CHAPTER 48-01 Contractors’ Bonds and Insurance [Repealed]

[Repealed by S.L. 1995, ch. 443, § 29]

CHAPTER 48-01.1 Public Improvement Contract Bids [Repealed]

[Repealed by S.L. 2007, ch. 403, § 28]

48-01.1-01. Definitions. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-02. Contracts let to lowest bidder — Emergency waiver. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-03. Publication of advertisement for bids. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-04. Plans and specifications for public improvement contracts. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-05. Contents of advertisement. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-06. Bid requirements for public buildings. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-07. Opening of bids — Award of contract. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-08. Coordination of work under multiple prime bids. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

48-01.1-09. Use of construction manager. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter 1033, S.L. 2007 became effective August 1, 2007.

CHAPTER 48-01.2 Public Improvement Bids and Contracts

48-01.2-01. Definitions.

In this chapter, unless the context otherwise requires:

  1. “Agency construction management” means a public improvement delivery method through which a person provides to a governing body experienced construction management services, including ideas on constructability, documentation of design and construction, and coordination of project schedules.
  2. “Architect” means an individual registered as an architect under chapter 43-03.
  3. “Common ownership” means a shared management or ownership interest in two or more entities.
  4. “Construction” means the process of building, altering, repairing, improving, or demolishing any public structure or building or other improvement to any public property. The term does not include the routine operation or maintenance of existing facilities, structures, buildings, or real property or demolition projects costing less than the threshold established under section 48-01.2-02.1.
  5. “Construction administration” means administrative services provided by a governing body or an architect, a landscape architect, or an engineer, and includes providing clarifications, submittal review, recommendations for payment, preparation of change orders, and other administrative services included in the agreement with the architect, landscape architect, or engineer. The term does not include supervision of the construction activities for the construction contracts.
  6. “Construction management at-risk” means a public improvement delivery method through which a construction manager provides advice to the governing body during the planning and design phase of a public improvement, negotiates a contract with the governing body for the general construction bid package of the public improvement, and contracts with subcontractors and suppliers for the actual construction of the public improvement.
  7. “Construction manager” means a contractor licensed under chapter 43-07 or an individual employed by a licensed contractor which has the expertise and resources to assist a governing body with the management of the design, contracting, and construction aspects of a public improvement.
  8. “Construction observation” means observation of construction work and site visits by an architect, a landscape architect, or an engineer to assist the governing body in determining that the work conforms in general to the requirements of the construction contract and that the contractor has implemented and maintained the integrity of the design concept of a project as a functioning whole as indicated in the construction contract.
  9. “Contract” means a type of agency agreement for the procurement of services under this chapter.
  10. “Contractor” means any person, duly licensed, that undertakes or enters a contract with a governing body for the construction or construction management of any public improvement, including multiple prime contracts.
  11. “Design services” means architect services, engineer services, landscape architect services, or surveyor services.
  12. “Design-bid-build” means a project delivery method in which design and construction of the project are in sequential phases, and in which the first project phase involves design services, the second project phase involves securing a contractor through a bidding process, and the third project phase provides for construction of the project by a contractor awarded the project.
  13. “Emergency situation” means a sudden generally unexpected occurrence that requires immediate action to protect public health, safety, or property and which ends when the immediate threat to public health, safety, or property ceases and services are restored. The term does not include a lack of planning on the part of the governing body, architect, engineer, landscape architect, or contractor.
  14. “Engineer” means an individual registered as an engineer under chapter 43-19.1.
  15. “General conditions” means the written portion of a contract setting forth the governing body’s minimum acceptable performance requirements, including the rights, responsibilities, and relationships of the parties involved in the performance of the contract.
  16. “Governing body” means the governing officer or board of a state entity or a political subdivision.
  17. “Guaranteed maximum price” means the maximum amount a construction manager at-risk may be paid under a contract to construct a public improvement.
  18. “Landscape architect services” means landscape architecture services governed under chapter 43-03.
  19. “Lowest responsible bidder” means the lowest best bidder for the project considering past experience, financial condition, past work with the governing body, and other pertinent attributes that may be identified in the advertisement for bids.
  20. “Political subdivision” means a county, township, park district, school district, city, and any other unit of local government which is created either by statute or by the Constitution of North Dakota for local government or other public purposes.
  21. “Public improvement” means any improvement undertaken by a governing body for the good of the public and which is paid for with any public funds, including public loans, bonds, leases, or alternative funding, and is constructed on public land or within an existing or new public building or any other public infrastructure or facility if the result of the improvement will be operated and maintained by the governing body. The term does not include a county road construction and maintenance, state highway, or public service commission project governed by title 11, 24, or 38.
  22. “Subcontractor” means a person that contracts to perform work or render a service to a contractor or to another subcontractor as part of a contract with a governing body.

Source:

S.L. 2007, ch. 403, § 14; 2011, ch. 343, § 1; 2017, ch. 319, § 1, effective August 1, 2017.

Notes to Decisions

Public Improvement.

Project, which was completed for the purpose of repairing and maintaining a county’s roads, was not for the construction of a public improvement as defined by N.D.C.C. § 48-01.2-01, and therefore the statutory bond requirement for public improvements under N.D.C.C. § 48-01.2-10 did not apply. The district court did not err in granting summary judgment and dismissing plaintiff’s negligence claims against the county. Woodrock, Inc. v. McKenzie Cty., 2020 ND 182, 948 N.W.2d 20, 2020 N.D. LEXIS 185 (N.D. 2020).

48-01.2-02. Plans and specifications for a public improvement contract.

Except as otherwise provided in this chapter, if the estimated cost for the construction of a public improvement is in excess of the threshold established under section 48-01.2-02.1, the governing body shall procure plans, drawings, and specifications for the improvement from an architect or engineer. For a public building in use by or to be used by the North Dakota agricultural experiment station in connection with farm or agricultural research operations, the plans, drawings, and specifications, with the approval of the state board of higher education, may be prepared by an engineer in the regular employment of the agricultural experiment station. For a public building in use by or to be used by the department of transportation for the storage and housing of road materials or road machinery, equipment, and tools, the plans, drawings, and specifications may be prepared by an engineer employed by the department of transportation. Plans, drawings, and specifications of an architect or engineer must be stamped and sealed by the date of the initial bid advertisement.

Source:

S.L. 2007, ch. 403, § 14; 2011, ch. 343, § 2; 2015, ch. 317, § 1, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 317, S.L. 2015 became effective August 1, 2015.

48-01.2-02.1. Public improvement construction threshold.

  1. The threshold for bidding construction of a public improvement is two hundred thousand dollars. The threshold for procuring plans, drawings, and specifications from an architect or engineer for construction of a public improvement is two hundred thousand dollars.
  2. Notwithstanding the thresholds in subsection 1, if the state or a political subdivision undertakes the construction of a public improvement and there is reason to believe that engineering or architectural services are necessary to protect the health, safety, or welfare of the public, the state or political subdivision shall consider consulting with an engineer or architect.

Source:

S.L. 2011, ch. 343, § 3; 2015, ch. 154, § 3, effective August 1, 2015; 2017, ch. 320, § 1, effective August 1, 2017; 2019, ch. 381, § 2, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 154, S.L. 2015 became effective August 1, 2015.

Note.

Section 4 of chapter 154, S.L. 2015 provides, “APPLICATION . Sections 2 and 3 (which amended this section) of this Act apply to any public improvement project for which a contract or agreement for plans, drawings, or specifications is executed after the effective date of this Act.”

48-01.2-03. Specified brands, marks, names, or patented articles may not be specified.

A governing body, in specifying materials to be used for a public improvement or in plans or specifications for a public improvement, may not request bids for any article of a specified or copyrighted brand or name, the product of any one manufacturer, or any patented apparatus or appliance when the requirement will prevent proper competition, unless the specifications also request bids on other similar articles of equal value, utility, and merit or unless as provided in section 44-08-01.

Source:

S.L. 2007, ch. 403, § 14; 2011, ch. 344, § 1.

48-01.2-04. Publication of advertisement for bids — Emergency exception.

  1. Except as otherwise provided in this chapter, if the estimated cost for the construction of a public improvement is in excess of the threshold established under section 48-01.2-02.1, the governing body shall advertise for bids by publishing for three consecutive weeks. The first publication of the advertisement must be at least twenty-one days before the date of the opening of bids. The advertisement must be published in the official newspaper of the political subdivision in which the public improvement is or will be located, in a daily newspaper having a general circulation in the area where the project is located, and in a trade publication, electronic plan service, builders exchange, or other industry-recognized method of general circulation among the contractors, building manufacturers, and dealers in this state, except the advertisement for a public improvement financed by special assessments need be published only once each week for two weeks in the official newspaper with the first publication being at least fourteen days before the bid opening.
  2. If a governing body declares an emergency situation, the governing body may contract for the construction of a public improvement without seeking bids.

Source:

S.L. 2007, ch. 403, § 14; 2011, ch. 343, § 4; 2013, ch. 356, § 1; 2015, ch. 317, § 2, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 2 of chapter 317, S.L. 2015 became effective August 1, 2015.

The 2013 amendment of this section by section 1 of chapter 356, S.L. 2013 became effective August 1, 2013.

DECISIONS UNDER PRIOR LAW

Analysis

Architect’s Fee Limitation.

The five percent limitation of former N.D.C.C. § 11-11-32 also applied to compensation which the architect may have received for work done under this section, though he may have received additional payment where he supervised construction of the building. Brusegaard v. Schroeder, 201 N.W.2d 899, 1972 N.D. LEXIS 102 (N.D. 1972).

Competitive Bidding Violation.

Defendant violated the competitive bidding statutes contained in this title, when it revised specifications to reduce construction costs and negotiated with the four low bidders without affording other bidders an opportunity to bid on the revised project. Danzl v. Bismarck, 451 N.W.2d 127, 1990 N.D. LEXIS 26 (N.D. 1990).

Compliance with Statutory Competitive Bidding.

Where a contractor suing a city for failure to comply with the competitive bidding statutes did not allege any fraud or collusion by the city in the bid process, nor did the city breach an implied promise to consider the bids fairly and honestly which wrongfully denied an award to a responsible low bidder, district court correctly concluded that the contractor’s complaint failed to state a cause of action. 469 N.W.2d 159.

Conflicting Legislation.

Despite its conflicting with N.D.C.C. § 11-11-26, this section prevails for construction projects falling within this chapter. Brusegaard v. Schroeder, 201 N.W.2d 899, 1972 N.D. LEXIS 102 (N.D. 1972).

Fees in Excess of Limit.

Contractor who repaired broken sewer line for state, which sewer line was allowing raw sewage to escape into river, was entitled to payment of only $12,000 even though his charges for material and labor were justifiably $13,500; the requirement that any contract in excess of $12,000 be let out for bid applied to all contracts, and there was no exception for contracts performed under emergency situations. 213 N.W.2d 885.

Irregular Bidding Procedure.

No public interest would be served by an award of bid preparation costs to a contractor who, upon discovering the irregularity in the bidding procedure, did not immediately seek an injunction or a writ of mandamus, actions which would have fostered the public interest. 469 N.W.2d 159.

Purpose of Statutory Competitive Bidding.

Statutory competitive bidding requirements are enacted for the benefit of the public to invite competition, to prevent favoritism, fraud, and collusion, and to secure the best work and supplies at the lowest price. 469 N.W.2d 159.

