Memorandum
TO: ALL PARTICIPANTS
Right to Further Administrative Review
A party seeking further administrative review by the SC Procurement Review Panel (Panel) must file a written request with the Chief Procurement Officer, along with the required filing fee payable to the Panel. The Statement of Right to Further Administrative Review attached to the Chief Procurement Officer's decision provides specific filing instructions.
Generally, the request must state the reasons for disagreement with the Chief Procurement Officer's decision, may include a request for a hearing, and must be served on the affected governmental body and any opposing party. Upon receipt, the Chief Procurement Officer will forward the request to the Panel.
Within fifteen (15) days of receiving a request for further administrative review, the Panel's general counsel will consult with the parties regarding whether the review should include a hearing, and 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), the Panel 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.
If the parties do not agree on the appropriate procedure, the Panel will determine the manner of review by order. Questions regarding Panel procedures may be directed to the Panel's general counsel at (803) 734-0661.
Representation
To prosecute an appeal before the Panel, business entities organized as corporations, limited liability companies, and limited partnerships must be represented by counsel. Individuals, including those operating as sole proprietors under a trade name, may proceed without counsel if they choose.
Frivolous Protests
Under SC Code § 11-35-4330(1), the signature of an attorney or party on a request for review, protest, motion, or other document certifies that, to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact, warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and is not submitted for an improper purpose, such as harassment, limiting competition, or causing unnecessary delay or increased procurement or litigation costs.
Violation of this provision may result in sanctions under subsection (2), including an order to pay the other party’s reasonable expenses, including attorney’s fees.
Record
The Panel will provide each party, or its legal counsel if represented, with a compilation of the physical exhibits received from the Chief Procurement Officer, except for exhibits that are too voluminous or too large to copy. Each document is numbered sequentially with PRP page numbers in the upper right-hand corner. This compilation, together with any exhibits too voluminous or too large to copy, constitutes the initial record before the Panel. A transcript of the testimony before the CPO is not ordinarily available and is not included in the record.
Parties should refer to documents and exhibits by PRP page number when citing the record. Subject to objections under the rules of evidence, documents and exhibits contained in the record are presumed admissible and may be referenced without being reintroduced.
Because the Panel hearing is de novo, the parties may, subject to the rules of evidence, introduce additional documents for inclusion in the record. When submitting additional evidence, parties must provide sufficient copies for the other parties and the Panel members.
Although the Panel may receive additional evidence, the issues considered (except for jurisdiction and standing) are limited to those raised before the Chief Procurement Officer.*
*In limited circumstances, the Panel may consider issues beyond those raised before the Chief Procurement Officer. See Appeal by PSI Services LLC, Panel Case No. 2022-5.
Motions
The Panel requests that parties file motions with as much advance notice as possible before the hearing date. Motions must be filed with the Panel, and the movant must serve a copy on all other parties.
Subpoenas
The Panel has authority to issue subpoenas under SC Code § 11-35-4410(4)(a)(ii) and will consider written requests for their issuance. The Panel will not issue “blank” subpoenas for completion by a party. The party requesting a subpoena is responsible for serving it.
Presentation of Case
The parties may make opening statements. Subject to the rules of evidence, each party may present witnesses, who are placed under oath and subject to direct examination, cross-examination, redirect, and recross. After the parties complete their questioning of a witness, the Panel may ask questions. Once the Panel’s questioning concludes, no further examination of that witness is permitted. A party may, however, move at the appropriate time to present a reply witness for rebuttal testimony, if necessary.
After the protestant/appellant rests its case by presenting all desired witnesses and evidence, the agency, other bidder or offeror, the Chief Procurement Officer, and any other parties may proceed. Upon completion of all evidence, the parties may make closing statements, if desired.
Burden of Proof
The party bringing the action generally has the burden of going forward and of proof. The burden may shift on a particular motion or issue, as appropriate.
Time
There is no time limit on any aspect of the case, and the parties may take the time reasonably necessary to present their positions. However, because multiple cases are often scheduled on a given day, the Panel encourages the parties to use their time efficiently. The parties are also encouraged to stipulate to testimony or facts where possible.
Decision
At the conclusion of closing statements, the Panel will meet in executive session to receive legal advice, as needed, and to deliberate on the matter before it. The Panel’s decision is issued as a written order and will be forwarded to all parties within ten business days of the hearing, as required by SC Code § 11-35-4410(5). If the Panel designates the matter as complex, the decision will be issued within thirty days, as permitted by the same statute.
Appeal
Proceedings before the Panel are recorded by a court reporter and will be transcribed and forwarded as part of the record in the event of an appeal to the Court of Appeals. SC Code § 11-35-4410(6) provides that “the decision of the Procurement Review Panel is final as to administrative review and may be appealed only to the Court of Appeals pursuant to § 1-23-380, and the filing of an appeal does not stay a decision of the Panel.” The appealing party is responsible for ordering and paying for the transcript.