZE AND HONOR THE CLERGY AND CONGREGANTS OF THE SECOND CALVARY BAPTIST CHURCH OF RICHLAND COUNTY FOR THEIR OUTSTANDING FAITH AND TO WISH THEM ALL THE BEST UPON THEIR MOVE TO A NEW LOCATION ON APRIL 9, 2006.
The Concurrent Resolution was adopted, ordered returned to the House.
Senator McCONNELL from the Committee on Labor, Commerce and Industry submitted a favorable report on:
S. 807 (Word version) -- Senator McConnell: A BILL TO AMEND CHAPTER 11, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PROFESSIONS AND OCCUPATIONS, BY ADDING ARTICLE 3 SO AS TO PROVIDE PROCEDURES FOR RIGHT TO CURE NONRESIDENTIAL CONSTRUCTION DEFECTS BEFORE A CIVIL ACTION OR OTHER REMEDY PROVIDED BY LAW OR CONTRACT MAY BE INSTITUTED OR CONTINUED.
Ordered for consideration tomorrow.
Senator COURSON from the Committee on Education submitted a favorable with amendment report on:
S. 1107 (Word version) -- Senator Hawkins: A BILL TO AMEND SECTION 59-17-130(A) OF THE 1976 CODE, RELATING TO HIGH SCHOOL COURSES IN AMERICAN SIGN LANGUAGE, TO PROVIDE THAT A SCHOOL DISTRICT MAY GIVE CREDIT AS A FOREIGN LANGUAGE TO A PUPIL WHO SATISFACTORILY COMPLETES A HIGH SCHOOL COURSE IN AMERICAN SIGN LANGUAGE.
Ordered for consideration tomorrow.
Senator GROOMS from the Committee on Agriculture and Natural Resources submitted a favorable with amendment report on:
S. 1206 (Word version) -- Senators Grooms, Campsen, Leventis and Lourie: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 38 TO TITLE 48 SO AS TO ENACT THE "SOUTH CAROLINA ISOLATED WETLANDS ACT OF 2006" AND TO PROVIDE THAT FOR PURPOSES OF THIS ACT, ISOLATED WETLANDS ARE THOSE WETLANDS NOT REGULATED BY THE FEDERAL CLEAN WATER ACT, TO ESTABLISH PROCEDURES AND CRITERIA FOR THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO ISSUE PERMITS FOR CONDUCTING CERTAIN DISCHARGING, DRAINING, AND DITCHING ACTIVITIES IN ISOLATED WETLANDS AND TO MONITOR PERMIT COMPLIANCE.
Ordered for consideration tomorrow.
Senator PEELER from the Committee on Medical Affairs submitted a favorable with amendment report on:
H. 3405 (Word version) -- Reps. Mahaffey, J. Brown, Howard, Hosey, Kennedy, M. Hines, Townsend, Anthony, Breeland, Cato, Dantzler, Emory, Hardwick, Hayes, Jefferson, Jennings, Leach, J.M. Neal, Owens, M.A. Pitts, Rivers, Sinclair, Toole, Umphlett, Vaughn, Witherspoon, Young and Miller: A BILL TO AMEND SECTION 40-51-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DEFINITIONS USED IN CONNECTION WITH THE LICENSURE AND REGULATION OF PODIATRISTS, SO AS TO REVISE THE DEFINITION OF "PODIATRY" AND TO DEFINE "PRACTICE OF PODIATRY".
Ordered for consideration tomorrow.
Senator COURSON from the Committee on Education submitted a favorable with amendment report on:
H. 4046 (Word version) -- Reps. Townsend, Clark and Scott: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 59-67-580 SO AS TO PROVIDE THAT THE STATE BOARD OF EDUCATION SHALL IMPLEMENT A SCHOOL BUS REPLACEMENT CYCLE TO REPLACE APPROXIMATELY ONE-TWELFTH OF THE FLEET EACH YEAR, RESULTING IN A COMPLETE REPLACEMENT OF THE FLEET EVERY TWELVE YEARS.
Ordered for consideration tomorrow.
Senator GROOMS from the Committee on Agriculture and Natural Resources submitted a favorable report on:
H. 4718 (Word version) -- Reps. Limehouse, Umphlett, Hagood, Merrill, Jefferson, Ceips, Dantzler, Haley, Neilson, Scarborough, Hinson, Funderburk, Miller, Altman and Battle: A CONCURRENT RESOLUTION TO URGE THE SOUTH CAROLINA CONGRESSIONAL DELEGATION TO OPPOSE THE SALE OF LAND IN THE FRANCIS MARION AND SUMTER NATIONAL FORESTS.
Ordered for consideration tomorrow.
Columbia, S.C., March 23, 2006
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 3196 (Word version) -- Reps. Whitmire, Mahaffey and Sandifer: A BILL TO AMEND SECTION 33-31-708, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO AN ACTION TAKEN BY BALLOT OF A NONPROFIT CORPORATION, SO AS TO AUTHORIZE THE USE OF AN ELECTRONIC BALLOT.
and has ordered the Bill enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., March 23, 2006
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 3879 (Word version) -- Reps. M.A. Pitts, Hardwick, Witherspoon, E.H. Pitts, Agnew, J. Brown, Hagood, Jefferson, Leach, Littlejohn, Sandifer, Sinclair, G.R. Smith, W.D. Smith, Umphlett, Duncan and Toole: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 50-11-95 SO AS TO MAKE IT UNLAWFUL TO ENGAGE IN COMPUTER ASSISTED REMOTE HUNTING, TO DEFINE COMPUTER ASSISTED REMOTE HUNTING FOR THIS PURPOSE, TO PROVIDE EXCEPTIONS, AND TO PROVIDE PENALTIES FOR VIOLATION.
and has ordered the Bill enrolled for Ratification.
Very respectfully,
Speaker of the House
Received as information.
Columbia, S.C., March 27, 2006
Mr. President and Senators:
The House respectfully informs your Honorable Body that it concurs in the amendments proposed by the Senate to:
H. 4764 (Word version) -- Reps. Phillips and Harrell: A CONCURRENT RESOLUTION TO FIX TUESDAY, APRIL 4, 2006, AT 12:30 P.M., AS THE DATE FOR THE HOUSE OF REPRESENTATIVES AND THE SENATE TO MEET IN JOINT SESSION IN THE HALL OF THE HOUSE OF REPRESENTATIVES FOR THE PURPOSE OF ELECTING MEMBERS OF THE BOARDS OF TRUSTEES OF THE CITADEL, CLEMSON UNIVERSITY, COLLEGE OF CHARLESTON, COASTAL CAROLINA UNIVERSITY, FRANCIS MARION UNIVERSITY, LANDER UNIVERSITY, MEDICAL UNIVERSITY OF SOUTH CAROLINA, SOUTH CAROLINA STATE UNIVERSITY, UNIVERSITY OF SOUTH CAROLINA, WIL LOU GRAY OPPORTUNITY SCHOOL, AND WINTHROP UNIVERSITY TO SUCCEED THOSE MEMBERS WHOSE TERMS EXPIRE IN 2006, OR WHOSE POSITIONS OTHERWISE MUST BE FILLED; AND TO ESTABLISH A PROCEDURE REGARDING NOMINATIONS AND NOMINATING AND SECONDING SPEECHES FOR THE CANDIDATES FOR THESE OFFICES DURING THE JOINT SESSION.
Very respectfully,
Speaker of the House
Received as information.
S. 1249 (Word version) -- Senators Sheheen, Short and Gregory: A CONCURRENT RESOLUTION URGING DUKE POWER COMPANY TO WORK IN CONJUNCTION AND COORDINATION WITH THE STATE OF SOUTH CAROLINA TO PROTECT AND PRESERVE LANDS SURROUNDING AND IMPACTED BY THE PRODUCTION OF HYDROELECTRIC POWER ON LAKE WATEREE.
Returned with concurrence.
Received as information.
S. 1252 (Word version) -- Senator Elliott: A CONCURRENT RESOLUTION TO REQUEST THE DEPARTMENT OF TRANSPORTATION TO NAME THE SPAN BRIDGE OVER THE INTRACOASTAL WATERWAY THAT CROSSES HIGHWAY 9 IN HORRY COUNTY IN HONOR OF J. BRYAN FLOYD, AND TO INSTALL APPROPRIATE MARKERS OR SIGNS AT THE BRIDGE CONTAINING THE WORDS "J. BRYAN FLOYD BRIDGE".
Returned with concurrence.
Received as information.
THE SENATE PROCEEDED TO A CALL OF THE UNCONTESTED LOCAL AND STATEWIDE CALENDAR.
The following Bill was read the third time and, having received three readings in both Houses, it was ordered that the title be changed to that of an Act and enrolled for Ratification:
H. 4421 (Word version) -- Reps. Chellis, Young, Bailey, Harrell, Harrison and Miller: A BILL TO AMEND SECTION 61-6-2010, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ISSUANCE OF TEMPORARY ALCOHOLIC BEVERAGE PERMITS UPON A FAVORABLE REFERENDUM VOTE, SO AS TO PROVIDE THAT TEMPORARY PERMITS FOR THE SALE OF BEER AND WINE FOR OFF-PREMISES CONSUMPTION AUTHORIZED TO BE ISSUED IN A COUNTY OR MUNICIPALITY PURSUANT TO THE REFERENDUM PROVIDED FOR AT THAT TIME MAY CONTINUE TO BE ISSUED OR REISSUED WITHOUT THE REQUIREMENT OF A FURTHER REFERENDUM.
The following Bills were read the third time and ordered sent to the House of Representatives:
S. 626 (Word version) -- Senators Hawkins and Leventis: A BILL TO AMEND SECTION 47-1-40, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO ILL-TREATMENT OF ANIMALS, SO AS TO INCLUDE THAT IT IS ILLEGAL TO CONFINE OR RESTRICT THE MOVEMENT OF AN ANIMAL IN A WAY THAT INFLICTS EXTENDED AND UNNECESSARY SUFFERING UPON AN ANIMAL.
S. 998 (Word version) -- Senators Ritchie and Setzler: A BILL TO AMEND SECTION 20-7-1640, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO A FINGERPRINT REVIEW FOR A PERSON APPLYING FOR LICENSURE AS A FOSTER PARENT, SO AS TO INCLUDE ANYONE SEEKING APPROVAL TO ADOPT A CHILD IN THE CUSTODY OF THE DEPARTMENT OF SOCIAL SERVICES (DSS) TO UNDERGO A FINGERPRINT REVIEW; AND TO AMEND SECTION 20-7-1642 OF THE 1976 CODE, RELATING TO RESTRICTIONS ON FOSTER CARE REPLACEMENT WITH PERSONS WITH A HISTORY OF CHILD ABUSE OR NEGLECT OR OTHER CRIMINAL CONVICTIONS OR PLEAS, SO AS TO INCLUDE A PROHIBITION ON PLACING A DSS CHILD IN A HOME FOR FOSTER CARE OR ADOPTION WHERE ANYONE IN THE HOME OVER THE AGE OF EIGHTEEN HAS PLED GUILTY OR NOLO CONTENDERE TO UNLAWFUL CONDUCT TOWARD A CHILD OR CRUELTY TO CHILDREN.
The following Bills, having been read the second time, were ordered placed on the Third Reading Calendar:
S. 66 (Word version) -- Senators Short, Ford, Lourie, Cleary and, Malloy: A BILL TO AMEND SECTIONS 44-61-120, AS AMENDED, 44-61-130, AS AMENDED, AND 44-61-330 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, ALL RELATING TO EMERGENCY MEDICAL SERVICES, SO AS TO REQUIRE THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL TO INCLUDE GUIDELINES FOR THE ADMINISTRATION OF EPINEPHRINE IN A COMPREHENSIVE STATEWIDE EMERGENCY MEDICAL SERVICES PLAN; TO AUTHORIZE EMERGENCY MEDICAL TECHNICIANS TO POSSESS EPINEPHRINE; AND TO REQUIRE GUIDELINES FOR THE ADMINISTRATION OF EPINEPHRINE TO A CHILD SUFFERING FROM A SEVERE ALLERGIC REACTION.
On motion of Senator RYBERG, with unanimous consent, the name of Senator RYBERG was added as a co-sponsor of S. 66.
S. 1263 (Word version) -- Senators Ritchie, Peeler and Martin: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-1-165 SO AS TO ESTABLISH WITHIN THE DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL THE EXPEDITED REVIEW PROGRAM TO PROVIDE A VOLUNTARY EXPEDITED PROCESS FOR REVIEW OF PERMIT APPLICATIONS; TO REQUIRE THE DEPARTMENT TO PROMULGATE REGULATIONS FOR THE ADMINISTRATION OF THE PROGRAM, INCLUDING EXPEDITED PROCESS APPLICATION FEES; TO CREATE A PILOT PROGRAM TO TEST AND EVALUATE THE ECONOMIC AND ADMINISTRATIVE BENEFITS OF A STATEWIDE REVIEW PROGRAM; AND TO CREATE AN EXPEDITED REVIEW FUND THROUGH THE IMPOSITION OF THE EXPEDITED PROCESS APPLICATION FEES AND TO PROVIDE FOR THE ADMINISTRATION AND USE OF THIS FUND.
S. 572 (Word version) -- Senators Leatherman and Setzler: A BILL TO AMEND TITLE 11 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE SOUTH CAROLINA CONSOLIDATED PROCUREMENT CODE.
(ABBREVIATED TITLE).
The Senate proceeded to a consideration of the Bill, the question being the second reading of the Bill.
The Senate Finance Committee proposed the following amendment (BBM\9329MM06), which was adopted:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Article 1, Chapter 35, Title 11 of the 1976 Code is amended by adding:
"Section 11-35-25. If this code applies to a procurement, the provisions of this code supersede all laws or parts of laws in conflict with it to the extent of the conflict including, but not limited to, the principles of law and equity, the common law, and the Uniform Commercial Code of this State."
SECTION 2. Subarticle 3, Article 15, Chapter 35, Title 11 of the 1976 Code, is amended by adding:
"Section 11-35-3850. Governmental bodies approved by the board may sell any supplies owned by it after such the supplies have become entirely unserviceable and can properly be classified as 'junk', in accordance with procedures established by the Office of General Services designated board office. All sales of unserviceable supplies by the governmental body shall must be made in public to the highest bidder, after advertising for fifteen days, and the funds from such the sales shall must be credited to the account of the governmental body owning and disposing of such the unserviceable supplies."
SECTION 3. Subarticle 3, Article 17, Chapter 35, Title 11 of the 1976 Code is amended by adding:
"Section 11-35-4420. The appropriate chief procurement officer and an affected governmental body shall have the opportunity to participate fully as a party in a matter pending before the Procurement Review Panel and in an appeal of a decision of the Procurement Review Panel, whether administrative or judicial."
SECTION 4. Section 11-35-40(2) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"(2) Application to State Procurement. This code shall apply applies to every procurement or expenditure of funds by this State under contract acting through a governmental body as herein defined irrespective of the source of the funds, including federal assistance monies, except as specified in Section 11-35-40(3) (Compliance with Federal Requirements) and except that this code does not apply to gifts, to the issuance of grants, or to contracts between public procurement units, except as provided in Article 19 (Intergovernmental Relations). It shall also apply to the disposal of state supplies as provided in Article 15 (Supply Management). The provisions of this code shall apply to all procurements of information technology elements by any governmental body, irrespective of the source funds whether appropriated or not."
SECTION 5. Section 11-35-45(A) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"(A) All vouchers for payment of purchases of goods or services, supplies, or information technology shall must be delivered to the Comptroller General's office within thirty work days from acceptance of the goods or services and proper invoice. After the thirtieth work day, following acceptance or the postmark on the invoice, the Comptroller General shall levy an amount not to exceed fifteen percent per annum each year from the funds available to the agency, such this amount to be applied to the unpaid balance to be remitted to the vendor unless the vendor waives imposition of the interest penalty."
SECTION 6. Section 11-35-210 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-210. Written determinations and findings expressly required by the code or regulations shall must be retained in an official contract file of the governmental body administering the contract. Such These determinations shall must be documented in sufficient detail to satisfy the requirements of audit as provided for in Section 11-35-1230."
SECTION 7. Section 11-35-310(8), (17), (19), (20), (24), (28), (35), and (36) of the 1976 Code, as last amended by Act 356 of 2002, is further amended to read:
"(8) 'Contract' means all types of state agreements, regardless of what they may be called, for the procurement or disposal of supplies, services, information technology, or construction.
(17) 'General Services' means the Office of the Budget and Control Board. (Reserved)
(19) 'Grant' means the furnishing by the State or the United States government of assistance, whether financial or otherwise, to any a person to support a program authorized by law. It does not include an award, the primary purpose of which is to procure specified end products, whether in the form of supplies, services, information technology, or construction. A contract resulting from such an award shall must not be deemed considered a grant but a procurement contract.
(20) 'Invitation for bids' means a written or published solicitation issued by an authorized procurement officer for bids to contract for the procurement or disposal of stated supplies, services, information technology, or construction, which will ordinarily result in the award of the contract to the responsible bidder making the lowest responsive bid.
(24) 'Procurement' means buying, purchasing, renting, leasing, or otherwise acquiring any supplies, services, information technology, or construction. It also includes all functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection, and solicitation of sources, preparation and award of contracts, and all phases of contract administration.
(28) 'Request for proposals (RFP)' means a written or published solicitation issued by an authorized procurement officer for proposals to provide supplies, or services, information technology, or construction which ordinarily result in the award of the contract to the responsible bidder making the proposal determined to be most advantageous to the State. The award of the contract must be made on the basis of evaluation factors which that must be stated in the RFP.
(35) 'Term contract' means a contract contracts established by the chief procurement officer for a specific product or service supplies, services, or information technology for a specified time and for which it is mandatory that all governmental bodies procure their requirements for the goods and services during its term. If a governmental body As provided in the solicitation, if a public procurement unit is offered goods and services the same supplies, services, or information technology at a price that is at least ten percent less than the term contract price for the same goods or services, it may purchase from the vendor offering the lower price after first offering the vendor holding the term contract the option to meet the lower price. The solicitation used to establish the term contract must specify contract terms applicable to a purchase from the vendor offering the lower price. If the vendor holding the term contract meets the lower price, then the governmental body must shall purchase from the contract vendor. All decisions to purchase from the vendor offering the lower price must be documented by the procurement officer in sufficient detail to satisfy the requirements of an external audit. A term contract may be a multi-term contract as provided in Section 11-35-2030.
(36) 'Using agency' means any governmental body of the State which utilizes any supplies, services, information technology, or construction purchased under this code."
SECTION 8. Section 11-35-310 of the 1976 Code, as last amended by Act 356 of 2002, is further amended by adding:
"(37) 'Designated board office' and 'Designated board officer' means the office or officer designated in accordance with Section 11-35-540(5)."
SECTION 9. Section 11-35-410 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-410. (A) Procurement information shall must be a public record to the extent required by Chapter 4 of Title 30 (The Freedom of Information Act) with the exception that commercial or financial information obtained in response to a 'request for proposals' or any type of bid solicitation which that is privileged and confidential need not be disclosed.
(B) Privileged and confidential information is information in specific detail not customarily released to the general public, the release of which might cause harm to the competitive position of the party supplying the information. Examples of this type of information would include:
(1) customer lists;
(2) design recommendations and identification of prospective problem areas under an RFP;
(3) design concepts, including methods and procedures;
(4) biographical data on key employees of the bidder.
(C) For all documents submitted in response or with regard to a solicitation or other request, the documents need not be disclosed if an award is not made.
(D) Evaluative documents predecisional in nature such as inter-agency or intra-agency memoranda containing technical evaluations and recommendations are exempted so long as the contract award does not expressly adopt or incorporate the inter-agency or intra-agency memoranda reflecting the predecisional deliberations.
(E) At the time of submitting a proposal or bid, the party supplying a bid or proposal must identify any portions of the proposal or bid considered by the party to be a trade secret and thus eligible to be withheld from public inspection and copying. If the information identified by the party is a trade secret, as defined in Section 30-4-40(a)(1), it may be withheld from public inspection and copying. If the party fails to identify information as a trade secret, the entire bid or proposal is to be made available for public inspection and copying. For all documents submitted in response or with regard to any solicitation or other request, the person submitting the documents shall comply with instructions provided in the solicitation for marking information exempt from public disclosure. Information not marked as required by the applicable instructions may be disclosed to the public."
