The South Carolina OSE Manual – an Introduction to the 2015 Edition
By Leslie Sullivan On May 5, 2016 | Public Procurement
This post is the first in a series of posts by Elmore Goldsmith attorney Leslie Sullivan, which will examine recent changes to the 2015 edition of the South Carolina Manual for Planning and Execution of State Permanent Improvements. The manual can be found in its entirety here.
I started my career as an on-site manager for a construction management firm on a state construction project. The senior project manager handed me the project manual, said that he needed one of the prime contractors to do something and he needed me to find a provision in the project manual to make the prime contractor comply. The project was being constructed in the early 1980’s when alternative construction delivery systems were new to the South Carolina construction market, especially in the public construction arena.
As there was no statutory authority for using construction management on state projects in 1981, contractually our CM firm was an arm of the architect, providing on site contract administration on behalf of the architect. As a CM, I had no contractual authority to really make things happen on the project because we were using the 1977 Edition of the AIA A201 – General Conditions for the Contract for Construction with the Supplementary Conditions published by the Office of the South Carolina State Engineer (“OSE”). The 1977 Edition of the A201 did not mention or contemplate construction manager involvement on a project. It was extremely frustrating and I knew there had to be another way to incorporate construction management into state projects. Thus started my fascination with the contract clauses and particularly how statutes and regulations affect public construction projects.
On the next state project I was assigned to, I decided that we needed to use the AIA A201 CM – General Conditions for the Contract for Construction, Construction Management Edition. As I was not a lawyer at the time, I did not realize I wasn’t supposed to change OSE’s supplementary conditions. But change them I did, by adapting and modifying the OSE supplementary conditions to use the A201 CM Edition in lieu of the standard A201. I also modified other bidding documents and Division 1 Requirements to coordinate the use of construction management on the project. The State Engineer accepted the changes and allowed us to use my modifications to implement the use of construction management on the project.
I provide this background to segue into the OSE’s release of the 2015 Edition of the OSE Manual for the Planning and Execution of State Permanent Improvements Part II, Rev. 1/2016. The 2015 Edition supercedes and replaces the 2011 Edition. The OSE Manual is the source for understanding the inner workings of planning, bidding and administration of state capital improvement projects. The OSE Manual basically implements the statutory provisions of the South Carolina Consolidated Procurement Code, S.C. Code Ann. § 11-35-10 et seq., in relation to capital improvement projects and affects any contractor who is involved in bidding and building projects for state agencies.
It is important to understand that the OSE Manual is not a static document, but changes to implement statutory and regulatory changes. For example, the 2001 Edition of the OSE Manual only references Construction Management Advisor (CM-A) and Construction Management Constructor (CM-C) as alternative project delivery systems for use in state projects. In 2008, the South Carolina Legislature passed a bill allowing for the use of several different alternative project delivery systems including: construction management at-risk; design-build; design-build-operate -maintain; and design-build-finance-operate-maintain. The 2011 and 2015 Editions of the OSE Manual include provisions for use of these newly authorized project delivery systems. Sections for administration of projects using these project delivery systems are still in development and will be added in future versions of the OSE manual.
Over the next few weeks, I will be reviewing and comparing the newly released 2015 OSE Manual to the previous 2011 Edition. I plan to share my observations with you and hope the observations will prove useful to you in planning strategies for your participation in state projects.