Recovery of Damages.

Because competitive bidding statutes are enacted to benefit the public and are not intended to directly benefit contractors, a contractor generally may not recover damages against a public entity for violation of the competitive bidding statutes. 469 N.W.2d 159.

Revision of Specifications.

Defendant violated the competitive bidding statutes contained in this chapter, when it revised specifications to reduce construction costs and negotiated with the four low bidders without affording other bidders an opportunity to bid on the revised project. Danzl v. Bismarck, 451 N.W.2d 127, 1990 N.D. LEXIS 26 (N.D. 1990).

School Contract Law.

Former N.D.C.C. § 15-47-15, requiring competitive bidding in letting contracts involving the expenditure of school funds and setting a smaller minimum amount, was not repealed by implication by this section, since there was no irreconcilable inconsistency. St. Paul Foundry Co. v. Burnstad Sch. Dist., 67 N.D. 61, 269 N.W. 738, 1936 N.D. LEXIS 151 (N.D. 1936).

48-01.2-05. Contents of advertisement.

The advertisement for bids required by section 48-01.2-04 must state:

  1. The nature of the work and the type and location of the proposed public improvement.
  2. When and where the plans, drawings, and specifications may be seen and examined.
  3. The place, date, and time the bids will be opened.
  4. That each bid must be accompanied by a separate envelope containing the contractor’s license and bid security. The bid security must be in a sum equal to five percent of the full amount of the bid and must be in the form of a bidder’s bond. A bidder’s bond must be executed by the bidder as principal and by a surety, conditioned that if the principal’s bid is accepted and the contract awarded to the principal, the principal, within ten days after notice of the award, shall execute a contract in accordance with the terms of the bid and the bid bond and any condition of the governing body. A countersignature of a bid bond is not required under this section. If a successful bidder does not execute a contract within the ten days allowed, the bidder’s bond must be forfeited to the governing body and the project awarded to the next lowest responsible bidder.
  5. That a bidder, except a bidder on a municipal, rural, and industrial water supply project using funds provided under Public Law No. 99-294 [100 Stat. 426; 43 U.S.C. 390a], must be licensed for the full amount of the bid as required by section 43-07-12. For projects using funds provided under Public Law No. 99-294 [100 Stat. 426; 43 U.S.C. 390a], the advertisement must state that, unless a bidder obtains a contractor’s license for the full amount of its bid within twenty days after it is determined the bidder is the lowest responsible bidder, the bid must be rejected and the contract awarded to the next lowest responsible bidder.
  6. That no bid may be read or considered if the bid does not fully comply with the requirements of this section and that any deficient bid submitted must be resealed and returned to the bidder immediately.
  7. That the governing body reserves the right to reject any and all bids and rebid the project until a satisfactory bid is received.

Source:

S.L. 2007, ch. 403, § 14.

Note.

This section is set out above to reflect a correction from the state since the 2015 cumulative supplement. In subdivision (5) “section” was substituted for “sections 43-07-05 and”.

48-01.2-06. Bid requirements for public improvements.

  1. Multiple prime bids for the general, electrical, and mechanical portions of a project are required when any individual general, electrical, or mechanical contract or any combination of individual contracts is in excess of the threshold established under section 48-01.2-02.1. If a general, mechanical, or electrical contract is estimated to be less than twenty-five percent of the threshold, the contract may be included in one of the other prime contracts. A governing body may allow submission of a single prime bid for the complete project or bids for other specialized portions of the project. A governing body may not accept the single prime bid unless that bid is lower than the combined total of the lowest responsible multiple bids for the project.
  2. If a bid for the general, electrical, or mechanical portions of a project is not received, a governing body may:
    1. Negotiate a contract amendment, up to an additional one hundred fifty thousand dollars, with the general, electrical, or mechanical contractor whose contract would represent the largest portion of the project cost for providing the portion of the project for which a bid was not received without rebidding all or part of the project; or
    2. Award a contract for each portion of a project that received responsible bids pursuant to section 48-01.2-07 and readvertise for bids on the portion of the project that did not receive bids.

Source:

S.L. 2007, ch. 403, § 14; 2011, ch. 343, § 5; 2015, ch. 318, § 1, effective August 1, 2015; 2019, ch. 382, § 1, effective August 1, 2019.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 318, S.L. 2015 became effective August 1, 2015.

48-01.2-07. Opening of bids — Award of contract.

At the time and place specified in the notice, a governing body or its designated agent shall open publicly and read aloud each responsible bid received. The governing body shall award the contract to the lowest responsible bidder. A governing body may reject any and all bids and readvertise for bids if no bid is satisfactory or if the governing body determines any agreement has been entered by the bidders or others to prevent competition. The governing body may advertise for new bids in accordance with this chapter until a satisfactory bid is received.

Source:

S.L. 2007, ch. 403, § 14; 2017, ch. 204, § 2, effective August 1, 2017.

DECISIONS UNDER PRIOR LAW

Analysis

Chapter Violation.

Defendant violated the competitive bidding statutes contained in this chapter, when it revised specifications to reduce construction costs and negotiated with the four low bidders without affording other bidders an opportunity to bid on the revised project. Danzl v. Bismarck, 451 N.W.2d 127, 1990 N.D. LEXIS 26 (N.D. 1990).

Substantial Compliance.

Defendant substantially complied with this section where bids were opened publicly a short time before 5:30 in order to accomplish their reading at 6:30, the time stated in the notice. Danzl v. Bismarck, 451 N.W.2d 127, 1990 N.D. LEXIS 26 (N.D. 1990).

County was allowed to exercise some discretion in awarding the public improvement construction contract to the “lowest responsible bidder” and, when coupled with the use of the date of completion as an item of competition, the county was allowed to exercise discretion to consider the bidder’s ability, capacity, reputation, experience, and efficiency. Baukol Builders, Inc. v. County of Grand Forks, 2008 ND 116, 751 N.W.2d 191, 2008 N.D. LEXIS 117 (N.D. 2008) (decided under former N.D.C.C. § 48-01.1-03).

48-01.2-08. Officers must not be interested in contract.

A governing body, or any member, employee, or appointee of a governing body, may not be pecuniarily interested or concerned in a contract for a public improvement entered by the governing body.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-09. Contract with successful bidder.

A governing body shall enter a contract with the lowest responsible bidder as determined under section 48-01.2-07. The contract must contain the following:

  1. The written terms of the agreement and any associated document signed by the governing body and the contractor;
  2. The required surety bond; and
  3. Any other document deemed appropriate by the governing body and identified in the advertisement for bids.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-10. Bonds from contractors for public improvements.

  1. Unless otherwise provided under this chapter, a governing body authorized to enter a contract for the construction of a public improvement in excess of two hundred thousand dollars shall take from the contractor a bond before permitting any work to be done on the contract. The bond must be for an amount equal at least to the price stated in the contract. The bond must be conditioned to be void if the contractor and all subcontractors fully perform all terms, conditions, and provisions of the contract and pay all bills or claims on account of labor performed and any supplies, and materials furnished and used in the performance of the contract, including all demands of subcontractors. The requirement that bills and claims be paid must include the requirement that interest of the amount authorized under section 13-01-14 be paid on bills and claims not paid within ninety days. The bond is security for all bills, claims, and demands until fully paid, with preference to labor and material suppliers as to payment. The bond must run to the governing body, but any person having a lawful claim against the contractor or any subcontractor may sue on the bond.
  2. A governing body may not require any person required to provide a surety bond to obtain the surety bond from a specified insurance or surety company or insurance producer or to submit financial data to the company or producer.

Source:

S.L. 2007, ch. 403, § 14; 2017, ch. 320, § 2, effective August 1, 2017; 2019, ch. 381, § 3, effective August 1, 2019.

DECISIONS UNDER PRIOR LAW

Analysis

Bond Requirement.

A general contractor is required to furnish a bond as security for all bills and claims of subcontractors under this section. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

Oil company suppliers failed to show that they had a good faith belief that their asphaltic product was to be used in particular bonded projects where they entered into open seasonal contracts to supply asphaltic product to the contractor, they were aware that the contractor intended to use the asphalt oil for both bonded and unbonded projects and that there were at least three suppliers of asphalt oil to the contractor during this period, and there was no evidence that any asphalt oil was designated by the oil company suppliers solely for use in a given bonded project. 675 F. Supp. 1534.

Extension of Time.

The obligation which the statute imposes upon sureties on contractors’ bonds or, in the absence of such bonds, upon the officers failing to take them is one that is not discharged by an extension of time given to the principal debtor where such extension is not prejudicial to the sureties. Thompson Yards v. Kingsley, 54 N.D. 49, 208 N.W. 949, 1926 N.D. LEXIS 111 (N.D. 1926).

Labor Incidental to Contract.

Mechanic’s claim against construction contract surety upheld for daily labor performed upon subcontractor’s equipment to keep it operative during the off season and for small parts purchased by the mechanic for use on such equipment, since the repairs made and parts purchased were of such a nature that they were incidental to the performance of the contract and were substantially exhausted in performance of it. Nelson v. Hagen, 146 N.W.2d 873, 1966 N.D. LEXIS 147 (N.D. 1966).

Loan to Pay Wages.

Where employee loaned subcontractor money to pay for labor done on bonded public construction project, such employee was not thereby subrogated to the rights of the wage earners against the subcontractor’s surety. Nelson v. Hagen, 146 N.W.2d 873, 1966 N.D. LEXIS 147 (N.D. 1966).

Material and Labor.

This section is directory as to time, and the contractor must furnish the bonds securing materialmen and laborers before he is entitled to his compensation. Crane & Ordway Co. v. Sykeston Sch. Dist., 36 N.D. 254, 162 N.W. 413, 1917 N.D. LEXIS 193 (N.D. 1917).

Where a statutory bond is furnished, a direct obligation exists in favor of those who furnish labor or material for whose benefit such bond is given, and the surety thereon cannot be released or exonerated from the obligation through an assignment of the principal contract, a change in its terms, the default of the principal contractor, or an improper payment of the moneys due thereunder, though made without the knowledge or consent of the surety, where the obligee who has furnished labor or material pursuant to the original contract has not participated in such changes, nor had knowledge thereof, nor consented thereto. Brioschi-Minuti Co. v. Elson-Williams Constr. Co., 41 N.D. 628, 172 N.W. 239, 1919 N.D. LEXIS 103 (N.D. 1919).

This statute is designed to afford to laborers and materialmen a measure of security for their contribution to the public improvement named similar to the security of a mechanic’s lien for improvements of private property. Thompson Yards v. Kingsley, 54 N.D. 49, 208 N.W. 949, 1926 N.D. LEXIS 111 (N.D. 1926); Payseno v. Padgett Co., 55 N.D. 154, 212 N.W. 836, 1927 N.D. LEXIS 16 (N.D. 1927).

Public Improvement.

The statute’s language “any public improvement” encompasses road construction projects. Farmer's Union Cent. Exchange, Inc. v. Reliance Ins. Co., 626 F. Supp. 583, 1985 U.S. Dist. LEXIS 15712 (D.N.D. 1985).

Project, which was completed for the purpose of repairing and maintaining a county’s roads, was not for the construction of a public improvement as defined by N.D.C.C. § 48-01.2-01, and therefore the statutory bond requirement for public improvements under N.D.C.C. § 48-01.2-10 did not apply. The district court did not err in granting summary judgment and dismissing plaintiff’s negligence claims against the county. Woodrock, Inc. v. McKenzie Cty., 2020 ND 182, 948 N.W.2d 20, 2020 N.D. LEXIS 185 (N.D. 2020).