SECTION 10. The first paragraph of Section 11-35-450(A) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"The purchase of furniture, floor coverings, wall coverings, or any other decorative or ornamental item by a governmental body for at least one of the following uses must be reported to the governing board, commission, or council of the respective governmental body before the purchase, when the cost of the furniture, covering, or item exceeds five hundred one thousand dollars, before the purchase and it is to be used in:
(1) an office or adjoining reception area utilized by an agency director or assistant agency director; or
(2) a board room or a conference room used as a board room."
SECTION 11. Section 11-35-510 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-510. 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 a state governmental body under pursuant to the provisions of law relating thereto, and regardless of source of funding, are hereby vested in the Office of General Services appropriate chief procurement officer. This vesting of authority shall be is subject to Sections 11-35-710 (Exemptions), 11-35-1250 (Authority to Contract for Auditing Services), 11-35-1260 (Authority to Contract for Legal Services), 11-35-1270 (Authority to Contract for Certain Services), Section 11-35-1550 (Small Purchases), Section 11-35-1570 (Emergency Procurements), 11-35-3230 (Exception for Small Architect-Engineer, and Land Surveying Services Contracts), and Section 11-35-3620 (Management of Warehouses and Inventory)."
SECTION 12. Section 11-35-540 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-540. (1) Authority to Promulgate Regulations. Except as otherwise provided in this code, the board shall have the authority and responsibility to may promulgate regulations, consistent with this code, governing the procurement, management, control, and disposal of any and all supplies, services, information technology, and construction to be procured by the State. Such These regulations shall be are binding in all procurements made by the State.
(2) Nondelegation. The board shall may not delegate its power to promulgate regulations.
(3) Approval of Operational Procedures. Governmental bodies shall be authorized to develop internal operational procedures consistent with this code; provided except, that such the operational procedures shall must be certified approved in writing by the appropriate chief procurement officer as being consistent with this chapter. The operational procedures must be consistent with this chapter. Operational procedures adopted pursuant to this chapter are exempt from the requirements of Section 1-23-140.
(4) The board as a whole or acting through its procurement policy committee shall consider and decide matters of policy within the provisions of this code including those referred to it by the chief procurement officers. The board shall have has the power to audit and monitor the implementation of its regulations and the requirements of this code.
(5) For every reference in this code to a 'designated board office', the chief executive officer of the board shall designate the office or other subdivision of the board that is responsible for the referenced statutory role. For every reference in this code to a 'designated board officer', the chief executive officer of the board shall designate the board officer or other board position that is responsible for the referenced statutory role. More than one office or officer may be designated for any referenced statutory role. All designations pursuant to this subparagraph must be submitted in writing to the chief procurement officers."
SECTION 13. Section 11-35-710 of the 1976 Code, as last amended by Act 264 of 2000, is further amended to read:
"Section 11-35-710. The board, upon the recommendation of the Office of General Services designated board office, may exempt governmental bodies from purchasing certain items through the respective chief procurement officer's area of responsibility. The board may exempt specific supplies, or services, information technology, or construction from the purchasing procedures required in this section chapter and for just cause by unanimous written decision limit or may withdraw exemptions provided for in this section. The following exemptions are granted in from this chapter:
( 1) the construction, maintenance, and repair of bridges, highways, and roads; vehicle and road equipment maintenance and repair; and any other emergency type emergency-type parts or equipment utilized by the Department of Transportation or the Department of Public Safety;
( 2) the purchase of raw materials by the South Carolina Department of Corrections, Division of Prison Industries;
( 3) S.C. South Carolina State Ports Authority;
( 4) Division of Public Railways of the Department of Commerce;
( 5) S.C. South Carolina Public Service Authority;
( 6) expenditure of funds at state institutions of higher learning derived wholly from athletic or other student contests, from the activities of student organizations, and from the operation of canteens and bookstores, except as the funds are used for the procurement of construction, architect-engineer, construction-management, and land surveying services;
( 7) livestock, feed, and veterinary supplies;
( 8) articles for commercial sale by all governmental bodies;
( 9) fresh fruits, vegetables, meats, fish, milk, and eggs;
(10) South Carolina Arts Commission and South Carolina Museum Commission for the purchase of one-of-a-kind items such as paintings, antiques, sculpture, and similar objects. Before any a governmental body procures the objects, the head of the purchasing agency shall prepare a written determination specifying the need for the objects and the benefits to the State. The South Carolina Arts Commission shall review the determination and forward a recommendation to the board for approval;
(11) published books, periodicals, and technical pamphlets;
(12) South Carolina Research Authority;
(13) the purchase of goods, products, and services supplies, services, or information technology by state offices, departments, institutions, agencies, boards, and commissions or the political subdivisions of this State from the South Carolina Department of Corrections, Division of Prison Industries.;
(14) Medical University Hospital Authority, provided if the Medical University Hospital Authority has promulgated a procurement process in accordance with its enabling provision."
SECTION 14. Section 11-35-810 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-810. There is hereby created, within the Office of General Services board, a Materials Management Office to be headed by the Materials Management Officer."
SECTION 15. Section 11-35-820 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-820. There is hereby created within the Office of General Services board, the Information Technology Management Office to be headed by the Information Technology Management Officer. All procurements involving information technology, and any pre-procurement and post-procurement activities in this area, shall must be conducted in accordance with the regulations promulgated by the board, except as otherwise provided for in this code by specific reference to the Information Technology Management Office."
SECTION 16. Section 11-35-830 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-830. There is hereby created within the Office of General Services board, the State Engineer's Office to be headed by the State Engineer. All procurements involving construction, architectural and engineering, construction management, and land surveying services, as defined in Section 11-35-2910, and any pre-procurement and post-procurement activities in this area, shall must be conducted in accordance with the 'Manual for Planning and Execution of State Permanent Improvements' and with any regulations promulgated by the board, except as unless otherwise provided for in this code by specific reference to the State Engineer's Office."
SECTION 17. Section 11-35-845 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-845. Each agency of state government that has total management capability as defined and certified by the Office of General Services shall State Engineer's Office must be allowed to oversee the administration of permanent improvement construction projects with the State Engineer's Office serving as an audit function. The State Engineer's Office shall assist those small agencies who do not have the necessary expertise in permanent improvements."
SECTION 18. Section 11-35-1030 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1030. The Office of General Services chief procurement officers shall develop a system of training for procurement in accordance with regulations by the board. Such The training shall must encompass the latest techniques and methods of public procurement. If deemed considered appropriate by the Office of General Services chief procurement officers, such the training shall must include a requirement for the certification of the procurement officer of each purchasing agency."
SECTION 19. Section 11-35-1210(1) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"(1) Authority. The board may assign differential dollar limits below which individual governmental bodies may make direct procurements not under term contracts. The Office of General Services designated board office shall review the respective governmental body's internal procurement operation, shall certify in writing that it is consistent with the provisions of this code and the ensuing regulations, and recommend to the board those dollar limits for the respective governmental body's procurement not under term contract."
SECTION 20. Section 11-35-1220 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1220. The Office of General Services shall chief procurement officers are authorized to prepare statistical data concerning the procurement, use, and disposition of all supplies, services, information technology, and construction. All using agencies shall furnish such these reports as the Office of General Services chief procurement officers may require concerning use, needs, and stocks on hand, and the chief procurement officers shall prescribe forms to be used by the using agencies in requisitioning, ordering, and reporting supplies, services, information technology, and construction. The chief procurement officers shall limit requests for information to those items necessary for the effective operation of the purchasing system, but using agencies shall must be required to provide information as requested."
SECTION 21. Section 11-35-1230(1) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"(1) The Office of General Services designated board office, through consultation with the chief procurement officers, shall develop written plans for the auditing of state procurements.
In procurement audits of governmental bodies thereafter, the auditors from the Office of General Services designated board office shall review the adequacy of the system's internal controls in order to ensure compliance with the requirement of this code and the ensuing regulations. Any A noncompliance discovered through audit must be transmitted in management letters to the audited governmental body and the Budget and Control Board. The auditors shall provide in writing proposed corrective action to governmental bodies. Based upon audit recommendations of the Office of General Services designated board office, the board may revoke certification as provided for in Section 11-35-1210 and require the governmental body to make all procurements through the office of materials management appropriate chief procurement officer above a dollar limit set by the board, until such time as the board is assured of compliance with this code and its regulations by that governmental body."
SECTION 22. Section 11-35-1240 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1240. (A) The board shall prescribe administrative penalties for violation of the provisions of this code and of regulations promulgated thereunder under it, excluding those matters under the jurisdiction of the Ethics Commission as provided by law.
(B) Violation of these provisions shall be is grounds for loss of or reduction in authority delegated by either the board or this code."
SECTION 23. Section 11-35-1410(2)(c) and (4) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"(c) states prices at which sales are currently or were last made to a significant number of buyers constituting the general buying public for the supplies, or services, or information technology involved.
(4) 'Purchase description' means specifications or any other document describing the supplies, services, information technology, or construction to be procured."
SECTION 24. Section 11-35-1510 of the 1976 Code, as last amended by Act 387 of 2000, is further amended to read:
"Section 11-35-1510. Unless otherwise provided by law, all state contracts shall must be awarded by competitive sealed bidding, pursuant to Section 11-35-1520, except as provided in:
( 1) Section 11-35-1250 (Authority to Contract for Auditing Services);
( 2) Section 11-35-1260 (Authority to Contract for Legal Services);
( 3) Section 11-35-1525 (Fixed Priced Bidding);
(2)( 4) Section 11-35-1528 (Competitive Best Value Bidding);
(3) Section 11-35-1250 (Authority to Contract for Auditing Services);
(4) Section 11-35-1260 (Authority to Contract for Legal Services);
(5) Section 11-35-1270 (Authority to Contract for Certain Services) Section 11-35-1529 (Competitive On-line Bidding);
( 6) Section 11-35-1530 (Competitive Sealed Proposals);
( 7) Section 11-35-1540 (Negotiations After Unsuccessful Competitive Sealed Bidding);
( 8) Section 11-35-1550 (Small Purchases);
( 9) Section 11-35-1560 (Sole Source Procurements);
(10) Section 11-35-1570 (Emergency Procurements);
(11) Section 11-35-1575 (Procurements at Participation in Auction or Bankruptcy Sale);
(12) Section 11-35-1580 (Procurement of Information Technology); (Reserved)
(13) Section 11-35-3020 (Construction Procurement Procedures);
(14) Section 11-35-3220 (Architect-Engineer, Construction Management and Land Surveying Services Procurement Procedures);
(15) Section 11-35-3230 (Exception for Small Architect-Engineer and Land Surveying Services Contracts)
(16) Section 11-35-1529 (Competitive On-line Bidding)."
SECTION 25. Section 11-35-1520 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1520. (1) Condition for Use. Contracts amounting to twenty-five greater than fifty thousand dollars or more shall must be awarded by competitive sealed bidding except as otherwise provided in Section 11-35-1510.
(2) Invitation for Bids. An invitation for bids shall must be issued in an efficient and economical manner and shall must include specifications and all contractual terms and conditions applicable to the procurement.
(3) Notice. Adequate notice of the invitation for bids shall must be given at a reasonable time prior to before the date set forth therein in it for the opening of bids. Such The notice shall must include publications in a newspaper of general circulation in the State such as 'South Carolina Business Opportunities' or through a means of central electronic advertising as approved by the Office of General Services designated board office. Governmental bodies may charge vendors the cost incurred for copying and mailing bid or proposal documents requested in response to a procurement.
(4) Receipt and Safeguarding of Bids. All bids, (including modifications), received prior to before the time of opening shall must be kept secure and unopened, except as provided for by regulation of the board.
(5) Bid Opening. Bids shall must be opened publicly in the presence of one or more witnesses, at the time and place designated in the invitation for bids and in the manner prescribed by regulation of the board. The amount of each bid, and such other relevant information as may be specified by regulation, together with the name of each bidder, shall must be tabulated. The tabulation shall must be open to the public inspection at that time.
(6) Bid Acceptance and Bid Evaluation. Bids shall must be accepted unconditionally without alteration or correction, except as otherwise authorized in this code. The invitation for bids shall must set forth the evaluation criteria to be used. No criteria may Criteria must not be used in bid evaluation that are not set forth in the invitation for bids. Bids shall must be evaluated based on the requirements set forth in the invitation for bids and in accordance with the regulations of the board.
(7) Correction or Withdrawal of Bids; Cancellation of Awards. Correction or withdrawal of inadvertently erroneous bids before bid opening, withdrawal of inadvertently erroneous bids after award, or cancellation and reaward of awards or contracts, after award but prior to before performance, may be permitted in accordance with regulations promulgated by the board. After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the State or fair competition shall must not be permitted. After opening, bids must not be corrected or withdrawn except in accordance with the provisions of this code and the regulations promulgated pursuant to it. Except as otherwise provided by regulation, all decisions to permit the correction or withdrawal of bids, or to cancel awards, or contracts, after award but prior to before performance, shall must be supported by a written determination of appropriateness made by the chief procurement officers or head of a purchasing agency.
(8) Discussion with Bidders. As provided in the invitation for bids, discussions may be conducted with apparent responsive bidders for the purpose of clarification to assure full understanding of the requirements of the invitation for bids. All bids, in the procuring agency's sole judgment, needing clarification shall must be accorded such an that opportunity. Clarification of any a bidder's bid must be documented in writing by the procurement officer and shall must be included with the bid. Documentation concerning the clarification shall must be subject to disclosure upon request as required by Section 11-35-410.
(9) Tie Bids. If two or more bidders are tied in price while otherwise meeting all of the required conditions, awards are determined as follows in the following order of priority:
(a) If there is a South Carolina firm tied with an out-of-state firm, the award must be made automatically to the South Carolina firm.
(b) Tie bids involving South Carolina produced or manufactured products, when known, and items produced or manufactured out of the State must be resolved in favor of the South Carolina commodity.
(c) Tie bids involving a business certified by the South Carolina Office of Small and Minority Business Assistance as a Minority Business Enterprise must be resolved in favor of the Minority Business Enterprise.
(d) Tie bids involving South Carolina firms must be resolved in favor of the South Carolina firm located in the same taxing jurisdiction as the governmental body's consuming location.
(d) Tie bids involving South Carolina firms in the same taxing jurisdiction as the governmental body's consuming location must be resolved by the flip of a coin in the office of the chief procurement officer or the head of a purchasing agency or either officer's designee witnessed by all interested parties.
(e) In all other situations where in which bids are tied, the award will must be made by the purchasing agency to the tied bidder offering the quickest delivery time, or if the tied bidders have offered the same delivery time, the tie shall must be resolved by the flip of a coin in the office of the chief procurement officer or the head of a purchasing agency or either officer's designee witnessed by all interested parties the procurement officer. All responding vendors must be invited to attend.
(10) Award. Unless there is a compelling reason to reject bids as prescribed by regulation of the board, notice of an award or an intended award of a contract to the lowest responsive and responsible bidders whose bid meets the requirements set forth in the invitation for bids shall must be given by posting such the notice at a location specified in the invitation for bids. For contracts with a total or potential value in excess of fifty thousand dollars but less than one hundred thousand dollars, notice of the award of a contract must be given by posting and must be sent to all bidders responding to the solicitation on the same day that the notice is posted in accordance with this section. For contracts with a total or potential value of one hundred thousand dollars or greater, notice of an intended award of a contract must be given by posting the notice for ten days before entering into a contract and must be sent to all bidders responding to the solicitation on the same day that the notice is posted in accordance with this section. The posting date shall appear on the face of all these notices. Prior to Before the posting of the award, the procuring agency may negotiate with the lowest responsive and responsible bidder to lower his bid within the scope of the invitation for bids. The invitation for bids and the posted notice a notice of award or notice of intent to award must contain a statement of a bidder's right to protest under pursuant to Section 11-35-4210(1) and the date and location of posting must be announced at bid opening. When a contract has a total or potential value in excess of fifty thousand dollars, in addition to the posted notice, notice of an intended award must be given to all bidders responding to the solicitation, except when only one response is received. Such notice must contain a statement of the bidder's right to protest under Section 11-35-4210(1).
When a contract has a total or potential value in excess of fifty thousand dollars, sixteen days after notice is given the agency may enter a contract with the bidder named in the notice in accordance with the provisions of this code and of the bid solicited. When only one response is received, the notice of intended intent to award and the sixteen-day delay of award may be waived. A determination of responsibility must be made before award in accordance with Section 11-35-1810.
(11) Request for Qualifications. (a) Prior to Before soliciting bids, the procuring agency, acting through the authorized procurement officer, may issue a request for qualifications from prospective bidders. Such The request shall must contain, at a minimum, a description of the goods or services scope of work to be solicited by the invitation for bids, the general scope of the work, the deadline for submission of information, and how prospective bidders may apply for consideration. The request shall must require information concerning the prospective bidders' product specifications, qualifications, experience, and ability to perform the requirements of the contract. Adequate public notice of the request for qualifications shall must be given in the manner provided in Section 11-35-1520(3). The use of the request for qualifications is subject to the approval of the Office of General Services.
(b) After receipt of the responses to the request for qualifications from prospective bidders, the prospective bidders shall be ranked rank of the prospective bidders must be determined in writing from most qualified to least qualified on the basis of the information provided. Bids shall then must be solicited from at least the top two prospective bidders by means of an invitation for bids. The failure of a prospective bidder to be selected to receive the invitation for bids shall not be grounds for protest under Section 11-35-4210. The determination regarding how many bids to solicit is not subject to review under Article 17.
(12) Provisions Not to Apply. The provisions of this section shall not apply to maintenance services for aircraft of the Division of Aeronautics of the Department of Commerce. (Reserved)
(13) Minor Informalities and Irregularities in Bids. A minor informality or irregularity is one which is merely a matter of form or is some immaterial variation from the exact requirements of the invitation for bids having no effect or merely a trivial or negligible effect on total bid price, quality, quantity, or delivery of the supplies or performance of the contract, and the correction or waiver of which would not be prejudicial to bidders. The procurement officer shall either give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive any such deficiency when it is to the advantage of the State. Such communication or determination shall be in writing. Examples of minor informalities or irregularities include, but are not limited to:
(a) failure of a bidder to return the number of copies of signed bids required by the solicitation;
(b) failure of a bidder to furnish the required information concerning the number of the bidder's employees or failure to make a representation concerning its size;
(c) failure of a bidder to sign its bid, but only if the firm submitting the bid has formally adopted or authorized the execution of documents by typewritten, printed, or rubber stamped signature and submits evidence of such that authorization, and the bid carries such a that signature or the unsigned bid is accompanied by other material indicating the bidder's intention to be bound by the unsigned document, such as the submission of a bid guarantee with the bid or a letter signed by the bidder with the bid referring to and identifying the bid itself;
(d) failure of a bidder to acknowledge receipt of an amendment to a solicitation, but only if:
(i) the bid received indicates in some way that the bidder received the amendment, such as where the amendment added another item to the solicitation and the bidder submitted a bid, thereon, provided that on it, if the bidder states under oath that it received the amendment prior to before bidding and that the bidder will stand by its bid price; or,
(ii) the amendment has no effect on price or quantity or merely a trivial or negligible effect on quality or delivery, and is not prejudicial to bidders, such as an amendment correcting a typographical mistake in the name of the governmental body;
(e) failure of a bidder to furnish an affidavit concerning affiliates;
(f) failure of a bidder to execute the certifications with respect to equal opportunity and affirmative action programs;
(g) failure of a bidder to furnish cut sheets or product literature;
(h) failure of a bidder to furnish certificates of insurance;
(i) failure of a bidder to furnish financial statements;
(j) failure of a bidder to furnish references;
(k) failure of a bidder to furnish its bidder number; and
(l) notwithstanding Section 40-11-180 Title 40, the failure of a bidder to indicate his contractor's license number or other evidence of licensure, provided that no except that a contract shall must not be awarded to the bidder unless and until the bidder is properly licensed under the laws of South Carolina."
