Was Marlboro County’s bid-protest process invalid because its administrator also recommended awards?

Plain-English summary

Marlboro County’s bid-protest board included its administrator, who also made procurement recommendations to council. The Attorney General said in 2009 that the arrangement did not categorically violate the requirement for sound, appropriately competitive county procurement. A person challenging it would have to show unfairness or bias under the particular facts. The office said it could not conclusively make that factual determination, and only a court could declare the ordinance invalid.

Currency note

This opinion was issued in 2009. 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 administrator’s two roles automatically make the protest process unfair? A: The opinion said no. It noted the administrator was one of three protest-board members and that officials were presumed fair unless shown otherwise.

Q: Did South Carolina require every county to use one fixed procurement procedure? A: No. The opinion read Section 11-35-50 as requiring sound competitive principles while allowing local governments flexibility in procedure.

Q: Did the AG decide the Marlboro ordinance was valid against every challenge? A: No. It presumed the ordinance valid but declined a conclusive factual finding on bias and said only a court could invalidate it.

Background and statutory framework

The Governor’s office asked about an ordinance that made the protest board’s decision final and placed the administrator in both recommendation and protest roles. The Attorney General applied a presumption of ordinance validity, the procurement statute, and state cases on combined administrative functions. It left any showing of actual unfairness to a fact-specific challenge.

Citations and references

Statute: S.C. Code Ann. § 11-35-50.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/january-21-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/gaskins-e-b-os-8719-1-21-09-marlboro-county-procurement-practices-procedures.pdf

Original opinion text

HENRY M CMASTER
ATfORNEY GENERAL

January 21, 2009

E. Brandon Gaskins, Deputy Chief Counsel
Office of the Governor
P. 0. Box 12267
Columbia, South Carolina 29211
DearMr. Gaskins:
In a letter to this office you indicated that a question has been raised regarding Marlboro County's procurement practices and procedures. Specifically, concerns have been raised as to the soundness and fairness of the protest procedure in the procurement ordinance. Pursuant to S.C. Code Ann. § 11-35-50, political subdivisions, including counties, are to "adopt ordinances or procedures embodying sound principles of appropriately competitive procurement.. .." You indicated that the Marlboro County procurement ordinance creates a protest board, consisting of the county administrator, county purchasing officer, and a third member appointed by the county administrator which has the responsibility of making the "final, conclusive, and binding" determination regarding any protest. You stated that the Marlboro County administrator is also responsible for "conduct[ing] the final analysis and prepar[ing] the final recommendation for the [County] council" which has the final authority regarding procurement awards. You stated that "there is a concern whether the protest procedure under the Marlboro County procurement ordinance is independent and fair because of the county administrator's dual role in recommending procurement awards and determining protests and because of the lack of judicial review for procurement awards." As referenced in an opinion of this office dated March 10, 2008, an ordinance ... is presumed to be both reasonable and otherwise valid, and not to be struck down unless 'palpably arbitrary, capricious or unreasonable... '" U.S. Fid. & Guar. Co. v. City of Newbeny, 257 S.C. 433, 186 S.E.2d 239 (1972) (quoting Colonial Life & Accident Ins. Co. v. South Carolina Tax Comm'n, 233 S.C. 129, 103 S.E.2d 908, 917 (1958)). Furthermore, only a court, not this Office, has the power to declare an ordinance invalid.

REMBERT C. D ENNIS B u 11. 01NG

•

Pos-r OFP!CE B ox 11549

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CoLUMllLA , SC 292 LI - L549

• TELEPHONE 803-734-3970 •

FAC".S IMILE 803-253-6283

Mr. Gaskins
Page 2
January 21, 2009

See also: Op. S.C. Atty. Gen., January 29, 1997. Therefore, consistent with such, it is presumed that the Marlboro County ordinance is valid and only a court may declare the ordinance invalid. With regard to the particular ordinance, another opinion of this office dated June 1, 2005 indicated that
... a county is not required to follow the State Procurement Code... (but instead) ... must " ... adopt ordinances or procedures embodying sound principles of appropriately competitive procurement.. .. As referenced in that opinion, in Glasscock Company Inc. v. Sumter County, 361 S.C. 483, 490, 604 S.E.2d 718, 721 (Ct.App. 2004), the State Court of Appeals stated that
... we note that Section 11-35-50 does not impose a specific requirement that all public procurement in our state be carried out by way of a single, narrowly defined procedure. While its mandate that all government bodies adopt some form of competitive procurement policies is unambiguous, the statute's broad directive that the processes "embody sound principles of appropriately competitive procurement" clearly was intended to afford local governments needed flexibility to determine what is "appropriately competitive" in light of the public business they must transact. The opinion further noted the Court's conclusion that
... the fact that " .. .local governments should be afforded a reasonable degree of latitude in devising their own individual procurement ordinances and procedures is entirely consistent with our state's now firmly rooted constitutional principle of 'home rule'." 361 S.C. at 490. As to the issue of fairness with regard to the Marlboro County procurement procedure, the State Supreme Court in Garris v. Governing Board of the South Carolina Reinsurance Facility, 333 S.C. 432, 443-444, 511 S.E.2d 48, 54 (1998) that
[a] fair trial in a fair tribunal is a basic requirement of due process ... The fact that investigative, prosecutorial and adjudicative functions are performed within the same agency, or even performed by the same persons within an agency, does not, without more, constitute a violation of due process. "That is not to say that there is nothing to the argument that those who have investigated should not then adjudicate," and a court facing special facts and circumstances in a particular case may determine that dual roles are impermissible ... (However) ... [a]gency officials or members who adjudicate a matter are presumed to be honest, fair and unbiased. A party challenging

Mr. Gaskins
Page 3
January 21, 2009

the combination of investigative and adjudicative functions must convince the court that, under a realistic appraisal of psychological tendencies and human weakness, conferring both functions on the same individuals poses such a risk that it is likely to violate due process. Consistent with such, in considering any procurement process, there must be a showing by someone challenging that process that the process is biased. With regard to the Marlboro procurement process, the county administrator is only one of three individuals comprising the protest board and, therefore, he alone is a minority member. Moreover, as stated in Garris, supra, it is presumed that he is "honest, fair and unbiased." There would have to be a showing to refute such presumption. As stated in the June 1, 2005 opinion, local governments are afforded latitude in establishing their own individual procurement ordinances and procedures. As noted in Glasscock Company, Inc., supra, counties are afforded "flexibility" in determining what is "appropriately competitive" as to the public business transacted. As a result, in the opinion of this office, it cannot be determined categorically that the Marlboro County procurement ordinance is inconsistent with the requirement that the county procurement ordinance embody "sound principles of appropriately competitive procurement." There must be a showing of the county administrator being unfair or biased with regard to the role he plays with regard to the protest procedure. This office cannot in an opinion conclusively make such a determination. With kind regards, I am, Very truly yours, Henry McMaster Attorney General

By:

REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General