Purpose of Statute.

A statute requiring a contractor’s bond is intended to protect those furnishing labor or material for a public improvement. Payseno v. Padgett Co., 55 N.D. 154, 212 N.W. 836, 1927 N.D. LEXIS 16 (N.D. 1927).

Remote Supplier of Materials.

In absence of specific statutory definition, “subcontractor” ordinarily is one who contracts with original contractor to perform part of work which contractor himself has contracted to perform; where contractor ordered electrical materials from firm which, to fill order, obtained such materials from plaintiff and where contractor paid firm for materials but firm became insolvent and did not pay plaintiff, firm was only supplier and not subcontractor and plaintiff could not recover on contractor’s bond; purpose of bond was accomplished when firm received payment since statute is not designed to protect every remote materialman who deals with one who in turn deals with contractor or subcontractor. Kinney Elec. Mfg. Co. v. Modern Elec. Co., 149 N.W.2d 69, 1967 N.D. LEXIS 140 (N.D. 1967).

Suit on Bond.

A person having a claim against a contractor or subcontractor on a public improvement for labor or materials may sue on a statutory bond in his own name. Piper-Howe Lumber Co. v. Padgett, 55 N.D. 811, 215 N.W. 468 (1927), decided prior to the amendment to this section by Session Laws 1931, ch. 100; Session Laws 1935, ch. 81; and Session Laws 1937, ch. 100; following In re Crum, 55 N.D. 876, 215 N.W. 682, 1927 N.D. LEXIS 181 (N.D. 1927).

Timely Notice by Subcontractor.

This section protects persons supplying labor and materials for public improvements against failure of contractors to pay. It is remedial in nature. However, it does not guarantee payment. Recovery from a bond furnished pursuant to this section is expressly conditioned by the notice requirement contained in N.D.C.C. § 48-02-15. Timely notice by a subcontractor is therefore a condition precedent to recovery against the bond. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

There was no affirmative obligation for the general contractor to insure that a subcontractor of the general contractor’s subcontractor was paid where such party failed to give timely notice under former N.D.C.C. § 48-02-15. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

48-01.2-11. Claim for public improvement — Suit on contractor’s bond.

A person that has furnished labor or material for any public improvement for which a bond is furnished and has not been paid in full within ninety days after completion of the contribution of labor or materials may sue on the bond for the amount unpaid at the time of institution of suit. However, a person having a direct contractual relationship with a subcontractor, but no contractual relationship with the contractor furnishing the bond, does not have a claim for relief upon the bond unless that person has given written notice to the contractor, within ninety days from the date on which the person completed the contribution, stating with substantial accuracy the amount claimed and the name of the person for which the contribution was performed. The notice must be served by registered mail in an envelope addressed to the contractor at any place the contractor maintains an office, conducts business, or has a residence.

A governing body shall provide a certified copy of the bond and the contract for which the bond was given to any individual who submits an affidavit that either the individual has supplied labor or materials for the improvement and that payment has not been made or that the individual is being sued on the bond. The individual requesting the copy shall pay the actual cost of the preparation of the certified copy of the bond and the contract. The certified copy of the bond is prima facie evidence of the contents, execution, and delivery of the original.

Source:

S.L. 2007, ch. 403, § 14.

DECISIONS UNDER PRIOR LAW

Analysis

Date of Completion.
—Question of Fact.

The determination of the date of completion for the purpose of filing a mechanic’s lien is a question of fact. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

—Test.

The test used under the Miller Act, 40 USCS § 270b(a), after which this section is modeled, to determine when a subcontractor’s contribution is complete, thus triggering the commencement of the ninety-day notice period, is whether the last material or labor furnished is done as part of the original contract or merely to correct defects or to make repairs. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

Notice Held Untimely.

Where trial court found that subcontractor’s work in the summer of 1983 was done to remedy defects in his original work and that he completed his contribution on December 2, 1982, the ninety-day notice period under this section commenced on that day, rendering subcontractor’s October, 1983, notice untimely. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

Timely Notice As Condition Precedent.

Former N.D.C.C. § 48-01-01 protected persons supplying labor and materials for public improvements against failure of contractors to pay. It was remedial in nature. However, it did not guarantee payment. Recovery from a bond furnished pursuant to former N.D.C.C. § 48-01-01 was expressly conditioned by the notice requirement contained in this section. Timely notice by a subcontractor was therefore a condition precedent to recovery against the bond. To conclude otherwise would have necessitated interpreting this section as a useless legislative enactment. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

There was no affirmative obligation for the general contractor to insure that a subcontractor of the general contractor’s subcontractor was paid where such party failed to give timely notice under this section. Kuchenski v. Kramer Sheet Metal, 377 N.W.2d 133, 1985 N.D. LEXIS 441 (N.D. 1985).

48-01.2-12. Claims — When barred as liens against contractor and surety.

Any claim for any labor, material, or supply furnished for an improvement, upon which a suit is not commenced within one year after completion and acceptance of the project, is barred as a lien or claim against the contractor and the contractor’s surety and any right of setoff or counterclaim may be enforced in any court in this state against the governing body, the contractor, or the contractor’s surety. This chapter does not bar the right of any person who has furnished any labor, supply, or material to any subcontractor to enforce the claim against the subcontractor.

Source:

S.L. 2007, ch. 403, § 14.

DECISIONS UNDER PRIOR LAW

Right to Payment.

Insurer had reasonable bases upon which to deny the plaintiffs’ claims where plaintiffs failed to establish their right to payment through sufficient documentation, plaintiffs’ claims were inaccurate and grossly overstated, and the statute of limitations had run before the claims were even submitted. 675 F. Supp. 1534.

48-01.2-13. Payments.

At least once in each calendar month during the continuance of work upon any public improvement, the governing body shall receive and consider any partial payment estimate prepared by the architect or engineer. Upon review and approval, the governing body shall pay an estimate in an amount equal to the estimated value of the labor and material furnished plus the material adequately stored. A partial payment estimate must include retentions or retainage as follows: ten percent of each estimate until the project is fifty percent completed with no further retainage on estimates during the continuance of the contract unless unsatisfactory progress or performance is documented. The governing body may, upon completion of ninety-five percent of the contract, pay to the contractor up to ninety-five percent of the amount retained from previous estimates. The remaining amount retained must be paid to the contractor in the amounts and at the times approved by the architect or engineer. The governing body shall make final payment of all moneys due to the contractor following completion of all work, acceptance of the project by the governing body, and the provision of necessary releases. If an architect or engineer is not employed by the governing body for administration of the contract, the contractor, at the end of each calendar month during the continuance of work, may furnish a payment estimate to the governing body. After considering and approving an estimate, the governing body shall draw a warrant upon the proper fund and promptly transmit the warrant to the contractor. The governing body may invest or deposit any retained amount in a financial association or institution so that the contractor’s money retained is earning interest or dividends for the benefit of the contractor. Any amount invested or deposited must remain in the name of the governing body until final payment of all money due to the contractor is to be made.

Source:

S.L. 2007, ch. 403, § 14.

DECISIONS UNDER PRIOR LAW

Architect’s Supervision of Construction.

An architect may receive additional compensation beyond five percent of the total cost of the building as provided for in former N.D.C.C. § 11-11-32 when the architect supervises construction of the building. Brusegaard v. Schroeder, 201 N.W.2d 899, 1972 N.D. LEXIS 102 (N.D. 1972).

48-01.2-14. Late payment — Rate of interest.

If a governing body fails or neglects to consider any estimate properly submitted, pay any estimate approved, or make final payment upon completion and acceptance of a public improvement, for a period of more than thirty days from the date of approval of the estimate or the completion and acceptance date, the governing body shall pay interest on the estimate or final payment from the date of approval. The interest rate must be the rate per annum of two percentage points below the Bank of North Dakota prime interest rate as set thirty days from the date of the estimate or completion date until the issuance of a proper warrant for the payment. The governing body shall compute and add the interest to the face of the estimate or final payment and the interest must be charged to the fund upon which payment for the contract is to be made. No payment for, or on account of, any contract made under this chapter may be made except upon estimate of the architect, engineer, or contractor as provided in section 48-01.2-13.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-15. Appropriations may not be diverted.

No portion of any special appropriation for the erection of any public improvement, or for the doing of any work, may be drawn from the state treasury in advance of the work being completed or of the materials furnished. The funds may be drawn only upon proper estimates approved by the governing body of the institution for which the improvement is being constructed. No portion of any appropriation for any purpose may be drawn from the treasury before the appropriation is required for the purpose for which it is made, and no appropriation that is or may be made for any purpose with respect to the construction or improvement may be drawn or used for any other purpose until the construction or improvement for which the appropriation was made is fully completed and paid for.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-16. Architects, landscape architects, and engineers — Duties.

The governing body shall employ the architect, landscape architect, or engineer furnishing the plans as provided in this chapter or some other qualified person to provide construction administration and construction observation services for which the plans and specifications are prepared as provided by section 48-01.2-02. The architect, landscape architect, or engineer shall assist the governing body in determining that the contractor performs the work in accordance with the intent of the plans and specifications. As part of a site visit or construction observation, the architect, landscape architect, or engineer may not supervise, direct, or have control over the contractor’s work. The architect, landscape architect, or engineer may not exercise control over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected or used by the contractor, the quality control of the work, the security or safety on the site, any safety precaution or program incident to the contractor’s work, the failure of the contractor to comply with any law or rule applicable to the contractor’s furnishing of or performance of the work, or the failure of the contractor to furnish or perform the work in accordance with the construction contract. The architect, landscape architect, or engineer is entitled to receive a reasonable compensation to be fixed by the governing body. Any duty imposed or power conferred upon the governing body by this chapter applies to a successor to the governing body.

Source:

S.L. 2007, ch. 403, § 14.

DECISIONS UNDER PRIOR LAW

Architect’s Fees.

An architect may receive additional compensation beyond five percent of the total cost of the building as provided for in former N.D.C.C. § 11-11-32 where the architect supervises construction of the building. Brusegaard v. Schroeder, 201 N.W.2d 899, 1972 N.D. LEXIS 102 (N.D. 1972).

48-01.2-17. Coordination of work under multiple prime bids.

If a public improvement is awarded as multiple prime contracts for the general, electrical, mechanical work, and other prime contracts as contained in the bid for the project, the governing body may assign the coordination of the electrical and mechanical contracts and any other contracts to the general contractor for the project to facilitate the coordination of the work.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-18. Construction management — Governing body determinations.

  1. Notwithstanding any other provision of law, a governing body may use the agency construction management or construction management at-risk delivery methods for construction of a public improvement if:
    1. The agency construction manager has no common ownership or conflict of interest with the architect, landscape architect, or engineer involved in the planning and design of the public improvement or with any person engaged in the construction of the public improvement.
    2. The construction manager at-risk has no common ownership or conflict of interest with the architect, landscape architect, or engineer involved in the planning and design of the public improvement.
  2. Before utilizing the agency construction management or construction management at-risk delivery method, a governing body shall make the following determinations:
    1. That it is in the best interest of the public to utilize the agency construction manager or construction manager at-risk public improvement delivery method.
    2. That the agency construction manager or construction manager at-risk planning and design phase services will not duplicate services normally provided by an architect or engineer.
    3. That the agency construction manager or construction manager at-risk construction services will be in addition to and not duplicate the services provided for in the architect and engineer contracts.
  3. The governing body shall provide written documentation of the determinations provided for under subsection 2 upon written request from any individual.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-19. Agency construction management procurement procedures — Contract.