SECTION 26. Section 11-35-1525(2) and (4) of the 1976 Code, as added by Act 153 of 1997, is amended to read:
"(2) Fixed Price Bidding. The purpose of fixed price bidding is to provide multiple sources of supply for specific goods or services, supplies, or information technology based on a preset maximum price which the State will pay for such goods or services, supplies, or information technology.
(4) Pricing. The State shall establish, prior to before issuance of the fixed price bid, a maximum amount the State will pay for the goods or services, supplies, or information technology desired."
SECTION 27. Section 11-35-1528(2) and (5) of the 1976 Code, as added by Act 153 of 1997, is amended to read:
"(2) Best Value Bidding. The purpose of best value bidding is to allow factors other than price to be considered in the determination of award for specific goods or supplies, services, or information technology based on pre-determined criteria identified by the State.
(5) Evaluation Factors. The best value bid shall must state the factors to be used in determination of award and the numerical weighting for each factor. Cost must be a factor in determination of award and cannot be weighted at less than sixty percent. Best value bid evaluation factors may include, but are not limited to, any of the following as determined by the purchasing agency procurement officer in its sole discretion and not subject to protest:
(a) operational costs that the State would incur if the bid is accepted;
(b) quality of the product or service, or its technical competency;
(c) reliability of delivery and implementation schedules;
(d) maximum facilitation of data exchange and systems integration;
(e) warranties, guarantees, and return policy;
(f) vendor financial stability;
(g) consistency of the proposed solution with the state's planning documents and announced strategic program direction;
(h) quality and effectiveness of business solution and approach;
(i) industry and program experience;
(j) prior record of vendor performance;
(k) vendor expertise with engagement of similar scope and complexity;
(l) extent and quality of the proposed participation and acceptance by all user groups;
(m) proven development methodologies and tools; and
(n) innovative use of current technologies and quality results."
SECTION 28. Section 11-35-1530 of the 1976 Code, as amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1530. (1) Conditions for Use. When If a purchasing agency determines in writing that the use of competitive sealed bidding is either not practicable or not advantageous to the State, a contract may be entered into by competitive sealed proposals subject to the provisions of Section 11-35-1520 and the ensuing regulations, unless otherwise provided for in this section. Subject to the requirements of Section 11-35-3220, the board may provide by regulation that it is either not practicable or not advantageous to the State to procure specified types of supplies, services, information technology, or construction by competitive sealed bidding.
(2) Public Notice. Adequate public notice of the request for proposals shall must be given in the same manner as provided in Section 11-35-1520(3).
(3) Receipt of Proposals. Proposals shall must be opened publicly in accordance with regulations of the board. A tabulation of proposals shall must be prepared in accordance with regulations promulgated by the board and shall must be open for public inspection after contract award.
(4) Request for Qualifications. Prior to (a) Before soliciting proposals, the procuring agency, acting through the authorized procurement officer, may issue a request for qualifications from prospective offerors. Such The request shall must contain at a minimum a description of the goods or services scope of the work to be solicited by the request for proposals and the general scope of the work and shall must state the deadline for submission of information and how prospective offerors may apply for consideration. The request shall must require information only on their qualifications, experience, and ability to perform the requirements of the contract.
(b) After receipt of the responses to the request for qualifications from prospective offerors, the perspective offerors shall be ranked rank of the prospective offerors must be determined in writing from most qualified to least qualified on the basis of the information provided. Proposals shall then must be solicited from at least the top two prospective offerors by means of a request for proposals. The failure of a prospective offeror to be selected to receive the request for proposals shall not be grounds for protest under Section 11-35-4210. The determination regarding how many proposals to solicit is not subject to review pursuant to Article 17.
(5) Evaluation Factors. The request for proposals shall must state the relative importance of the factors to be considered in evaluating proposals but shall may not require a numerical weighting for each factor. Price may, but need not, be an evaluation factor.
(6) Discussion with Offerors. As provided in the request for proposals, and under regulations, discussions may be conducted with apparent responsive offerors who submit proposals determined to be reasonably susceptible of being selected for award for the purpose of clarification to assure full understanding of the requirements of, and responsiveness to, the request for proposals solicitation requirements. All offerors, whose proposals, in the procuring agency's procurement officer's sole judgment, need clarification shall must be accorded such an that opportunity.
(7) Selection and Ranking. Proposals shall must be evaluated using only the criteria stated in the request for proposals and there must be adherence to any weightings that have been assigned previously assigned. Once evaluation is complete, all responsive offerors shall must be ranked from most advantageous to least advantageous to the State, considering only the evaluation factors stated in the request for proposals. If price is an initial evaluation factor, award shall must be made in accordance with Section 11-35-1530(9) below.
(8) Negotiations. Whether price was an evaluation factor or not, the procuring agency, through the appropriate procurement official officer, may, in its his sole discretion and not subject to challenge through a protest filed under Section 11-35-4210, review under Article 17, may proceed in any of the manners indicated below, except that in no case may confidential information derived from proposals and negotiations submitted by competing offerors be disclosed:
(a) negotiate price with the highest ranked offeror. If a satisfactory price cannot be agreed upon, price negotiations may be conducted, in the sole discretion of the procuring agency, with the second, and then the third, and so on, ranked offerors to such level of ranking as determined by the procuring agency in its sole discretion; or
(b) negotiate with the highest ranking offeror on price, on matters affecting the scope of the contract, so long as the overall nature and intent of the contract is not changed changes are within the general scope of the request for proposals, or on both. If a satisfactory contract cannot be negotiated with the highest ranking offeror, negotiations may be conducted, in the sole discretion of the procuring agency procurement officer, with the second, and then the third, and so on, ranked offerors to such the level of ranking as determined by the procuring agency procurement officer in its his sole discretion; or
(c)(b) during the negotiation process as outlined in subsections (a) and (b) item (a) above, if an agency the procurement officer is unsuccessful in its his first round of negotiations, it he may reopen negotiations with any offeror with whom it he previously negotiated; or
(d)(c) if, after following the procedures set forth in Section 11-35-1530(8), a contract is not able to be negotiated, the procurement officer may make changes within the general scope of the request for proposals may be changed in an effort to reduce the cost to a fair and reasonable amount, and may provide all responsive offerors must be allowed an opportunity to submit their best and final offers.
In conducting negotiations, there must be no disclosure of any confidential information derived from proposals and negotiations submitted by competing offerors.
(9) Award. Award must be made to the responsive responsible offeror whose proposal is determined in writing to be the most advantageous to the State, taking into consideration price and the evaluation factors set forth in the request for proposals, unless the procuring agency procurement officer determines to utilize one of the options provided in Section 11-35-1530(8). The contract file shall must contain the basis on which the award is made and must be sufficient to satisfy external audit. Procedures and requirements for the notification of intent to award the contract shall must be the same as those stated provided in Section 11-35-1520(10)."
SECTION 29. Section 11-35-1550 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1550. Authority. (1) The following small purchase procedures may be utilized only in conducting procurements for governmental bodies that are less than twenty-five up to fifty thousand dollars in actual or potential value. An agency A governmental body may conduct its own procurement under five up to fifty thousand dollars in actual or potential value, and an agency a governmental body that has received procurement certification pursuant to Section 11-35-1210 to handle the type and estimated value of the procurement may conduct the procurement under its own authority in accordance with the procedures prescribed in this section; however, procurement code. Procurement requirements must not be artificially divided by governmental bodies so as to constitute a small purchase under pursuant to this section.
(2) Competition and Price Reasonableness. (a) Purchases not in excess of One two thousand five hundred dollars. Small purchases not exceeding one two thousand five hundred dollars may be accomplished without securing competitive quotations if the prices are considered to be reasonable. The purchasing office shall must annotate the purchase requisition: 'Price is fair and reasonable' and sign. The purchases must be distributed equitably among qualified suppliers. When practical, a quotation must be solicited from other than the previous supplier before placing a repeat order. The administrative cost of verifying the reasonableness of the price of purchase 'not in excess of' may more than offset potential savings in detecting instances of overpricing. Action to verify the reasonableness of the price need be taken only when the procurement officer of the governmental body suspects that the price may not be reasonable, comparison to previous price paid, or personal knowledge of the item involved.
(b) Purchases from one thousand five hundred one dollars to five thousand dollars. Solicitations of verbal or written quotes from a minimum of three qualified sources of supply must be made and documentation of the quotes attached to the purchase requisition. The award shall be made to the lowest responsive and responsible source.
(c) Purchases from five over two thousand one five hundred dollars to ten thousand dollars. Solicitation of written quotes from a minimum of three qualified sources of supply must be made and documentation of the quotes attached to the purchase requisition for a small purchase over two thousand five hundred dollars but not in excess of ten thousand dollars. The award must be made to the lowest responsive and responsible sources.
(d)(c) Purchases from over ten thousand one dollars up to twenty-five fifty thousand dollars. Written solicitation of written quotes, bids, or proposals shall must be made for a small purchase over ten thousand dollars but not in excess of fifty thousand dollars. The procurement must be advertised at least once in the South Carolina Business Opportunities publication or through a means of central electronic advertising as approved by the Office of General Services designated board office. A copy of the written solicitation and written quotes must be attached to the purchase requisition. The award shall must be made to the lowest responsive and responsible source or, when a request for proposal process is used, the highest ranking offeror.
(3) Protest rights. The provisions of Section 11-35-4210 do not apply to contracts awarded under the procedures set forth in this section.
(4) All competitive procurements above twenty-five ten thousand dollars must be advertised at least once in the South Carolina Business Opportunities publication or through a means of central electronic advertising as approved by the Office of General Services designated board office. Governmental bodies may charge vendors the cost incurred for copying and mailing bid or proposal documents requested in response to a procurement advertised in the "South Carolina Business Opportunities" publication.
(4) The Division of Aeronautics of the Department of Commerce may act as its own purchasing agency for all procurements of maintenance services for aircraft and these procurements may be conducted pursuant to Section 11-35-1550(2)(b)."
SECTION 30. Section 11-35-1560 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1560. (A) A contract may be awarded for a supply, service, information technology, or construction item without competition when if, under regulations promulgated by the board, the chief procurement officer, the head of a purchasing agency, or a designee of either officer, above the level of the procurement officer, determines in writing that there is only one source for the required supply, service, information technology, or construction item.
(B) These regulations must include the requirements contained in this paragraph. Written documentation must include the determination and basis for the proposed sole source procurement. Any A delegation of authority by either the chief procurement officer or the head of a governmental body with respect to sole source determinations must be submitted in writing to the Materials Management Officer. In cases of reasonable doubt, competition must be solicited. Any decision by a governmental body that a procurement be restricted to one potential vendor must be accompanied by an explanation as to why no other will be suitable or acceptable to meet the need.
(C) Any A violation of these regulations by a purchasing agency shall, upon recommendation of the Office of General Services designated board office with approval of the majority of the Budget and Control Board, must result in the temporary suspension, not to exceed one year, of the violating agency's governmental body's ability to procure supplies, services, information technology, or construction items under pursuant to this section."
SECTION 31. Section 11-35-1575 of the 1976 Code, as added by Act 153 of 1997, is amended to read:
"Section 11-35-1575. A governmental body having knowledge of either an auction or a sale of supplies from a bankruptcy may elect to participate. The governmental body shall (a) survey the needed items being offered at auction to ascertain their condition and usefulness, (b) determine a fair market value for new like items through informal quotes, (c) determine the fair market value from similar items considering age and useful life, and (d) estimated repair cost and delivery cost, if any, of the desired items. Using this information, the governmental body shall determine the maximum price that it can pay for each item desired. At the auction or sale, the governmental body shall not exceed the maximum price so determined."
SECTION 32. RESERVED.
SECTION 33. Section 11-35-1825 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-1825. The State Engineer's Office shall develop a procedure and a list of criteria for pre-qualifying prequalifying construction bidders and sub-bidders. The criteria shall must include, but not be limited to, prior performance, recent past references on all aspects of performance, financial stability, and experience on similar construction projects. A governmental body may use the prequalification process only for projects where the construction involved is unique in nature or over ten million dollars in value as determined by and subject to the approval of the State Engineer's Office. All prequalification projects shall must be under the supervision of the State Engineer's Office, unless the project falls within the governmental body's procurement certification limits.
When the prequalification process is employed, only those bidders or sub-bidders who are prequalified through this procedure are entitled to may submit a bid for the project. The determination of which bidders and sub-bidders are prequalified, and thereby entitled to bid, is not protestable under pursuant to Section 11-35-4210 or any other provision of this code."
SECTION 34. Section 11-35-2010 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2010. (1) Types of Contracts. Subject to the limitations of this section, any type of contract which that will promote the best interests of the State may be used, except that the use of a cost-plus-a-percentage-of-cost contract shall must be approved by the Office of General Services appropriate chief procurement officer. A cost-reimbursement contract, including a cost-plus-a-percentage-of-cost contract, shall may be used only when a determination sufficient for external audit is prepared showing that such the contract is likely to be less costly to the State than any other type or that it is impracticable to obtain the supplies, services, information technology, or construction required except under such a that contract.
(2) Contract Forms. The board shall promulgate by regulation the form of the contracts to be used in connection with state purchasing and construction. The forms as shall be developed for Article 9 of this chapter shall be printed as a part of those regulations. A governmental body may enter into a contract or agreement without using the form promulgated pursuant to the board's regulation when the contract or agreement is for the rental of equipment valued at ten thousand dollars or less and the duration of the contract or agreement does not exceed ninety days.
(2)(a) As used in this section:
( i) 'Contracting document' means a standardized or model instrument, or a component part of it, for use as a contract, invitation for bids, request for proposals, request for qualifications, or instruction to bidders including, but not limited to, a contract clause or solicitation provision.
(ii) 'Usage instructions' means directions regarding (1) conditions for use of a contracting document, (2) completion of a contracting document, and (3) the process for obtaining permission, if possible, to omit or depart from the contracting document's established content for a particular solicitation or contract.
(b) The chief procurement officers may develop contracting documents for their respective areas of responsibility. Contracting documents may be published as internal operating procedures. Contracting documents may be accompanied by usage instructions.
(c) The board may adopt formally a contracting document, as developed by the appropriate chief procurement officer, for mandatory use by all governmental bodies only after notice of the proposed adoption has been published in the State Register and the board has provided the public at least sixty days to make written comments. If a contracting document is adopted by the board, the contracting document must be published in the State Register, accompanied by usage instructions, and used by all governmental bodies in accordance with its usage instructions. The chief procurement officers are not required to submit for board approval contracting documents used in connection with either solicitations issued or contracts awarded by the board or its offices.
(d) Notwithstanding item (c) above, the board may promulgate contracting documents as regulations."
SECTION 35. Section 11-35-2030 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2030. (1) Specified Period. Unless otherwise provided by law, a contract for supplies, or services, or information technology shall must not be entered into for any a period of more than one year unless approved in a manner prescribed by regulation of the board;. provided, that The term of the contract and conditions of renewal or extension, if any, are must be included in the solicitation and funds are must be available for the first fiscal period at the time of contracting. Payment and performance obligations for succeeding fiscal periods shall must be subject to the availability and appropriation of funds therefore for them.
(2) Determination Prior to Use. Prior to Before the utilization of a multi-term contract, it shall must be determined in writing by the appropriate governmental body that:
(a) that estimated requirements cover the period of the contract and are reasonably firm and continuing; and
(b) that such a contract will serve serves the best interests of the State by encouraging effective competition or otherwise promoting economies in state procurement.
(3) Cancellation Due to Unavailability of Funds in Succeeding Fiscal Periods. When funds are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal period, the contract shall must be canceled.
(4) The maximum time for any a multi-term contract is five years. Contract terms of up to seven years may be approved by the Director of the Office of General Services designated board officer. Contracts exceeding seven years must be approved by the Budget and Control board."
SECTION 36. Section 11-35-2210 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2210. The Office of General Services shall be appropriate chief procurement officer or his designee is authorized, at reasonable times, to inspect the part of the plant or place of business of a contractor or any subcontractor which is related to the performance of any a contract awarded or to be awarded by the State."
SECTION 37. Section 11-35-2410 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2410. (A) The determinations required by the following sections and related regulations are final and conclusive, unless clearly erroneous, arbitrary, capricious, or contrary to law: Section 11-35-1520(7) (Competitive Sealed Bidding: Correction or Withdrawal of Bids; Cancellation of Awards), Section 11-35-1520(11) (Competitive Sealed Bidding: Request for Qualifications), Section 11-35-1525(1) (Competitive Fixed Price Bidding: Conditions for Use), Section 11-35-1528(1) (Competitive Best Value Bidding: Conditions for Use), Section 11-35-1528(8) (Competitive Best Value Bidding: Award), Section 11-35-1529(1) (Competitive On-line Bidding: Conditions for Use), Section 11-35-1530(1) (Competitive Sealed Proposals, Conditions for Use), Section 11-35-1530(4) (Competitive Sealed Proposals: Request for Qualifications), Section 11-35-1530(8) (Competitive Sealed Proposals: Negotiations), Section 11-35-1530(9)(7) (Competitive Sealed Proposals, Selection and Ranking of Prospective Offerors), Section 11-35-1530(10)(9) (Competitive Sealed Proposals Award), Section 11-35-1540 (Negotiations After Unsuccessful Competitive Sealed Bidding), Section 11-35-1560 (Sole Source Procurement), Section 11-35-1570 (Emergency Procurement), Section 11-35-1710 (Cancellation of Invitation for Bids or Requests for Proposals), Section 11-35-1810(2) (Responsibility of Bidders and Offerors, Determination of Nonresponsibility), Section 11-35-1825 (Prequalification of Construction Bidders), Section 11-35-1830(3) (Cost or Pricing Data, Cost or Pricing Data Not Required), Section 11-35-2010 (Types and Forms of Contracts), Section 11-35-2020 (Approval of Accounting System), Section 11-35-2030(2) (Multi-Term Contracts, Determination Prior to Use), Section 11-35-3020(2)(d) (Construction Procurement Procedures: Negotiations after Unsuccessful Competitive Sealed Bidding), Section 11-35-3220(5) (Procurement Procedure, Selection and Ranking of the Five Most Qualified), and Section 11-35-4210(7) (Stay of Procurement During Protests, Decision to Proceed), and Section 11-35-4810 (Cooperative Use of Supplies, Services, or Information Technology) shall be final and conclusive unless they are clearly erroneous, arbitrary, capricious, or contrary to law.
(B) The chief procurement officers or their designees shall review samples of such the determinations periodically, and issue reports and recommendations on the appropriateness of the determinations made."
SECTION 38. Section 11-35-2440 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2440. (1)(a) Contents of Records. Any A governmental body as defined in Section 11-35-310(18) shall submit quarterly a record listing all contracts made under pursuant to Section 11-35-1560 (Sole Source Procurement) or Section 11-35-1570 (Emergency Procurements) to the chief procurement officers. The record shall must contain:
(a)( i) each contractor's name;
(b)(ii) the amount and type of each contract;
(c)(iii) a listing of supplies, services, information technology, or construction procured under each contract.
(b) The chief procurement officers shall maintain these records for five years.
(2) Publication of Records. A copy of the record shall must be submitted to the board on an annual basis and shall must be available for public inspection."
SECTION 39. Section 11-35-2710 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2710. The board shall promulgate regulations governing the preparation, maintenance, and content of specifications for supplies, services, information technology, and construction required by the State."
SECTION 40. Section 11-35-2720 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-2720. The chief procurement officers shall may prepare or review, issue, revise, and maintain the specifications for supplies, services, information technology, and construction required by the State, except for supplies, services, information technology, and construction items procured by the governmental bodies pursuant to Sections 11-35-1550, 11-35-1570, and 11-35-3230, the specification for which shall must be prepared and maintained by the using agencies in accordance with the provisions of this article and regulations promulgated hereunder under it and monitored periodically by the chief procurement officers."
SECTION 41. Section 11-35-3020 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3020. (1) Source Selection. All state construction contracts shall must be awarded by competitive sealed bidding pursuant to the procedures set forth in Section 11-35-1520, subject to the exceptions enumerated in subsection (2) of this section and except as provided in Sections 11-35-1550, 11-35-1560, and 11-35-1570. Competitive sealed proposals as provided in Section 11-35-1530 and multi-step sealed bidding as provided in Section 11-35-1520(11) shall must not be used, except in such cases and in accordance with criteria as may be authorized and prescribed by regulation of the board.
