D. Particular Agencies and Practice

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D. Particular Agencies and Practice

1. Department of Labor, Licensing, and Regulation⁶³

Generally speaking, state professional and occupational licensing entities in South Carolina are administered by the South Carolina Department of Labor, Licensing, and Regulation (LLR) and use the Department's resources for most daily functions. Occupational and professional licensing is an exercise of the state's duty to protect the health, safety, and welfare of its citizens. This protection is accomplished through the regulation of professional and occupational licensees and the administration of boards charged with the regulation of professional and occupational practitioners.⁶⁴

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Notes:

^[63] This section is a summary of this agency's chapter in South Carolina Administrative Practice and Procedure (3rd ed., 2013), authored by Melina Mann, Holly Pisarik, and Benjamin Mustian. Melina received her B.A. and J.D. from the University of South Carolina. She is the General Counsel at the South Carolina Department of Labor, Licensing and Regulation. Holly received her B.A. from Winthrop University and J.D. from the University of South Carolina School of Law. She is formerly the Director of the South Carolina Department of Labor, Licensing and Regulation. Ben received his B.A. from Wake Forest University and J.D. from the University of South Carolina School of Law. He is a shareholder with Willoughby & Hoefer, P.A.

^[64] S.C. Code Ann. § 40-1-40; see also S.C. Code Ann. § 1-18-40.

The enabling legislation for LLR's Division of Professional and Occupational Licensing, S.C. Code Ann. §§ 40-1-10 et seq., defines the roles of the Department and the Boards. This statute is commonly referred to as "the Engine." Each Professional and Occupational Licensing Agency (POLA) has its own enabling legislation and many POLA's have promulgated their own regulations. The general duties and powers of the POLA (it was defined as POLA) boards are set forth in S.C. Code Ann. § 40-1-70. These duties include licensing, disciplinary actions, and the promulgation of regulations. Section 40-1-30 authorizes the Boards to deny licensure in accordance with qualifications or standards set forth in specific practice acts or for acts which would be grounds for discipline of the license.

A thorough review of the specific practice acts and regulations of each board, as well as the Engine, is necessary to ascertain the applicable requirements for licensure and discipline of a regulated profession or occupation. LLR maintains websites for each board to provide current and relevant information concerning board-specific policies and operating procedures.

The various practice acts set forth the size, composition, qualifications and method of appointment for POLA board membership. Each board is unique in its makeup and character. In many instances, board seats are designated by discipline or background to ensure a certain numerical breakdown between professional and nonprofessional (lay or public) members. Most POLA board members are gubernatorial appointees and some appointments require advice and consent of the State Senate.

The quasi-judicial duties of the POLA boards include (1) determination of eligibility for licensure and renewals of licenses and (2) determination of compliance and discipline. These duties involve the Boards in a wide range of topics, such as initial educational and training requirements, subsequent continuing education, the scope of practice for licensees and standards of conduct for licensed practitioners. Each Board is charged with "determining the eligibility of applicants for examination and licensure."⁶⁵ Most Boards have delegated responsibility for routine license applications to the LLR staff, pursuant to S.C. Code Ann. § 40-1-50(F).

Several distinct fact patterns may prevent approval of an application for initial licensure or for renewal of a license at the staff level. If an application requires the exercise of discretion, such as determining whether an applicant has demonstrated education that is equivalent to that of an accredited professional degree or determining whether a prior criminal record or prior discipline by another Board disqualifies the applicant for licensure, the staff must refer the application to the Board for determination. The Board will, upon review and consideration: (a) deny the license; (b) issue the license; or (c) issue the license under designated conditions.

For disciplinary actions, most practice acts do not specify a complete procedural process. Many set out some specific requirements.⁶⁶ In general, the steps in disciplinary proceedings include:

(1) Receipt of initial complaint.

(2) Investigation by LLR staff.

(3) Review of the evidence by an investigative review committee (IRC) which includes at least one member of the licensed occupation or profession who is familiar with the standards expected of practitioners in the state.

