South Dakota

Key Agency(ies):

• The Office of Procurement Management (OPM) within the Bureau of Administration is responsible for the procurement of all supplies, materials, and equipment required by state agencies and institutions. OPM establishes statewide contracts, authorizes small purchases, and manages equipment leases for state agencies.
• The South Dakota Department of Transportation (SDDOT) manages procurement for the state’s highway system and has its own suspension and debarment criteria.

Key Statute:

• South Dakota Codified Laws (SDCL) Title 5, Chapters 18A-18D government agency procurement within South Dakota.
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Key Regulations:

• Administrative Rules of South Dakota (S.D. Admin. R.) §§ 70:07:01-70:07:04
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Procurement Types/Highlights:

• Competitive Sealed Bids
• Competitive Sealed Proposals
• Limited or Noncompetitive Small Purchases
• Noncompetitive Sole Source Procurement
• Noncompetitive Emergency Procurement

Bid Protests:

Regs Governing Bid Protests:

• D. Codified Laws Chapter 1-26 and SDCL § 5-18B-20 govern bid protests.

Eligible Protesters:

• A losing bidder with prima facie case of favoritism, improvidence, fraud or corruption has standing to protest.
• South Dakota taxpayers may protest if they can demonstrate special injury.

Timeliness Rules:

• Procedures for protests – including timeliness rules – must be established in the RFP for design-build contracts.

Protest Process:

• Protests may be administrative (with the agency) or judicial (in court), depending on contract type and agency.
• For design-build contracts, the agency must establish protest procedures in the RFP.
• If no administrative tribunal, the contractor may sue directly for injunctive relief.
• Relief in such circumstances is typically declaratory or injunctive; monetary damages for bid preparation are not allowed.
• Courts may allow wide discretion to agencies in bid evaluation and award.

Appeals:

• Judicial review is available after exhaustion of administrative remedies.
• Writs of mandamus/prohibition are rare due to agency discretion.

Claims: 

• Sovereign immunity applies unless expressly waived by statute or constitution.
• Statutory waivers exist for contract disputes with SDDOT and municipalities.
• South Dakota’s UCC enactment waives immunity for goods contracts.
• Privity is required for breach of contract claims, and subcontractors may have privity if approved by the agency.

Suspension & Debarment:

• OPM may suspend a vendor for up to three months or debar for up to three years for noncompliance.
• SDDOT has separate suspension/debarment rules.
• Vendors will be removed from South Dakota’s bidders’ list for failure to pay registration fees.

Interesting/Distinctions: 

• South Dakota has a resident vendor preference where agencies will grant preference to resident business and manufacturers.
• Design-build contracts must be justified for complexity, timeline, or early cost commitment, and procedures for solicitation and award must be included in the RFP.