Could a bidder protest South Carolina’s decision not to buy a proposed building under the state procurement code?

Plain-English summary

A legislator asked whether a constituent could use South Carolina’s procurement protest process after the State Budget and Control Board did not act on a solicitation for purchase of real property. The constituent had offered to construct a building and sell it to the Board. The 1996 AG said the procurement code did not govern the purchase of real property, so it provided no remedy to protest the Board’s decision on that solicitation.

The letter addressed only that narrow protest question. Litigation was pending over a related state lease and possible appellate remedy, so the AG expressly refrained from addressing the other questions about the leasing process. His answer did not resolve those matters.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the procurement code offer this bidder a protest? A: No. The opinion said the solicitation concerned a real-property sale, outside the code’s coverage of state acquisition of goods and services.

Q: Did it matter that the bidder planned to build the property first? A: The AG described the bid as construction followed by sale of the completed building as real property. He still found the procurement code inapplicable.

Q: Did the AG decide whether the state’s separate lease was lawful? A: No. Because litigation concerning the lease process was pending, the AG declined to opine on those issues.

Background and statutory framework

The opinion identified the South Carolina Consolidated Procurement Code beginning at S.C. Code Ann. § 11-35-10. It distinguished a proposed sale of real property to the state from the acquisition of goods and services covered by that code.

Citations and references

Statute discussed: S.C. Code Ann. § 11-35-10.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-22-1996/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96apr22quinn.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

April 22, 1996

The Honorable Richard M. Quinn, Jr.
Member, House of Representatives
503 Blatt Building
Columbia, South Carolina 2921 1
Re:

Informal Opinion

Dear Representative Quinn:
Attorney General Condon has referred your recent letter to me for reply. You seek an opinion on various issues raised by one of your constituents concerning the AT& T Building lease agreement between the State Budget and Control Board (hereinafter "Board") and Capitol Center Associates. In particular, your constituent asks whether he has the right to protest under the South Carolina Consolidated Procurement Code, S.C. Code Ann. § 11-35-10 et seq., (hereinafter "Code"), the Board's decision not to act on their "Solicitation for Purchase of Real Property" dated April 24, 1995 (hereinafter "Solicitation"). At this time, there is litigation pending before the circuit court regarding whether there is a statutorily prescribed appellate remedy involving the State's decision to enter into a lease of real property. As you know, this Office has a long-standing policy of not issuing advisory opinions on matters that are pending resolution by a court or administrative body. Because this Office must scrupulously avoid even the appearance of usurping the court's power and responsibility to decide matters before it, we must respectfully refrain from opining on a number of issues raised by your constituent which question the leasing process. Consequently, the only issue that will be addressed in this opinion is whether your constituent has a right under the Code to protest the Board's decision to not act in connection with the Solicitation.

The Honorable Richard M. Quinn, Jr.
Page 2
April 22, 1996

In the present case, the Solicitation invited proposals

for the sale of an existing

building or a building that would be constructed by the bidder and then sold to the Board as real property. Your constituent submitted a proposal in which he would construct a building and, upon completion, sell the building to the Board. The Code does not in any way govern the purchase of real property; instead, the Code governs the acquisition of goods and services by the State and its agencies. Since the Solicitation involved the sale of real property, the Code does not apply to the facts presented by your constituent. Thus, the Code does not provide a remedy to protest the Board's decision. This letter is an informal opinion only. It has been written by a designated assistant attorney general and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

Very truly yours,

/!J ;1'. A;~

Paul M. Koch
Assistant Attorney General
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