North Dakota

Key Agency(ies):  

• The Office of Management and Budget (OMB) is the primary executive agency responsible for most state procurement, including purchasing, leasing, and arranging commodities and services for North Dakota government entities.
• The OMB’s State Procurement Office operates the centralized purchasing service and maintains comprehensive procurement guidelines and resources for the state.
• The North Dakota Department of Transportation (NDDOT) administers its own procurement system for roads, bridges, and related projects.
• The Information Technology Department (ITD) has authority over procurement of information technology contracts and adopts rules and procedures governing procurement in this area.

Key Statute:

• North Dakota Century Code (N.D. Cent. Code) § 54-44.4 governs state purchasing practices, OMB authority, vendor lists, protests and appeals.
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• D. Cent. Code §§ 44-08-01, 44-08-01.1, 44-08-02 outlines bid preferences, tie bids, etc.
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Key Regulations:

• North Dakota Administrative Code (N.D. Admin. Code) 4-12 outlines general procurement rules.
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Procurement Types/Highlights:

• Most state contracts for commodities, services, and public improvements must be awarded through competitive bidding to the lowest responsible bidder.
• Competitive proposals may be used for services, IT, and equipment when sealed biding is not practicable or advantageous. In such cases, proposals are evaluated based on public criteria, with negotiations permitted after opening.
• Multistep competitive processes may be used when technical qualifications must be established before price competition.
• Limited competitive procurements are allowed when full competition is impracticable.
• Sole source procurements are permitted under specific, statutorily prescribed, situations.
• Emergency procurements

Bid Protests:

Regs Governing Bid Protests:

• D. Cent. Code § 54-44.4-12 and NDAC § 4-12-14 govern bid protests.

Eligible Protesters:

• Any vendor who participated in the solicitation process may file a protest.

Timeliness Rules:

• A protest must be submitted within seven calendar days after the protester knows or should have known of the facts giving rise to the protest.
  • The Procurement Officer must then render a decision within seven calendar days (however, this may be extended by seven more days).

Protest Process:

• A vendor who wishes to protest the award or intent to award a contract must submit a written protest to the procurement officer responsible for the solicitation.
• The protest must clearly identify the nature of the grievance and the facts giving rise to it.
• Upon receipt of the protest, the award of the contract is stayed unless a written determination is made that immediate award is necessary to protect the interests of the state.
• The procurement officer has seven calendar days to review and decide the protest (and may extend by seven more days).
• The officer may take corrective action, amend the solicitation, or cancel the award.
• A written decision is mailed to the protester, including the notice of appeal rights.
• Remedies for a successful protest may include cancellation and reissue of the solicitation, amendment of the solicitation, or evaluation criteria, or cancellation of the award.
• If the protesting bidder should have been awarded the contract, they may not recover anticipated profits; monetary relief is referred to the Attorney General.

Appeals:

• If dissatisfied with the procurement officer’s decision, the vendor may file a written appeal with the OMB within seven days of receiving the decision.
• The appeal must include a copy of the decision being appealed and the basis for the appeal.
• The OMB director or designee must mail a decision within seven days of receiving the appeal.
• The decision will detail the reasons for the action taken and inform the vendor of further judicial or administrative review rights.
• The director’s decision is considered final and conclusive for administrative law purposes.
• Final administrative decisions may then be appealed to district court, and ultimately to the North Dakota Supreme Court.
• Petition for reconsideration must be filed within 15 days after notice of a final decision; judicial appeal must be filed within 30 days.

Claims: 

• Claims and contract disputes against the state or its agencies must first be presented to the relevant department, institution, agency, board, or commission before any legal action can be filed in district court.
• For public improvement and OMB contracts, contractors must submit written notice of the claim within 180 days after the alleged injury is discovered or should have been discovered, stating the time, place, circumstances, state employees involved, and the relief demanded.
• NDDOT highway construction claims must follow a specific arbitration process, with written notice and documentation required. Claims under $100,000 use a single arbitrator, while large claims use a three-person board.
• Administrative review of contract claims is available and parties may file agency decisions to district court within 30 days; exhaustion of administrative remedies is required before judicial review.

Suspension & Debarment:

• The state procurement manager of the OMB, after consulting the Attorney General, may suspend or debar vendors from the bidders list for cause.
• Grounds for suspension/debarment include:
  • Failure to possess a vendor code number
  • Not in good standing with the North Dakota Secretary of State
  • Conviction or guilty plea for prohibited bidding practices
  • Debarment in another state or by the federal government
  • Filing frivolous protests
  • Other reasons enumerated in N.D. Admin. Code § 4-12-05-02
• Written notice must be provided to the vendor, describing the term, reason and appeal rights.
• Vendor may appeal in writing within seven calendar days and may submit evidence that circumstances have been corrected.
• The maximum period for a suspension is six months.
• The maximum period for debarment is three years.

Interesting/Distinctions: 

• North Dakota applies a “reciprocal preference” for resident bidders, meaning North Dakota vendors receive the same preference as would be given to out-of-state vendors in their home states. Resident status requires a bona fide place of business in North Dakota for at least one year prior to contract award.
• Architect, engineering, and land surveying contracts are awarded based on qualifications and competence, not price, for contracts over $35,000.
• Information technology contracts are overseen by the IT Department, which uses OMB procedures.
• The OMB maintains approved bidders lists for commodities and services. Vendors must apply to be listed and remain in good standing to receive bid notifications and awards.
• Vendors may be suspended or debarred for filing frivolous protests.