  1. A governing body electing to utilize the agency construction management delivery method shall establish a construction management services selection committee composed of individuals the governing body determines to be qualified to make an informed decision as to the most competent and qualified person for the proposed public improvement.
  2. The agency selection committee shall:
    1. Develop a description of the proposed public improvement;
    2. Enumerate each required agency construction management service for the proposed public improvement; and
    3. Prepare the formal invitation request for qualifications, which must include the project title, the general scope of work, a description of each service required for the public improvement, the final selection criteria, the address to which responses to the request must be submitted, and the deadline for submission of responses.
  3. The governing body shall publish a notice of the request for qualifications in a newspaper of general circulation in the county in which the public improvement is located and in a construction trade publication, electronic service, builders exchange, or other industry-recognized method in general circulation among the contractors, building manufacturers, and dealers in this state and shall be published for three consecutive weeks, with the first publication being at least twenty-one days before the date of opening of the request for qualifications. Upon written request, the governing body shall mail a copy of the invitation to any interested party.
  4. After the submission deadline, the selection committee shall hold interviews with at least three persons that have responded to the advertisement and which are deemed most qualified on the basis of information available before the interviews. If less than three persons have responded to the advertisement, the committee may readvertise or hold interviews with any person that submitted a response. The selection committee’s determination as to which person will be interviewed must be in writing and must be based upon the committee’s review and evaluation of all materials submitted. The written report of the committee must list the name of each person that responded to the advertisement and enumerate any reason for selecting any person to be interviewed. The written report must be available to the public upon written request. The purpose of the interviews must be to provide any information required by the selection committee to fully acquaint the committee members with the relative qualifications of each person that responded to the advertisement.
  5. The selection committee shall evaluate each person interviewed on the basis of the following criteria:
    1. The past performance of the person with respect to prior public improvements.
    2. The qualifications of proposed personnel.
    3. The willingness to meet time and budget requirements of the governing body.
    4. The business location of the person.
    5. The recent, current, and projected workloads of the person.
    6. Any related experience performing agency construction management services on projects of similar size and scope.
    7. Any recent or current work by the person for the agency.
    8. The ability of the person to provide the bond for the person’s portion of the work on the public improvement.
    9. The possession by the person of a class A contractor’s license.
  6. Based upon the evaluation under subsection 5, the selection committee shall rank the three persons which, in its judgment, are most qualified. If fewer than three persons responded to the advertisement, the selection committee shall rank each person that responded. The selection committee’s report ranking the interviewed persons must be in writing and must include data substantiating the committee’s determinations. The data must be available to the public upon written request.
  7. The selection committee shall submit its written report ranking the interviewed persons to the governing body for evaluation and approval by the governing body. The governing body shall determine the final ranking of each person and provide written notification of the order of preference to each person that responded to the request for qualifications.
  8. After providing the notice under subsection 7, the governing body shall negotiate a contract for services with the most qualified person at a compensation which is fair and reasonable to the governing body. If the governing body is unable to negotiate a satisfactory contract with that person, the governing body shall terminate negotiations with that person and commence negotiations in the same manner with the second and then the third most qualified person until a satisfactory contract has been negotiated. If no agreement is reached, three additional persons in order of the original ranking must be selected after consultation with the selection committee, and negotiations must be continued in the same manner until agreement is reached.
  9. The governing body, at any time, may reject all proposals and readvertise or select another allowed project delivery method.

Source:

S.L. 2007, ch. 403, § 14; 2013, ch. 356, § 2.

Effective Date.

The 2013 amendment of this section by section 2 of chapter 356, S.L. 2013 became effective August 1, 2013.

48-01.2-20. Selection process for construction management at-risk planning and design phase services.

  1. A governing body electing to utilize a construction management at-risk delivery process for a proposed public improvement shall create a selection committee composed of:
    1. An administrative individual from the governing body.
    2. A registered architect.
    3. A registered engineer.
    4. A licensed contractor.
  2. The governing body may compensate members of the selection committee. A member of the selection committee is not eligible to submit a proposal for the construction management at-risk contract under consideration.
  3. Before issuing a notice of request for qualifications to enter a construction management at-risk services contract, the selection committee shall establish the content of the request for qualifications, which must include the following:
    1. The identity of the governing body and a list of the members of the selection committee;
    2. A description of the proposed public improvement;
    3. The proposed budget limits of the public improvement;
    4. The commencement and completion date of the public improvement;
    5. The procedures to be used in submitting proposals;
    6. The qualifications evaluation criteria and the relative weighting of items;
    7. The subcontractor selection process to be used for construction services;
    8. The number of persons to be included in the final list;
    9. A statement indicating whether formal interviews will be held;
    10. A statement indicating whether fees and prices must be included in any proposal;
    11. A description of contract terms and conditions for the construction management at-risk services contract, including a description of the scope of services to be provided;
    12. A description of the procedures to be used for making the contract award;
    13. The insurance and bonding requirements and a statement requiring any person submitting a proposal to include with the proposal a certificate of insurance, indicating liability coverage; and
    14. The identification and location of other pertinent information the governing body may possess, including surveys, soils reports, drawings or models of existing structures, environmental studies, photographs, or references to public records.
  4. The request for qualifications submittal procedures must include the specific format that must be used by a construction manager at-risk when submitting a request for qualifications and the submission deadline location for submission of the request for qualifications.
  5. The selection committee shall determine the appropriate evaluation criteria for each request for qualifications, including:
    1. The person’s experience on any similar project;
    2. The person’s existing workload and available capacity;
    3. The person’s key personnel experience on any similar project;
    4. The person’s safety record;
    5. The person’s familiarity with the location of the public improvement;
    6. The person’s fees and expenses;
    7. The person’s compliance with state and federal law; and
    8. Any reasonable information the selection committee deems necessary.
  6. The selection committee shall evaluate each submission based on the qualification criteria under subsection 5 and shall include the numeric scoring of each criteria item on a weighted basis, with no item being weighted at more than twenty percent and no less than five percent. The weighting of the qualification criteria must be done in a manner to ensure no subjective bias and encourage the maximum participation of qualified construction managers at-risk.
    1. The selection committee shall review each proposal submitted and include the three highest ranked construction managers at-risk on a list of finalists. If fewer than three proposals were submitted, the governing body may resolicit for qualifications, interview any person that applied, or consider using another allowed delivery method. The selection committee shall recommend to the governing body the construction manager at-risk receiving the highest score on the evaluation criteria.
    2. If a construction manager at-risk selected for a public improvement declines the appointment or is unable to reach agreement with the governing body concerning fees or terms of the contract, the governing body shall terminate negotiations with the construction manager at-risk and begin negotiations with the construction manager at-risk with the next highest score and continue that process until agreement is reached or the list of finalists is exhausted.
    3. If the list of finalists is exhausted, the governing body shall request the selection committee to revise the request for qualifications and solicit new submissions. If the selection committee is unable to provide any constructive revision to the request for qualifications, the governing body shall select another allowed public improvement delivery method.
    4. The governing body, upon reaching an agreement with a construction manager at-risk on compensation and contract terms for construction management planning and design services, shall enter a written contract with the construction manager at-risk for the services.

Source:

S.L. 2007, ch. 403, § 14; 2015, ch. 317, § 3, effective August 1, 2015.

Effective Date.

The 2015 amendment of this section by section 3 of chapter 317, S.L. 2015 became effective August 1, 2015.

48-01.2-21. Selection process for construction management at-risk services — Construction services.

After the governing body and the construction manager at-risk have finalized the contract for planning and design phase services and the process has progressed sufficiently to provide the construction manager at-risk the necessary project details, the governing body and the construction manager at-risk shall enter negotiations for a guaranteed maximum price and contract terms for the general construction of the public improvement. If the governing body is unable to negotiate a satisfactory contract with the highest qualified person on the list of finalists, the governing body shall terminate negotiations with that person. The governing body shall commence negotiations with the next most qualified person on the list in sequence until an agreement is reached or a determination is made to reject all persons on the list. If the governing body reaches an agreement with a construction manager at-risk on a guaranteed maximum price and on contract terms, the governing body and construction manager at-risk shall enter a written contract for the general construction management at-risk construction services.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-22. Subcontractor bids.

  1. An agency construction manager selected for a public improvement shall publicly advertise and publicly open bids from subcontractors for the work items necessary to complete the general construction portions of the improvement. The governing body may influence the selection of the subcontractors, but only insofar as the governing body’s past experience with a subcontractor or a current legal dispute with a subcontractor.
  2. A construction manager at-risk selected for a public improvement shall publicly advertise and publicly open bids from subcontractors for the work items the construction manager at-risk chooses not to perform. The construction manager at-risk then shall evaluate the bids and determine which is the most responsible. The governing body may influence the selection of the subcontractors, but only insofar as the governing body’s past experience with a subcontractor or a current legal dispute with a subcontractor.

Source:

S.L. 2007, ch. 403, § 14; 2015, ch. 319, § 1, effective August 1, 2015; 2017, ch. 321, § 1, effective August 1, 2017.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 319, S.L. 2233 became effective August 1, 2015.

48-01.2-23. Bond required.

  1. An agency construction manager, before starting any work, shall provide the governing body with a bond that is equal to the cost of the agency construction manager’s services with the governing body. Under an agency construction manager delivery method, each contractor performing services on the public improvement shall provide the governing body with a separate bond for the contractor’s portion of the public improvement.
  2. A construction manager at-risk, before starting any construction, shall provide the governing body with a bond in an amount at least equal to the amount of the guaranteed maximum price. The bond must be conditioned to be void if the contractor and all subcontractors fully perform all terms, conditions, and provisions of the construction services contract and pay all bills or claims on account of labor and materials, including supplies used for machinery and equipment, performed, furnished, and used in the performance of the contract, including all demands of subcontractors. The requirement that bills and claims be paid must include the requirement that interest of the amount authorized under section 13-01.1-02 be paid on bills and claims not paid within ninety days. The bond is security for all bills, claims, and demands until fully paid, with preference to labor and material suppliers as to payment. The bond must run to the governing body, but any person having a lawful claim against the contractor may sue on the bond. Under a construction manager at-risk delivery method, the governing body may not require each contractor performing services on the public improvement to provide a separate bond for the contractor’s portion of the public improvement.

Source:

S.L. 2007, ch. 403, § 14; 2015, ch. 320, § 1, effective August 1, 2015; 2017, ch. 322, § 1, effective August 1, 2017.

Effective Date.

The 2015 amendment of this section by section 1 of chapter 320, S.L. 2015 became effective August 1, 2015.

48-01.2-24. Public buildings and facilities — Statement of compliance with accessibility guidelines.

Each governing body shall require a statement from any person preparing the plans and specifications for a public building or facility that, in the professional judgment of that person, the plans and specifications are in conformance with the Americans with Disabilities Act accessibility guidelines for buildings and facilities as contained in the appendix to title 28, Code of Federal Regulations, part 36 [28 CFR 36], subject to the exception stated in section 54-21.3-04.1.