(2) Exceptions in Competitive Sealed Bidding Procedures. The process of competitive sealed bidding as required by subsection (1) of this section shall must be performed in accordance with the procedures outlined in Article 5 of this code subject to the following exceptions:
(a) Invitation for Bids. In lieu Instead of Section 11-35-1520(2), Section 11-35-1520(3), and Section 11-35-1520(4), invitations for bids for each state construction project subject to subsection (1) of this section shall must be made in the following manner. Each using agency shall must be responsible for developing a formal invitation for bids for each state construction project subject to subsection (1) of this section. The invitation shall must include, but not be limited to, all contractual terms and conditions applicable to the procurement. A copy of each invitation for bids shall must be filed with the State Engineer's Office and shall must be advertised formally advertised in an official state government publication. The manner in which this official state government publication shall must be published, the content of the publication itself, the frequency of the publication, the method of subscription to the publication, and the manner by which the publication will be is distributed shall must be established by regulation of the board.
(b) Bid Acceptance. In lieu Instead of Section 11-35-1520(7)(6), the following provision applies. Bids must be accepted unconditionally without alteration or correction, except as otherwise authorized in this code. The using agency's invitation for bids shall must set forth all requirements of the bid including, but not limited to:
(i) The using agency, in consultation with the architect-engineer assigned to the project, shall identify by specialty in the invitation for bids all subcontractors, as defined by applicable documents of the American Institute of Architects, who are expected to perform work for the prime contractor to or about the construction when those subcontractors' contracts are each expected to exceed three percent of the prime contractor's total base bid. In addition, the using agency, in consultation with the architect-engineer assigned to the project, may identify by specialty in the invitation for bids any subcontractors who are expected to perform work which is vital to the project. The determination of which subcontractors are included in the list provided in the invitation for bids is not protestable under pursuant to Section 11-35-4210 or any other another provision of this code. Any A bidder in response to an invitation for bids shall set forth in his bid the name of only those subcontractors that will to perform the work as identified in the invitation for bids. If the bidder determines to use his own employees to perform any a portion of the work for which he would otherwise be required to list a subcontractor and if the bidder is qualified to perform such that work under the terms of the invitation for bids, the bidder shall list himself in the appropriate place in his bid and not subcontract any of that work except with the approval of the using agency for good cause shown.
(ii) Failure to complete the list provided in the invitation for bids renders the bidder's bid unresponsive.
(iii) No A prime contractor whose bid is accepted shall may not substitute any a person as subcontractor in place of the subcontractor listed in the original bid, except for one or more of the following reasons:
(a) upon a showing satisfactory to the using agency by the contractor that a subcontractor who was listed is not financially responsible;
(b) upon a showing satisfactory to the using agency by the contractor that the scope of work bid by a listed subcontractor did not include a portion of the work required in the plans and specifications, and the exclusion is not clearly set forth in the listed subcontractor's original bid;
(c) upon a showing satisfactory to the using agency made by the contractor within four working days of the bid opening that the subcontractor was listed as a result of an inadvertent clerical error;
(d) upon a showing satisfactory to the using agency by the contractor that the listed subcontractor failed or refused to submit a performance and payment bond when requested by the prime contractor after the subcontractor had represented to the prime contractor that he could obtain a performance and payment bond;
(e) upon a showing satisfactory to the using agency by the contractor that the listed subcontractor is required to be licensed and does not have the license by the time it is required by law;
(f) when the listed subcontractor fails or refuses to perform his subcontract;
(g) when the work of the listed subcontractor is found by the using agency to be substantially unsatisfactory;
(h) upon mutual agreement of the contractor and subcontractor;
(i) with the consent of the using agency for good cause shown.
(iv) The request for substitution must be made to the using agency in writing. This written request does not give rise to any a private right of action against the prime contractor in the absence of actual malice.
(iv)(v) Where substitution is allowed, the prime contractor, before obtaining prices from any other another subcontractor, must shall attempt in good faith to negotiate a subcontract with at least one subcontractor whose bid was received prior to before the submission of the prime contractor's bid. Nothing in this This section affects does not affect a contractor's ability to request withdrawal of a bid in accordance with the provisions of this code and the regulations promulgated under pursuant to it.
(v)(vi) The using agency shall send all responsive bidders a copy of the bid tabulation within ten working days following the bid opening.
(c) In lieu Instead of Section 11-35-1520(10) the following provisions apply. Unless there is a compelling reason to reject bids as prescribed by regulation of the board, notice of an intended award of a contract to the lowest responsive and responsible bidder whose bid meets the requirements set forth in the invitation for bids shall must be given by posting such the notice at a location which has been that is specified in the invitation for bids. The invitation for bids and the posted notice must contain a statement of the bidder's right to protest under pursuant to Section 11-35-4210(1) and the date and location of posting must be announced at bid opening. In addition to posting notice as provided above, the using agency shall promptly shall send all responsive bidders a copy of the notice of intended award and of the bid tabulation. Such The mailed notice must indicate the posting date and must contain a statement of the bidder's right to protest under pursuant to Section 11-35-4210(1).
Sixteen days After ten days' notice is given, the using agency may enter into a contract with the bidder named in the notice in accordance with the provisions of this code and of the bid solicited. A determination of responsibility must be made before award in accordance with Section 11-35-1810. The procurement officer must comply with Section 11-35-1810.
If, at bid opening, only one bid is received and determined to be responsive and responsible and within the agency's construction budget, award may be made without the sixteen-day ten-day waiting period.
(d) Negotiations after Unsuccessful Competitive Sealed Bidding. In lieu Instead of Section 11-35-1540, the following provisions apply:
(1) When bids received pursuant to an invitation for bids exceed available funds, and it is determined in writing by the agency that circumstances will do not permit the delay required to resolicit competitive sealed bids, and the base bid, less any deductive alternates, does not exceed available funds by an amount greater than ten percent of the construction budget established for that portion of the work, a contract may be negotiated pursuant to this section with the lowest responsible and responsive bidder, provided that this base bid, less any deductive alternates, does not exceed available funds by an amount greater than five percent of the construction budget established for that portion of the work. The using agency may change the scope of the work to reduce the cost to be within the established construction budget but shall may not reduce the cost below the established construction budget more than ten percent without a written request by the agency and the written approval of the chief procurement officer based on the best interest of the State.
(2) When the lowest base bid received pursuant to an invitation for bids exceeds approved available funds and the using agency is able to identify additional funds for the project, as certified by the appropriate fiscal officers, in the amount of the difference between the lowest base bid and the approved available funds for the project, the using agency shall submit its request to use such additional funds to the board and the Joint Bond Review Committee in accordance with Sections 2-47-40 and 2-47-50. Sections 3A and 3B of Act 761 of 1976 which were added pursuant to Sections 2-47-40 and 2-47-50."
SECTION 42. Section 11-35-3030 of the 1976 Code, as last amended by Act 97 of 2005, is further amended to read:
"Section 11-35-3030. (1) Bid Security. (a) Requirement for Bid Security. Bid security is required for all competitive sealed bidding for construction contracts in excess of one hundred fifty thousand dollars and such other contracts as may be prescribed by the State Engineer's Office. Bid security is a bond provided by a surety company meeting the criteria established by the regulations of the board or otherwise supplied in a form which that may be established by regulation of the board.
(b) Amount of Bid Security. Bid security shall must be in an amount equal to at least five percent of the amount of the bid at a minimum.
(c) Rejection of Bids for Noncompliance with Bid Security Requirements. When the invitation for bids requires security, noncompliance requires that the bid be rejected except that a bidder who fails to provide bid security in the proper amount or a bid bond with the proper rating shall must be given one working day from bid opening to cure such the deficiencies. If the bidder cannot is unable to cure these deficiencies within one working day of bid opening, his bid shall must be rejected.
(d) Withdrawal of Bids. After the bids are opened, they shall must be irrevocable for the period specified in the invitation for bids. If a bidder is permitted to withdraw its bid before bid opening pursuant to Section 11-35-1520(8) no action shall must not be had against the bidder or the bid security.
(2) Contract Performance Payment Bonds. (a) When Required-Amounts. When a construction contract is awarded pursuant to Section 11-35-3020, the following bonds or security shall must be delivered to the using agency and shall become binding on the parties upon the execution of the contract:
(i) a performance bond satisfactory to the State, executed by a surety company meeting the criteria established by the board in regulations, or otherwise secured in a manner satisfactory to the State, in an amount equal to one hundred percent of the price specified in the contract;
(ii) a payment bond satisfactory to the State, executed by a surety company meeting the criteria established by the board in regulations, or otherwise secured in a manner satisfactory to the State, for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of the work provided for in the contract. The bond shall must be in an amount equal to one hundred percent of the contract price.
(iii) in the case of a construction contract valued at one hundred fifty thousand dollars or less, the using agency may waive the requirements of (i) and (ii) above, provided that the using agency has protected the State.
(b) Authority to Require Additional Bonds. Nothing in subsection Subsection (2) of this section shall be construed to does not limit the authority of the board to require a performance bond or other security in addition to these bonds, or in circumstances other than specified in item (a) of such that subsection in accordance with regulations promulgated by the board.
(c) Suits on Payment Bonds--Right to Institute. Every person who has furnished labor, material, or rental equipment to a bonded contractor or his subcontractors for the work specified in the contract, and who has not been paid in full therefor for it before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by such the person or material or rental equipment was furnished or supplied by such the person for which such the claim is made, shall have has the right to sue on the payment bond for the amount, or the balance thereof of it, unpaid at the time of institution of such the suit and to prosecute such the action for the sum or sums justly due such the person. A remote claimant shall have has a right of action on the payment bond only upon giving written notice to the contractor within ninety days from the date on which such the person did or performed the last of the labor or furnished or supplied the last of the material or rental equipment upon which such the claim is made, stating with substantial accuracy the amount claimed as unpaid and the name of the party to whom the material or rental equipment was furnished or supplied or for whom the labor was done or performed. Such The written notice to the bonded contractor shall must be served personally served or served by mailing the same notice by registered or certified mail, postage prepaid, in an envelope addressed to the bonded contractor at any place the bonded contractor maintains a permanent office for the conduct of its business, or at the current address as shown on the records of the Department of Labor, Licensing and Regulation. However, in no event shall the The aggregate amount of any a claim against such the payment bond by a remote claimant may not exceed the amount due by the bonded contractor to the person to whom the remote claimant has supplied labor, materials, rental equipment, or services, unless the remote claimant has provided notice of furnishing labor, materials, or rental equipment to the bonded contractor. Such The written notice to the bonded contractor shall must be served personally served or sent by fax or sent by electronic mail or sent by registered or certified mail, postage prepaid, to the bonded contractor at any place the bonded contractor maintains a permanent office for the conduct of its business, or at the current address as shown on the records of the Department of Labor, Licensing and Regulation. After receiving the notice of furnishing labor, materials, or rental equipment, no payment by the bonded contractor shall may not lessen the amount recoverable by the remote claimant. However, in no event shall the The aggregate amount of claims on the payment bond may not exceed the penal sum of the bond.
No A suit under this section shall must not be commenced after the expiration of one year after the last date of furnishing or providing labor, services, materials, or rental equipment.
For purposes of this section, 'bonded contractor' means the contractor or subcontractor furnishing the payment bond, and 'remote claimant' means a person having a direct contractual relationship with a subcontractor of a bonded contractor, but no contractual relationship expressed or implied contractual relationship with the bonded contractor.
(d) Suits on Payment Bonds--Where and When Brought. Every suit instituted upon a payment bond shall must be brought in a court of competent jurisdiction for the county or circuit in which the construction contract was to be performed, but no such; except that a suit shall must not be commenced after the expiration of one year after the day on which the last of the labor was performed or material was supplied by the person bringing suit. The obligee named in the bond need not be joined as a party in any such the suit.
(3) Bonds Forms and Copies. (a) Bond Forms. The board shall promulgate by regulation the form of the bonds required by this section.
(b) Certified Copies of Bonds. Any A person may request and obtain from the using agency a certified copy of a bond upon payment of the cost of reproduction of the bond and postage, if any. A certified copy of a bond shall be is prima facie evidence of the contents, execution, and delivery of the original.
(4) (4) Retention. (a) Maximum amount to be withheld. In any a contract or subcontract for construction which contract or subcontract provides for progress payments in installments based upon an estimated percentage of completion, with a percentage of the contract's proceeds to be retained by the State or general contractor pending completion of the contract or subcontract, the retained amount of each progress payment or installment must be no more than three and one-half percent.
(b) Release of Retained Funds. When the work to be performed on a state construction project or pursuant to a state construction contract is to be performed by multiple prime contractors or by a prime contractor and multiple subcontractors, the work contracted to be done by each individual contractor or subcontractor will be is considered a separate division of the contract for the purpose of retention. As each such division of the contract is certified as having been completed, that portion of the retained funds which is allocable to the completed division of the contract shall must be released forthwith to the prime contractor, who shall, within ten days of its receipt, shall release to the subcontractor responsible for the completed work the full amount of any retention previously withheld from him by the prime contractor.
(5) Bonds for Bid Security and Contract Performance. The requirement of a bond for bid security on a construction contract, pursuant to subsection (1), and a construction contract performance bond, pursuant to subsection (2), may not include a requirement that the surety bond be furnished by a particular surety company or through a particular agent or broker."
SECTION 43. Section 11-35-3040 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3040. (1) Contract Clauses. State construction contracts and subcontracts promulgated by regulation pursuant to Section 11-35-2010(2) may include clauses providing for adjustments in prices, time of performance, and other appropriate contract provisions including, but not limited to:
(a) the unilateral right of a governmental body to order in writing:
(i) all changes in the work within the scope of the contract, and
(ii) all changes in the time of performance of the contract that which do not alter the scope of the contract work;
(b) variations occurring between estimated quantities of work in the contract and actual quantities;
(c) suspension of work ordered by the governmental body;
(d) site conditions differing from those indicated in the contract or ordinarily encountered, except that differing site condition clauses promulgated by the board need not be included in a contract:
(i) when the contract is negotiated; or
(ii) when the parties have otherwise agreed with respect to the risk of differing site conditions.
(2) Price Adjustments. (a) Adjustments in price pursuant to clauses adopted or promulgated under subsection (1) of this section shall pursuant to Section 11-35-2010 must be computed and documented with a written determination. The price adjustment agreed upon shall must approximate the actual cost to the contractor and all costs incurred by the contractor shall must be justifiably compared with prevailing industry standards, including reasonable profit. Costs shall must be properly itemized and supported by substantiating data sufficient to permit evaluation before commencement of the pertinent performance or as soon thereafter after that as practicable, and shall must be arrived at through whichever one of the following ways is the most valid approximation of the actual cost to the contractor:
(i) by unit prices specified in the contract or subsequently agreed upon;
(ii) by the costs attributable to the events or situations under such those clauses with adjustment of profits or fee, all as specified in the contract or subsequently agreed upon;
(iii) by agreement on a fixed price adjustment;
(iv) in such other another manner as the contracting parties may mutually agree; or
(v) in the absence of agreement by the parties, through unilateral determination by the governmental body of the costs attributable to the events or situations under such those clauses, with adjustment of profit or fee, all as computed by the governmental body in accordance with applicable sections of the regulations issued under pursuant to this chapter and subject to the provisions of Article 17 of this chapter.
(b) A contractor shall be is required to submit cost or pricing data if any an adjustment in contract price is subject to the provisions of Section 11-35-1830.
(3) Additional Contract Clauses. The construction contracts and subcontracts promulgated pursuant to Section 11-35-2010(2) may include clauses providing for appropriate remedies which that cover as a minimum:
(a) specified excuses for delay or nonperformance;
(b) termination of the contract for default;
(c) termination of the contract in whole or in part for the convenience of the governmental body.
(4) Modification of Required Clauses. The chief procurement officer may vary the clauses promulgated by the board under pursuant to subsection (1) and subsection (3) of this section for inclusion in any a particular construction contract; provided, that any if the variations are supported by a written determination that states the circumstances justifying such the variations; and provided, further, that, if notice of any such a material variation be is stated in the invitation for bids."
SECTION 44. Section 11-35-3060 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3060. Every contract modification, change order, or contract price adjustment under a construction contract with the State shall be is subject to the procedures outlined in Sections 3A and 3B of Act 761 of 1976 which were added pursuant to Sections 2-47-40 and 2-47-50."
SECTION 45. Section 11-35-3220 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3220. (1) Agency Selection Committee. Each using agency shall establish its own architect-engineer, construction management, and land surveying services selection committee, hereinafter referred to as the agency selection committee, which shall that must be composed of those individuals whom the agency head determines to be qualified to make an informed decision as to the most competent and qualified firm for the proposed project. The head of the using agency or his qualified responsible designee shall sit as a permanent member of the agency selection committee for the purpose of coordinating and accounting for the committee's work. To assist an agency selection committee in the selection of firms to be employed for significant or highly technical projects and to facilitate prompt selections, the agency selection committee may invite the State Engineer or his designee to sit as a nonvoting member of the committee.
(2)(a) Advertisement of Project Description. The agency selection committee shall be is responsible for:
(a)( i)developing a description of the proposed project,;
(b)(ii) enumerating all required professional services for that project,; and
(c)(iii) preparing a formal invitation to firms for submission of information.
(b) The invitation shall must include, but not be limited to, the project title, the general scope of work, a description of all professional services required for that project, the submission deadline, and how interested firms may apply for consideration. The agency selection committee shall file a copy of the project description and the invitation with the State Engineer's Office. The invitation shall must be advertised formally advertised in an official state government publication. The manner in which this official state government publication shall must be published, the content of the publication itself, the frequency of the publication, the method for subscription to the publication, and the manner by which the publication will be is distributed shall must be established by regulation of the board.
(3) Response to Invitation. The date for submission of information from interested persons or firms in response to an invitation shall must not be not less than fifteen days after publication of the invitation. Interested architect-engineer, construction management, and land surveying persons or firms shall be required to respond to the invitation with the submission of a current and accurate Federal Standard Form 254, Architect-Engineer and Related Services Questionnaire, and Federal Standard Form 255, Architect-Engineer and Related Services Questionnaire for Specific Project, or their successor forms or such similar information as the board may prescribe by regulation, and any other information which that the particular invitation may require.
(4) Interviews with Interested Firms. Following receipt of information from all interested persons and firms, the agency selection committee shall hold interviews with at least five three persons or firms who have responded respond to the committee's advertisement and who are deemed considered most qualified on the basis of information available prior to before the interviews. A list of firms selected for interview shall must be sent to all firms that submitted information in response to the advertisement, prior to before the date selected for the interviews. If less than five three persons or firms have responded respond to the advertisement, the committee shall hold interviews with those that did respond. The agency selection committee's determination as to which will are to be interviewed shall must be in writing and shall be based upon its review and evaluation of all submitted materials. The written report of the committee shall must specifically list specifically the names of all persons and firms that responded to the advertisement and enumerate the reasons of the committee for selecting those to be interviewed. The purpose of the interviews shall be is to provide such the further information as that may be required by the agency selection committee to fully acquaint itself with the relative qualifications of the several interested firms.
(5) Selection and Ranking of the Five Three Most Qualified.
(a) The agency selection committee shall evaluate each of the persons or firms interviewed in view of their:
(a)( i) past performance;
(b)(ii) the ability of professional personnel;
(c)(iii) demonstrated ability to meet time and budget requirements;
(d)(iv) location and knowledge of the locality of the project if the application of this criterion leaves an appropriate number of qualified firms, given the nature and size of the project;
(e)( v) recent, current, and projected workloads of the firms;
(f)(vi) creativity and insight related to the project; and
(g)(vii) related experience on similar projects.;
(viii) volume of work awarded by the using agency to the person or firm during the previous five years, with the objective of effectuating an equitable distribution of contracts by the State among qualified firms including Minority Business Enterprises certified by the South Carolina Office of Small and Minority Business Assistance and firms that have not had previous state work; and
(ix) any other special qualification required pursuant to the solicitation of the using agency.
