Gary Concrete Products, Inc. v. Riley

331 S.E.2d 335, 285 S.C. 498, 1985 S.C. LEXIS 432
CourtSupreme Court of South Carolina
DecidedMay 20, 1985
Docket22330
StatusPublished
Cited by23 cases

This text of 331 S.E.2d 335 (Gary Concrete Products, Inc. v. Riley) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gary Concrete Products, Inc. v. Riley, 331 S.E.2d 335, 285 S.C. 498, 1985 S.C. LEXIS 432 (S.C. 1985).

Opinions

Harwell, Justice:

The appellant Gary Concrete Products, Inc. initiated this action against the respondent State Budget and Control Board for a declaratory judgment regarding the constitutionality of S. C. Code Ann. § ll-35-1520(9)(d) (1984 Cum. Supp.). We affirm.

The appellant is a Georgia corporation which manufactures and sells reinforced concrete pipe. The appellant was invited to submit bids for state purchases during the year September 1, 1983 through August 31, 1984. On June 30, 1983, the appellant submitted its bid for pipe to be used in twenty-two counties. It was the low bidder in several counties; however, the State awarded the contracts to resident bidders as authorized by Code § ll-35-1520(9)(d) (1984).

We adopt the Order of the trial judge, as amended.

“The issue before this Court is whether or not S. C. Code Ann. § ll-35-1520(9)(d) violates the Commerce Clause of the United States Constitution or, alternatively, violates the Equal Protection Provisions of the United States Constitution or the South Carolina Constitution.

South Carolina Code § ll-35-1520(9)(d) provides:

Competitive procurements made by any governmental body shall be made from a responsive and responsible vendor resident in South Carolina: (i) for procurements under $2,500,000, if such bid does not exceed the lowest qualified bid from a nonresident vendor by more than two percent of the latter bid, and if such resident vendor had made written claim for such preference at the time the bid was submitted; (ii) for procurements in excess of $2,500,000, if such bid does not exceed the lowest qualified bid from a nonresident vendor by more than one percent of the latter bid, and if such resident vendor has made written claim for such preference at the time the bid was submitted. A vendor shall be deemed to be a [501]*501resident of this State, if such vendor be an individual, partnership, association or corporation that is authorized to transact business within the State, maintains an office in the State, maintains a representative inventory of commodities on which the bid is submitted and has paid all taxes duly assessed. Preferences under this subsection shall not apply to either prime contractors or subcontractors as relates to the construction industry nor to a vendor of goods whether in quantity or not when the price of a single unit of the item involved is more than ten thousand dollars.

The effect of this section is to give a preference to South Carolinians, under certain circumstances, when the State of South Carolina purchases supplies, services and goods.

COMMERCE CLAUSE

The appellant alleges that S. C. Code Ann. § 11-35-1520(9)(d) imposes an unlawful burden upon interstate commerce, constituting a violation of Article I, § 8 of the United States Constitution. The Commerce Clause gives the federal government the power to regulate interstate and foreign commerce. The states cannot pass any regulations which unduly burden the free flow of commerce between the states or with a foreign country. McCaw v. Fase, 216 F. (2d 700 (9th Cir. 1954), cert. denied, 348 U. S. 927, 75 S. Ct. 340, 99 L. Ed. 727 (1955).

Admittedly, there are circumstances under which S. C. Code § 11-35-1520(9)(d) will operate to favor South Carolina vendors over out-of-state vendors and thereby arguably burden interstate commerce. However, if a state enters a market in competition with other market participants, the Commerce Clause does not limit the state’s ability to operate as freely within the market place as the other participants. Reeves v. Stake, 447 U. S. 429, 437, 100 S. Ct. 2271, 2277, 65 L. Ed. (2d) 244 (1980). This freedom includes the right to favor the state’s own citizens over others. White v. Mass. Council of Construction Employers, 460 U. S. 204, 103 S. Ct. 1042, 75 L. Ed. (2d) 1 (1983); Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 96 S. Ct. 2488, 49 L. Ed. (2d) 220 (1976); Carll v. South Carolina Jobs-Economic Development Authority, 327 S. E. (2d) 331 (S. C. 1985).

[502]*502In Reeves, Inc. v. Stake, supra, the Supreme Court discussed the rights of a state as a market participant. South Dakota owned and operated a cement plant. In 1978 a cement shortage occurred and the state adopted a policy of supplying all South Dakota customers first and, thereafter, any out-of-state commitments would be met on a first come, first served basis. The plaintiff was an out-of-state distributor who had purchased cement from the South Dakota cement plant on a regular basis for twenty years. The Supreme Court held that the state had acted as a market participant and had not violated the Commerce Clause. It stated that the distinction drawn in Alexandria Scrap between states as market participants and market regulators was good law since the Commerce Clause is aimed principally at limiting state taxes and regulatory measures which impede free private trade, but places no similar limitations on the ability of states to operate freely in the open market. Id., 447 U. S. at 437, 100 S. Ct. at 2277. The Court then gave several reasons for judicial restraint in this area.

Restraint in this area is also counseled by considerations of state sovereignty, the role of each State “ ‘as guardian and trustee for its people,’ ” and “the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” Moreover, state' proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants. Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause. Finally, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, Alexandria Scrap wisely recognizes that, as a rule, the adjustment of interests in this context is a task better suited for Congress than this Court. [Footnotes and citations omitted.]

[503]*503Id., 447 U. S. at 438-439, 100 S. Ct. at 2278-2279.

In the instant matter, the State of South Carolina is acting as a market participant by purchasing reinforced concrete pipe. As a market participant, South Carolina can impose restrictions on itself and not run afoul of the Commerce Clause. The present factual situation is virtually on all fours with the Reeves decision. South Carolina is preferring its own citizens in the purchasing process — a process which, by definition, vaults South Carolina into the marketplace as a market participant.

The Supreme Court’s latest ruling on these issues came in the case of South-Central Timber Development, Inc. v. Wunnicke, _ U. S. _, 104 S. Ct. 2237, 81 L. Ed. (2d) 71 (1984). The Court held the Alaska requirement that timber taken from state lands be processed within the State prior to export violative of the Commerce Clause. The Court also provided some guidelines.

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Gary Concrete Products, Inc. v. Riley
331 S.E.2d 335 (Supreme Court of South Carolina, 1985)

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Bluebook (online)
331 S.E.2d 335, 285 S.C. 498, 1985 S.C. LEXIS 432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-concrete-products-inc-v-riley-sc-1985.