Source:

S.L. 2007, ch. 403, § 14.

48-01.2-25. Authorization of expansion of public improvements by legislative assembly or budget section.

Notwithstanding any other provision of law, a state agency or institution may not significantly change or expand a public improvement beyond what has been approved by the legislative assembly unless the legislative assembly approves the change or expansion of the project or any additional expenditure for the project. During the time the legislative assembly is not in session, and unless otherwise restricted by previous legislative action or other law, the budget section may approve a change or expansion or any additional expenditure for the project. However, the budget section may not approve a change, expansion, or additional expenditure for the project during the six months preceding the convening of a regular session or during the three months following the close of a regular session except for changes in project scope and related additional expenditures resulting from an unforeseen emergency event. Any request considered by the budget section must comply with section 54-35-02.9. For the purposes of this section, a significant change or expansion includes the construction of an addition to a building, including skywalks or other type of enclosed walkway, or any other substantial increase in the area of the building, but does not include the construction of building entrances and stairwells.

Source:

S.L. 2007, ch. 403, § 14; 2009, ch. 482, § 98; 2013, ch. 357, § 2; 2019, ch. 438, § 9, effective August 1, 2019.

Effective Date.

The 2013 amendment of this section by section 2 of chapter 357, S.L. 2013 became effective August 1, 2013.

CHAPTER 48-02 Construction [Repealed]

[Repealed by S.L. 2007, ch. 403, § 28]

48-02-01. Definition of governing board. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-02. Prerequisite to building and repair by contract — Exceptions. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-03. Method used in securing bids — Emergency waiver. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-04. Contents of advertisement. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-05. Plans and specifications — Place of filing. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-05.1. Bid requirements and acceptance. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-06. Opening bids — Award of contract — Bond required. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-06.1. Public contract to contain a fuel cost line item and a fuel cost adjustment clause. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-06.2. Bonds from contractors for public improvements. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-07. Allowance and payment of estimates — Investment of retainage. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-08. Estimate — Failure to certify — Rate of interest. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-09. Appropriations not to be diverted. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-10. Material produced in state given preference for use in public buildings. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-10.1. Advertising for bids. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-10.2. Opening bids, award of contracts, preference for native products. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-10.3. Violations — Remedy. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-11. Specified brands, marks, names, or patented articles not to be specified. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-12. Officers must not be interested in contract. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-13. Architects and engineers — Duties. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-14. Retention of money on public contracts. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-15. Claim for work or improvement — Suit on contractor’s bond. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-16. Contents of notice to subcontractors — Number of publications. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-17. Claims — When barred as liens against contractor and surety. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-18. Statement of legislative intent on design of public buildings. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-19. Public buildings and facilities — Statement of compliance with accessibility guidelines. [Repealed]

Repealed by S.L. 2007, ch. 1033, § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-20. Authorization of expansion of building projects by legislative assembly or budget section. [Repealed]

Repealed by S.L. 2007, 1033, ch. § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

48-02-21. Public buildings — Directed surety bonds prohibited. [Repealed]

Repealed by S.L. 2007, 1033, ch. § 28.

Effective Date.

The repeal of this section by section 28 of chapter ch. 403, S.L. 2007 became effective August 1, 2007.

CHAPTER 48-02.1 Infrastructure Development by Private Operators

48-02.1-01. Definitions.

As used in this chapter, unless the context or subject matter otherwise requires:

  1. “Build, operate, and transfer facility” means a build, operate, and transfer fee-based facility constructed, improved, or rehabilitated and afterward operated by a private operator who holds title to the facility subject to a development agreement that includes a provision that title will be transferred or revert to the public authority on expiration of an agreed term.
  2. “Build, transfer, and operate facility” means a build, transfer, and operate fee-based facility constructed, improved, or rehabilitated by a private operator who:
    1. Transfers the interest it may have in the facility to the public authority before operation begins; and
    2. Operates the fee-based facility for an agreed term pursuant to a lease, management, or concession agreement.
  3. “Development agreement” means a written agreement by and between a public authority and a private operator which memorializes the parties’ agreement with respect to the construction, improvement, rehabilitation, ownership, or operation of a fee-based facility. A development agreement must satisfy the requirements of section 48-02.1-03.
  4. “Fee-based facility” means a facility that provides a service in which the charge is based on the level of service by users or a rental fee paid by a public authority. The facility may be a library, city hall, and an appurtenant building, a water or sewage treatment plant, or other public improvement; land lying within applicable rights of way; and other appurtenant rights or hereditaments that together comprise a project for which a private operator is authorized to operate or own and impose fees or derive a rent as expressed in the development agreement.
  5. “Private operator” means a private person, a corporation or partnership, a cooperative or unincorporated association, a joint venture or consortium that constructs, improves, rehabilitates, owns, leases, operates, or manages a fee-based facility subject to this chapter. The term includes related parties and entities that together perform some or all of these functions for the same facility.
  6. “Public authority” means the state subject to legislative authority, a county, township, or city when ownership of or jurisdiction over a fee-based facility has been tendered to and accepted by said authority.

Source:

S.L. 1993, ch. 459, § 1.

48-02.1-02. Private operators.

Notwithstanding any other provision of law, private operators may construct, improve, rehabilitate, own, lease, manage, and operate fee-based facilities subject to the terms of this chapter. Private operators may mortgage, grant security interests in, and pledge their interests in, for a period not to exceed the length of the development agreement:

  1. Fee-based facilities and their components;
  2. Development, leases and concessions, and other related agreements; and
  3. Income, profits, and proceeds of the fee-based facility.

Source:

S.L. 1993, ch. 459, § 2.

48-02.1-03. Public authority may enter into development agreement.

A public authority may solicit or accept proposals from private operators for the constructing, improving, rehabilitating, operating, managing, and owning of a fee-based facility that will be situated in an area subject to the public authority’s jurisdiction. After a hearing, the public authority may accept a proposal that it determines to be in the public interest. A public authority may negotiate and enter into a development agreement with any private operator.

Source:

S.L. 1993, ch. 459, § 3.

48-02.1-04. Contents of development agreements.

A development agreement for a fee-based facility entered into pursuant to this chapter may provide for private ownership of the facility without reversion of title; for operating the facility under lease or management contract; for build, operate, and transfer facilities or build, transfer, and operate facilities; or any other form of ownership or operation considered advisable by the public authority. A development agreement may permit the private operator to:

  1. Assemble funds from any available source, including federal, state, and local grants, bond revenues, contributions, and pledges; and
  2. Incorporate related improvements into the fee-based facility, subject to requirements of state and federal law.

A development agreement may also include grants of title, easements, rights of way, and leasehold estates that are necessary to the fee-based facility. In addition, a development agreement may authorize the private operator to charge variable-rate fees based on time of day, characteristics of services, or other factors and measurement methods considered significant by the public authority for the particular facility.

Source:

S.L. 1993, ch. 459, § 4.

48-02.1-05. Right-of-way acquisition.

Private operators may acquire right of way and property by donation, lease, or purchase. When necessary for the construction, alteration, addition, extension, or improvement of any project under this chapter, a public authority may acquire, subject to chapter 32-15, any real or personal property by the law of eminent domain of this state and may lease the property or right of way to a private operator.

Source:

S.L. 1993, ch. 459, § 5; 2007, ch. 293, § 31.

48-02.1-06. Lease term.

A lease for public facilities must be for terms of no more than fifty years and must be reviewed and may be revised every five years.

Source:

S.L. 1993, ch. 459, § 6.

48-02.1-07. Application of other law.

This chapter does not excuse private operators of fee-based facilities from the necessity of obtaining environmental, navigational, design, or safety approvals that would be required if the facility were constructed or operated by a public body.

Source:

S.L. 1993, ch. 459, § 7.

48-02.1-08. Public authority may facilitate projects.

  1. A public authority may exercise any power possessed by it with respect to the development and construction of infrastructure projects to facilitate the development and construction of infrastructure projects under this chapter.
  2. A public authority may provide services for which it is reimbursed with respect to preliminary planning, planning, environmental certification, and preliminary design of infrastructure projects.

Source:

S.L. 1993, ch. 459, § 8.

48-02.1-09. Development agreements — Mandatory provisions.

A development agreement must require:

  1. That the plans and specifications for the fee-based facility satisfy the public authority’s standards of construction for infrastructure of the same functional classification;
  2. For fee-based facilities to be incorporated into the existing infrastructure, that any applicable department or authority review and approve the facility to the same extent as it would for a similar publicly constructed facility;
  3. That, after public notice, the private operator manage and operate a fee-based facility in cooperation with the applicable public authority and subject to any bylaws that the public authority and the private operator may from time to time mutually agree upon;
  4. That the fee-based facility be subject to regular safety inspections by the applicable public authority;
  5. That the anticipated fees, rental income, and revenues from the operation of the facility, or other sources of funding, or any combination thereof, be sufficient to pay the maintenance and operation costs for the facility, and principal of and interest on any evidence of indebtedness to finance the facility; and
  6. Any other provisions negotiated by the parties.

Source:

S.L. 1993, ch. 459, § 9.

48-02.1-10. Cost recovery.

Development agreements entered into under this chapter may authorize private operators of fee-based facilities to impose a fee-based charge for the use of the facility and must require that the fee revenues be applied:

  1. To repayment of indebtedness incurred for the fee-based facility;
  2. To lease or fee-based concessions payments, if any;
  3. To costs associated with the operation, administration, and maintenance of the facility; and
  4. To reasonable reserves for future capital outlays, if any.

Residual fee revenues belong to the private operator, except for any royalties that may be payable to a public authority under the development agreement or a related fee-based concession agreement. After the expiration of any lease for a build, transfer, and operate facility, or after title has reverted for a build, operate, and transfer facility, the public authority may continue to charge a fee for the use of the facility.

Source:

S.L. 1993, ch. 459, § 10.

48-02.1-11. Joint authority.

When a fee-based facility is or will be situated in the jurisdiction of more than one public authority, or is or will be an interstate or international facility, the applicable authorities concerned may enter into a compact to delegate to one or more of the authorities or a board appointed by the various authorities the authority to exercise all of the powers, duties, and functions of the other authorities regarding the fee-based facility, including the authority to negotiate and administer the development agreement and any related lease and fee-based concession agreement. In addition, if all public authorities having jurisdiction over a fee-based facility concur, title to or authority over the facility may be tendered to the agreed-upon authority of choice, which may at its option accept the title of authority to administer pursuant to the development agreement and this section.

Source:

S.L. 1993, ch. 459, § 11.

48-02.1-12. Property tax exemptions — Exemptions from bidding requirements.

  1. If approved by the governing body of the city, for property within city limits, or by the governing body of the county, for property outside city limits, new fee-based facilities are exempt from all ad valorem taxes.
  2. For portions of the project that do not involve contractor ownership, the construction, improvement, rehabilitation, operation, and management of fee-based facilities by private operators under this chapter are subject to all competitive bidding and procurement requirements otherwise applicable under state and local laws, rules, and ordinances, if so determined by resolution of the governing body of the public authority.

Source:

S.L. 1993, ch. 459, § 12.

48-02.1-13. Relation to other law.

The rights, powers, and authority conferred by this chapter are in addition to other rights, powers, or authority private operators and public authorities may have under other law. This chapter does not supersede or repeal, expressly or by implication, any other law permitting the construction, improvement, rehabilitation, ownership, and operation of fee-based facilities by private operators.