(b) Based upon these evaluations, the agency selection committee shall select the five three persons or firms which that, in its judgment, are the best qualified, ranking the five three in priority order. The agency selection committee's report ranking the five three chosen persons or firms shall must be in writing and shall include data substantiating its determinations.
(6) Notice of Selection and Ranking. When it is determined by the agency that the ranking report is final, written notification of the election immediately shall highest ranked person or firm must be sent immediately to all firms interviewed.
(7) Negotiation of Contract. The governing body of the using agency or its designee shall negotiate a contract for services with the most qualified person or firm at a compensation which that is fair and reasonable to the State. Should If the governing body of the using agency or its designee be is unable to negotiate a satisfactory contract with this person or firm, negotiations shall must be terminated formally terminated. Negotiations shall must commence in the same manner with the second and then the third, fourth and fifth most qualified until a satisfactory contract has been is negotiated. If no an agreement is not reached with one of the five three, additional persons or firms in order of their competence and qualifications shall must be selected after consultation with the agency selection committee, and negotiations shall must be continued in the same manner until agreement is reached.
(8) State Engineer's Office Review. The head of the using agency shall submit the following documents to the State Engineer's Office for its review:
(a) the written report of the agency selection committee, listing the persons or firms that responded to the invitation to submit information and enumerating the reasons of the committee for selecting the particular ones to be interviewed;
(b) the written ranking report of the agency selection committee and all data substantiating the determinations made in that report; and
(c) the tentative contract between the using agency and the selected person or firm.
(9) Approval or Disagreement by State Engineer's Office. The State Engineer's Office shall have has ten days to review the data submitted by the agency selection committee, to determine the volume of work previously awarded to the firm by the State, with the object of effecting an equitable distribution of contracts among qualified firms, and to determine its position with respect to the particular person or firm recommended for approval by the agency. If the State Engineer's Office disagrees with the proposal, it may contest the proposal by submitting the matter to the board for decision. In the event of approval, the State Engineer's Office shall notify immediately notify in writing the using agency and the person or firm selected of the award and thereby authorize the using agency to execute a contract with the selected person or firm. In the event of disagreement, the State Engineer's Office immediately shall notify immediately notify the using agency in writing of its intention to contest the ranking and the reasons therefore for it. All contract negotiations by the governing body shall must be suspended pending a decision by the board concerning a contested ranking. The board shall hear any such contests at its next regularly scheduled meeting subsequent to after notification of the using agency. If the board rules in support of the State Engineer's Office position, the using agency shall submit the name of another person or firm to the State Engineer's Office for consideration, selected in accordance with the procedures prescribed herein in this section. If the board rules in support of the using agency, the using agency shall must be notified in writing and thereby authorized to execute a contract with the selected person or firm."
SECTION 46. Section 11-35-3230 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3230. (1) Procurement Procedures for Certain Contracts. All A governmental bodies body securing architect-engineer or land surveying service which is estimated not to exceed twenty-five thousand dollars may employ the architects, engineers, or land surveyors award contracts by direct negotiation and selection, taking into account:
(a) the nature of the project,;
(b) the proximity of the architect-engineer or land surveying services to the project,;
(c) the capability of the architect, engineer, or land surveyor to produce the required service within a reasonable time,;
(d) past performance,; and
(e) ability to meet project budget requirements.
(2) Maximum Fees Payable to One Person or Firm. Fees paid during the twenty-four month period immediately preceding negotiation of the contract by any a single governmental body for professional services performed by any one an architectural-engineering or land surveying firm pursuant to Section 11-35-3230(1) shall may not exceed seventy-five thousand dollars. All persons Persons or firms seeking to render professional services pursuant to this section shall furnish the governmental body with whom the firm is negotiating a list of professional services, including fees paid therefore for them, performed for the governmental body during the fiscal year immediately preceding the fiscal year in which the negotiations are occurring and during the fiscal year in which the negotiations are occurring.
(3) Approval Submission of Contracts by to State Engineer's Office. All Copies of contracts, including the negotiated scope of services and fees, awarded pursuant to this section shall must be submitted for approval to the State Engineer's Office in accordance with regulations to be established by the board prior to the awarding and execution of the contracts for information.
(4) Splitting of Larger Projects Prohibited. No using A agency may not break a project into small projects for the purpose of circumventing the provisions of Section 11-35-3220 and this section."
SECTION 47. Section 11-35-3240 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3240. As relates to this code and the ensuing regulations, a 'Manual for Planning and Execution of State Permanent Improvements' shall may be published by the board or its designee for use by governmental bodies and included, by reference, in the regulations of the board. The manual may be revised as the board deems considers necessary, except that proposed changes are not effective until the board has provided the public at least sixty days to make written comments after notice of the proposed changes is published in South Carolina Business Opportunities."
SECTION 48. Section 11-35-3245 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3245. (a) No An architect or engineer performing design work, or construction manager performing construction management services as described in Section 11-35-2910(3), pursuant to under a contract awarded under any provision of this chapter pursuant to the provisions of Section 11-35-3220 or Section 11-35-3230, may not perform other work, by later amendment or separate contract award, on that project as a contractor or subcontractor either directly or through a business in which he or his architectural engineering or construction management firm has greater than a five percent interest.
(b) For purposes of this section, safety compliance and other incidental construction support activities performed by the construction manager are not considered work performed as a contractor or subcontractor. Should If the construction manager perform or be performs or is responsible for safety compliance and other incidental construction support activities, and these support activities are in noncompliance with the provisions of Section 41-15-210, then the construction management firm is subject to all applicable fines and penalties."
SECTION 49. Section 11-35-3410(1) and (3) of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"(1) Contract Clauses. The board may promulgate regulations requiring the inclusion in state supplies, and services, and information technology contracts of clauses providing for adjustments in prices, time of performance, or other contract provisions, as appropriate, and covering the following subjects:
(a) the unilateral right of a governmental body to order in writing changes in the work within the scope of the contract and temporary stopping of the work or delaying performance; and
(b) variations occurring between estimated quantities of work in a contract and actual quantities.
(3) Additional Contract Clauses. The board shall be authorized to promulgate regulations requiring the inclusion in state supplies, and services, and information technology contracts of clauses providing for appropriate remedies and covering the following subjects:
(a) specified excuses for delay or nonperformance;
(b) termination of the contract for default; and
(c) termination of the contract in whole or in part for the convenience of the governmental body."
SECTION 50. Section 11-35-3510 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3510. The board may promulgate regulations setting forth cost principles which shall that must be used to determine the allowability of incurred costs for the purpose of reimbursing costs under provisions in supplies, and services, and information technology contracts which that provide for the reimbursement of costs."
SECTION 51. Section 11-35-3820 of the 1976 Code, as last amended by Act 153 or 1997, is further amended to read:
"Section 11-35-3820. Except as provided in Section 11-35-1580 and Section 11-35-3830 and the regulations pursuant thereto to them, the sale of all state-owned supplies, property, or personal property not in actual public use shall must be conducted and directed by the Office of General Services designated board office. Such The sales shall must be held at such places and in such a manner as in the judgment of the Office of General Services shall be designated board office is most advantageous to the State. Unless otherwise determined, sales shall must be by either public auction or competitive sealed bid to the highest bidder. Each governmental body shall inventory and report to the Office of General Services designated board office all surplus personal property not in actual public use held by that agency governmental body for sale. The Office of General Services designated board office shall deposit the proceeds from such the sales, less expense of the sales, in the state general fund or as otherwise directed by regulation. This policy and procedure shall apply applies to all governmental bodies unless exempt by law."
SECTION 52. Section 11-35-3840 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-3840. The Office of General Services of the State Budget and Control Board may license for public sale publications and, including South Carolina Business Opportunities, materials pertaining to training programs, and information technology products which that are developed during the normal course of the Office's board's activities. Such The items shall must be licensed at such reasonable costs as are established in accordance with the cost of the items. All proceeds from the sale of the publications and materials shall must be placed in a revenue account and expended for the cost of providing such the services."
SECTION 53. Section 11-35-4210 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-4210. (1) Right to Protest; Exclusive Remedy.
(a) Any A prospective bidder, offeror, contractor, or subcontractor who is aggrieved in connection with the solicitation of a contract shall protest to the appropriate chief procurement officer in the manner stated in subsection (2)(a) 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 to it, if the amendment is at issue. An Invitation for Bids or Request for Proposals or other solicitation document, not including an amendment to it, is considered to have been issued on the date required notice of the issuance is given in accordance with this code.
(b) Any actual bidder, offeror, contractor, or subcontractor who is aggrieved in connection with the intended award or award of a contract shall protest to the appropriate chief procurement officer in the manner stated in subsection (2)(b) below within fifteen ten days of the date award or notification of intent to award, whichever is earlier, is posted in accordance with this code; except that a matter that could have been raised pursuant to (a) as a protest of the solicitation may not be raised as a protest of the award or intended award of a contract.
(c) The rights and remedies granted in this article to a disappointed bidder, offeror, contractor, or subcontractor bidders, offerors, contractors, or subcontractors, either actual or prospective, are to the exclusion of all other rights and remedies of such disappointed bidder, offeror, contractor, or subcontractor the bidders, offerors, contractors, or subcontractors against the State at common law or otherwise for the loss or potential loss of an award of a contract under the South Carolina Consolidated Procurement Code.
(d) The rights and remedies granted by subsection (1) and Section 11-35-4410(1)(b) are not available for contracts with an actual or potential value of up to fifty thousand dollars.
(2) Protest Procedure. (a) A protest under pursuant to subsection (1)(a) above shall must be in writing, submitted to filed with the appropriate chief procurement officer, and shall set forth the grounds of the protest and the relief requested with enough particularity to give notice of the issues to be decided. The protest must be received by the appropriate chief procurement officer within the time provided in subsection (1).
(b) A protest pursuant to subsection (1)(b) must be in writing and must be received by the appropriate chief procurement officer within the time limits established by subsection (1)(b). At any time after filing a protest, but no later than fifteen days after the date award or notification of intent to award, whichever is earlier, is posted in accordance with this code, a protestant may amend a protest that was first submitted within the time limits established by subsection (1)(b). A protest, including amendments, must set forth both the grounds of the protest and the relief requested with enough particularity to give notice of the issues to be decided.
(3) Duty and Authority to Attempt to Settle Protests. Prior to Before commencement of an administrative review as provided in subsection (4), the appropriate chief procurement officer, the head of the purchasing agency, or their designees thereof shall may attempt to settle by mutual agreement a protest of an aggrieved bidder, offeror, contractor, or subcontractor, actual or prospective, concerning the solicitation or award of the contract. The appropriate chief procurement officer, the head of the purchasing agency, or designees thereof shall have his designee has the authority to approve any settlement reached by mutual agreement.
(4) Administrative Review and Decision. If in the opinion of the appropriate chief procurement officer, after reasonable attempt, a protest cannot be settled by mutual agreement, the appropriate chief procurement officer shall promptly conduct promptly an administrative review. The appropriate chief procurement officer or his designee shall commence the administrative review no later than fifteen business days after the deadline for receipt of a protest has expired and shall issue a decision in writing within ten days of completion of the review. The decision shall must state the reasons for the action taken.
(5) Notice of Decision. A copy of the decision under subsection (4) of this section along with a statement of appeal rights under pursuant to Section 11-35-4210(6) shall must be mailed or otherwise furnished immediately to the protestant and any other party intervening. The appropriate chief procurement officer, or his designee, shall also shall post a copy of the decision at a date and place communicated to all parties participating in the administrative review, and such the posted decision shall must indicate the date of posting on its face and shall must be accompanied by a statement of the right to appeal provided in Section 11-35-4210(6).
(6) Finality of Decision. A decision under pursuant to subsection (4) of this section shall be is final and conclusive, unless fraudulent, or unless any a person adversely affected by the decision requests a further administrative review by the Procurement Review Panel under pursuant to Section 11-35-4410(1) within ten days of posting of the decision in accordance with Section 11-35-4210 subsection (5). The request for review shall must be directed to the appropriate chief procurement officer, who shall forward the request to the panel, or to the Procurement Review Panel, and shall must be in writing, setting forth the reasons why the person disagrees for disagreement with the decision of the appropriate chief procurement officer. The person also may also request a hearing before the Procurement Review Panel. The appropriate chief procurement officer and an affected governmental body shall have the opportunity to participate fully in a later review or appeal, administrative or judicial.
(7) Automatic Stay of Procurement During Protests. In the event of a timely protest under pursuant to subsection (1) above, the State shall not proceed further with the solicitation or award of the contract until ten days after a decision is rendered posted by the appropriate chief procurement officer, or, in the event of timely appeal to the Procurement Review Panel, until a decision is rendered by the panel; provided, however, except that solicitation or award of a protested contract will is not be stayed if the appropriate chief procurement officer, after consultation with the head of the using agency, makes a written determination that the solicitation or award of the contract without further delay is necessary to protect the best interests of the State.
(8) Notice of Chief Procurement Officer Address. Notice of the address of the appropriate chief procurement officer must be included in every notice of an intended award and in every invitation for bids, request for proposals, or other type solicitation."
SECTION 54. Section 11-35-4220 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-4220. (1) Authority. After reasonable notice to the person or firm involved, and a reasonable opportunity for such that person or firm to be heard, the appropriate chief procurement officer shall have has the authority to debar a person for cause from consideration for award of contracts or subcontracts provided that if doing so is in the best interest of the State and there is probable cause for debarment. The appropriate chief procurement officer also may also suspend a person or firm from consideration for award of contracts or subcontracts during an investigation where there is probable cause for debarment. The period of debarment or suspension shall be is as prescribed by the appropriate chief procurement officer.
(2) Causes for Debarment or Suspension. The causes for debarment or suspension shall include, but not be limited to, the following:
(a) conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract or subcontract, or in the performance of such the contract or subcontract;
(b) conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other another offense indicating a lack of business integrity or professional honesty which currently, seriously, and directly affects responsibility as a state contractor;
(c) conviction under state or federal antitrust laws arising out of the submission of bids or proposals;
(d) violation of contract provisions, as set forth below, of a character which is regarded by the appropriate chief procurement officer to be so serious as to justify debarment action:
( i) deliberate failure without good cause to perform in accordance with the specifications or within the time limit provided in the contract; or
(ii) a recent record of failure to perform or of unsatisfactory performance in accordance with the terms of one or more contracts; provided except, that failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall must not be considered to be a basis for debarment;
(e) violation of an order of a chief procurement officer or the Procurement Review Panel; and
(f) any other cause the appropriate chief procurement officer determines to be so serious and compelling as to affect responsibility as a state contractor or subcontractor, including debarment by another governmental entity for any cause listed herein in this subsection.
(3) Decision. The appropriate chief procurement officer shall issue a written decision to debar or suspend within ten days of the completion of his administrative review of the matter. The decision shall must state the action taken, the specific reasons therefore for it, and the period of debarment or suspension, if any.
(4) Notice of Decision. A copy of the decision under pursuant to subsection (3) of this section and a statement of appeal rights under pursuant to Section 11-35-4220(5) shall must be mailed or otherwise furnished immediately to the debarred or suspended person and any other party intervening. The appropriate chief procurement officer also shall also post a copy of the decision at a time and place communicated to all parties participating in the administrative review and such the posted decision shall must indicate the date of posting on its face and shall be accompanied by a statement of the right to appeal provided in Section 11-35-4220(5).
(5) Finality of Decision. A decision under pursuant to subsection (3) of this section shall be is final and conclusive, unless fraudulent, or unless the debarred or suspended person requests further administrative review by the Procurement Review Panel under pursuant to Section 11-35-4410(1), within ten days of the posting of the decision in accordance with Section 11-35-4220(4). The request for review shall must be directed to the appropriate chief procurement officer, who shall forward the request to the panel, or to the Procurement Review Panel, and shall must be in writing, setting forth the reasons why the person disagrees with the decision of the appropriate chief procurement officer. The person may also may request a hearing before the Procurement Review Panel. The appropriate chief procurement officer and any affected governmental body must have the opportunity to participate fully in any review or appeal, administrative or legal.
(6) Debarment constitutes debarment of all divisions or other organizational elements of the contractor, unless the debarment decision is limited by its terms to specific divisions, organization elements, or commodities. The debarring official may extend the debarment decision to include any principals and affiliates of the contractor if they are specifically named and given written notice of the proposed debarment and an opportunity to respond. For purposes of this section, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or a third party controls or has the power to control both. Indications of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the debarment, suspension, or proposed debarment of a contractor which has the same or similar management, ownership, or principal employees as the contractor that was debarred, suspended, or proposed for debarment. For purposes of this section, the term 'principals' means officers, directors, owners, partners, and persons having primary management or supervisory responsibilities within a business entity including, but not limited to, a general manager, plant manager, head of a subsidiary, division, or business segment, and similar positions."
SECTION 55. Section 11-35-4230 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-4230. (1) Applicability. This section applies to controversies between the State a governmental body and a contractor or subcontractor, when the subcontractor is the real party in interest, which arise under or by virtue of a contract between them including, but not limited to, controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or recision. The procedure set forth in this section shall constitute constitutes the exclusive means of resolving a controversy between the State a governmental body and a contractor or subcontractor, when the subcontractor is the real party in interest, concerning a contract solicited and awarded under pursuant to the provisions of the South Carolina Consolidated Procurement Code.
(2) Request for Resolution; Time for Filing. Either the contracting state agency or the contractor or subcontractor, when the subcontractor is the real party in interest, may initiate resolution proceedings before the appropriate chief procurement officer by submitting a request for resolution to the appropriate chief procurement officer in writing setting forth the general specific nature of the controversy and the specific relief requested with enough particularity to give notice of the issues every issue 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, except that in the case of latent defects a request for resolution of a contract controversy must be filed within one year three years of the date the requesting party first knows or should know of the grounds giving rise to the request for resolution.
(3) Duty and Authority to Attempt to Settle Contract Controversies. Prior to Before commencement of an administrative review as provided in subsection (4), the appropriate chief procurement officer or his designee shall attempt to settle by mutual agreement a contract controversy brought under pursuant to this section. The appropriate chief procurement officer shall have has the authority to approve any settlement reached by mutual agreement.
(4) Administrative Review and Decision. If, in the opinion of the appropriate chief procurement officer, after reasonable attempt, a contract controversy cannot be settled by mutual agreement, the appropriate chief procurement officer or his designee shall promptly shall conduct an administrative review and shall issue a decision in writing within ten days of completion of the review. The decision shall must state the reasons for the action taken.
(5) Notice of Decision. A copy of the decision under pursuant to subsection (4) of this section and a statement of appeal rights under Section 11-35-4230(6) shall must be mailed or otherwise furnished immediately to all parties participating in the administrative review proceedings. The appropriate chief procurement officer also shall also post a copy of the decision at a time and place communicated to all parties participating in the administrative review, and such the posted decision shall must indicate the date of posting on its face and shall must be accompanied by a statement of the right to appeal provided in Section 11-35-4230(6).
(6) Finality of Decision. A decision under pursuant to subsection (4) of this section shall be is final and conclusive, unless fraudulent, or unless any a person adversely affected requests a further administrative review by the Procurement Review Panel under pursuant to Section 11-35-4410(1) within ten days of the posting of the decision in accordance with Section 11-35-4230(5). The request for review shall must be directed to the appropriate chief procurement officer, who shall forward the request to the panel, or to the Procurement Review Panel, and shall must be in writing setting forth the reasons why the person disagrees with the decision of the appropriate chief procurement officer. The person also may also request a hearing before the Procurement Review Panel. The appropriate chief procurement officer and any affected governmental body shall have the opportunity to participate fully in a later review or appeal, administrative or legal."
SECTION 56. Section 11-35-4330 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-4330. (1) Signature on Protest Constitutes Certificate. The signature of an attorney or party on a request for review, protest, motion, or other document constitutes a certificate by the signer that the signer has read such the document, that to the best of the signer's his 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 an improper purpose, such as to harass, limit competition, or to cause unnecessary delay or needless increase in the cost of the procurement or of the litigation.
