# Title 4 — Management and Budget, Office of

## Article 4-12 — State Procurement Practices

## Chapter 4-12-09 — Limited Competition, Noncompetitive, and Emergency Procurements

### § 4-12-09-01. Competition may be waived or limited.

1. A purchasing agency may request to limit or waive competitive solicitation requirements
pursuant to subsection 2 of North Dakota Century Code section 54-44.4-05.
2. Competition may not be limited or waived to satisfy preferences or for the convenience of the
purchasing agency.
3. Circumstances under which competition may be waived or limited without a written
determination, include:
a. Contracts for legal services, subject to the requirements of North Dakota Century Code
section 54-12-08;
b. Contracts for professional witnesses to provide for professional services or testimony
related to existing or probable lawsuits in which the state may become a party;
c. Contracts for temporary administrative law judges pursuant to North Dakota Century
Code section 54-57-02;
d. Contracts for medical specialists;
e. Purchases of copyrighted printed and electronic works, including books, subscriptions,
and prerecorded audio and video materials, when only available from the publisher or
producer;
f. Purchases of materials required for manufacturing and production by a purchasing
agency engaged in manufacturing and production operations;
g. When immediate expenditures are necessary to ensure the integrity of state records;
h. Purchases of livestock, fish, insects, and other animals;
i. Commodities for resale at state-operated concessions;
j. Purchases of items with cultural, historical, or archaeological significance for museums or
archival purposes;
k. Purchases of works of art;
l. Contracts for residential, treatment, and vocational rehabilitation services to ensure
continuity of client care and purchases of vocational rehabilitation commodities for
clients;
m. Contracts for performers, entertainers, and guest speakers, excluding contracts for
education, instruction, or training; and

n. Medications, pharmaceuticals, metabolic foods, food supplements, food replacements,
vitamins, therapeutics, and medical devices as prescribed by health care professionals
for patients of a state facility or clients of a state program.
o. Conducting a limited competitive process for the purchase of heating fuels, ready-mix
concrete, sand, gravel, road oil, and bituminious using the level of competition
practicable from vendors within a reasonable, specific geographic area.
p. Contracts for insurance placed through a broker hired through a competitive or limited
competitive process where the broker is hired to evaluate insurance pricing and coverage
information from insurance carriers and make recommendations for placement of
insurance.
4. A prior written determination is required for all other requests for limited competitive and
noncompetitive purchases subject to the provisions of this chapter and the terms of the
purchasing agency's delegated purchasing authority.
History: Effective August 1, 2004; amended effective October 1, 2012; amended effective January 1,
2013.
General Authority: NDCC 54-44.4-04
Law Implemented: NDCC 54-44.4-02.1, 54-44.4-04, 54-44.4-05
### § 4-12-09-02. Limited competitive procurements.

1. Competition may be limited pursuant to North Dakota Century Code section 54-44.4-05 under
circumstances in which the deviation from the procurement procedures to limit competition is
determined to be appropriate, including:
a. When products or services exclusive to particular individuals or business entities are
required and competition for the proprietary product or service exists;
b. When circumstances require that commodities or services be provided by bidders or
offerors within a specific geographic area; or
c. When it is determined that a competitive sealed bid or competitive sealed process is
impracticable or not in the best interest of the state.
2. Whenever limited competitive procurements are to be made, a written determination must
include an explanation as to why the competition should be limited and why a fully competitive
procurement method is impracticable or not in the best interest of the state. The purchasing
agency shall provide evidence necessary for an independent examination and determination
of the material facts of the procurement.
3. The purchasing agency shall approve limited competitive procurements within its delegated
authority.
4. When the procurement is outside the scope of the agency's delegated authority, prior written
approval of the state procurement office must be obtained.
5. The purchasing agency shall obtain the level of competition practicable.
6. The written determination must be retained in the procurement file.
History: Effective August 1, 2004; amended effective October 1, 2012.
General Authority: NDCC 54-44.4-04
Law Implemented: NDCC 54-44.4-04, 54-44.4-05

### § 4-12-09-03. Noncompetitive procurements.

1. Competition may be waived pursuant to North Dakota Century Code section 54-44.4-05 under
circumstances in which the requirements are a sole source or can only be met by a specific
commodity or service exclusive to a particular individual or business entity to the exclusion of
competing vendors, commodities, or services.
2. A noncompetitive procurement is not justified on the basis of any of the following
circumstances:
a. The lack of adequate advance planning for the procurement of the required commodities
or services;
b. Delays in the procurement caused by administrative delays, lack of sufficient
procurement personnel, or improper handling of procurement requests or competitive
procedures; or
c. Pending expiration of budget authority.
3. Whenever noncompetitive procurements are to be made, a written determination must include
an explanation as to why it is not practicable to award a contract by a competitive
procurement method and why a noncompetitive procurement is in the best interest of the
state. The purchasing agency shall provide evidence necessary for an independent
examination and determination of the material facts of the procurement.
4. The purchasing agency shall approve noncompetitive procurements within its delegated
authority.
5. When the procurement is outside the scope of the agency's delegated authority, prior written
approval of the state procurement office must be obtained.
6. The procurement officer shall conduct negotiations, as appropriate, regarding price, delivery,
and terms. Such negotiations must be conducted in accordance with chapter 4-12-12.
7. The procurement officer responsible for the noncompetitive procurement shall prepare and
retain in the procurement file a record of the noncompetitive procurement that includes the
written determination, contractor's name, description of the commodities or services procured,
and contract amount.
History: Effective August 1, 2004; amended effective October 1, 2012.
General Authority: NDCC 54-44.4-04
Law Implemented: NDCC 54-44.4-04, 54-44.4-05
### § 4-12-09-04. Emergency procurements.

