SC Public Interest v. Jasper County

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

South Carolina Public Interest Foundation, Edward D.
Sloan, Jr., Denise G. Davidson, and Milton Woods, Jr.,
individually and on behalf of all others similarly situated,
Appellants,

v.

Jasper County School District and the Hon. Berty Riley,
in her official capacity as Chairman of the Board of
Trustees of the Jasper County School District,
Respondents.

Appellate Case No. 2016-001148

Appeal From Jasper County
Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No. 2018-UP-359
Heard June 7, 2018 – Filed August 22, 2018

AFFIRMED

James G. Carpenter, of Carpenter Law Firm, of
Greenville, for Appellants.

Keith Robert Powell, of Duff & Childs, LLC, of
Columbia, for Respondents.
PER CURIAM: In this procurement case, Appellant South Carolina Public Interest
Foundation (SC Public Interest) seeks review of the circuit court's order granting
summary judgment in favor of Respondent Jasper County School District (School
District) on SC Public Interest's claims. SC Public Interest argues the circuit court
should have declared the procurement method used by the School District to secure
construction services for the renovation of its Bees Creek school facility violated the
Jasper County Board of Education Procurement Code Policy (School District's
Procurement Code). SC Public Interest further maintains that while this case was
pending in the circuit court, the Board of Trustees of the Jasper County School
District (Board) passed a Resolution to suspend all actions on the Bees Creek
contract that made the case unripe for judicial determination. We affirm.

I. Summary Judgment
SC Public Interest maintains the circuit court erred on the merits of the order
granting summary judgment to School District. Specifically, SC Public Interest
argues the following: (1) School District's Procurement Code, section 2-101,
mandates the use of the competitive sealed bidding method; (2) School District's
written determination was insufficient to satisfy the requirements for using the
competitive sealed proposals method—specifically, School District should have
issued the written determination prior to issuing the request for proposals; and (3)
Board's Resolution attempting to ratify the design-build solicitation and award was
ineffective because School District failed to adhere to the ratification process in
section 6-403 of the School District's Procurement Code.1 We disagree.

a. Procurement Method

The South Carolina Consolidated Procurement Code (Consolidated
Procurement Code) controls the "procurement or expenditure of funds by this State
under contract acting through a governmental body." S.C. Code Ann. § 11-35-40(2)
(2011). However, this excludes school districts, and instead, the South Carolina
Consolidated Procurement Code authorizes a school district to adopt its own
procurement policy. S.C. Code Ann. § 11-35-50 (2011); see also § 11-35-310(18),
(23) (2011) (defining "governmental body" to exclude all local "political
subdivisions" such as school districts).

1
The term "competitive sealed proposals" is also referred to as "request for
proposals" or "design-build" process; "competitive sealed bidding" is also referred
to as "invitation for bids" or "design-bid-build" process. See Sloan v. Dep't of
Transp., 365 S.C. 299, 305, 618 S.E.2d 876, 879 (2005).
Section 2-101 of the School District's Procurement Code, entitled "Methods
of source selection," states that "all school district contracts must be awarded by
competitive sealed bidding." However, this section explicitly indicates that
competitive sealed bidding should be used "[u]nless otherwise required by law or
this policy." This language is indicative that section 2-101 was not intended to be
an absolute rule devoid of any exceptions. Additionally, we note that section 2-101
lists five exceptions in which other procurement methods would be permissible,
including the use of competitive sealed proposals.

Furthermore, a full review of School District's Procurement Code reveals that
there are other provisions within the code that are applicable—specifically, Article
4. Article 4 of the School District's Procurement Code is entitled "Procurement of
Construction, Architect/Engineer and Land Surveying Services." Section 4-101
provides, in part,

The school district will utilize the South Carolina School
Facilities Planning and Construction Guide prepared by
the South Carolina Department of Education for new
construction, additions or renovations of structures used
in connection with public education. The school district
must have discretion to select the appropriate construction
contracting method for a particular project. In determining
which method to use, the school district must consider its
requirements, resources[,] and potential contractor
capabilities.

(emphases added). School District's Procurement Code is unambiguous, and a plain
reading of it indicates Article 4 governs the procurement method School District is
authorized to use when soliciting construction services. See Bayle v. S.C. Dep't of
Transp., 344 S.C. 115, 122, 542 S.E.2d 736, 739–40 (Ct. App. 2001) ("Under the
plain meaning rule, it is not the court's place to change the meaning of a clear and
unambiguous statute. [When] the statute's language is plain and unambiguous, and
conveys a clear and definite meaning, the rules of statutory interpretation are not
needed and the court has no right to impose another meaning."). We now further
examine section 4-101 to determine whether School District adhered to the
provisions set forth therein.