(2) Sanctions for Violations. If a request for review, protest, pleading, motion, or other document that is filed with the chief procurement officer or the Procurement Review Panel is signed in violation of this subsection on or after appeal to the Procurement Review Panel, the Procurement Review Panel, upon motion or upon it's own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which that 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.
(3) Filing. A motion regarding a matter that is not otherwise before the panel may not be filed until after a final decision has been issued by the appropriate chief procurement officer. A motion for sanctions pursuant to this section must be filed with the panel no later than fifteen days after the later of either the filing of a request for review, protest, motion, or other document signed in violation of this section, or the issuance of an order that addresses the request for review, protest, motion, or other document that is the subject of the motion for sanctions."
SECTION 57. Section 11-35-4410 of the 1976 Code, as last amended by Act 178 of 1993, is further amended to read:
"Section 11-35-4410. (1) Creation. There is hereby created the South Carolina Procurement Review Panel which shall be is charged with the responsibility to review and determine de novo:
(a) requests for review of written determinations of the chief procurement officers under Sections 11-35-4210(6), 11-35-4220(5), and 11-35-4230(6); and
(b) requests for review of other written determinations, decisions, policies, and procedures as arise from or concern the procurement of supplies, services, information technology, or construction procured in accordance with the provisions of this code and the ensuing regulations; provided except that any a matter which that could have been brought before the chief procurement officers in a timely and appropriate manner under pursuant to Sections 11-35-4210, 11-35-4220, or 11-35-4230, but was not, shall must not be the subject of review under this paragraph. Requests for review under this paragraph shall must be submitted to the Procurement Review Panel in writing, setting forth the grounds, within fifteen days of the date of such the written determinations, decisions, policies, and procedures.
(2) Membership. The panel shall must be composed of:
(a) [Deleted]
(b) [Deleted]
(c) [Deleted]
(d) the chairman, or his designee, of the Procurement Policy Committee; [Deleted]
(e) five members appointed by the Governor from the State at large who shall must be representative of the professions governed by this title including, but not limited to:
( i) goods and services.;
(ii) information technology procurements.;
(iii) construction.;
(iv) architects and engineers.;
(v) construction management.; and
(vi) land surveying services.;
(f) two state employees appointed by the Governor.
(3) Chairperson and Meetings. The panel shall elect a chairman from the members at large and shall meet as often as necessary to afford a swift resolution of the controversies submitted to it. Five Four members present and voting shall constitute a quorum. In the case of a tie vote, the decision of the chief procurement office is final. At-large members of the panel shall must be paid per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees. State employee members shall must be reimbursed for meals, lodging, and travel in accordance with current state allowances.
(4) Jurisdiction. (a) Notwithstanding the provisions of Section 1-23-10, et seq. or any other provisions of law, the Administrative Procedures Act does not apply to administrative reviews conducted by either a chief procurement officer or the Procurement Review Panel. the The Procurement Review Panel shall be is vested with the authority to:
(a)( i) establish its own rules and procedures for the conduct of its business and the holding of its hearings;
(b)(ii) issue subpoenas;
(c)(iii) interview any person it deems considers necessary; and
(d)(iv) record all determinations.
(b) A party aggrieved by a subpoena issued pursuant to this provision shall apply to the panel for relief.
(5) Procedure. Within fifteen days of receiving a grievance filed under pursuant to Sections 11-35-4210(6), 11-35-4220(5), 11-35-4230(6), or 11-35-4410(1)(b), the chairman shall either convene the review panel to conduct an administrative review. The or schedule a hearing to facilitate its administrative review. Except for grievances filed pursuant to Section 11-35-4230(6), the review panel shall record its determination within thirty ten working days and shall communicate its decision to those involved in the determination. In matters designated by the review panel as complex, the review panel shall record its determination within thirty days. In the alternative, the chairman, within ten days, may appoint a hearing officer to conduct the administrative review and report his recommendations to the review panel for its determination. If a hearing officer is appointed, his report shall be submitted to the review panel within ten days after his appointment, and the review panel must still record its decision within thirty days after being convened for this purpose.
(6) Finality. The Notwithstanding another provision of law, including the Administrative Procedures Act, the decision of the Procurement Review Panel is final as to administrative review and may be appealed to the circuit court under the provisions of the South Carolina Administrative Procedures Act. The filing of an appeal does not automatically stay a decision of the panel."
SECTION 58. Section 11-35-5220 of the 1976 Code is amended by adding:
"(6) Fee Waivers. Upon request by an MBE certified by the Small and Minority Business Assistance Office, user or subscription fees for services provided by the chief procurement officers may be waived for an MBE."
SECTION 59. Section 11-35-5230(A)(5) and (B)(2) of the 1976 Code, as last amended by Act 76 of 1995, is further amended to read:
"(5) Insuring Ensuring that the price shall have has been determined to be fair and reasonable, and competitive both to the State and to the contractor and results in no loss to the State.
(2) The tax credit is limited to a maximum of twenty-five fifty thousand dollars annually. A firm shall be is eligible to claim a tax credit for a period of five ten years from the date the first income tax credit is claimed."
SECTION 60. Section 11-35-5240 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-5240. (1) In order to To emphasize the use of minority small businesses, each agency director shall develop a Minority Business Enterprise (MBE) Utilization Plan. The MBE Utilization Plan shall must include, but not be limited to:
(a) the name of the governmental body;
(b) a policy statement expressing a commitment by the governmental body to use MBE's MBEs in all aspects of procurement;
(c) the name of the coordinator responsible for monitoring the MBE Utilization Plan;
(d) goals that include a reasonable percentage expending with Minority Business Enterprises certified by the Office of Small and Minority Business Assistance an amount equal to ten percent of each governmental body's total procurements directed toward minority vendors dollar amount of funds expended;
(e) solicitation of qualified certified minority vendors, a current list of which shall must be supplied by the Office of General Services Small and Minority Business Assistance, in each commodity category for which such the minority vendor is qualified. The current listing of qualified minority vendors shall must be made available by the Office of General Services Small and Minority Business Assistance on a timely basis;
(f) procedures to be used when it is necessary to divide total project requirements into smaller tasks which will permit increased MBE participation;
(g) procedures to be used when the governmental body subcontracts the scope of service to another governmental body; the responsible governmental body may set goals for the subcontractor in accordance with the MBE goal and the responsible governmental body may allow the subcontractor to present a MBE Utilization Plan detailing its procedure to obtain minority business enterprise participation.
(2) MBE utilization plans shall must be submitted to the SMBAO for approval not no later than July thirtieth, annually. Upon petition by the governmental body, SMBAO may authorize an MBE utilization plan that establishes a goal of less than ten percent of the governmental body's total dollar amount of funds expended. Progress reports shall must be submitted to the SMBAO not no later than ten thirty days after the end of each fiscal quarter. and contain the following information:
(a) number of minority firms solicited;
(b) number of minority bids received;
(c) total dollar amount of funds expended on contracts awarded to minority bids awarded firms certified pursuant to Section 11-35-5230; and
(d) total dollar amount of funds expended.
(3) For purposes of this section, and notwithstanding the Administrative Procedures Act, the executive director of the board shall establish a definition for the phrase 'total dollar amount of funds expended'."
SECTION 61. Section 11-35-5260 of the 1976 Code, as last amended by Act 153 of 1997, is further amended to read:
"Section 11-35-5260. Each governmental body The Small and Minority Business Assistance Office shall report annually in writing to the board Governor concerning the number and dollar value of contracts awarded for each governmental body to eligible minority businesses a firm certified as a minority firm pursuant to Section 11-35-5230 during the preceding fiscal year. These records shall must be maintained to evaluate the progress of this program."
SECTION 62. The final two sentences of Section 11-35-5270 of the 1976 Code are amended to read:
"The Governor shall evaluate the role of this office within two years from the date of its creation and shall request recommendations of the State Reorganization Commission. The Governor may propose a more appropriate location of the office should the findings warrant change."
SECTION 63. Section 12-6-3350(B) of the 1976 Code is amended to read:
"(B) The credit is limited to a maximum of twenty-five fifty thousand dollars annually. A taxpayer is eligible to claim the credit for six ten taxable years beginning with the taxable year in which the credit is first claimed. After the above six ten taxable years, the taxpayer is no longer eligible for the credit regardless of whether or not the taxpayer claimed the credit in a year subsequent to the year in which the credit was first claimed."
SECTION 64. Subarticle 11 of Article 1, Chapter 35, Title 11; Section 11-35-1270; and Subarticle 5 of Article 15, Chapter 35, Title 11 of the 1976 Code are repealed.
SECTION 65. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
Senator O'DELL explained the committee amendment.
The committee amendment was adopted.
There being no further amendments, the Bill was read the second time, passed and ordered to a third reading.
S. 217 (Word version) -- Senator Grooms: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-2723 SO AS TO REQUIRE ALL GROUP CHILDCARE HOMES AND FAMILY CHILDCARE HOMES THAT DO NOT CARRY LIABILITY INSURANCE TO OBTAIN STATEMENTS FROM EACH PARENT OR GUARDIAN OF A CHILD ENROLLED IN THE CHILDCARE FACILITY INDICATING THAT THE PARENT HAS RECEIVED NOTICE FROM THE FACILITY THAT THE FACILITY DOES NOT CARRY LIABILITY INSURANCE AND TO REQUIRE THE DEPARTMENT OF SOCIAL SERVICES TO INFORM EACH GROUP CHILDCARE HOME AND FAMILY CHILDCARE HOME OF THIS REQUIREMENT.
The Senate proceeded to a consideration of the Bill, the question being the adoption of the amendment proposed by the Committee on Judiciary.
Senator LEVENTIS proposed the following amendment (JUD0217.003), which was adopted:
Amend the committee report, as and if amended, page [217-2], lines 11-20, by striking subsection (C) of Section 20-7-2723 in its entirety and inserting therein the following:
/ (C) The department shall send a letter to each group childcare home and family childcare home licensed or registered with the department informing each home of the requirements of subsections (A) and (B), that each home must comply with these requirements by no later than January 1, 2007, and that compliance is a continuing annual requirement for licensure and relicensure. For group childcare homes and family childcare homes licensed or registered after the effective date of this section, the department shall provide the information contained in subsections (A) and (B) at the time the group childcare home or family childcare home applies for a license or registration. /
Renumber sections to conform.
Amend title to conform.
Senator LEVENTIS explained the amendment.
The amendment was adopted.
The Committee on Judiciary proposed the following amendment (JUD0217.002), which was adopted:
Amend the bill, as and if amended, by striking all after the enacting words and inserting therein the following:
/ SECTION 1. Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-2723. (A) An owner or operator of a group childcare home or family childcare home, as defined by Section 20-7-2700, who does not carry liability insurance for the operation of his childcare business, shall, by no later than January 1, 2007, obtain signed statements from the custodial parent or parents or guardian or guardians of each child currently enrolled in the group childcare home or family childcare home indicating that the parent or parents or guardian or guardians have received notice that the group childcare home or family childcare home does not carry liability insurance for the operation of its childcare business. The owner or operator of a group childcare home or family childcare home must maintain a file of these signed statements at the home during the period of time a child is enrolled. For new enrollees to a group childcare home or family childcare home, the owner or operator must provide the parent or parents or guardian or guardians of a new enrollee with this information at the time of enrollment, obtain a signed statement from each parent or guardian at the time of enrollment, and maintain these signed statements at the home during the period of time a child is enrolled.
(B) An owner or operator of a group childcare home or family childcare home, as defined by Section 20-7-2700, who does not maintain liability insurance for the operation of his childcare business after the effective date of this section, must obtain and maintain statements from the children's custodial parent or parents or guardian or guardians in accordance with subsection (A) no later than thirty days after the liability insurance lapses or is canceled.
(C) The department shall send a letter to each group childcare home and family childcare home licensed or registered with the department, informing each home of the requirements of subsections (A) and (B), and that each home must comply with these requirements by no later than January 1, 2007. For group childcare homes and family childcare homes licensed or registered after the effective date of this section, the department shall provide the information contained in subsections (A) and (B) at the time the group childcare home or family childcare home applies for a license or registration.
(D) Compliance with the notification provisions set forth in this section is a requirement for licensure and relicensure of all group childcare homes and family childcare homes."
SECTION 2. This act takes effect upon approval by the Governor./
Renumber sections to conform.
Amend title to conform.
The committee amendment was adopted.
There being no further amendments, the Bill was read the second time, passed and ordered to a third reading.
H. 3721 (Word version) -- Reps. Talley and Harrison: A BILL TO AMEND SECTION 7-11-50, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO SUBSTITUTION OF A CANDIDATE WHERE THE PARTY NOMINEE DIES, BECOMES DISQUALIFIED, OR RESIGNS, SO AS TO PROVIDE THAT THE STATE ELECTION COMMISSION REVIEWS THE WITHDRAWAL OF A CANDIDATE IN A MULTI-COUNTY ELECTION OR AN ELECTION FOR A MEMBER OF THE GENERAL ASSEMBLY.
The Senate proceeded to a consideration of the Bill, the question being the adoption of the amendment proposed by the Committee on Judiciary.
The Committee on Judiciary proposed the following amendment (JUD3721.001), which was adopted:
Amend the bill, as and if amended, page 2, line 10, by striking SECTION 2 in its entirety and inserting therein the following:
/ SECTION 2. This act takes effect January 1, 2007. /
Renumber sections to conform.
Amend title to conform.
Senator RITCHIE explained the committee amendment.
The committee amendment was adopted.
There being no further amendments, the Bill was read the second time, passed and ordered to a third reading.
H. 3478 (Word version) -- Rep. Huggins: A BILL TO AMEND SECTION 40-57-145, AS AMENDED, RELATING TO GROUNDS FOR DENIAL OF LICENSURE OR FOR DISCIPLINARY ACTION AGAINST REAL ESTATE PROFESSIONALS, INCLUDING BROKERS, AGENTS, AND PROPERTY MANAGERS, SO AS TO CLARIFY THAT PAYMENT OF A COMMISSION OR COMPENSATION TO AN UNLICENSED INDIVIDUAL IS PROHIBITED FOR CONDUCTING ACTIVITIES REQUIRING A LICENSE AND TO FURTHER PROVIDE WHEN SUCH PAYMENTS ARE AUTHORIZED.
The Senate proceeded to a consideration of the Bill, the question being the second reading of the Bill.
Senators SETZLER and ALEXANDER proposed the following amendment (S-3478 SETZLER-ALEXANDER), which was adopted:
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Section 40-57-145(A)(11) of the 1976 Code, as last amended by Act 218 of 2004, is further amended to read:
"(11) pays a reduces a previously negotiated commission or compensation to an unlicensed individual or offers anything of value, other than the consideration recited in the buyer agency, listing, or relocation service agreement, as an inducement to enter into a real estate transaction that is not disclosed in writing on the HUD-1 or closing settlement statement. Notwithstanding this section, a licensee may not pay or offer to pay a cash rebate; in addition, a licensee may not pay or offer to pay a referral fee or finder's fee to an unlicensed individual;"
SECTION 2. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.
Senator ALEXANDER explained the amendment.
The amendment was adopted.
On motion of Senator LEVENTIS, with unanimous consent, the Bill was carried over, as amended.
H. 3079 (Word version) -- Reps. Howard, Clyburn, Cobb-Hunter and Whipper: A BILL TO AMEND SECTIONS 2-19-10, 2-19-20, 2-19-25, 2-19-30, 2-19-35, 2-19-70, 2-19-80, 2-19-100, 2-19-110, ALL AS AMENDED, AND SECTION 2-19-90, CODE OF LAWS OF SOUTH CAROLINA, 1976, ALL RELATING TO THE JUDICIAL MERIT SELECTION COMMISSION, ALL SO AS TO CHANGE THE COMMISSION'S PROCESS FOR NOMINATING JUDICIAL CANDIDATES FROM THE NOMINATION OF THREE CANDIDATES TO THE RELEASE OF A LIST OF ALL QUALIFIED AND FIT CANDIDATES TO THE GENERAL ASSEMBLY, TO DELETE THE REQUIREMENT THAT RACE, GENDER, NATIONAL ORIGIN, AND OTHER DEMOGRAPHIC FACTORS BE CONSIDERED BY THE COMMISSION, TO DEFINE THE TERM "IMMEDIATE FAMILY MEMBER", AND TO PROVIDE FURTHER CONFORMING CHANGES.
The Senate proceeded to a consideration of the Bill, the question being the second reading of the Bill.
Senator RICHARDSON proposed the following Amendment No. P-1 (JUD3079.009), which was tabled:
Amend the committee report, page [3079-3], by striking SECTION 3 in its entirety and inserting:
/ SECTION 3. Section 2-19-35 of the 1976 Code is amended to read:
"Section 2-19-35. (A) The responsibility of the Judicial Merit Selection Commission is to investigate and consider the qualifications of the candidates for judicial office in the administrative law judge division court or on the family court, circuit court, court of appeals, or Supreme Court. Investigations and consideration of the commission should include, but are not limited to, the following areas:
(1) constitutional qualifications;
(2) ethical fitness;
(3) professional and academic ability;
(4) character;
(5) reputation;
(6) physical health;
(7) mental stability;
(8) experience; and
(9) judicial temperament.
(B) The commission members in their voting must evaluate and give a point total for each judicial candidate using the evaluative criteria and an additional category according to the following point system valued at a maximum of 100 points:
(1) constitutional qualifications, up to 10 points;
(2) ethical fitness, up to 10 points;
(3) professional and academic ability, up to 10 points;
(4) character, up to 10 points;
(5) reputation, up to 10 points;
(6) physical health, up to 5 points;
(7) mental stability, up to 10 points;
(8) experience, up to 15 points;
(9) judicial temperament, up to 10 points; and
(10) report of the Citizens Committee for Judicial Qualifications and the Report of the Judicial Qualifications Committee of the South Carolina Bar, up to 10 points.
(B)(C) In making nominations, race, gender, national origin, and other demographic factors should be considered by the commission to ensure nondiscrimination to the greatest extent possible as to all segments of the population of the State." /
Amend the committee report further, as and if amended, page 4, by striking SECTION 5 in its entirety and inserting:
/ SECTION 5. Section 2-19-80(A) of the 1976 Code is further amended to read:
"Section 2-19-80. (A) The commission shall make nominations to the General Assembly of candidates and their qualifications for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law judge division court. It shall review the qualifications of all applicants for a judicial office and select therefrom based on the commission's point totals for the judicial candidates as provided in Section 2-19-35(B), and submit to the General Assembly the names and qualifications of the three five candidates whom it considers best qualified for the judicial office under consideration. If fewer than three five persons apply to fill a vacancy or if the commission concludes there are fewer than three five candidates qualified for a vacancy, it shall submit to the General Assembly only the names and qualifications of those who are considered to be qualified with a written explanation for submitting fewer than three five names." /
Renumber sections to conform.
Amend title to conform.
Senator RICHARDSON explained the amendment.
Senator RITCHIE argued contra to the adoption of the amendment.
Senator RYBERG moved to recommit the Bill to the Committee on Judiciary, retaining its place on the Calendar.
Senator MALLOY objected.
The question then was the adoption of the amendment.
Senator RITCHIE moved to lay the amendment on the table.
The amendment was laid on the table.
Senator McCONNELL proposed the following Amendment No. P-2 (JUD3079.013):
Amend the committee report, page [3079-4], by striking SECTION 5 in its entirety and inserting:
/ SECTION 5. Section 2-19-80 of the 1976 Code, as last amended by Act 49 of 2001, is further amended to read:
"Section 2-19-80. (A) The commission shall make nominations to the General Assembly of candidates and their qualifications for election to the Supreme Court, court of appeals, circuit court, family court, and the administrative law judge division court. It shall review the qualifications of all applicants for a judicial office and select therefrom and submit to the General Assembly Governor only the names and qualifications of the three candidates whom it considers best qualified for the judicial office under consideration. If fewer than three persons apply to fill a vacancy or if the commission concludes there are fewer than three candidates qualified for a vacancy, it shall submit as nominated to the General Assembly Governor only the names and qualifications of those who are considered found to be qualified, with a written explanation for submitting fewer than three names.