Source:

S.L. 1993, ch. 459, § 13.

CHAPTER 48-03 Depreciation and Interest

48-03-01. Public expenditures in public buildings not interest bearing.

Expenditures by and on behalf of the state for public buildings or other structures for educational, charitable, penal, industrial, or other public purposes shall be made in order to provide the equipment to promote such public purposes, and such investments shall not be interest bearing.

Source:

S.L. 1933, ch. 198, § 1; R.C. 1943, § 48-0301.

48-03-02. Auditors prohibited from setting up interest charges in audit where no interest charged on public buildings.

Auditing boards, auditors, and examiners in their respective audits and examinations shall refrain from setting up an interest charge on the amounts invested in any public building or structure. The books of the respective institutions or boards shall be adjusted accordingly.

Source:

S.L. 1933, ch. 198, § 2; R.C. 1943, § 48-0302.

48-03-03. Discrimination as to interest on public buildings prohibited.

There shall be no discrimination in respect to interest on investments made or to be made in any of the following public buildings owned, managed, and controlled wholly by the state of North Dakota:

  1. The capitol building.
  2. The university or other educational buildings.
  3. The state mill and elevator, Bank of North Dakota, or other industrial buildings.
  4. The state hospital or other charitable institutions.
  5. The memorial building, bridges, or highways, or any other public building or structure.

Source:

S.L. 1933, ch. 198, § 3; R.C. 1943, § 48-0303; S.L. 1983, ch. 82, § 94.

48-03-04. Depreciation on public buildings or other structures — How computed.

When it is deemed proper to set up charges for depreciation to ascertain a basis for insurance or for other purposes, the annual charge for depreciation shall be such an amount that it, with interest thereon added thereto annually at the highest rate of interest paid regularly on twelve-month deposits in the Bank of North Dakota, will aggregate at the end of the period estimated to be the natural life of the building or other structure, the original cost of the building or structure. Such addition annually of the depreciation charge and interest shall be credited to a fund to be entitled “reserve for depreciation”. The depreciation credit shall be charged against undivided profits and the interest credited to depreciation shall be charged to interest paid. Any depreciation charges made in excess of the amount herein provided shall be restored on the books and in the audits or reports of examination thereof to the fund against which such depreciation was previously charged in relation to the several institutions affected. Amounts credited, or investments in real estate and structures thereon, shall be restricted to the fund representing such assets, to the end that such real estate shall continue to be carried on the books at its original cost or actual value, whichever is lower as of the date of purchase or erection.

Source:

S.L. 1933, ch. 198, § 4; R.C. 1943, § 48-0304.

CHAPTER 48-04 Joint Ownership

48-04-01. Joint ownership and use of public buildings and grounds — Townships — Cities — Special elections.

Any civil township and incorporated city located within the boundaries thereof, when authorized by three-fourths of the legal voters of each municipality present and voting at separate elections, may acquire and use jointly any public buildings and grounds within the corporate limits of either one. The question of such joint acquisition and use may be submitted at regular or legally called special elections of both municipalities held not more than three months apart and when once submitted may not again be submitted within one year.

Source:

S.L. 1919 Sp., ch. 45, § 1; 1925 Supp., § 4285b1; R.C. 1943, § 48-0401; S.L. 1967, ch. 323, § 230.

48-04-02. Joint custody and control of public buildings and grounds.

Such public buildings and grounds as are provided for in section 48-04-01 shall be in the joint custody and control of the governing boards of such city and township, which shall make and enforce lawful and reasonable regulations for the care, protection, and use thereof.

Source:

S.L. 1919 Sp., ch. 45, § 3; 1925 Supp., § 4285b3; R.C. 1943, § 48-0402; S.L. 1967, ch. 323, § 231.

48-04-03. Incurring indebtedness for payment of public buildings and grounds.

Townships or cities may incur indebtedness and may provide for the payment thereof severally, but not jointly, for the acquisition of any such public buildings and grounds in the manner provided by chapter 21-03.

Source:

S.L. 1919 Sp., ch. 45, § 2; 1925 Supp., § 4285b2; R.C. 1943, § 48-0403; S.L. 1967, ch. 323, § 232.

48-04-04. Meetings — Held in public buildings.

All meetings and elections of the municipalities mentioned in section 48-04-01, provided by law to be held, and otherwise legally called and held, may be held in such public buildings whether wholly or partly within one or wholly or partly within the other municipality.

Source:

S.L. 1919 Sp., ch. 45, § 4; 1925 Supp., § 4285b4; R.C. 1943, § 48-0404.

CHAPTER 48-05 General Regulations

48-05-01. Flags displayed on public institutions.

The flag of the United States of America shall be displayed upon all state institutions between the hours of nine o’clock a.m. and four o’clock p.m. of each day, weather permitting. The officials in charge of the various state institutions shall make the necessary arrangements for carrying out the provisions of this section.

Source:

S.L. 1890, ch. 69, §§ 1, 2; R.C. 1895, §§ 1021, 1022; R.C. 1899, §§ 1021, 1022; R.C. 1905, § 1282; C.L. 1913, § 1820; S.L. 1915, ch. 28, § 1; 1925 Supp., § 1820; R.C. 1943, § 48-0501.

Cross-References.

Desecration of flag, see N.D.C.C. § 12.1-07-02.

Display of flags antagonistic to existing government prohibited, see N.D.C.C. §§ 12.1-07-03 to 12.1-07-05.

48-05-01.1. Display of prisoner of war and missing in action flag — State capitol grounds.

The prisoner of war and missing in action flag:

  1. Must be flown daily on the state capitol grounds at the following flagpole locations:
    1. Immediately south of the state capitol building;
    2. In front of the all veterans memorial; and
    3. On the east side of the heritage center.
  2. May be flown either below the flag of the United States on the same flagpole or alone on a separate flagpole.
  3. Must be displayed using proper flag etiquette.

Source:

S.L. 2019, ch. 383, § 1, effective May 1, 2019.

48-05-02. Public institutions to use native fuel products. [Repealed]

Repealed by S.L. 1971, ch. 457, § 1.

48-05-02.1. Purchase of coal by the state and political subdivisions.

The state and all of its institutions, all political subdivisions, and all public schools, when purchasing coal for heating purposes, shall give preference to bidders supplying coal mined in North Dakota if such coal, on an aggregate basis, will provide equivalent British thermal units of heating value in comparison to coal mined elsewhere, if the total bid price of the coal mined in North Dakota and delivered is not higher than the total bid price of coal mined elsewhere and delivered, and if state air pollution permits to operate would not limit the use of North Dakota coal due to emissions limits. In evaluating the comparable price of North Dakota coal versus other coal, the state and its institutions, political subdivisions, and public schools may include any ash handling costs that may be associated with the use of North Dakota coal. The state or any of its institutions, any political subdivision, or any public school, when advertising for or reviewing bids for the purchase of coal for heating purposes, may not mandate the use of any particular type of coal or the region where the coal is to be mined.

Source:

S.L. 2003, ch. 395, § 1.

48-05-03. Publishing proposals for fuel products in newspaper — Standard contract grade. [Repealed]

Repealed by S.L. 1981, ch. 468, § 1.

48-05-04. Penalty for failure to use native fuel in public buildings. [Repealed]

Repealed by S.L. 1971, ch. 457, § 1.

48-05-05. Public buildings and parks — Opening for public meetings — Penalty for violation. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

48-05-06. Alcoholic beverages and drugs in charitable institutions prohibited — Penalty.

Every person who shall take, send, or introduce any alcoholic beverage or controlled substance into any of the buildings or upon any of the premises of any charitable institution of this state, or of any county, or city thereof, except upon the express authority of the physician or chief executive officer of such institution, given in writing, is guilty of a class A misdemeanor. As used in this section, “controlled substance” has the meaning provided in section 19-03.1-01, and includes counterfeit substances as defined in section 19-03.1-01.

Source:

S.L. 1911, ch. 229, § 1; 1913, ch. 224, § 1; C.L. 1913, § 10174; R.C. 1943, § 48-0506; S.L. 1963, ch. 89, § 20; 1975, ch. 110, § 13; 1995, ch. 54, § 37.

Cross-References.

Alcoholic beverage not to be supplied to prisoner, see N.D.C.C. § 12-44.1-21.

State industrial school, delivery or administration to, or possession by, inmate of alcoholic beverage or controlled substance prohibited, see N.D.C.C. § 12-46-24.

48-05-07. Authority to designate areas for smoking or nonsmoking of tobacco products in publicly owned buildings. [Repealed]

Repealed by S.L. 1977, ch. 224, § 4.

Note.

For present provisions, see §§ 23-12-09 to 23-12-11.

48-05-08. Penalty. [Repealed]

Repealed by S.L. 1977, ch. 224, § 4.

Note.

For present provisions, see §§ 23-12-09 to 23-12-11.

48-05-09. Definitions.

In sections 48-05-09 through 48-05-13, unless the context otherwise requires:

  1. “Energy conservation measure” means a training program or facility alteration intended to reduce energy consumption or operating costs, including the following:
    1. Insulation of the building or any structure associated with the building.
    2. Window or door modifications that reduce energy consumption.
    3. Automatic energy control systems.
    4. Replacement or modification to increase the energy efficiency of the lighting, heating, air-conditioning, or ventilating system.
    5. Energy recovery or cogeneration systems.
  2. “Governmental unit” means any instrumentality of state government or any political subdivision of the state.
  3. “Guaranteed energy savings contract” means a contract for energy conservation measures which provides that energy cost savings are guaranteed to the extent necessary to make payments for the recommended energy conservation measures.
  4. “Qualified provider” means a person or business experienced in the design, implementation, and installation of energy conservation measures.
  5. “Request for proposals” means a procurement announcement through a public notice from a governmental unit, which will administer the program, detailing the work, service, or supplies needed for an energy conservation measure. The request for proposals must include:
    1. The name and address of the governmental unit.
    2. The name, address, title, and phone number of a contact person.
    3. The response due date and time deadline.
    4. The scope of the project.
    5. The project completion deadline.
    6. The criteria for awarding a contract.
    7. The right to reject the request for proposals.
    8. Other stipulations and clarifications as required.

Source:

S.L. 1991, ch. 496, § 1.

48-05-10. Energy conservation measure recommendations.

Before entering a contract under section 48-05-11, a governmental unit shall submit a request for proposals. The time period between the request for proposals and the due date for proposals may be no less than fifteen business days. Upon receipt of the request for proposals, the governmental unit shall evaluate all proposals from qualified providers which include estimates of all costs of installations, modifications, or remodeling, including costs of design, engineering, installation, maintenance, repairs, or debt service, and estimates of the amounts by which energy or operating costs will be reduced.

Source:

S.L. 1991, ch. 496, § 2; 2017, ch. 323, § 1, effective August 1, 2017.

DECISIONS UNDER PRIOR LAW

Contract for Lignite Coal.

Under former section 48-05-03, the board of administration had a duty to determine the lowest responsible bidders for supplying lignite coal to state institutions, and to let contracts to none but those whose bids were found lowest. Washburn Lignite Coal Co. v. Murphy, 54 N.D. 113, 208 N.W. 837, 1926 N.D. LEXIS 121 (N.D. 1926).

48-05-11. Guaranteed energy savings contracts.

