# Title 48 — Public Buildings

## 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.
### § 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.
### § 48-01.2-02.1. Public improvement construction threshold.

1. The threshold for bidding construction of a public improvement is two hundred fifty
thousand dollars. The threshold for procuring plans, drawings, and specifications from
an architect or engineer for construction of a public improvement is two hundred fifty
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.

### § 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.
### § 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.
### § 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 must be licensed for the full amount of the bid as required by section
43-07-12.
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.
### § 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:
a. 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
b. 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.
### § 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.
### § 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.
### § 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.
### § 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 fifty
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.
### § 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.
### § 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.
### § 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.

### § 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.
### § 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.
### § 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.
### § 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.
### § 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:
a. 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.
b. 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:
a. 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.
b. 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.
c. 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.
### § 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:
a. Develop a description of the proposed public improvement;
b. Enumerate each required agency construction management service for the
proposed public improvement; and
c. 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:

a. The past performance of the person with respect to prior public improvements.
b. The qualifications of proposed personnel.
c. The willingness to meet time and budget requirements of the governing body.
d. The business location of the person.
e. The recent, current, and projected workloads of the person.
f. Any related experience performing agency construction management services on
projects of similar size and scope.
g. Any recent or current work by the person for the agency.
h. The ability of the person to provide the bond for the person's portion of the work
on the public improvement.
i. 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.
### § 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:
a. An administrative individual from the governing body.
b. A registered architect.
c. A registered engineer.
d. 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:
a. The identity of the governing body and a list of the members of the selection
committee;
b. A description of the proposed public improvement;
c. The proposed budget limits of the public improvement;
d. The commencement and completion date of the public improvement;
e. The procedures to be used in submitting proposals;
f. The qualifications evaluation criteria and the relative weighting of items;

g. The subcontractor selection process to be used for construction services;
h. The number of persons to be included in the final list;
i. A statement indicating whether formal interviews will be held;
j. A statement indicating whether fees and prices must be included in any proposal;
k. 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;
l. A description of the procedures to be used for making the contract award;
m. 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
n. 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:
a. The person's experience on any similar project;
b. The person's existing workload and available capacity;
c. The person's key personnel experience on any similar project;
d. The person's safety record;
e. The person's familiarity with the location of the public improvement;
f. The person's fees and expenses;
g. The person's compliance with state and federal law; and
h. 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.
7. a. 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.
b. 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.
c. 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.
d. 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.

8. The governing body shall publish a notice of request for qualifications to enter a
construction management at-risk contract under this section 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. The notice must 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.
### § 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.
### § 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.
### § 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.
### § 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.
### § 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 three 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.