(B) The nominations of the commission for any judgeship are binding on the General Assembly, and it shall not elect a person not nominated by the commission. Nothing shall prevent the General Assembly from rejecting all persons nominated. In this event, the commission shall submit another group of names and qualifications for that position. Within ten days of receipt of the commission's reports or recommendations, the Governor must select one of the nominees and forward his name to the commission. Within five days of receipt of the Governor's nominee, the commission may nominate the candidate to the General Assembly for subsequent election or the commission may override the Governor's nominee upon a three-fourths vote of the commission. If the commission overrides the Governor's nominee, the Governor must, within ten days of notification of the commission's rejection of the candidate, select another nominee from the remaining two nominees to forward to the commission for nomination. Within five days of receipt of the Governor's new nominee, the commission may then nominate that candidate to the General Assembly for subsequent election or override that nominee's selection upon a three-fourths vote of the commission. Further nominations in the manner required by this chapter must be made until the office is filled.
(C)(1) If the commission does not find the incumbent justice or judge qualified for the judicial office held and sought, his name shall not be submitted to the General Assembly Governor for nomination and subsequent re-election by the General Assembly. and upon Upon expiration of his then current term of office, he shall cease serving in that judicial position.
(2) If the commission finds an incumbent judge not qualified for the office sought, or if an incumbent judge dies, withdraws, or becomes otherwise disqualified for the office sought between the time he makes application for the office and the date of the election therefor, the election for the office may not be held at that scheduled time, and the commission shall proceed in accordance with the provisions of this chapter to make other nominations for the office as though a new vacancy without an incumbent exists in that office, including reopening the application process with all required notices. Nothing prevents the commission from including in its new nominations the names and qualifications of persons other than the incumbent judge it included in its previous nominations.
(D) The commission shall accompany its nominations to the Governor and subsequently to the General Assembly with reports or recommendations as to the qualifications of particular candidates.
(E) A period of at least two weeks must elapse from the date of forwarding the commission's nominations to the Governor for nomination of one candidate, the Governor's return to the commission for nomination, and the commission's nomination of the candidate to the General Assembly for election and the date the General Assembly conducts the election for these judgeships. /
Renumber sections to conform.
Amend title to conform.
Senator McCONNELL explained the amendment.
Senator LEVENTIS argued contra to the adoption of the amendment.
Senator MARTIN objected to further consideration.
H. 4585 (Word version) -- Reps. Simrill, Bowers, Kennedy, Duncan, Bannister, Ceips, Cobb-Hunter, Leach, Limehouse, Littlejohn, Ott and Scarborough: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 1-1-682 SO AS TO DESIGNATE BOILED PEANUTS AS THE OFFICIAL STATE SNACK FOOD.
The Senate proceeded to a consideration of the Bill, the question being the second reading of the Bill.
Senator HAWKINS proposed the following amendment (4585R001.JDH):
Amend the bill, as and if amended, by striking SECTION 2 and inserting:
/ SECTION 2. Article 9, Chapter 1, Title 1 of the 1976 Code is amended by adding:
"Section 1-1-682. Boiled peanuts are the official state snack food. Nothing in this section requires or encourages any school district in this State to serve peanuts to students, especially students with food allergies." /
Renumber sections to conform.
Amend title to conform.
Senator HAWKINS explained the amendment.
On motion of Senator MOORE, with unanimous consent, the Bill was carried over.
H. 4605 (Word version) -- Reps. Witherspoon, Barfield, Chellis, Edge, Hardwick and Hayes: A CONCURRENT RESOLUTION TO DECLARE AUGUST 12, 2006, AS "NATIONAL MARINA DAY" IN SOUTH CAROLINA IN ORDER TO HONOR SOUTH CAROLINA'S MARINAS FOR THEIR CONTRIBUTIONS TO THE COMMUNITY AND TO MAKE OUR CITIZENS MORE AWARE OF THE OVERALL CONTRIBUTIONS OF MARINAS TO THEIR WELL-BEING.
The Concurrent Resolution was adopted, ordered returned to the House.
THE CALL OF THE UNCONTESTED CALENDAR HAVING BEEN COMPLETED, THE SENATE PROCEEDED TO THE MOTION PERIOD.
On motion of Senator MARTIN, the Senate agreed to dispense with the Motion Period.
HAVING DISPENSED WITH THE MOTION PERIOD, THE SENATE PROCEEDED TO A CONSIDERATION OF REPORTS OF COMMITTEES OF CONFERENCE AND FREE CONFERENCE.
Columbia, S.C., March 23, 2006
Mr. President and Senators:
The House respectfully informs your Honorable Body that it insists upon the amendments proposed by the House to:
H. 4671 (Word version) -- Reps. G.M. Smith, Delleney and Harrison: A BILL TO AMEND SECTION 1-23-600, RELATING TO HEARINGS AND PROCEEDINGS THAT AN ADMINISTRATIVE LAW JUDGE SHALL PRESIDE OVER AND WHEN THE CLERK OF THE ADMINISTRATIVE LAW COURT MUST FILE A FINAL ORDER, TO AMEND SECTION 1-23-660, RELATING TO THE ADMINISTRATIVE LAW COURT DIVISION OF MOTOR VEHICLE HEARINGS, TO AMEND SECTION 56-1-370 AND SECTION 56-1-410, RELATING TO THE REVIEW OF THE CANCELLATION, SUSPENSION, OR REVOCATION OF A DRIVER'S LICENSE, TO AMEND SECTION 56-1-1030 AND SECTION 56-1-1090, RELATING TO THE REVOCATION AND ISSUANCE OF THE DRIVER'S LICENSE OF A HABITUAL OFFENDER, TO AMEND SECTION 56-5-2951, RELATING TO THE SUSPENSION OF A PERSON'S DRIVER'S LICENSE FOR HIS REFUSAL TO SUBMIT TO TESTING FOR ALCOHOL, TO AMEND SECTION 56-9-363, RELATING TO AN ADMINISTRATIVE HEARING TO CHALLENGE THE SUSPENSION OF A DRIVER'S LICENSE, TO AMEND SECTION 56-15-350, RELATING TO THE DENIAL, SUSPENSION, OR REVOCATION OF A DRIVER'S LICENSE, TO REPEAL SECTION 56-5-2952, AND TO REPEAL SECTION 56-9-320. (ABBREVIATED TITLE)
asks for a Committee of Conference, and has appointed Reps. G.M. Smith, Harrison and F.N. Smith to the committee on the part of the House.
Very respectfully,
Speaker of the House
Received as information.
H. 4671 (Word version) -- Reps. G.M. Smith, Delleney and Harrison: A BILL TO AMEND SECTION 1-23-600, RELATING TO HEARINGS AND PROCEEDINGS THAT AN ADMINISTRATIVE LAW JUDGE SHALL PRESIDE OVER AND WHEN THE CLERK OF THE ADMINISTRATIVE LAW COURT MUST FILE A FINAL ORDER, TO AMEND SECTION 1-23-660, RELATING TO THE ADMINISTRATIVE LAW COURT DIVISION OF MOTOR VEHICLE HEARINGS, TO AMEND SECTION 56-1-370 AND SECTION 56-1-410, RELATING TO THE REVIEW OF THE CANCELLATION, SUSPENSION, OR REVOCATION OF A DRIVER'S LICENSE, TO AMEND SECTION 56-1-1030 AND SECTION 56-1-1090, RELATING TO THE REVOCATION AND ISSUANCE OF THE DRIVER'S LICENSE OF A HABITUAL OFFENDER, TO AMEND SECTION 56-5-2951, RELATING TO THE SUSPENSION OF A PERSON'S DRIVER'S LICENSE FOR HIS REFUSAL TO SUBMIT TO TESTING FOR ALCOHOL, TO AMEND SECTION 56-9-363, RELATING TO AN ADMINISTRATIVE HEARING TO CHALLENGE THE SUSPENSION OF A DRIVER'S LICENSE, TO AMEND SECTION 56-15-350, RELATING TO THE DENIAL, SUSPENSION, OR REVOCATION OF A DRIVER'S LICENSE, TO REPEAL SECTION 56-5-2952, AND TO REPEAL SECTION 56-9-320.
(ABBREVIATED TITLE)
Whereupon, Senators SHORT, HAWKINS and RITCHIE were appointed to the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.
S. 145 (Word version) -- Senator Mescher: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 50-13-390, TO PROVIDE THAT NO MORE THAN ONE ARKANSAS BLUE CATFISH OVER THIRTY-FOUR INCHES MAY BE TAKEN FROM THE WATERS OF LAKES MARION AND MOULTRIE BY ANY ONE PERSON IN ONE DAY, AND TO PROVIDE THAT THE PROVISIONS OF THIS SECTION APPLY TO COMMERCIAL AS WELL AS RECREATIONAL FISHERMEN.
On motion of Senator GREGORY, the Senate insisted upon its amendments to S. 145 and asked for a Committee of Conference.
Whereupon, Senators McCONNELL, MESCHER and GROOMS were appointed to the Committee of Conference on the part of the Senate and a message was sent to the House accordingly.
THE SENATE PROCEEDED TO THE INTERRUPTED DEBATE.
S. 1138 (Word version) -- Judiciary Committee: A BILL TO ENACT THE "SEX OFFENDER ACCOUNTABILITY AND PROTECTION OF MINORS ACT OF 2006" BY AMENDING SECTION 16-3-20, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PUNISHMENT FOR MURDER, SO AS TO ADD TO THE LIST OF AGGRAVATING CIRCUMSTANCES THAT THE MURDER WAS COMMITTED BY A PERSON DEEMED A SEXUALLY VIOLENT PREDATOR; TO AMEND SECTION 16-3-655, RELATING TO CRIMINAL SEXUAL CONDUCT WITH A MINOR, SO AS TO REVISE THE PENALTIES; TO AMEND SECTION 23-3-460, RELATING TO ANNUAL REGISTRATION FOR LIFE FOR PURPOSES OF THE SEX OFFENDER REGISTRY, SO AS TO PROVIDE FOR REGISTRATION EVERY SIX MONTHS RATHER THAN ANNUALLY; TO AMEND SECTION 23-3-530, RELATING TO THE PROTOCOL MANUAL DEVELOPED BY THE STATE LAW ENFORCEMENT DIVISION FOR THE SEX OFFENDER REGISTRY, SO AS TO PROVIDE CERTAIN NONEXCLUSIVE REQUIREMENTS THAT MUST BE INCLUDED IN THE PROTOCOL MANUAL; TO AMEND SECTION 23-3-540, RELATING TO THE ELECTRONIC MONITORING OF SEX OFFENDERS, SO AS TO ESTABLISH THE PERSONS WHO SHALL OR MAY BE ELECTRONICALLY MONITORED AND TO ESTABLISH THE PROCEDURES FOR MONITORING SUCH PERSONS; AND TO AMEND SECTION 23-3-550, RELATING TO HARBORING OR CONCEALING SEX OFFENDERS, SO AS TO REVISE THE OFFENSE OF ASSISTING OR HARBORING UNREGISTERED SEX OFFENDERS.
The Senate proceeded to a consideration of the Bill, the question being the adoption of Amendment No. 2A (1138R007.LAM) proposed by Senators BRYANT, MARTIN, KNOTTS, RYBERG, VERDIN, FAIR and RICHARDSON and previously printed in the Journal of Wednesday, March 22, 2006.
Senator MARTIN was recognized to speak on the Bill.
Senator MARTIN asked unanimous consent to make a motion to substitute Amendment No. 2B for Amendment No. 2A.
There was no objection.
Senators MARTIN, HUTTO, RITCHIE, KNOTTS, SHEHEEN, CAMPSEN, BRYANT and SETZLER proposed the following Amendment No. 2B (1138R011.LAM), which was adopted:
Amend the bill, as and if amended, SECTION 3, page 2, by striking lines 39-43 and page 3, by striking lines 1-7, and inserting:
/ (C)(1) A person convicted of a violation of subsection (A)(1) is guilty of a felony and, upon conviction, must be imprisoned for a mandatory minimum of twenty-five years, no part of which may be suspended or probation granted, or must be imprisoned for life. In the case of a person pleading guilty or nolo contendere to a violation of subsection (A)(1), the judge must make a specific finding on the record regarding whether the type of conduct that constituted the sexual battery involved sexual or anal intercourse by a person or intrusion by an object. In the case of a person convicted at trial for of a violation of subsection (A)(1), the judge or jury, whichever is applicable, must designate as part of the verdict whether the conduct that constituted the sexual battery involved sexual or anal intercourse by a person or intrusion by an object. If the person has previously been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent for first degree criminal sexual conduct with a minor who is less than eleven years of age or a federal or out-of-state offense that would constitute first degree criminal sexual conduct with a minor who is less than eleven years of age, he must be punished by death or by imprisonment for life, as provided by this section. For the purpose of determining a prior conviction under this subsection, the person must have been convicted of, pled guilty or nolo contendere to, or adjudicated delinquent on a separate occasion, prior to the instant adjudication, for first degree criminal sexual conduct with a minor who is less than eleven years of age or a federal or out-of-state offense that would constitute first degree criminal sexual conduct with a minor who is less than eleven years of age. In order to be eligible for the death penalty pursuant to this section, the sexual battery constituting the current offense and any prior offense must have involved sexual or anal intercourse by a person or intrusion by an object. If any prior offense that would make a person eligible for the death penalty pursuant to this section occurred prior to the effective date of this act and no specific finding was made regarding the nature of the conduct or is an out-of-state or federal conviction, the determination of whether the sexual battery constituting the prior offense involved sexual or anal intercourse by a person or intrusion by an object must be made in the separate sentencing proceeding provided by this section and proven beyond a reasonable doubt and designated in writing by the judge or jury, whichever is applicable. If the judge or jury, whichever is applicable, does not find that the prior offense involved sexual or anal intercourse by a person or intrusion by an object, then the person must be sentenced as otherwise provided for a first offense violation of subsection (A)(1). For purposes of this subsection, imprisonment for life means imprisonment until death.
(2) A person convicted of a violation of subsection (A)(2) is guilty of a felony and, upon conviction, must be imprisoned for not less than ten years nor more than thirty years, no part of which may be suspended or probation granted.
(3) A person convicted of a violation of subsection (B) is guilty of a felony and, upon conviction, must be imprisoned for not more than twenty years according to the discretion of the court.
(D) If the State seeks the death penalty, upon conviction or adjudication of guilt of a defendant pursuant to this section, a statutory aggravating circumstance is found beyond a reasonable doubt pursuant to subsections (D)(1) and (D)(2), and a recommendation of death is not made, the trial judge must impose a sentence of life imprisonment. For purposes of this section, 'life imprisonment' means until death of the offender without the possibility of parole, and when requested by the State or the defendant, the judge must charge the jury in his instructions that life imprisonment means until the death of the defendant without the possibility of parole. No person sentenced to life imprisonment, pursuant to this subsection, is eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, education credits, good conduct credits, or any other credits that would reduce the mandatory life imprisonment required by this section. Under no circumstances may a female who is pregnant be executed, so long as she is pregnant or for a period of at least nine months after she is no longer pregnant. When the Governor commutes a sentence of death imposed pursuant to this section to life imprisonment under the provisions of Section 14 of Article IV of the Constitution of South Carolina, 1895, the commutee is not eligible for parole, community supervision, or any early release program, nor is the person eligible to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the mandatory imprisonment required by this subsection.
(1) When the State seeks the death penalty, upon conviction or adjudication of guilt of a defendant pursuant to this section, the court shall conduct a separate sentencing proceeding. In the proceeding, if a statutory aggravating circumstance is found, the defendant must be sentenced to either death or life imprisonment. The proceeding must be conducted by the trial judge before the trial jury as soon as practicable after the lapse of twenty-four hours unless waived by the defendant. If trial by jury has been waived by the defendant and the State, or if the defendant pleaded guilty, the sentencing proceeding must be conducted before the judge. In the sentencing proceeding, the jury or judge shall hear additional evidence in extenuation, mitigation, or aggravation of the punishment. Only such evidence in aggravation as the State has informed the defendant in writing before the trial is admissible. This section must not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States, or the State of South Carolina, or the applicable laws of either. The State, the defendant, and his counsel are permitted to present arguments for or against the sentence to be imposed. The defendant and his counsel shall have the closing argument regarding the sentence to be imposed.
(2) In sentencing a person, upon conviction or adjudication of guilt of a defendant pursuant to this section, the judge shall consider, or he shall include in his instructions to the jury for it to consider, mitigating circumstances otherwise authorized or allowed by law and the following statutory aggravating and mitigating circumstances which may be supported by the evidence:
(a) Statutory aggravating circumstances:
(i) The victim's resistance was overcome by force.
(ii) The victim was prevented from resisting the act because the actor was armed with a dangerous weapon.
(iii) The victim was prevented from resisting the act by threats of great and immediate bodily harm, accompanied by an apparent power to inflict bodily harm.
(iv) The victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing his resistance.
(v) The crime was committed by a person with a prior conviction for murder.
(vi) The offender committed the crime for himself or another for the purpose of receiving money or a thing of monetary value.
(vii) The offender caused or directed another to commit the crime or committed the crime as an agent or employee of another person.
(viii) The crime was committed against two or more persons by the defendant by one act, or pursuant to one scheme, or course of conduct.
(ix) The crime was committed during the commission of burglary in any degree or kidnapping.
(b) Mitigating circumstances:
(i) The defendant has no significant history of prior criminal convictions involving the use of violence against another person.
(ii) The crime was committed while the defendant was under the influence of mental or emotional disturbance.
(iii) The defendant was an accomplice in the crime committed by another person and his participation was relatively minor.
(iv) The defendant acted under duress or under the domination of another person.
(v) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(vi) The age or mentality of the defendant at the time of the crime.
(vii) The defendant was below the age of eighteen at the time of the crime.
The statutory instructions as to statutory aggravating and mitigating circumstances must be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of death, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances, which it found beyond a reasonable doubt. The jury, if it does not recommend death, after finding a statutory aggravating circumstance or circumstances beyond a reasonable doubt, shall designate in writing, and signed by all members of the jury, the statutory aggravating circumstance or circumstances it found beyond a reasonable doubt. In nonjury cases, the judge shall make the designation of the statutory aggravating circumstance or circumstances. Unless at least one of the statutory aggravating circumstances enumerated in this section is found, the death penalty must not be imposed.
Where a statutory aggravating circumstance is found and a recommendation of death is made, the trial judge shall sentence the defendant to death. The trial judge, before imposing the death penalty, shall find as an affirmative fact that the death penalty was warranted under the evidence of the case and was not a result of prejudice, passion, or any other arbitrary factor. Where a statutory aggravating circumstance is found and a sentence of death is not recommended by the jury, the trial judge shall sentence the defendant to life imprisonment as provided in subsection (D)(4). Before dismissing the jury, the trial judge shall question the jury as to whether or not it found a statutory aggravating circumstance or circumstances beyond a reasonable doubt. If the jury does not unanimously find any statutory aggravating circumstances or circumstances beyond a reasonable doubt, it shall not make a sentencing recommendation. Where a statutory aggravating circumstance is not found, the trial judge shall sentence the defendant to life imprisonment. No person sentenced to life imprisonment under this section is eligible for parole or to receive any work credits, good conduct credits, education credits, or any other credits that would reduce the sentence required by this section. If the jury has found a statutory aggravating circumstance or circumstances beyond a reasonable doubt, the jury shall designate this finding, in writing, signed by all the members of the jury. The jury shall not recommend the death penalty if the vote for such penalty is not unanimous as provided. If members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant upon conviction or adjudication of guilt of a defendant pursuant to this section, the trial judge shall dismiss such jury and shall sentence the defendant to life imprisonment, as provided in subsection (D)(4).
(3) Notwithstanding the provisions of Section 14-7-1020, in cases involving capital punishment a person called as a juror must be examined by the attorney for the defense.
(4) In a criminal action pursuant to this section, which may be punishable by death, a person may not be disqualified, excused, or excluded from service as a juror by reason of his beliefs or attitudes against capital punishment unless such beliefs or attitudes would render him unable to return a verdict according to law.
(E)(1) In all cases in which an individual is sentenced to death pursuant to this section, the trial judge shall, before the dismissal of the jury, verbally instruct the jury concerning the discussion of its verdict. A standard written instruction shall be promulgated by the Supreme Court for use in capital cases brought pursuant to this section.