The governmental unit shall provide public notice of the meeting at which it proposes to award a guaranteed energy savings contract, the names of the parties to the proposed contract, and the purpose of the contract. After reviewing the report under section 48-05-10, a governmental unit may enter a guaranteed energy savings contract with a qualified provider if the governmental unit finds that the amount the governmental unit would spend on the energy conservation measures recommended in the report is not likely to exceed the amount to be saved in energy and operation costs over a period not exceeding fifteen years from the date of installation if the recommendations in the report are followed. The contract must include a written guarantee of the qualified provider that the energy and operating cost-savings will meet or exceed the costs of the project, including costs of the system, a list of subcontractor pricing, the financing costs for the project, and any provider fees. The written guarantee must be for a period equal to the financing period, which may provide payments over a period not exceeding fifteen years. If the governmental unit can document that savings meet or exceed the payment for a period of not less than three years, the governmental unit may request a waiver of the guaranteed portion of the contract for the remainder of the financing term. A guarantee waiver request must be approved by a committee administered by the division of community services. If the contract involves facility alteration or real property improvement, a qualified provider to whom the contract is awarded shall give a sufficient bond to the governmental unit for the faithful performance of the contract.

Source:

S.L. 1991, ch. 496, § 3; 1993, ch. 460, § 1; 2003, ch. 396, § 1; 2005, ch. 392, § 1; 2017, ch. 323, § 2, effective August 1, 2017.

48-05-12. Competitive bidding and architect and engineering services.

Guaranteed energy savings contracts are not subject to the requirements of chapter 48-01.2, which relate to competitive bidding.

Source:

S.L. 1991, ch. 496, § 4; 1995, ch. 443, § 21; 2007, ch. 403, § 15; 2017, ch. 323, § 3, effective August 1, 2017.

48-05-13. Appropriations for contract payments.

The governmental unit shall include in its annual appropriations measure for each later biennium or fiscal year any amounts payable under guaranteed energy savings contracts during the biennium or fiscal year.

Source:

S.L. 1991, ch. 496, § 5.

CHAPTER 48-06 Capitol Central Mailing Bureau

48-06-01. Establishment — Rules and regulations.

The director of the office of management and budget shall maintain and operate a central mailing bureau in the state capitol. The director shall prescribe such reasonable rules and regulations as may be necessary for the prompt and efficient dispatch of all mail.

Source:

S.L. 1941, ch. 214, § 1; R.C. 1943, § 48-0601; 1991, ch. 592, § 16.

48-06-02. Capitol building departments — Compliance with regulations of mailing department.

All state officers, departments, or agencies housed in the state capitol shall deliver all official mail originating in the capitol, unstamped, to the central mailing bureau in compliance with the regulations prescribed for the delivery of outgoing mail. This section shall not apply to those officers, departments, or agencies which are prohibited by state or federal law from disclosing mailing lists which by law are made confidential.

Source:

S.L. 1941, ch. 214, §§ 2, 3; R.C. 1943, § 48-0602.

48-06-03. Departments exempt from using central mailing bureau.

The director of the office of management and budget may exempt any department where it is determined that it would not be practical or economical for it to use the central mailing bureau, because of the unusual weight, kind, or volume of mail dispatched by the department.

Source:

S.L. 1941, ch. 214, § 4; R.C. 1943, § 48-0603; S.L. 1991, ch. 592, § 17.

48-06-04. Purchasing supplies — Employing mail clerks — Office of management and budget.

The director of the office of management and budget shall provide a suitable room and shall employ the necessary mailing bureau staff. The director also shall purchase postage meter machines and such other equipment, materials, and supplies as are necessary for the purpose of carrying out the provisions of this chapter.

Source:

S.L. 1941, ch. 214, § 5; R.C. 1943, § 48-0604; S.L. 1991, ch. 592, § 18; 1999, ch. 407, § 1.

48-06-05. Official stamp on all mail.

All mail dispatched through the mailing bureau shall have stamped or printed thereon by the meter machine the following words “Official Mail State of North Dakota”.

Source:

S.L. 1941, ch. 214, § 6; R.C. 1943, § 48-0605.

48-06-06. Office of management and budget postage revolving fund.

There shall be maintained in the office of the state treasurer an “office of management and budget postage revolving fund” for the advance payment of postage. The director of the office of management and budget may draw upon the fund for the advance payment of postage for the use of the central mailing bureau, and all collections from the several offices, departments, and agencies, for postage used by them, are hereby appropriated and shall be paid into the fund. The provisions of section 54-27-10 shall not apply to the fund nor shall any part of the fund revert at the expiration of any biennium.

Source:

S.L. 1941, ch. 214, § 7; R.C. 1943, § 48-0606; S.L. 1949, ch. 294, § 1; 1957 Supp., § 48-0606; S.L. 1991, ch. 592, § 19.

48-06-07. Voucher for postage used — Presented to departments by mailing clerk.

The mailing clerk or such other person as may be designated by the director of the office of management and budget under the direction of the director shall keep an accurate and complete record of all postage used by each officer, department, or agency, for mail dispatched through the central mailing bureau and shall present at least monthly to each such officer, department, or agency, a bill or voucher in the form prescribed by law, for the amount of postage used. After approval by the office of the budget, the amount shall be credited to the postal revolving fund of the office of management and budget out of the postage appropriation of the officer, department, or agency.

Source:

S.L. 1941, ch. 214, § 8; R.C. 1943, § 48-0607; S.L. 1991, ch. 592, § 20.

CHAPTER 48-07 Capitol Telephone Exchange [Repealed]

[Repealed by S.L. 1989, ch. 642, § 12]

CHAPTER 48-08 Restrictions on Use of Public Buildings

48-08-01. Rental of hall and provision of funds by taxation.

The city council or board of city commissioners of any city, the board of supervisors of any township, or the school board of any school district, in this chapter designated as the governing board, may pay the rental of any hall or auditorium, when it is used in such municipality for any public meeting or purpose and no charge is made for admission, and annually may provide by taxation a sum sufficient to defray any such expense for rental as may be anticipated for the coming year. This section does not apply to any city where there exists a public hall owned by the municipality suitable for the purpose.

Source:

S.L. 1915, ch. 165, § 1; 1925 Supp., § 1838b1; R.C. 1943, § 48-0801.

Collateral References.

Granting or taking of lease of property by municipality as within authorization of purchase or acquisition thereof, 11 A.L.R.2d 168.

48-08-02. May pay rental out of other funds until tax available.

Until such funds as are provided by section 48-08-01 shall become available, any such governing board shall pay out of funds on hand not otherwise appropriated or required such sums as may be deemed a fair rental for any hall or auditorium when used for a public meeting.

Source:

S.L. 1915, ch. 165, § 2; 1925 Supp., § 1838b2; R.C. 1943, § 48-0802.

48-08-02.1. Designation of memorial hall.

The area on the first floor of the state capitol from the legislative assembly hall on the west, past the double stairway, to the brass columns on the east, is designated as memorial hall.

Source:

S.L. 2017, ch. 324, § 1, effective August 1, 2017.

48-08-03. Media room in state capitol.

The director of the office of management and budget shall set aside a room in the state capitol for the exclusive use of the media and shall place the North Dakota newspaper association and North Dakota broadcasters association jointly in charge of the room.

Source:

S.L. 1935, ch. 266, §§ 1, 2; R.C. 1943, § 48-0803; S.L. 1991, ch. 592, § 21; 2021, ch. 339, § 1, effective March 10, 2021.

48-08-04. Use of legislative assembly rooms and halls.

During the interim between legislative sessions, the committee rooms, halls, passageways, and other space in the capitol used by the legislative assembly, including the pioneer room, the coteau room, the Sheyenne River room, judicial wing room 216, and judicial wing rooms 327 B, C, and E, may not be used without authorization of the legislative council.

Source:

Sen. Res. “J,” S.L. 1941, p. 602; R.C. 1943, § 48-0804; S.L. 1989, ch. 564, § 1; 2009, ch. 482, § 32; 2015, ch. 49, § 26, effective July 1, 2015; 2021, 1st Sp. Sess. ch. 561, § 1, effective December 1, 2021.

Effective Date.

The 2015 amendment of this section by section 26 of chapter 49, S.L. 2015 became effective July 1, 2015.

48-08-05. Federal agencies charged for light, heat, and janitor service.

The director of the office of management and budget shall fix and determine a fair and reasonable monthly charge for light, heat, and janitor service to be paid by each federal agency located and transacting business in the capitol.

Source:

Sen. Res. “J,” S.L. 1941, p. 602; R.C. 1943, § 48-0805; S.L. 1991, ch. 592, § 22.

48-08-06. Lease of public buildings — Authorized.

The governing body of any county, city, or township may permit the use of or may lease any public building or any part of a public building under its charge for any legal purpose, giving equal opportunity to all persons, and without religious or political distinctions, and may make such reasonable rules and restrictions on the use of such building as may seem necessary, and shall fix proper rentals and fees for such use. Such governing body, in its discretion, may require a bond from the lessee or user of such building, conditioned upon the payment of charges made for such lease or use and indemnifying the county, city, or township against damage or destruction of or to such building or any part thereof.

Source:

S.L. 1943, ch. 199, § 1; R.C. 1943, § 48-0806.

Collateral References.

Public utility plant or interest therein, power of municipality to sell, lease or mortgage, 61 A.L.R.2d 595.

School property, use for other than public school or religious purposes, 94 A.L.R.2d 1274.

Power of municipal corporation to lease or sublet property owned or leased by it, 47 A.L.R.3d 19.

48-08-07. Lease of public buildings — Terms.

No lease of any public building or part of any public building under the provisions of section 48-08-06 may be for a longer term than two years, except as may be otherwise provided by city ordinance or by resolution of the board of county commissioners. Such lease must be to a responsible party offering the highest return to the political subdivision and the use or occupation of the building may not interfere with the use of such building for public purposes. The governing body may reserve the right to reject any and all bids.

Source:

S.L. 1943, ch. 199, § 2; R.C. 1943, § 48-0807; S.L. 1985, ch. 512, § 1; 1993, ch. 461, § 1.

48-08-08. State, county, or local municipal buildings — Space for disaster activities.

The director of the office of management and budget and any other group, board, or commission having control of the use of any state, county, or local municipal buildings are authorized to provide space for emergency operating centers and disaster offices in such buildings.

Source:

S.L. 1965, ch. 317, § 1; 1991, ch. 592, § 23.

CHAPTER 48-09 Concessions

48-09-01. Granting of concessions for cafes, restaurants, and confectioneries on public buildings and grounds.

Any state official, board, or commission, any county official, board, or commission, and any municipal officer, board, or commission, having the supervision, control, and management of any state, county, or municipal building and adjacent grounds, for the public benefit and good, may grant a concession in the building or on the grounds for any cafe, restaurant, or confectionery, by renting, leasing, and licensing a concession to the highest responsible bidder at a reasonable rental per month and may reject any and all bids for the concession. However, the board of directors of any North Dakota fair association or board of county park commissioners may grant a concession under this chapter without letting bids.

Source:

S.L. 1939, ch. 181, § 1; R.C. 1943, § 48-0901; S.L. 1965, ch. 318, § 1; S.L. 1981, ch. 469, § 1; 1995, ch. 117, § 2; 2011, ch. 345, § 1; 2019, ch. 384, § 1, effective August 1, 2019.

48-09-02. Concession advertised in legal newspaper.