Section 4-101 references the South Carolina School Facilities Planning and
Construction Guide (Construction Guide). Generally, school districts must comply
with the standards and specifications set forth in the Construction Guide when
constructing, improving, or renovating a public school building or property. S.C.
Code Ann. § 59-23-210(A) (Supp. 2017). The Construction Guide is updated
annually by the State Department of Education Office of School Facilities. Id.
Therefore, School District must use the procurement methods authorized in the
Construction Guide for the renovation of its Bees Creek facility. The procurement
section of the Construction Guide provides that the Office of School Facilities
"recognizes all procurement methods authorized and defined in" sections 11-35-
2910 & 3005 of the South Carolina Code (2011), which are part of the Consolidated
Procurement Code.2

With this in mind, we turn our attention to section 11-35-3005, as referenced
in the Construction Guide, to determine the authorized procurement methods in this
state. Section 11-35-3005, entitled "Project delivery methods authorized," lists the
following authorized procurement methods:

(a) design-bid-build;
(b) construction management at-risk;
(c) operations and maintenance;
(d) design-build;
(e) design-build-operate-maintain; and
(f) design-build-finance-operate-maintain.

S.C. Code Ann. § 11-35-3005(1) (2011) (emphasis added). The Consolidated
Procurement Code specifically lists "design-build" as an authorized method of
procurement, which means the Construction Guide also recognizes this method.
Thus, the competitive sealed proposals method was a viable option for the school
district. See supra n. 1 (recognizing "design-build" as a reference to competitive
sealed proposals).

Additionally, Article 4 of School District's Procurement Code grants School
District the ability to use its discretion in determining which procurement method is
the most suitable for the project at hand. The Board exercised that discretion and
opted to use the competitive sealed proposal method. Our courts give great

2
2014 South Carolina School Facilities Planning and Construction Guide, SOUTH
CAROLINA DEPARTMENT OF EDUCATION,
https://ed.sc.gov/scdoe/assets/File/districts-schools/school-planning-
building/Guides/2014Guidebook.pdf.
deference to the decisions of school boards. See Davis v. Greenwood Sch. Dist. 50,
365 S.C. 629, 635, 620 S.E.2d 65, 68 (2005) ("In general, courts will not disturb
matters within the school board's discretion unless there is clear evidence of
corruption, bad faith, or a clear abuse of power."). Thus, "an appellate court will not
substitute its judgment for that of the school board's in view of the powers, functions,
and discretion that must necessarily be vested in such boards if they are to execute
the duties imposed upon them." Id.

b. Written Determination

Section 2-103 of School District's Procurement Code, entitled "Competitive
sealed proposals," sets forth the requirements and procedures the Board must adhere
to when using this procurement method. Subsection one articulates the conditions
under which this method is to be used. It provides,

When the school district determines in writing that the use
of competitive sealed bidding is either not practicable or
not advantageous to the school district, a contract may be
awarded by competitive sealed proposals. Competitive
sealed proposals should be used when both the needs of
the school district and the costs to satisfy those needs are
important, and the methods or items to satisfy those needs
are not clear and precise. While price is an important
factor, it is considered less significant than fully meeting
the district's needs. The ultimate purpose of this method
of procurement is to provide flexibility to the district,
while taking into consideration various options and the
costs of each. Proposals must be solicited through a
request for proposals.

(emphases added). A plain reading of section 2-103 indicates the Board is required
to produce a written determination prior to awarding a contract when using the
competitive sealed proposal method instead of the competitive sealed bidding
method. See Sloan v. Greenville Cty., 356 S.C. 531, 563, 590 S.E.2d 338, 355 (Ct.
App. 2003) ("The words of a statute or regulation 'must be given their plain and
ordinary meaning without resort to subtle or forced construction to limit or expand
its operation.'" (quoting Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178,
420 S.E.2d 843, 846 (1992))); id. at 564, 590 S.E.2d at 355 ("The language must
also be read in a sense [that] harmonizes with its subject matter and accords with its
general purpose."). Here, the Board issued its request for proposals on July 14, 2014.
The written determination was issued on October 10, 2014, which provided the
citizens of Jasper County School District with an explanation of the Board's decision
to utilize the design-build method. Subsequently, School District awarded the Bees
Creek contract on November 14, 2014. Thus, it is evident that the written
determination satisfied the pre-contract requirement of section 2-103.

