In South Carolina, government contracting can be a lucrative opportunity for businesses, but it comes with its share of challenges — one of which is dealing with bid protests. Whether you’re an established contractor or new to public procurement, understanding how bid protests work in South Carolina is essential to protecting your rights and ensuring a fair process.
What Is a Bid Protest?
A bid protest is a formal challenge to the awarding of a government contract. Contractors may file a protest if they believe the solicitation documents are ambiguous or defective, the procurement process was unfair, the procuring agency violated statutory or regulatory requirements, the evaluation was improper, there was a conflict of interest, or if the award decision was otherwise improper. In South Carolina, bid protests typically arise under contracts procured by state agencies, municipalities, school districts, or other public entities.
Below, we break down the key rules and procedures you need to know to protect your interests under South Carolina law.
Governing Law: South Carolina Consolidated Procurement Code
For state-level procurements, the South Carolina Consolidated Procurement Code (S.C. Code Ann. § 11-35-10 et seq.) governs the bid protest process. The code sets forth specific procedures and strict timelines that must be followed.
Local governments (like cities and counties) often have their own procurement ordinances, but many mirror the state process to some degree. It is important to check the specific rules applicable to the agency involved.
Who Has the Right to Protest?
A prospective or actual bidder, offeror, contractor, or subcontractor who is aggrieved by the terms of a solicitation or by the intended award or actual award of a contract has the right to protest.
The timing and manner of protests depend on the nature of the grievance:
- Solicitation Protests –If you object to the terms of a solicitation (such as an Invitation for Bids or Request for Proposals), you must file a protest within 15 days of the date the solicitation or any relevant amendment is issued.
- Award Protests –If you object to the intended award or actual award of a contract:
- You must notify the appropriate chief procurement officer (CPO) in writing of your intent to protest within seven business days (or five business days for certain contracts under Sections 11-35-1560 and 11-35-1570) after the award or notice of intended award is posted.
- You must then file your formal protest within 15 days of the date the award or intent to award is posted.
Importantly, if you could have raised an issue as a solicitation protest but did not, you generally cannot raise it later in an award protest.
How to File a Protest
Protests must be in writing, filed with the appropriate CPO, and must:
- Set forth the grounds for the protest, and
- Specify the relief requested with enough detail to give notice of the issues to be decided.
The protest must be received (not just mailed) within the applicable deadlines.
What Happens After You File?
Attempt to Settle
Before launching a formal review, the CPO, the head of the purchasing agency, or their designees may attempt to settle the protest by mutual agreement.
Administrative Review
If settlement is not possible, the CPO must promptly conduct an administrative review.
- The review must begin no later than 15 business days after the protest is filed.
- A written decision must be issued within 10 days of completing the review, explaining the reasons for the action taken.
Notice and Appeals
A copy of the decision, including an explanation of appeal rights, will be provided to the protestant and other interested parties.
- The decision becomes final and conclusive unless a party requests a further review by the Procurement Review Panel within 10 days of the decision’s posting.
- A request for review must be in writing, explaining the basis for disagreement, and may also include a request for a hearing.
Both the CPO and affected governmental bodies have the right to participate fully in any subsequent administrative or judicial review.
Automatic Stay of Procurement During Protests
Generally, once a timely protest is filed, the state is prohibited from moving forward with the procurement or contract award until 10 days after the CPO’s decision is posted or, if an appeal is taken, until the Procurement Review Panel issues its decision.
However, this automatic stay can be overridden if the CPO, after consulting with the head of the using agency, determines in writing that proceeding without delay is necessary to protect the state’s interests.
Important Note: CPO Contact Information
Every solicitation and notice of intended award must include the address of the appropriate chief procurement officer, ensuring that all parties know where to direct their protests.
Practical Considerations
- Act quickly – Deadlines are short and strictly enforced.
- Be specific –General complaints will not be enough; protests must cite specific legal or procedural violations.
- Consult counsel early –An attorney experienced in procurement law can help evaluate the merits of your protest and ensure compliance with all procedural requirements.
Conclusion
Bid protests in South Carolina offer an important mechanism to ensure fairness and accountability in public procurement. However, the process is technical, fast moving, and often complex. Contractors should be proactive in monitoring procurement activities, understand their rights, and seek legal guidance when necessary.