S.C. Code Regs. 19-445.2010 - Disclosure of Procurement Information
A. Reserved
B. Prior to the issuance of an award or
notification of intent to award, whichever is earlier, state personnel involved
in an acquisition shall forward or refer all requests for information regarding
the procurement to the responsible procurement officer. The procurement officer
will respond to the request.
C.
Prior to the issuance of an award or notification of intent to award, whichever
is earlier, state personnel involved in an acquisition shall not engage in
conduct that knowingly furnishes source selection information to anyone other
than the responsible procurement officer, unless otherwise authorized in
writing by the responsible procurement officer. "Source selection information"
means any of the following information that is related to or involved in the
evaluation of an offer (e.g., bid or proposal) to enter into a procurement
contract, if that information has not been previously made available to the
public or disclosed publicly:
(1) Proposed
costs or prices submitted in response to an agency solicitation, or lists of
those proposed costs or prices,
(2)
source selection plans,
(3)
technical evaluation plans,
(4)
technical evaluations of proposals,
(5) cost or price evaluations of proposals,
(6) information regarding which
proposals are determined to be reasonably susceptible of being selected for
award,
(7) rankings of responses,
proposals, or competitors,
(8)
reports, evaluations of source selection committees or evaluations panels,
(9) other information based on a
case-by-case determination by the procurement officer that its disclosure would
jeopardize the integrity or successful completion of the procurement to which
the information relates.
D. In procurements conducted pursuant to
Section
11-35-1530
or Section
11-35-1535, state personnel with
access to proposal information shall not disclose either the number of offerors
or their identity prior to the issuance of an award or notification of intent
to award, whichever is earlier, except as otherwise required by law.
E. Prior to the issuance of an award or
notification of intent to award, whichever is earlier, the procurement officer
shall not release to any individual information obtained in response to an RFP,
without first obtaining from that individual a written agreement, in a form
approved by the responsible chief procurement officer, regarding restrictions
on the use and disclosure of such information . Such agreements are binding and
enforceable. Before allowing any individual to perform any role in discussions,
negotiations, evaluation, or the source selection decision in a procurement
conducted pursuant to Section
11-35-1530
or Section
11-35-1535, the responsible
procurement officer must obtain from that individual, in a form approved by the
appropriate chief procurement officer, a written acknowledgement of compliance
and an agreement to comply with rules designed to protect the integrity of the
procurement process.
F. The release
of a proposal to non-state personnel for evaluation does not constitute public
disclosure or a release of information for purposes of the Freedom of
Information Act.
G. Except as
prohibited by law, and subject to section 2200, state contracts may include
clauses restricting the state's release of documents and information received
from a contractor if those documents are exempt from disclosure under
applicable law.
H. Subject to item
(E), any person may furnish source selection information to the Office of the
State Engineer. The procurement officer shall provide to the Office of the
State Engineer any information it requests regarding a procurement.
I. Non-Public Solicitations. In accordance
with Section
11-35-410(E),
information that forms a part of a specific solicitation need not be publicly
available if (a) the information is otherwise exempt from disclosure by law
(e.g., Chapter 4, Title 30 (The Freedom of Information Act)), (b) the
information is available to any prospective offeror that has executed a
nondisclosure agreement (NDA), and (c) the appropriate chief procurement
officer has approved the use and terms of an NDA for the solicitation at issue.
Prior to use in a specific solicitation, the terms of a proposed NDA must be
published in the solicitation unless otherwise approved by the CPO. When
requesting approval from the appropriate chief procurement officer, the
governmental body must identify the information to be released pursuant to the
NDA, explain the reason for the request, cite the legal basis for not making
the information publicly available, and provide any other information requested
by the CPO. If governmental body declines a person's request to enter an NDA
and acquire the information thereto, it must immediately notify the CPO.
Consistent with R.19-445.2030,
the applicable solicitation should instruct bidders how to comply with the NDA
when submitting their offer. Information to be released pursuant to the NDA may
also be released in accordance with R.19-445.2200 (Administrative Review
Protective Orders).
Notes
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