Memorandum
TO: ALL PARTICIPANTS
I. Introduction and Jurisdiction
This memorandum explains how parties may seek further administrative review by the South Carolina Procurement Review Panel (the Panel). The Panel adjudicates cases de novo under authority granted by the South Carolina General Assembly. It reviews and determines timely requests challenging written determinations, decisions, policies, or procedures arising under the South Carolina Consolidated Procurement Code. See S.C. Code Ann. § 11-35-4410.
II. Right to Further Administrative Review
CPO Decisions: To request review of a Chief Procurement Officer (CPO) decision, a party must: 1) file a written request with the CPO, 2) include the required filing fee payable to the Panel, and 3) file within ten (10) days of the CPO's decision.
Filing instructions are provided in the Statement of Right to Further Administrative Review attached to the CPO's decision. Upon receipt, the CPO will forward the request, fee, and record to the Panel.
Other Procurement Matters: To request review of other written determinations, decisions, policies, or procedures, a party must: 1) file a written request directly with the Panel, 2) include the required filing fee, and 3) file within fifteen (15) days of the adverse determination.
Request Requirements: The request must state the reasons for disagreement, may include a request for a hearing if factual issues are in dispute, and must be served on the affected governmental body and any opposing party.
To facilitate an efficient and thorough review, the Panel encourages submission of the request as an initial legal brief. The brief should clearly and concisely identify the disputed legal and factual issues, set forth supporting arguments, and cite relevant authorities as the primary statement of the party's position. Filing the request in this form expedites the process by providing all interested parties with a clear articulation of the issues and legal basis for the appeal at the outset, thereby avoiding unnecessary delay.
III. Representation
To appear in any appeal before the Panel, corporations, limited liability companies, and limited partnerships must be represented by an attorney licensed in South Carolina. Failure to retain counsel within ten (10) business days after notice from the Panel will result in dismissal of the appeal. Individuals, including sole proprietors operating under a trade name, may proceed without counsel upon a showing of eligibility.
IV. Filing Requirements
Except for the initial request for review, filings and service are generally handled via email to the Panel's general counsel, with other parties copied.
V. Certification / Frivolous Protests
By signing a request, protest, motion, or other document (including an email), the signer certifies that, to the best of the signer's knowledge: 1) the document is factually well-grounded, 2) the document is legally warranted or presents a good faith argument for changing existing law. and 3) it is not filed for an improper purpose (harassment, limiting competition, or causing unnecessary delay or costs). Violation may result in sanctions, including an order to pay the other party's reasonable expenses and attorney's fees. See S.C. Code Ann. § 11-35-4330.
VI. Panel Review Process
Initial Handling: Within fifteen (15) days of receiving a request for further administrative review: 1) the Panel's general counsel will consult with the parties to determine whether a hearing is necessary, and 2) the Panel chair will convene the Panel to conduct the administrative review, with or without a hearing, as deemed most appropriate.
Administrative Review without a Hearing: If the Panel determines that the review will be conducted without a hearing (i.e., solely on the written record), it will establish or approve a briefing schedule for the submission of response and reply briefs. No hearing will be held, and no oral argument or presentation of evidence will occur unless otherwise ordered by the Panel.
Administrative Review with a Hearing: If the Panel determines a hearing is appropriate, it will issue an order establishing prehearing requirements, including the submission of statements identifying the issues, witnesses, and evidence to be presented. Oral argument and presentation of evidence will occur at the hearing.
VII. Record
The Panel provides parties with all documents exhibits from the CPO, numbered sequentially with PRP page numbers. Documents and exhibits contained in the record are presumed admissible and may be referenced without being reintroduced. Parties should cite documents and exhibits by PRP page number.
De novo review allows parties to submit additional evidence, subject to the rules of evidence. However, the issues considered (except for jurisdiction and standing) are generally limited to those raised before the CPO. See PSI Services LLC, Panel Case No. 2022-5.
VIII. Motions and Subpoenas
Parties should file motions well in advance of any pending deadline with the Panel and serve all parties.
The Panel may issue subpoenas under section 11-35-4410(4)(a)(ii) and will consider written requests for their issuance. The Panel does not issue blank subpoenas for completion by a party. The party requesting a subpoena is responsible for serving it.
IX. Burden of Proof
The party bringing the action generally has the burden of going forward and proving their claims. The burden may shift depending on motions or issues.
X. Time / Procedural Efficiency
Time allowed for any aspect of a case is generally determined by agreement of the parties or Panel order. The parties may take the time reasonably necessary to present their positions. However, to ensure the efficient and orderly resolution of cases, the Panel encourages the parties to use their time and resources efficiently. The parties are also encouraged to stipulate to testimony or facts whenever possible.
XI. Hearing Overview
The parties may make opening statements. Subject to the rules of evidence, each party may present witnesses under oath, with opportunities for direct examination, cross-examination, redirect, and recross. After questioning by the parties, the Panel may ask additional questions. Once the Panel's questioning concludes, no further examination of that witness is allowed, except that a party may present a rebuttal witness at the appropriate time.
After the protestant/appellant rests, the agency, other bidders or offerors, the Chief Procurement Officer, and any other parties may present their cases. Upon the completion of all evidence, parties may make closing statements if desired.
XII. Decision
After deliberations, the Panel issues its decision as a written order. The order is sent to all parties within ten business days, or within thirty days if the matter is designated as complex, in accordance with section 11-35-4410(5).
XIII. Appeal
Under section 11-35-4410(6), the Panel's decision is final for administrative review and may be appealed only to the Court of Appeals pursuant to section 1-23-380. Filing an appeal does not stay the Panel's decision. Hearings before the Panel are recorded by a court reporter, and transcripts become part of the record. The appealing party is responsible for ordering and paying for the transcript.