I respectfully dissent. The trial court held, and I agree, that the SPPA does not apply to this contract for highway improvements, the relevant bonding provisions being those found in S.C.Code Ann. § 57-5-1660 (2006). I would accordingly vacate that part of the Court of Appeals opinion which addresses the merits of the SPPA claim, and affirm.
South Carolina Code Ann. § 57-5-1660 is found in a chapter of the Code entitled “State Highway System:” more specifically, this statute is found in the article of that chapter entitled “Construction Contracts' and Purchases.” Section 57-5-1660 governs “Contractors’ bonds; amounts and actions thereon” and provides in relevant part:
(a) The Department of Transportation shall require that the contractor on every public highway construction contract, exceeding ten thousand dollars, furnish the Department of Transportation, county, or road district the following bonds, which shall become binding upon the award of the contract to such contractor:
(1) A performance and indemnity bond....
(2) A payment bond with a surety or sureties satisfactory to the awarding authority, and in the amount of not less than fifty percent of the contract, for the protection of all persons supplying labor and materials in the .prosecution of work provided for in the contract for the use of each such person.
The statute requires a bond before the contract was let, a condition which was admittedly complied with, and contains no requirement that DOT keep a viable bond in place throughout the project. Even if this statute created a privately enforceable duty, DOT has not breached it.
The SPPA upon which the majority rests its decision, is simply inapplicable to a State Highway Department construction project. The “labor and material bond” statute cited by *123the majority applies when a governmental body, including DOT, enters “a contract to improve real property.” S.C.Code Ann. § 29-6-250(l)(2007). Such a contract is let by the property’s owner to:
(2) “Improve” means to build, effect, alter, repair, or demolish any improvement upon, connected with, or on or beneath the surface of any real property, or to excavate, clear, grade, fill, or landscape any real property, or to construct driveways and roadways, or to furnish materials, including trees and shrubbery, for any of these purposes, or to perform any labor upon these improvements, and also means and includes any design or other professional or skilled services furnished by architects, engineers, land surveyors, and landscape architects.
S.C.Code Ann. § 29-6-10(2)(2007).
In other words, when DOT has a parking lot repaved, or relandscapes an area adjoining its offices, or even when it contracts to build a new access road for a heavy equipment depot, it is subject to this act. A State Highway construction project, however, is neither a driveway nor a roadway within the ambit of the SPPA. Moreover, even if the SPPA were implicated by a such a project, § 29-6-250(1) merely requires the governmental entity entering the real estate improvement contract “take reasonable steps to assure that the appropriate bond is issued and is in proper form.” Here, there is no contention that DOT breached its duty to see that the AM-WEST bond was issued, and that it was in proper form. As in § 57-5-1660, there is no obligation placed on the governmental entity to monitor the bond status after it has been issued. Accordingly, even assuming the SPPA applies, no breach of statutory duty has been alleged here.
Finally, I simply do not understand that part of the majority opinion which upholds Petitioner’s right to maintain a third party breach of contract claim. Here, unlike the situation in A.E.I., a proper bond was procured and accordingly there is no need to resort to the third party theory. In a breathtaking gesture, the majority incorporates the bond requirements of the SPPA into every public works contract “governed by the statute,” apparently losing sight of the fact the statute only applies to contracts for the improvement of real estate, and then requires a bond only if the amount of the contract *124exceeds $50,000.8 Using a Procurement Code analogy and legislative powers, the majority goes on to “limit” governmental liability and suggests that attorney’s fees may somehow be recoverable from an unnamed statutory source, inferentially the mechanic’s lien statute. Showing greater restraint, the majority, while reversing the trial court’s dismissal of the complaint, does refrain from ruling prematurely in Petitioner’s favor.
I am awed by the majority’s decision but I cannot join it. Highway Construction bonding contracts are governed solely by § 57-5-1660. The trial court was correct in dismissing this complaint, and the Court of Appeals, although using reasoning which I do not entirely concur in, properly affirmed. I would uphold the dismissal for the reasons given above.
Acting Justice E.C. BURNETT, III, concurs.. The effect of the majority’s decision is to import the SPPA into highway construction contracting. It therefore appears that although § 57-5-1660 requires a bond whenever the highway construction contract exceeds $10,000, that monetary threshold is superseded by the SPPA, which requires a bond only when the contact exceeds $50,000. It is unclear to me how this ruling provides "a more extensive payment protection scheme dedicated specifically to subcontractors and suppliers.”