Sloan v. Greenville County, 3704.

Citation590 S.E.2d 338,356 S.C. 531
Decision Date08 December 2003
Docket NumberNo. 3704.,3704.
CourtCourt of Appeals of South Carolina
PartiesEdward D. SLOAN, Jr., individually, and as a Citizen, Resident, Taxpayer and Registered Elector of Greenville County, and on behalf of all others similarly situated, Appellant/Respondent, v. GREENVILLE COUNTY, a Political Subdivision of the State of South Carolina, Dozier Brooks, Scott Case, C. Wade Cleveland, Bob Cook, Joseph Dill, Lottie Gibson, Allen "Bunk" Johnson, Mark C. Kingsbury, Xanthene Norris, Stephen Selby, and Dana Sullivan, Paul B. Wickensimer in their official capacity as Greenville County Council Members, Respondents/Appellants.

Jennifer J. Miller and James G. Carpenter, of Greenville, for Appellant-Respondent.

Boyd B. Nicholson, Jr. and Thomas H. Coker, Jr., of Greenville, for Respondents-Appellants.


Edward D. Sloan, Jr., individually, and as a citizen, resident, taxpayer and registered elector of Greenville County, and on behalf of all others similarly situated, brought this action against Greenville County alleging it failed to comply with county ordinances governing the procurement of construction services when it awarded contracts for the completion of three public works projects. The trial court ruled the procurement processes met the statutory standard with respect to two of these projects, while the third project did not. Both Sloan and the County appeal. We affirm.


The Greenville County Code ("G.C.C." or "the Code") prescribes the methods the County may use to award contracts for construction services. As a general rule, the code requires that all contracts must be awarded by the "competitive sealed bidding" method. G.C.C. § 7-212. This method of source selection proceeds in multiple stages. The County must first hire an architect or other design professional to prepare the initial plans and specifications for the new construction project. After the County has approved these initial plans, the design professional will typically draft a detailed set of construction drawings and specifications that will become part of a "bid package." The County will then use the bid package to publicly solicit bids from contractors to perform the work. The lowest responsible, responsive bidder is awarded the project.

Under the Code, the County must use the competitive sealed bidding method to procure construction services over $15,000 unless one of several specific exceptions applies. See G.C.C. §§ 7-212-7-242.5. One of these exceptions—the focal point of this case—is known as the "design-build" procurement method.1See § 7-242.5.

The design-build method differs from traditional competitive sealed bidding in two important ways. First, under the design-build method, the County enters into a single contract for design and construction of the project. This arrangement condenses the two-step process of competitive sealed bidding in which the County procures design services and then contracts separately for the actual construction. Design-build's single source procurement also enables design and construction to proceed concurrently, thereby shortening project duration. Once a design "footprint" for a structure has been prepared, a contractor may begin work such as grading and excavating a site, while a designer continues to design the structure.

Second, the design-build method allows comparative subjective evaluations to be made when determining acceptable proposals for negotiation and award of the contract. Price need not be the sole or primary criterion for evaluating competing proposals—it may be only one of several factors considered. The County may select the design-build team based on other factors such as experience, project team members, and expertise.

It is design-build's lack of objective, bright-line criteria that raises concerns about its use. Critics espouse that design-build vests too much discretion with the governing body regarding when and to whom public contracts are awarded. Because price is not a controlling factor in design-build source selection, the public entity may not always receive the lowest, most competitive price possible. See e.g., Sloan v. Sch. Dist. of Greenville County, 342 S.C. 515, 521, 537 S.E.2d 299, 302 (Ct.App.2000)

(opining that "[t]his court has long maintained that `[m]unicipal competitive bidding laws are enacted to guard against such evils as favoritism, fraud or corruption in the award of contracts, to secure the best product at the lowest price'"). Without proper guidelines and oversight, design-build may foster the impression that the government is somehow less accountable for its decisions as to how it spends taxpayer money.

