Could South Carolina's Geodetic Survey provide survey-control services also offered by private firms?

Plain-English summary

A private surveyor told a state senator that South Carolina's Geodetic Survey was establishing survey-control points at no cost for work private firms could perform for a fee. He asked whether a taxpayer-supported agency could and should compete with the private sector. In an informal 2002 opinion, the Attorney General said he had found no South Carolina constitutional or statutory provision barring a government entity from offering goods or services that duplicated private offerings. On that basis, the Geodetic Survey appeared able to provide the described service.

The AG declined the separate question of whether the agency should offer it. He described that as a policy choice for the agency or General Assembly. The letter cited an earlier South Carolina opinion allowing a regional transportation authority to offer airport services in competition with private carriers, and mentioned a North Carolina law as an example of another state's different policy.

Currency note

This opinion was issued in 2002. 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.

Historical summary

Private survey firms

The AG said he could identify no state-law prohibition on the agency performing the same survey-control service that firms offered. The letter answered whether the service was legally permitted under the law he found, not whether public competition was desirable.

State agencies and legislators

Whether a state agency should provide a service also sold by private businesses was, in the AG's words, a policy question. He left that question to the agency or General Assembly rather than prescribing an answer.

Common questions

Did the AG find a law barring the Geodetic Survey from competing with private surveyors? A: No. The 2002 letter said the AG had found no South Carolina constitutional or statutory ban on a government entity duplicating private goods and services.

Did the AG say state-funded competition was good policy? A: No. He expressly declined that judgment and assigned the “should” question to the agency or legislature.

What work prompted the request?
A: A private surveyor described the Geodetic Survey establishing survey-control points for county-referenced land development without charging the client.

Background and statutory framework

The letter reviewed a constituent's complaint about survey-control work connected to the state plane coordinate system. Because the AG identified no general South Carolina prohibition on public provision of a competing service, he used a prior AG opinion on public airport services as a comparison. The letter describes itself as an informal opinion by an Assistant Attorney General.

Citations and references

• Prior AG opinion dated July 12, 1985: public transportation authority competition with private airport carriers, cited as an analogy.
• North Carolina AG opinion dated January 8, 2002: mentioned only as a comparison with another state's statute.

Official title

Whether the South Carolina Geodetic Survey could compete with private survey providers.

Requester

The Honorable André Bauer, Senator, District No. 18

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-6-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02may6bauer.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
AITORNEY GENERAL

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1. . ,

May 6, 2002

The Honorable Andre Bauer
Senator, District No. 18
Post Office Box 142
Columbia, South Carolina 29202
Re:

Your Letter of April 5, 2002

Dear Senator Bauer:
In your above-referenced letter, you asked that this Office review a request for an opinion received from one of your constituents. In a letter dated March 1, 2002, Mr. Boyce H. Crow asked that you" ... render an opinion as to whether a state agency (SCGS) can and should be allowed to compete with the private sector ... " By way of background, Mr. Crow indicates that:
[The situation involves] the S.C. Geodetic Survey [SCGS] office. Richland County along with other counties in this state has begun requiring that certain pieces of real property be referenced to the S.C. State Plane Coordinate system. This greatly improves keeping track of utilities, zoning, growth and other aspects of development. The actual fieldwork involves using a GPS to monument and references this development to a county (or state) grid system. In an ideal situation, a client would hire Survey & Mapping Services to establish survey control at his site. This would be accomplished using our in-house system. Establishing one or two points is not a high profit job, but it does help pay the bills. Recently, SCGS has let it be known that they will establish this control at no cost to the client. As I understand it, the county (in this case, Richland) will contact SCGS and request that survey control be established at a particular location. This can be seen as a saving to the public, however I could provide this service at a fair cost and continue to recover the cost of my investment. I am not alone in this lie of work(GPS); several other firms in this area also provide this service. I see no reason why Uwe should pay state and federal taxes to support a competitor. It seems to me that 1) better use could be found for this tax-supported office, 2) we are being forced to compete with state government and 3) as technology advances,

REMBERT C . DENNIS BUILDING

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LI~ l~J::dr1/

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POST OFFICE Box 11549

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COLUMBIA, s.c . 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

The Honorable Andre Bauer
Page 2
May 6, 2002

it might get worse. Should we just sit back and allow a tax-supported agency to take our work? I have been able to locate no Constitutional or statutory provision which prohibits a governmental entity from providing goods and services which duplicate offerings from the private sector. In fact, in a prior opinion, this Office concluded that a local governmental entity, the Pee Dee Regional Transportation Authority, was not prohibited under State law from providing limousine and baggage service for airport passengers and airlines in competition with private carriers. See OP. ATTY. GEN. Dated July 12, 1985. Accordingly, it appears that a state agency such as SCGS "can" offer the services described by Mr. Crow. Whether SCGS "should" offer these services is a policy question which this Office cannot answer. Either the agency itself or the General Assembly would have to address such a policy issue. It is apparent that other states have regulated or attempted to regulate this type competition through legislation. For example, North Carolina has apparently enacted the "Umstead Act" which "generally prohibits the State of North Carolina or any agency thereof from rendering services or selling goods ordinarily and customarily rendered by private enterprise." See N.C. OP. ATTY. GEN. Dated January 8, 2002.

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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 and not officially published in the manner of a formal opinion.

David K. Avant
Assistant Attorney General
DKA/an