Generally, certification is a shorthand reference for procurement authority, that is, the power to sign the contract or award.
Specifically, certification is a process whereby the Budget and Control Board grants an agency procurement authority for contracts with an actual or potential value above $50,000. The term "certification" is a reference to the certificate issued by the Budget and Control Board to memorialize its grant of procurement authority to a state agency, college, or university. The certificate identifies the agency, the types of procurements they can conduct, and for each type, the dollar limits below which the agency can make direct procurements. To illustrate, a sample certificate is attached below.
For procurements up to $50,000, agencies have statutory authority to conduct their own procurements. This authority is sometimes called "base certification."
Caution: Authority is not a substitute for compliance with the procedural and approval requirements of the procurement laws. Likewise, authority is not a substitute for a legislative appropriation of funds.
The Office of Audit and Certification, a subdivision of Procurement Services, maintains a list of all the agencies which have been granted procurement authority, or "certified," by the Budget and Control Board. This Certified Agency Listing does not include agencies that have only the statutory authority to use the small purchase procedures for contracts up to $50,000.
While some authority is delegated by the Budget and Control Board, some is granted by statute. If an agency has statutory authority, it does not need certification. What follows are the primary areas for which agencies have statutory authority.
□ Auditing & Accounting Services – Section 11-35-1250
□ Legal Services – Section 11-35-1260
□ Small Purchases – Section 11-35-1550
□ Small Purchases – Design Services – Sections 11-35-1550 & 11-35-3230(1)
□ Sole Sources Procurements – Section 11-35-1560
□ Emergency Procurements – Section 11-35-1570
When doing business with the government, finding the right person - the person who has actual authority to bind the government - is crucial because only someone with actual authority can spend public dollars or sign a contract for the government. This rule is reflected in South Carolina law. Consider the following two quotes from South Carolina cases.
"A public officer derives his authority from statutory enactment, and all persons are in law held to have notice of the extent of his powers, and therefore, as to matters not really within the scope of his authority, they deal with the officer at their peril." Carolina Nat. Bank of Columbia v. State, 60 S.C. 465, 38 S.E. 629, 632 (South Carolina Supreme Court, 1901).
"A private party has no right to public funds received as a result of the unauthorized conduct of a government employee. [P]arties entering into agreements with the state assume the risk of ascertaining that he who purports to act for the state stays within the bounds of his authority." Service Management, Inc. v. State Health and Human Services Finance Commission, 298 S.C. 234, 379 S.E.2d 442, 444 (South Carolina Court of Appeals, 1989)
Always take appropriate steps to determine whether the person signing your contract or contract amendment has actual authority to do so.
Always read the solicitation or contract at issue, as they often contain language directed at identifying the person with proper authority.
When you deal with staff at the State Procurement Office, the State Engineer's Office, or the Information Technology Management Office, you are dealing with someone that has general authority to execute or approve contracts for any agency procurement covered by the Procurement Code.
When you deal with staff at an agency, you must be sure that the person signing your contract has the authority to do so. To determine if a procurement is within an agency's authority, check our Certified Agency Listing. To determine if you are working with authorized agency staff, contact the agency's procurement office and ask for their internal procedures, which according to regulation, must "establish a clear means by which vendors can identify the governmental body’s procurement officers and the limits of their authority."
Initial Contracts: An agency is acting within its procurement authority if, at the time the agency signs the contract, the value of the contract is within the dollar value of the agency's authority.
Contract Amendments: An agency is acting within its procurement authority if, at the time the agency signs a contract amendment, the value of the contract as amended is within the dollar value of the agency's authority. If the value of the contract as amended would exceed the dollar value of the agency's authority, approval from Procurement Services would be necessary.
[under development - check back soon]
Some of the contracts established by Procurement Services are identified as Statewide Term Contracts. By statute, use of these contracts is mandatory for state agencies. As reflected by the following quote, the Procurement Code expressly provides that agency certification is subject to all term contracts: "The board may assign differential dollar limits below which individual governmental bodies may make direct procurements not under term contracts." Accordingly, for supplies or services for which a statewide term contract has been established, agencies have no direct procurement authority. They may only purchase such supplies or services from a contractor on the Statewide Term Contract. The scope of a Statewide Term Contract is determined by the terms of its solicitation.
The statutes and regulations relevant to understanding certification and procurement authority include the following.
□ § 11-35-510
□ § 11-35-840
□ § 11-35-845
□ § 11-35-1210
□ § 11-35-1230(1)
□ § 11-35-1240(B)
□ § 11-35-1250
□ § 11-35-1260
□ § 11-35-1550(1)
□ § 11-35-1560(A)
□ § 11-35-1570
□ § 11-35-3060
□ § 11-35-3070
To access the Consolidated Procurement Code and the State's procurement regulations, click here.
This summary is provided solely as an introduction to certain concepts. Only statutes, regulations, and properly awarded contracts are binding. This summary is not an official agency interpretation of either a contract or the law.