For these reasons, the use of design-build is limited under the Code to those situations in which it is properly justified. Greenville County's design-build ordinance sets out when it may be used:

The county administrator or his designee shall have the discretion to use construction management services, design-build services, or turnkey management services as alternatives for construction contracting administration. In exercising such discretion, the county administrator or his designee shall consider the method which is the most advantageous to the county and will result in the most timely, economical, and successful completion of the construction project. The determination for the method of source selection utilized shall be stated in writing and included as part of the contract file.

G.C.C. § 7-242.5(a). The County's discretion to use design-build instead of competitive sealed bidding source selection is therefore limited to those occasions when it is in the best interests of the County—a determination that must be in writing and available for public consumption in the contract file.

At issue before us is whether Greenville County properly justified its decision to use the design-build method to award three multi-million dollar construction contracts. Specifically, we must decide whether the written determinations were sufficient under section 7-242.5 of the Code.

The Construction Projects

The contracts for the three construction projects were awarded in 1999 and 2000. Construction services for all three were obtained using the design-build method.

Two of these contracts were for road-building projects that were part of a special infrastructure improvement program called the "Prescription for Progress" plan. This plan, approved by Greenville County Council in 1997, called for the expenditure of eighteen million dollars for the repair and resurfacing of approximately 148 lane miles on more than 400 county roads through the year 2010. The two projects at issue are Prescription for Progress road improvement programs for years 2000 and 2001 (hereinafter referred to as the "Roads 2000" and "Roads 2001" projects). For the Roads 2000 project, the County procured $6,759,100 of road construction services. In the Roads 2001 project, the County obtained $12 million in road construction services.

The third construction contract was for the renovation of the criminal forensics lab at the County's law enforcement center in 1999. The County procured $290,000 in construction services to complete this project.

This Action

After each of these contracts was awarded, Sloan brought suit seeking declaratory and injunctive relief, contending the procurements violated the Code. The primary issue—common to all three cases—was the validity of the County's determination to use design-build source selection rather than competitive sealed bidding in awarding the contracts. As additional causes of action, Sloan asserted the County did not obtain sufficient performance and payment bonds for the Roads 2000 project, and he claimed the Forensics Lab contract did not properly define the responsibilities and rights of the parties, both in violation of the Greenville County Code. In answering Sloan's charges, the County asserted the cases were not justiciable because Sloan did not have standing to challenge the County's actions and the questions presented were moot, preventing the court from awarding any effective relief.

The trial court consolidated the three cases for trial. The court decided these actions were properly justiciable—ruling that Sloan had standing to bring suit and the case was not subject to dismissal for mootness. With respect to the validity of the written determinations to use design-build source selection, the court deemed the determinations for the Roads 2000 and Roads 2001 projects were sufficient under the Code. It pronounced, however, the written determination for the Forensics Lab project did not satisfy the Code's requirements. As to the other claims asserted: The court adjudged the County had failed to obtain sufficient bonds for the Roads 2000 project. It found the Forensics Lab contract sufficiently defined the rights and duties of the parties.


The County contends this court should apply an "any evidence" standard of review rather than a "preponderance of the evidence" standard. We disagree.

In actions at law, on appeal of a case tried without a jury, the lower court must be affirmed where there is any evidence which reasonably supports the judge's findings. Strickland v. Prudential Ins. Co. of Am., 278 S.C. 82, 85, 292 S.E.2d 301, 303 (1982); Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 86, 221 S.E.2d 773, 775 (1976); Campbell v. Marion County Hosp. Dist., 354 S.C. 274, 280, 580 S.E.2d 163, 165 (Ct.App.2003). In an action in equity, however, the appellate court may "find facts in accordance with its views of the preponderance of the evidence." Townes Assocs., 266 S.C. at 86, 221 S.E.2d at 775; Kiriakides v. Atlas Food Sys. & Serv., 338 S.C. 572, 581, 527 S.E.2d 371, 376 (Ct.App.2000).

"A suit for declaratory judgment is neither legal nor equitable, but is determined by the nature of the underlying issue." Doe v....

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