(2) The verbal instruction shall include:
(a) the right of the juror to refuse to discuss the verdict;
(b) the right of the juror to discuss the verdict to the extent that the juror so chooses;
(c) the right of the juror to terminate any discussion pertaining to the verdict at any time the juror so chooses;
(d) the right of the juror to report any person who continues to pursue a discussion of the verdict or who continues to harass the juror after the juror has refused to discuss the verdict or communicated a desire to terminate discussion of the verdict; and
(e) the name, address, and phone number of the person or persons to whom the juror should report any harassment concerning the refusal to discuss the verdict or the juror's decision to terminate discussion of the verdict.
(3) In addition to the verbal instruction of the trial judge, each juror, upon dismissal from jury service, shall receive a copy of the written jury instruction set forth in subsection (1).
(F)(1) Whenever the death penalty is imposed pursuant to this section, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of South Carolina. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of South Carolina together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court of South Carolina.
(2) The Supreme Court of South Carolina shall consider the punishment as well as any errors by way of appeal.
(3) With regard to the sentence, the court shall determine:
(a) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
(b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (D)(2)(a), and
(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(4) Both the defendant and the State shall have the right to submit briefs within the time provided by the court and to present oral arguments to the court.
(5) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(a) Affirm the sentence of death; or
(b) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of South Carolina in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration. If the court finds error prejudicial to the defendant in the sentencing proceeding conducted by the trial judge before the trial jury as outlined under subsection (D)(1), the court may set the sentence aside and remand the case for a resentencing proceeding to be conducted by the same or a different trial judge and by a new jury impaneled for such purpose. In the resentencing proceeding, the new jury, if the defendant does not waive the right of a trial jury for the resentencing proceeding, shall hear evidence in extenuation, mitigation, or aggravation of the punishment in addition to any evidence admitted in the defendant's first trial relating to guilt for the particular crime for which the defendant has been found guilty.
(6) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on all legal errors, the factual substantiation of the verdict, and the validity of the sentence.
(G)(1) Whenever the solicitor seeks the death penalty pursuant to this section, he shall notify the defense attorney of his intention to seek such penalty at least thirty days prior to the trial of the case. At the request of the defense attorney, the defense attorney shall be excused from all other trial duties ten days prior to the term of court in which the trial is to be held.
(2)(a) Whenever any person is charged with first degree criminal sexual conduct with a minor who is less than eleven years and the death penalty is sought, the court, upon determining that such person is unable financially to retain adequate legal counsel, shall appoint two attorneys to defend such person in the trial of the action. One of the attorneys so appointed shall have at least five years' experience as a licensed attorney and at least three years' experience in the actual trial of felony cases, and only one of the attorneys so appointed shall be the public defender or a member of his staff. In all cases where no conflict exists, the public defender or member of his staff shall be appointed if qualified. If a conflict exists, the court shall then turn first to the contract public defender attorneys, if qualified, before turning to the Office of Indigent Defense.
(b) Notwithstanding any other provision of law, the court shall order payment of all fees and costs from funds available to the Office of Indigent Defense for the defense of indigent. Any attorney appointed shall be compensated at a rate not to exceed fifty dollars per hour for time expended out of court and seventy-five dollars per hour for time expended in court. Compensation shall not exceed twenty-five thousand dollars and shall be paid from funds available to the Office of Indigent Defense for the defense of indigent represented by court-appointed, private counsel.
(3)(a) Upon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment, from funds available to the Office of Indigent Defense, of fees and expenses not to exceed twenty thousand dollars as the court shall deem appropriate. Payment of such fees and expenses may be ordered in cases where the defendant is an indigent represented by either court-appointed, private counsel or the public defender.
(b) Court-appointed counsel seeking payment for fees and expenses shall request these payments from the Office of Indigent Defense within thirty days after the completion of the case. For the purposes of this statute, exhaustion of the funds shall occur if the funds administered by the Office of Indigent Defense and reserved for death penalty fees and expenses have been reduced to zero. If either the Death Penalty Trial Fund or the Conflict Fund has been exhausted in a month and the other fund contains money not scheduled to be disbursed in that month, then the Indigent Defense Commission must transfer a sufficient amount from the fund with the positive fund balance to the fund with no balance and pay the obligation to the extent possible.
(4) Payment in excess of the hourly rates and limit in subsection (2) or (3) is authorized only if the court certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel and payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred. Upon a finding that timely procurement of such services cannot await prior authorization, the court may authorize the provision of and payment for such services nunc pro tunc.
(5) After completion of the trial, the court shall conduct a hearing to review and validate the fees, costs, and other expenditures on behalf of the defendant.
(6) The Supreme Court shall promulgate guidelines on the expertise and qualifications necessary for attorneys to be certified as competent to handle death penalty cases brought pursuant to this section.
(7) The Office of Indigent Defense shall maintain a list of death penalty qualified attorneys who have applied for and received certification by the Supreme Court as provided for herein. In the event the court appointed counsel notifies the chief administrative judge in writing that he or she does not wish to provide representation in a death penalty case, the chief administrative judge shall advise the Office of Indigent Defense which shall forward a name or names to the chief administrative judge for consideration. The appointment power is vested in the chief administrative judge. The Office of Indigent Defense shall establish guidelines as are necessary to ensure that attorneys' names are presented to the judges on a fair and equitable basis, taking into account geography and previous assignments from the list. Efforts shall be made to present an attorney from the area or region where the action is initiated.
(8) The payment schedule set forth herein, as amended by Act 164 of 1993, shall apply to any case for which trial occurs on or after July 1, 1993.
(9) Notwithstanding another provision of law, only attorneys who are licensed to practice in this State and residents of this State may be appointed by the court and compensated with funds appropriated to the Death Penalty Trial Fund in the Office of Indigent Defense. This proviso shall not pertain to any case in which counsel has been appointed on the effective date of this act.
(10) The judicial department biennially shall develop and make available to the public a list of standard fees and expenses associated with the defense of an indigent person in a death penalty case.
(H) Notwithstanding any other provision of law, in any trial pursuant to this section where the maximum penalty is death or in a separate sentencing proceeding following such trial, the defendant and his counsel shall have the right to make the last argument. /
Amend the bill further, as and if amended, by adding an appropriately numbered new SECTION to read:
/ SECTION ___. It is the intent of the General Assembly that one of the purposes of this act is to provide for the death penalty for a subsequent offense of first degree criminal sexual conduct with a minor who is less than eleven years of age and that this act does not alter or amend and is separate and distinct from the provisions of Section 16-3-20, providing for the imposition of the death penalty for murder. /
Renumber sections to conform.
Amend title to conform.
Senator MARTIN explained the amendment.
Senator KNOTTS spoke on the amendment.
The "ayes" and "nays" were demanded and taken, resulting as follows:
Alexander Bryant Campsen Cleary Courson Cromer Elliott Fair Gregory Grooms Hawkins Hayes * Knotts Land Leatherman Leventis Lourie Martin Matthews McConnell McGill Mescher * Moore O'Dell Peeler Rankin Reese * Richardson Ritchie Ryberg Scott Setzler Sheheen Short Smith, J. Verne * Thomas Verdin Williams
Anderson Ford Jackson Pinckney
Malloy
*These Senators were not present in the Chamber at the time the vote was taken and the votes were recorded by leave of the Senate, with unanimous consent.
The amendment was adopted.
Senators KNOTTS and CAMPSEN proposed the following Amendment No. 3 (JUD1138.001), which was adopted:
Amend the bill, as and if amended, page 12, by inserting an appropriately numbered new SECTION after line 24 to read:
/ SECTION ___. Section 17-25-45(F) of the 1976 Code, as amended, is further amended to read:
"Section 17-25-45(F). For the purpose of determining a prior or previous conviction under this section only and Section 17-25-50, a prior or previous conviction shall mean the defendant has been convicted of a most serious or serious offense, as may be applicable, on a separate occasion, prior to the instant adjudication. There is no requirement that the sentence for the prior or previous conviction must have been served or completed before a sentence of life without parole can be imposed under this section." /
Renumber sections to conform.
Amend title to conform.
Senator MARTIN explained the amendment.
The amendment was adopted.
Senators FAIR and SHORT proposed the following Amendment No. 5 (JUD1138.004), which was adopted:
Amend the bill, as and if amended, page 8, by striking lines 1-10 and inserting:
/ (b) criminal sexual conduct with minors, a minor in the second degree (Section 16-3-655(B)). If evidence is presented at the criminal proceeding and the court makes a specific finding on the record that the conviction obtained for this offense resulted from consensual sexual conduct, as contained in Section 16-3-655(3)(B), provided the offender is eighteen years of age or less, or consensual sexual conduct between persons under sixteen years of age, then the convicted person is not an offender and is not required to register be electronically monitored pursuant to the provisions of this article section; /
Renumber sections to conform.
Amend title to conform.
Senator FAIR explained the amendment.
The amendment was adopted.
Having voted on the prevailing side, Senator FAIR moved to reconsider the vote whereby the amendment (MS\7179AHB06) proposed by Senators FAIR and SHORT was adopted on March 16, 2006.
There was no objection and the motion to reconsider the vote whereby the amendment (MS\7179AHB06) proposed by Senators FAIR and SHORT was adopted on March 16, 2006.
The question then was the adoption of the amendment bearing Document No. (MS\7179AHB06).
On motion of Senator FAIR, with unanimous consent, the amendment (MS\7179AHB06), previously adopted on March 16, 2006, was withdrawn.
Senator HUTTO proposed the following Amendment No. 7 (JUD1138.005), which was adopted:
Amend the bill, as and if amended, page 13, after line 8, by adding an appropriately numbered new SECTION to read:
/ SECTION ___. Chapter 23, Title 17 of the 1976 Code is amended by adding:
"Section 17-23-175. (A) Unless otherwise admissible, an out-of-court statement made to a third party by a child victim or child witness is admissible in a general sessions court proceeding or a delinquency proceeding in family court if:
(1) the child testifies at the proceeding; and
(2) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness.
(B) For purposes of this section, a 'child victim' or 'child witness' is a person who:
(1) is under the age of twelve at the time of the making of the statement or who functions cognitively, adaptively, or developmentally under the age of twelve at the time of the making of the statement; and
(2) is the child victim of or child witness to the following offenses:
(a) criminal sexual conduct in the first degree as defined in Section 16-3-652;
(b) criminal sexual conduct in the second degree as defined in Section 16-3-653;
(c) criminal sexual conduct in the third degree as defined in Section 16-3-654;
(d) criminal sexual conduct with minors as defined in Section 16-3-655;
(e) assault with intent to commit criminal sexual conduct as defined in Section 16-3-656;
(f) kidnapping or conspiracy to kidnap as defined in Sections 16-3-910 and 16-3-920;
(g) committing or attempting a lewd act upon a child as defined in Section 16-15-140;
(h) knowingly disseminating obscene material to a minor twelve years of age or younger as defined in Section 16-15-355;
(i) first degree sexual exploitation of a minor as defined in Section 16-15-395;
(j) second degree sexual exploitation of a minor as defined in Section 16-15-405;
(k) third degree sexual exploitation of a minor as defined in Section 16-15-410;
(l) promoting prostitution of a minor as defined in Section 16-15-415;
(m) participating in the prostitution of a minor as defined in Section 16-15-425;
(n) contributing to the delinquency of a minor as defined in Section 16-17-490;
(o) homicide by child abuse as defined in Section 16-3-85;
(p) infliction or allowing infliction of great bodily injury upon a child as defined in Section 16-3-95;
(q) physical harm or injury as defined in Sections 16-25-20 or 16-25-40;
(r) criminal domestic violence of a high and aggravated nature as defined in Section 16-25-65;
(s) unlawful conduct toward a child as defined in Section 20-7-50;
(t) cruelty to children as defined in Section 20-7-70; or
(u) the common law offense of assault and battery of a high and aggravated nature.
(C) In determining whether a statement possesses sufficient guarantees of trustworthiness under item (A)(2), the court may consider, but is not limited to, the following factors:
(1) the child's personal knowledge of the event;
(2) the age and maturity of the child;
(3) the certainty that the statement was made, including the credibility of the person testifying about the statement;
(4) any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;
(5) whether more than one person heard the statement;
(6) whether the child was suffering pain or distress when making the statement;
(7) the nature and duration of any alleged abuse;
(8) whether the child's young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child's knowledge and experience;
(9) whether the statement has a ring of verity, has internal consistency or coherence, and uses terminology appropriate to the child's age;
(10) whether extrinsic evidence exists to show the defendant's opportunity to commit the act complained of in the child's statement;
(11) whether there is pending litigation between the parents of the child; and
(12) any inculpatory statement of the defendant that corroborates the child's statement.
(D)(1) The proponent of the statement must inform the adverse party of the proponent's intention to offer the statement at least thirty days prior to the proceeding at which it is to be offered. If a statement is made or discovered within thirty days of the proceeding, the proponent must inform the adverse party of the proponent's intention to offer the statement within forty-eight hours of when the proponent knows of the existence of the statement.
(2) The contents of a statement offered under this section are subject to discovery pursuant to Rule 5 of the Rules of Criminal Procedure.
(3) If the declarant is twelve years of age or older, the adverse party may challenge the decision that the child functions cognitively, adaptively, or developmentally under the age of twelve." /
Renumber sections to conform.
Amend title to conform.
Senator HUTTO explained the amendment.
The amendment was adopted.
Senator LEVENTIS proposed the following Amendment No. 8 (MS\ 7299AHB06), which was tabled:
Amend the bill, as and if amended, by adding an appropriately numbered SECTION at the end to read:
/ SECTION___. For each conviction pursuant Section 16-3-655(C), involving first degree criminal sexual conduct with a minor under the age of eleven, in which a death sentence is imposed, the General Assembly is required to deposit one million dollars into a special fund in the State Treasurer's office. Monies deposited in this special fund must be used to defray the costs of incarceration, appeals, and other costs associated with the imposition of the death sentence.
Distribution of the monies in this special fund must be determined by a three-member panel consisting of the Attorney General, the director of the Department of Corrections, and the director of the Commission on Indigent Defense through a voucher system developed by the panel. Distribution of the funds to the appropriate persons or agencies must be completed within a month after the execution. Excess monies remaining after all vouchers have been appropriately processed are to be returned to the General Fund. /
Renumber sections to conform.
Amend title to conform.
Senator LEVENTIS explained the amendment.
Senator LEVENTIS moved that the amendment be adopted.
Senator LEATHERMAN moved to lay the amendment on the table.
The "ayes" and "nays" were demanded and taken, resulting as follows:
Alexander Bryant Campsen Cleary Courson Cromer Elliott Fair Gregory Grooms Hawkins Hayes Knotts Leatherman Lourie Martin McConnell McGill Mescher * Moore O'Dell * Peeler Rankin Richardson Ritchie Ryberg Scott Setzler Thomas Verdin Williams
Anderson Ford Hutto Jackson Land Leventis Malloy Matthews Pinckney Sheheen
*These Senators were not present in the Chamber at the time the vote was taken and the votes were recorded by leave of the Senate, with unanimous consent.
Senator LEVENTIS rose for an Expression of Personal Interest.
The amendment was laid on the table.
At 2:44 P.M., Senator McCONNELL assumed the Chair.
The question then was the second reading of the Bill.
Senator LEVENTIS spoke on the Bill.
Senator MALLOY spoke on the Bill.
There being no further amendments, the Bill was read the second time, passed and ordered to a third reading.
The Bill was returned to the status of Special Order.
THE SENATE PROCEEDED TO THE ADJOURNED DEBATE.
S. 969 (Word version) -- Senators McConnell, Leatherman, Thomas, Martin, Short, Alexander, Richardson, Ritchie, Sheheen, Campsen, Williams, Ford, Anderson and Knotts: A JOINT RESOLUTION PROPOSING AN AMENDMENT TO SECTION 7, ARTICLE X OF THE CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO ANNUAL BUDGETS AND EXPENSES OF POLITICAL SUBDIVISIONS AND SCHOOL DISTRICTS, SO AS TO PROVIDE THAT IF A TAX MUST BE LEVIED TO PAY FOR A DEFICIENCY OF THE PRECEDING YEAR, ANY CATASTROPHIC EVENT OUTSIDE THE CONTROL OF THE GOVERNING BODY, OR COMPLIANCE WITH A COURT ORDER OR DECREE, THE AMOUNT OF TAX PAID BY A TAXPAYER MUST BE LISTED ON THE TAX STATEMENT AS A SEPARATE SURCHARGE AND NOT INCLUDED WITH A GENERAL MILLAGE INCREASE; AND PROPOSING AN AMENDMENT TO ARTICLE X OF THE CONSTITUTION OF THIS STATE, RELATING TO FINANCE AND TAXATION, BY ADDING SECTION 17, SO AS TO PROVIDE THAT, EXCEPT IN CERTAIN CIRCUMSTANCES, A SCHOOL DISTRICT, COUNTY, MUNICIPALITY, SPECIAL PURPOSE DISTRICT, PUBLIC SERVICE DISTRICT, OR POLITICAL SUBDIVISION OF THE STATE MUST LIMIT AN INCREASE IN ITS MILLAGE RATE TO NO MORE THAN THE AVERAGE OF THE PERCENTAGE INCREASES IN THE TOTAL PERSONAL INCOME GROWTH IN THE STATE FOR EACH OF THE THREE PREVIOUSLY COMPLETED CALENDAR YEARS FOR WHICH FIGURES ARE AVAILABLE FROM THE UNITED STATES DEPARTMENT OF COMMERCE.
The Senate proceeded to a consideration of the Joint Resolution, the question being the second reading of the Joint Resolution.
On motion of Senator MARTIN, the Joint Resolution was carried over.
THE SENATE PROCEEDED TO THE SPECIAL ORDERS.
H. 4429 (Word version) -- Reps. Townsend, Mitchell, Edge, J.E. Smith, Viers, Harrell, Clark, Clyburn, Littlejohn, Walker, Clemmons, Cooper, Barfield, Govan, Frye, Bailey, Huggins, Leach, Witherspoon, Anderson, Hardwick, Hiott, Rhoad, W.D. Smith, Miller, Altman, Anthony, Bales, Ballentine, Battle, Brady, Branham, G. Brown, J. Brown, R. Brown, Cato, Ceips, Chalk, Chellis, Davenport, Duncan, Hagood, Haley, Hamilton, Harrison, Hayes, Herbkersman, J. Hines, Hosey, Howard, Jefferson, Kennedy, Limehouse, Loftis, Mahaffey, Martin, McCraw, McGee, Merrill, J.H. Neal, Ott, Perry, E.H. Pitts, M.A. Pitts, Rice, Rutherford, Sandifer, Scarborough, Scott, Simrill, D.C. Smith, F.N. Smith, G.R. Smith, J.R. Smith, Thompson, Vick, White, Young, McLeod, Jennings, Tripp, Haskins and Delleney: A BILL TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 59-1-425 SO AS TO REVISE AND FURTHER PROVIDE FOR THE LENGTH OF THE SCHOOL TERM AND THE BEGINNING OF THE SCHOOL TERM, THE USE OF SCHOOL DAYS, AND PROVISIONS FOR MAKE-UP DAYS; AND TO REPEAL SECTION 59-1-420 RELATING TO THE LENGTH OF THE SCHOOL TERM, SECTION 59-1-430 RELATING TO MAKE-UP DAYS, AND SECTION 59-1-440 RELATING TO THE HOURS AND USE OF A SCHOOL DAY.
The Senate proceeded to a consideration of the Bill, the question being the third reading of the Bill.
Senator LEVENTIS asked unanimous consent to make a motion to take up a further amendment pursuant to the provisions of Rule 26B.
Senator RICHARDSON objected.
Senator LEVENTIS spoke on the Bill.
On motion of Senator MARTIN, with unanimous consent, debate was interrupted, with Senator LEVENTIS retaining the floor.
On motion of Senator RANKIN, with unanimous consent, the Senate stood adjourned out of respect to the memory of Reverend Casey Alfred Barnhill of Gallivants Ferry, S.C.
At 3:29 P.M., on motion of Senator MARTIN, the Senate adjourned to meet tomorrow at 2:00 P.M.
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