Two weeks ago the South Carolina Supreme Court decided a case that forced a state agency to play by its own procurement rules. Edward D. Sloan, Jr. frequently brings suits where he believes that governmental agencies are disregarding their responsibilities to follow the rules to the public’s detriment. In this case Sloan challenged an emergency procurement on a road construction project.

The contractor was consistently behind and was terminated for default which meant that its performance bond surety needed to step in and finish the project at no cost to the DOT. DOT received great pressure from the local populace to get the project completed. Turning the project over to the surety would likely cause a 6 month delay and following the standard procurement policy would cause a 4 month delay.

In response to the pressure, DOT changed the termination for default to a termination for convenience and invoked emergency procurement procedures. DOT gave the contract to a subcontractor which was already on the job and was able to start almost immediately. The effect was 6 months saved but an extra cost of $4 million.

Mr. Sloan sued to have the decision set aside arguing there was no emergency which justified DOT’s use of a negotiated contract.

The case was decided under a statute particular to highway procurement rather than the SC Consolidated Procurement Code (SCCPC). DOT argued that it had the power as long as the DOT Director agreed and road safety conditions created the emergency. Sloan argued there was no emergency either as the word is usually understood or under the SCCPC definition of emergency. The Court found that emergency means a sudden, unexpected onset of a serious condition. The road safety concerns existed from the beginning. The court held there was no emergency.

For the full opinion see Sloan v. DOT Op. No. 26534 filed 8/25/2008