Except as otherwise provided in section 48-09-01, if a concession under section 48-09-01 has estimated gross sales worth more than twenty-five thousand dollars annually, an advertisement for bids for the concession must occur once in each week for three consecutive weeks in the official newspaper of the entity requesting bids and the concession must be awarded to the highest responsible bidder.

Source:

S.L. 1939, ch. 181, § 1; R.C. 1943, § 48-0902; S.L. 1989, ch. 565, § 1; 1995, ch. 117, § 3; 2011, ch. 345, § 2.

Cross-References.

Qualifications for legal newspaper, see N.D.C.C. § 46-06-02.

48-09-03. Security required of successful bidder.

The governing body, in its discretion, may require a deposit of security by the successful bidder for a concession within ten days after notice of the acceptance of the bid. If such deposit of security is not so furnished, the concession may be let to the next highest bidder, and if there is no other bidder, to some other party. Such deposit of security must be approved and accepted before the renting, leasing, or licensing of such public property shall become effective. Vending, service, and merchandising machines shall be permitted in public buildings only upon payment of an adequate compensation for such privilege. All moneys received under the provisions of this section and section 48-09-01 shall be turned into the general fund of the state, county, or municipality, as the case may be.

Source:

S.L. 1939, ch. 181, § 1; R.C. 1943, § 48-0903; S.L. 1969, ch. 412, § 1.

48-09-04. Rules and regulations — Cancellation of contract.

The renting, leasing, or licensing of any public property under this chapter at all times shall be subject to the rules and regulations made and prescribed by the official, department, board, or commission having the control and management of the same. The renting and leasing term of any contract entered into in relation thereto may be canceled upon thirty days’ written notice to the holder of the concession. Any contract granting a concession at any time after a breach of the terms thereof, or after a violation of any of the provisions of this chapter, shall be canceled upon thirty days’ written notice to that effect.

Source:

S.L. 1939, ch. 181, § 2; R.C. 1943, § 48-0904; S.L. 1965, ch. 203, § 79.

48-09-05. Penalty.

Any person violating any of the provisions of this chapter is guilty of a class B misdemeanor.

Source:

S.L. 1939, ch. 181, § 3; R.C. 1943, § 48-0905; S.L. 1975, ch. 106, § 525.

CHAPTER 48-10 Capitol Grounds Planning Commission

48-10-01. Capitol grounds planning commission.

The capitol grounds planning commission consists of the lieutenant governor as chairman and eight other members selected biennially as provided in this section. The governor shall appoint two citizens, one licensed architect, and one representative from the state historical society as members, the president of the senate shall appoint two senators as members, and the speaker of the house of representatives shall appoint two representatives as members. Appointment to the commission is for a term of two years. Legislative and citizen members of the planning commission are entitled to per diem payments and expenses in such amount and in the same manner as provided by law for members of the legislative management.

Source:

S.L. 1965, ch. 314, § 1; 1967, ch. 364, § 1; 1973, ch. 377, § 1; 1987, ch. 563, § 1; 1995, ch. 59, § 2; 2009, ch. 482, § 33.

48-10-02. Capitol building fund to be administered by the capitol grounds planning commission — Continuing appropriation — Procedure for expenditure of certain funds.

The capitol grounds planning commission shall have general powers to superintend the administration of the capitol building fund, its interest and income fund, and its investments and properties. It may cause any lands now held in such funds to be sold at market value, direct the conversion of any securities now held by such funds to cash, approve expenditures from such funds subject to law and legislative appropriations, and to do all other things necessary to carry out the intent and purposes of this section. The board of university and school lands or its designee, on the commission’s behalf, shall see to the investment and management of the capitol building fund and its interest and income fund and shall account to the commission concerning these funds at the commission’s request.

Provided further, all moneys and other property in the capitol building fund, except as otherwise appropriated, are hereby dedicated and reserved to the exclusive purpose of the construction of an addition to the legislative wing of the state capitol building, and the capitol grounds planning commission shall take necessary steps to accumulate and conserve the money and property in the capitol building fund for such purpose.

The commission may, during any biennium, expend from the interest and income fund of the capitol building fund a sum not to exceed fifty percent of the unencumbered balance on the first day of any biennium, and such amount is hereby appropriated to the capitol grounds planning commission. The expenditure may be made, after consideration of the capitol grounds master plan, for projects or planning but may not exceed two hundred fifty thousand dollars per biennium. The expenditure may only be made upon approval by two-thirds of the total membership of the commission. The expenditure must be made upon a voucher, or vouchers, prepared by the office of management and budget at the direction of the commission.

Source:

S.L. 1967, ch. 364, § 2; 1979, ch. 494, § 1; 1991, ch. 600, § 6; 2007, ch. 243, § 2; 2013, ch. 15, § 24; 2019, ch. 40, § 20, effective July 1, 2019.

Effective Date.

The 2013 amendment of this section by section 24 of chapter 15, S.L. 2013 became effective July 1, 2013.

48-10-03. Powers and duties of the commission — Authority to accept gifts — Continuing appropriation.

The capitol grounds planning commission shall confer with the state council on the arts with respect to the artistic value of monuments, memorials, or works of art to be constructed on the capitol grounds and with qualified consultants retained by it to select sites for buildings, facilities, monuments, memorials, or works of art to be constructed on the capitol grounds. The commission shall develop and modify long-term plans for the development of the capitol grounds. The commission shall approve or disapprove the basic style and exterior construction of any building, facility, monument, memorial, or work of art constructed on the capitol grounds. Except as otherwise provided by this section, the commission has exclusive authority to accept or reject gifts of any type or class of property for exterior placement on the capitol grounds or for the improvement of the exterior construction of any building or facility on the capitol grounds, including landscaping and improvements to the capitol grounds. Any gifts of money accepted pursuant to this section must be deposited in the capitol building fund and are appropriated on a continuing basis to the commission for purposes consistent with this section. No construction or placement of an item on the capitol grounds may be undertaken without the approval of the commission, unless the construction or placement is authorized by the legislative assembly. If the legislative assembly by law or resolution authorizes the construction or placement of an item on the capitol grounds, the commission shall approve the site, basic style, and exterior construction of the item within a reasonable period of time.

The commission shall advise the director of the office of management and budget and the legislative council on matters relating to the physical and aesthetic features of the interior of all buildings on the capitol grounds. The commission must be called in and shall meet whenever major interior changes, including new construction, remodeling, or renovation of any kind, are proposed or considered for the buildings or facilities on the capitol grounds. The commission must be consulted before the purchase or installation of furniture or fixtures in public areas of the capitol and other buildings on the capitol grounds. The commission shall perform any other duties as may be prescribed by law.

Source:

S.L. 1987, ch. 563, § 2; 1995, ch. 59, § 3; 2019, ch. 40, § 21, effective July 1, 2019.

CHAPTER 48-11 Capitol Arts and Historic Preservation Advisory Committee [Repealed]

[Repealed by S.L. 1995, ch. 59, § 4]

CHAPTER 48-12 Competition in Governmental Construction Contracts

48-12-01. Definitions.

As used in this chapter:

  1. “Facility” means a physical improvement to real property owned or leased, directly or through a building authority, by a governmental unit, including a road, bridge, runway, rails, or building or structure along with the building’s or structure’s grounds, approaches, services, and appurtenances.
  2. “Governmental unit” means the state or a political subdivision.

Source:

S.L. 2013, ch. 358, § 1.

Effective Date.

This chapter became effective April 8, 2013, pursuant to an emergency clause in section 7, ch. 358, S.L. 2013.

Note.

Section 6 of ch. 358, S.L. 2013 provides: “ APPLICATION. This Act applies to construction contracts executed on and after the effective date of this Act [April 8, 2013].”

48-12-02. Prohibited labor organization terms in construction contract clauses.

A governmental unit awarding a contract for the construction, repair, remodeling, or demolition of a facility and any construction manager acting on that governmental unit’s behalf may not include any of the following in the bid specifications, project agreements, or other controlling documents:

  1. A term that requires or prohibits a bidder, an offeror, a contractor, or a subcontractor from entering or adhering to agreements with one or more labor organizations relating to the construction project or a related construction project; or
  2. A term that otherwise discriminates against a bidder, an offeror, a contractor, or a subcontractor for becoming, remaining, or refusing to become or remain a signatory to or for adhering to or refusing to adhere to an agreement with one or more labor organizations in regard to that project or a related construction project.

Source:

S.L. 2013, ch. 358, § 1.

Note.

Section 6 of ch. 358, S.L. 2013 provides: “ APPLICATION. This Act applies to construction contracts executed on and after the effective date of this Act [April 8, 2013].”

48-12-03. Prohibited labor organization terms in a grant, tax abatement, and tax credit.

  1. A governmental unit may not award a grant, tax abatement, or tax credit that is conditioned upon a requirement that the awardee include a term prohibited under section 48-12-02 in a contract document for any construction, improvement, maintenance, or renovation of real property or fixtures that are the subject of the grant, tax abatement, or tax credit.
  2. This chapter does not prohibit a governmental unit from awarding a contract, grant, tax abatement, or tax credit to a private owner, bidder, contractor, or subcontractor that enters, is a party to, or adheres to an agreement with a labor organization, if:
    1. Being or becoming a party or adhering to an agreement with a labor organization is not a condition for the award of the contract, grant, tax abatement, or tax credit; and
    2. The governmental unit does not discriminate against a private owner, bidder, contractor, or subcontractor in the awarding of that contract, grant, tax abatement, or tax credit based upon the status as being or becoming, or the willingness or refusal to become, a party to an agreement with a labor organization.
  3. This chapter does not prohibit a contractor or subcontractor from voluntarily entering or complying with an agreement entered with one or more labor organizations in regard to a contract with a governmental unit or a contract funded in whole or in part from a grant, tax abatement, or tax credit from a governmental unit.

Source:

S.L. 2013, ch. 358, § 1.

Note.

Section 6 of ch. 358, S.L. 2013 provides: “ APPLICATION. This Act applies to construction contracts executed on and after the effective date of this Act [April 8, 2013].”

48-12-04. Exemptions.

The head of a governmental unit may exempt a particular project, contract, subcontract, grant, tax abatement, or tax credit from the requirements of any or all of the provisions in this chapter if after public notice and hearing the governmental unit finds special circumstances require an exemption to avert an imminent threat to public health or safety. A finding of special circumstances under this section may not be based on the possibility or presence of a labor dispute concerning:

  1. The use of contractors or subcontractors that are nonsignatories to or otherwise do not adhere to agreements with one or more labor organizations; or
  2. Employees on the project who are not members of or affiliated with a labor organization.

Source:

S.L. 2013, ch. 358, § 1.

Note.

Section 6 of ch. 358, S.L. 2013 provides: “ APPLICATION. This Act applies to construction contracts executed on and after the effective date of this Act [April 8, 2013].”

48-12-05. Limitations.

This chapter may not be construed to:

  1. Prohibit an employer or other party from entering an agreement or engaging in any other activity protected by the National Labor Relations Act [29 U.S.C. 151 et seq.]; or
  2. Interfere with labor relations of a party which are left unregulated under the National Labor Relations Act [29 U.S.C. 151 et seq.].

Source:

S.L. 2013, ch. 358, § 1.

Note.

Section 6 of ch. 358, S.L. 2013 provides: “ APPLICATION. This Act applies to construction contracts executed on and after the effective date of this Act [April 8, 2013].”