1. Procurements may be made under emergency conditions in a circumstance when there is
insufficient time for usual competitive procurement methods and which involve public health,
public safety, or when immediate expenditures are necessary pursuant to North Dakota
Century Code section 54-44.4-02. If the circumstance does not meet the provisions of North
Dakota Century Code section 54-44.4-02, a determination to limit or waive competition must
be made.
2. An emergency procurement need not be made through competitive sealed bidding or
competitive sealed proposals but must be made with competition that is practicable under the
circumstances.

3. The purchasing agency shall limit the quantity of commodities or services being purchased to
that necessary to meet the emergency circumstance.
4. The purchasing agency shall prepare a written determination for the use of emergency
procurement procedures, including an explanation as to why emergency conditions exist, a
description of the required commodities or services, and evidence necessary for the
independent examination and determination of the material facts of the procurement.
5. The responsible agency official shall promptly forward the emergency determination to the
state procurement office after the procurement.
6. The procurement officer shall conduct negotiations, as appropriate, regarding price, delivery,
and terms. Such negotiations must be conducted in accordance with chapter 4-12-12.
7. The procurement officer responsible for the emergency procurement shall prepare and retain
in the procurement file a record of the emergency procurement that includes the emergency
determination, description of the commodities or services procured, and basis for the selection
of the vendor.
History: Effective August 1, 2004; amended effective October 1, 2012.
General Authority: NDCC 54-44.4-02, 54-44.4-04
Law Implemented: NDCC 54-44.4-02, 54-44.4-04
### § 4-12-09-05. Notice of intent to make a limited competitive or noncompetitive purchase.

1. A purchasing agency may issue a notice of intent to make a limited competitive or
noncompetitive purchase to determine if other sources are available and if such an award is
appropriate.
2. When considering a request by a purchasing agency to make a limited competitive or
noncompetitive purchase, the office of management and budget may require the purchasing
agency to issue a notice to determine if such an award is appropriate.
3. The notice must include the name of the purchasing agency and the procurement officer, a
description of the needed commodity or service, a description of the intended procurement
method, and a statement that vendors are permitted to submit bids or proposals for equivalent
commodities or services.
4. The notice of intent to limit or waive competition must be placed on the office of management
and budget procurement information website, must be issued to approved vendors on the
bidders list for the commodity or service being purchased, and may be sent to other known
potential bidders.
5. The purchasing agency shall allow a minimum of seven calendar days after issuance of the
notice for interested parties to submit a response to the notice.
6. If no response to the notice is received, the purchasing agency shall submit the notice and
results as justification for the limited competitive or noncompetitive purchase.
7. If an interested party responds to the notice, the purchasing agency shall evaluate the
response.
a. If the offered product or service is not responsive to the requirements, the procurement
officer shall send written notice, including the reason for rejection.
b. If the offered product or service is responsive to the requirements, the purchasing agency
may determine it is in the best interest of the state to award a contract and shall submit

the notice and results as justification for the limited competitive or noncompetitive
purchase; or
c. The purchasing agency may cancel the notice and proceed with a competitive
procurement process.
History: Effective October 1, 2012.
General Authority: NDCC 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-09, 54-44.4-12, 54-44.4-14
Law Implemented: NDCC 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-09, 54-44.4-12, 54-44.4-14
### § 4-12-09-06. Work activity center contract awards.

1. Pursuant to North Dakota Century Code chapter 25-16.2, the office of management and
budget or a state agency may make a direct purchase of commodities and services from a
work activity center.
2. The office of management and budget may establish term contracts for the acquisition of
commodities or services from work activity centers. Such term contracts may be cooperative
purchasing contracts pursuant to North Dakota Century Code section 54-44.4-13.
3. Prior to awarding a direct purchase from a work activity center, the office of management and
budget or a state agency shall prepare a written determination that:
a. The work activity center is licensed by the department of human services, located in
North Dakota, and operated by a nonprofit corporation in accordance with North Dakota
Century Code section 25-16.2-01;
b. The commodities or services are acceptable; and
c. The commodities or services are offered at a fair market price.
4. For purposes of subsection 3:
a. "Acceptable" means the commodities or services conform to specifications, terms of
delivery, quality, and serviceability.
b. "Fair market price" means a price found to be reasonable through methods such as
comparing the current price of similar goods and services or examining costs to produce
the goods or provide the services. A notice of intent to award a contract to a work activity
center may be issued to determine whether the price is reasonable.
5. The written determination must be retained in the procurement file.
History: Effective October 1, 2012.
General Authority: NDCC 25-16.2, 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-13
Law Implemented: NDCC 25-16.2, 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-13