SC Public Interest makes additional arguments attacking the sufficiency of the
written determination. It alleges School District failed (1) to evaluate or rank the
proposals, (2) to determine which proposal was the most advantageous to School
District, and (3) to keep a copy of the written determination in the contract file.
However, SC Public Interest raises these issues for the first time on appeal.
Therefore, the issues are not preserved for appellate review. See Wilder Corp. v.
Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) ("It is axiomatic that an issue
cannot be raised for the first time on appeal, but must have been raised to and ruled
upon by the [circuit court] to be preserved for appellate review."); see also Elam v.
S.C. Dep't of Transp., 361 S.C. 9, 25, 602 S.E.2d 772, 780 (2004) ("If a party is
unsure whether he properly raised all issues and obtained a ruling, he must file a
Rule 59(e) motion or an appellate court may later determine the issue or argument
is not preserved for review.").

c. Board Resolution

The circuit court did not address whether section 6-403 of School District's
Procurement Code was applicable in the current litigation, nor did it address any of
SC Public Interest's arguments regarding this section. And SC Public Interest did
not request the circuit court to address these arguments when it filed its Rule 59(e)
motion. See Wilder Corp., 330 S.C. at 77, 497 S.E.2d at 734 ("Post-trial motions are
not necessary to preserve issues that have been ruled upon at trial; they are used to
preserve those that have been raised to the [circuit] court but not yet ruled upon by
it."). Therefore, the issue is unpreserved for appellate review. See Noisette v. Ismail,
304 S.C. 56, 58, 403 S.E.2d 122, 124 (1991) (holding an issue is not preserved when
the circuit court does not explicitly rule on a question and the appellant fails to make
a Rule 59(e) motion to alter or amend the judgment on that ground); see also
Williams v. Lancaster Cty. Sch. Dist., 369 S.C. 293, 306, 631 S.E.2d 286, 294 (Ct.
App. 2006) (holding a husband failed to preserve for appellate review his claim that
the circuit court erred in granting summary judgment as to his claim for loss of
consortium; although the husband brought the claim in his complaint, the circuit
court did not rule on the issue, and the husband failed to make a motion to alter or
amend the judgment on that ground).
For the aforementioned reasons, the circuit did not err in granting summary
judgment to School District.

II. Ripeness

SC Public Interest contends the Board's Resolution to suspend all actions on
the Bees Creek contract made the case unripe for judicial determination, and
therefore, granting summary judgment was improper. However, SC Public Interest
failed to cite any case law or authority in support of its argument. Thus, this issue is
abandoned and not preserved for appellate review. See Bryson v. Bryson, 378 S.C.
502, 510, 662 S.E.2d 611, 615 (Ct. App. 2008) ("An issue is deemed abandoned and
will not be considered on appeal if the argument is raised in a brief but not supported
by authority."); see also Glasscock, Inc. v. U.S. Fidelity and Guar. Co., 348 S.C. 76,
81, 557 S.E.2d 689, 691 (Ct. App. 2001) ("[S]hort, conclusory statements made
without supporting authority are deemed abandoned on appeal and therefore not
presented for review.").

Even if the argument were preserved, the argument is without merit because
a justiciable controversy existed and needed to be resolved. See Colleton Cty.
Taxpayers Ass'n v. Sch. Dist. Of Colleton Cty., 371 S.C. 224, 242, 638 S.E.2d 685,
694 (2006) ("A justiciable controversy is a real and substantial controversy [that] is
ripe and appropriate for judicial determination, as distinguished from a contingent,
hypothetical, or abstract dispute." (quoting Waters v. S.C. Land Res. Conservation
Comm'n, 321 S.C. 219, 227, 467 S.E.2d 913, 917–18 (1996))); id. ("[A]n issue that
is contingent, hypothetical, or abstract is not ripe for judicial review."). Here, soon
after awarding its construction contract to a contractor using the competitive sealed
proposal method, School District and its contractor commenced work on the Bees
Creek project. However, due to SC Public Interest's claims seeking to invalidate the
procurement of the design-build contract, progress on the Bees Creek project halted.
The Board's Resolution indicates that progress came to a halt because of the
uncertainty over payment to the contractor for the services the contractor was to
provide under the contract. Essentially, the pending lawsuit would determine how
the Board would need to proceed regarding its contractual obligations to the
contractor and the Bees Creek project. Thus, the issues that were presented to the
circuit court were all ripe for judicial determination because they concerned the
validity of the Bees Creek contract. Furthermore, the Board's Resolution evidenced
the need for the issues to be resolved.

AFFIRMED.
HUFF, GEATHERS, and MCDONALD, JJ., concur.