2021 South Carolina Code of Laws
Title 11 - Public Finance
Chapter 35 - South Carolina Consolidated Procurement Code
Section 11-35-1535. Competitive negotiations.

(A) Conditions for Use.

(1) Competitive negotiations are most appropriate for complex, major acquisitions.

(2) If the procurement officer determines in writing that the use of competitive negotiations is appropriate and in the using agency's interest, a contract may be entered into by competitive negotiations subject to the provisions of Section 11-35-1520 and the ensuing regulations, unless otherwise provided in this section. This section may not be used to acquire only commercially available off-the-shelf products.

(3) Competitive negotiated acquisitions may be conducted only by the office of the appropriate chief procurement officer.

(B) Definitions. As used in this section:

(1) "Clarification" means any communication in which the procurement officer requests or accepts information that clarifies any information in a proposal. Clarification does not include the request or acceptance of any change to the terms of a contractual offer.

(2) "Competitive range" means the offeror or group of offerors selected for negotiation.

(3) "Negotiations" means any communication that invites or permits an offeror to change the terms of its contractual offer in any way.

(C) Request for qualifications. Offerors may be prequalified as provided in Section 11-35-1530(4).

(D) Requests for proposals.

(1)(a) Solicitations for competitive negotiations must be requests for proposals and must, at a minimum, describe:

(i) the state's requirements;

(ii) anticipated terms and conditions that will apply to the contract. The solicitation may authorize offerors to propose alternative terms and conditions, including alternative contract line items;

(iii) information required to be in the offerors proposal; and

(iv) evaluation factors.

(b) The request for proposals must state the relative importance of all factors to be considered in evaluating proposals but need not state a numerical weighting for each factor. Except as provided by regulation, past performance and price must be evaluated. If price is an evaluation factor, the solicitation must state whether all evaluation factors other than price, when combined, are significantly more important than, approximately equal to, or significantly less important than price.

(2) Amendments. Amendments issued after the established time and date for receipt of proposals may not exceed the general scope of the request for proposals and must be issued to those offerors that have not been eliminated from the competition.

(E) Public Notice. Adequate public notice of the request for proposals must be given in the same manner as provided in Section 11-35-1520(3).

(F) Receipt of Proposals. Proposals must be opened in accordance with regulations of the board. A tabulation of proposals must be prepared in accordance with regulations promulgated by the board and must be open for public inspection after contract award.

(G) Evaluation. Proposal evaluation is an assessment of the proposal and the offeror's ability to perform the prospective contract successfully. All proposals must be evaluated and, after evaluation, their relative qualities must be assessed solely on the factors and subfactors specified in the solicitation. The relative strengths, deficiencies, significant weaknesses, and risks supporting proposal evaluation must be documented in the contract file.

(H) Competitive Range. After complying with subsection (G), the procurement officer shall establish a competitive range comprised of the offerors that submitted the most promising offers. Ordinarily, the competitive range should not include more than three offerors. The procurement officer may select only one offeror and may select more than three. The procurement officer shall document the rationale for the selections.

(I) Exchanges with Offerors.

(1) Fairness and impartiality. The procurement officer shall treat all offerors fairly and impartially when deciding whether and when to seek clarification or to negotiate. Similarly situated offerors must be given similar opportunities to clarify and, if in the competitive range, to negotiate.

(2) Clarifications. The procurement officer may conduct clarifications at any time before the award decision.

(3) Negotiations.

(a) The procurement officer shall negotiate with each offeror in the competitive range. The primary objective is to maximize the state's ability to obtain best value, based on the requirements and the evaluation factors set forth in the solicitation. Subject to item (1), the scope and extent of negotiations are a matter of the procurement officer's judgement.

(b)(i) At a minimum, the procurement officer shall identify and seek the elimination of any term of a contractual offer that does not conform to a material requirement of a solicitation and any other undesirable terms in a contractual offer.

(ii) The procurement officer may negotiate with offerors to seek changes in their contractual offers that the State desires and to allow them to make other improvements.

(iii) Negotiations may include pricing.

(iv) The procurement officer may not relax or change any material term of the solicitation during negotiation except by amendment.

(v) In conducting negotiations, the procurement officer may not disclose confidential information derived from proposals submitted by competing offerors.

(c) The procurement officer shall document the using agency's prenegotiation objectives with regard to each offeror in the competitive range and shall prepare a record of each negotiation session.

(d) The procurement officer may eliminate an offeror from the competitive range after negotiation if the offeror is no longer considered to be among the most promising.

(4) The board must promulgate regulations governing exchanges with offerors.

(J) Proposal Revisions. The procurement officer may request or allow proposal revisions to clarify and document understandings reached during negotiations. If an offeror's proposal is eliminated or otherwise removed from the competitive range, no further revisions to that offeror's proposal may be accepted or considered. Upon the completion of negotiations, the contracting officer shall request that offerors still in the competitive range submit final proposals no later than a specified common cutoff date and time.

(K) Award.

(1) Award must be based on a comparative assessment of final proposals from offerors within the competitive range against all source selection criteria in the solicitation. Award must be made to the responsible offeror whose final proposal meets the announced requirements in all material respects and is determined in writing to provide the best value to the State, taking into consideration the evaluation factors set forth in the request for proposals and, if price is an evaluation factor, any tradeoffs among price and non-price factors. As provided by regulation, the contract file must document the basis on which the award is made, and the documentation must explain and justify the rationale for any business judgments and tradeoffs made or relied on in the award determination, including benefits associated with additional costs. Section 11-35-1524 does not apply.

(2) Procedures and requirements for the notification of intent to award the contract must be the same as those provided in Section 11-35-1520(1).

HISTORY: 2019 Act No. 41 (S.530), Section 23, eff May 13, 2019.

Editor's Note

2019 Act No. 41, Section 80, provides as follows:

"SECTION 80. This act takes effect upon approval by the Governor and applies to solicitations issued after that date."