(4) IRC recommendation to the Board that the matter be dismissed, that the investigation be continued or expanded, or that the matter move forward to formal charges. The Board can accept or reject these recommendations.

(5) If approved for formal charges, then a presentation of facts to the Board.

(6) A final order.

All final orders are subject to appellate review in the Administrative Law Court and then the Court of Appeals.

2. Procurement Panel⁶⁷

The South Carolina Consolidated Procurement Code provides actual and potential bidders with a right to protest decisions regarding the solicitation and award of public contracts and to have those decisions administratively reviewed.⁶⁸

South Carolina uses a centralized purchasing model. With significant exceptions,⁶⁹ all authority over the procurement⁷⁰ of supplies, services, and information technology is vested directly with the appropriate Chief Procurement Officer (CPO).⁷¹ Agencies have direct purchasing authority, but that authority is limited.⁷² While the authority to acquire construction services remains with the acquiring governmental body,⁷³ the CPO for construction has a very strong approval and oversight role.⁷⁴

The State's centralized procurement function is divided by subject matter into three offices. The Information Technology Management Office (ITMO) is responsible for acquisitions of information technology;⁷⁵ the State Engineer's Office (OSE) is responsible for overseeing construction;⁷⁶ and the State Procurement Office (SPO) is responsible for the acquisition of all supplies and services other than information technology and construction.⁷⁷

Periodically, the Budget and Control Board publishes a booklet that includes the Code, regulations, other procurement-related laws, and a comprehensive index of the Code and regulations drafted by the Board's legal staff. The index is not included in the General Index for the South Carolina Code of Laws but is available on the Internet at www.state.sc.us/mmo/legal/lawmenu.htm. Reprints usually occur whenever significant changes are made to the Code or regulations.

Pursuant to § 11-35-4410, the Panel has adopted a set of basic procedural rules.⁷⁸ As a matter of practice, the Panel sends a copy of these rules to each party that participates in an administrative review. A copy is also posted on the Internet at https://procurement.sc.gov.

Usually, the State solicits offers to contract by publishing a solicitation, usually known as an Invitation for Bids (IFB) or a Request for Proposals (RFP).⁷⁹ The State then advertises the solicitation and announces a date for the submission of offers.⁸⁰ Once these offers - IFB or RFP - are received, the State evaluates the offers to determine which one is lowest, in the case of competitive sealed bidding,⁸¹ or most advantageous, in the case of competitive sealed proposals.⁸² Based on that evaluation, the State awards a contract (i.e., accepts an offer) by posting a notice that identifies the successful bidder.

All protests must be filed with the appropriate CPO within the applicable time limits provided by § 11-35-4210. The applicable time limit is generally referred to as the "protest period." The protest period is jurisdictional and may not be waived by conduct or consent of the parties. In order to be timely, a protest must be received, not just postmarked, within the applicable time limits. Protests may be faxed or emailed. Section 11-35-310(13) expressly defines a method of computing the protest period. All calendar days are counted, unless the final day of the time period falls on a weekend or on either a state or federal holiday, in which case the period runs to the end of the next business day.⁸³ Protests must be filed by the close of business, i.e., 5:00 P.M.⁸⁴

Any actual bidder "who is aggrieved in connection with" the award of a contract may submit a protest to the appropriate CPO within ten days of the date notice of the award is posted.⁸⁵ The time for protesting an award begins when the relevant award notice is posted, not when the notice is received. However, the protest period does not begin until the notice has been posted as required by law.⁸⁶ Generally, the notice must be posted at a location specified in the solicitation, the posting date must appear on the face of the notice, and the notice must include a statement of the right to protest.⁸⁷ In addition, for construction, the date and location of posting must be announced at bid opening.⁸⁸

Any prospective bidder "who is aggrieved in connection with" the solicitation of a contract must submit a protest to the appropriate CPO within 15 days of the date the relevant solicitation document is issued.⁸⁹ A prospective bidder must protest a...