N.D. Admin. Code Title 4 — Management and Budget, Office of

Article 4-01 General Administration

Chapter 4-01-01 Organization of Office

N.D. Admin. Code 4-01-01-01 Organization and functions of the office of management and budget

1.Organization of office.

a.History. The 1941 legislative assembly appointed a governmental survey commission to study the field of governmental reorganization and make recommendations. Among the recommendations was a single agency to handle the state's fiscal affairs. That study was reviewed by directive of the 1957 legislative assembly. The 1959 legislative assembly established the department of accounts and purchases to become operative in 1961. In 1981 the agency became the office of management and budget. The director is appointed by and serves at the will of the governor. As agency head, the director is vested with control and supervision of the fiscal administration of the executive branch of state government.

b.Divisions. Within the office of management and budget are six divisions:

(1)Administration.

(2)Fiscal management.

(3)Human resource management services.

(4)Central services.

(5)Facility management.

(6)Risk management.

2.Functions of office divisions.

a.The administration division provides management and support to the divisions within the office of management and budget. Other duties include review of state agency management and organizational structure, and frequent comparison of projected and actual state revenues and expenditures. The director of each division is appointed by and serves at the pleasure of the director of the office of management and budget.

b.The fiscal management division is responsible for budget preparation and the monitoring of spending after legislative appropriations are made, preparation of the revenue forecasts, processing state financial transactions, including agency payrolls, and preparing the statewide comprehensive annual financial report (CAFR). The fiscal management director and budget analysts prepare the governor's executive recommendation for submission to the legislative assembly. As the sole financial plan for providing state services, the executive budget recommendation is presented to the legislative assembly prior to the convening of each session. Part of the budget process involves fiscal management staff appearing at hearings for each agency budget request, onsite visits, and comparative analyses. Once the executive budget recommendation has been submitted, the office works closely with the legislative assembly and its committees by explaining the budget or by providing information on other fiscal concerns. During both the legislative session and the legislative council's interim study period, the office of management and budget assists legislators and other key policymakers in resolving budget-related issues.

c.The human resource management services division provides services relating to establishing and maintaining a unified system of human resource management for the classified service. The division and the state personnel board were created by executive order in 1974 and by the legislative assembly in 1975. The 2003 legislative assembly changed the name of the central personnel division to human resource management services. The division establishes and maintains classification and compensation plans as well as general policies and rules which are binding on the agencies with employees in the classified service. In 1995 the administration of the merit system function was decentralized to those agencies required to have a merit system of personnel administration. The human resource management services division maintains the merit system auditing function and provides consultative services to agencies on a multitude of issues including recruitment, screening, and selection of applicants; performance management; classification; salary administration; discipline; grievances; investigations; appeals; and federal and state employment requirements. In addition, the division develops, coordinates, and conducts training programs; provides mediation services; and administers a cooperative education and internship program.

d.The central services division operates a central purchasing service, maintains a central supply section, serves as the state's distribution point for federal surplus property and clearinghouse for state-owned surplus property, and operates a central printing service.

The central services division works with state agencies and vendors to provide the state with the best possible prices for goods and services.

e.The facility management division was created July 1, 1991, with the elimination of the director of institutions office. The division manages the physical plant operations, provides capitol tours, operates the central mail bureau, and coordinates event scheduling for all of the buildings located on the one hundred thirty-two-acre capitol complex. It also is responsible for providing space management services for the state agencies located on the capitol complex through its state planner.

f.The risk management division was established in 1995 in response to a North Dakota supreme court decision that eliminated the state's sovereign immunity for tort claims. The division's objectives are to implement proactive loss control practices to address the state's exposures to loss, and to appropriately administer claims and lawsuits. The 2001 legislature established the risk management workers' compensation program and assigned the division the duty of administering the single workers' compensation account that consolidated one hundred forty-three state agency accounts, and authorized a one hundred thousand dollar deductible per claim and a cross agency return-to-work program.

3.Inquiries. General inquiries regarding the office of management and budget may be addressed to the director of the office. Specific inquiries regarding the functions of each division may be addressed to the director of that division.

4.Personnel roster. All correspondence to the below-listed persons should be addressed as follows:

Office of Management and Budget 600 East Boulevard Avenue, Dept. 110 Bismarck, North Dakota 58505-0400 (701) 328-4606 Fiscal Management Division 600 East Boulevard Avenue, Dept. 110 Bismarck, North Dakota 58505-0400 (701) 328-4905 Human Resource Management Services Division 600 East Boulevard Avenue, Dept. 113 Bismarck, North Dakota 58505-0120 (701) 328-4735 Central Services Division 600 East Boulevard Avenue, Dept. 118 Bismarck, North Dakota 58505-0420 (701) 328-3494 Facility Management Division 600 East Boulevard Avenue, Dept. 130 Bismarck, North Dakota 58505-0130 (701) 328-4002 Risk Management Division 1600 East Century Avenue, Suite 4 Bismarck, North Dakota 58503-0649 (701) 328-7580

September 1, 1989; May 1, 1992; February 1, 1993; April 1, 1994; December 1, 1998; August 1, 2004;

October 1, 2023.

History

• History: Amended effective March 1, 1982; October 1, 1983; November 1, 1985; October 1, 1987;
• General Authority: NDCC 28-32-02
• Law Implemented: NDCC 28-32-02

Article 4-07 Organization of Human Resource Management Services

Chapter 4-07-01 Organization of Human Resource Management Services

N.D. Admin. Code 4-07-01-01 History, functions, organization of human resource management services

1.History of human resource management services.

a.The 1975 legislative assembly passed a Central Personnel System Act, codified as North Dakota Century Code chapter 54-44.3. The Act created the central personnel division as well as the state personnel board. The division was to establish and maintain classification and compensation plans as well as establish general policies and rules, which were to be binding on the affected agencies, relating to a unified system of personnel administration for the employees in the classified service of the state.

b.From its beginning in 1975, the central personnel division developed general personnel policies in response to the requirements for a unified system of personnel administration, requests from the state personnel board, requests from agencies or other officials in the executive branch, changed requirements in state or federal laws, and various decisions of the courts. These policies were discussed at meetings of the state personnel board. If a particular policy was approved by the board, the division would then act to include it within the North Dakota personnel policies manual. Policies approved and adopted in this way were then distributed to all state agencies.

c.The policies included in the North Dakota personnel policies manual were to be followed by all agencies with classified employees. More specifically, merit system agencies were to strictly follow the policies, but nonmerit system agencies were advised that the policies formed a "base" for the development of the agencies own policies and procedures.

d.In July of 1981 then Governor Allen Olson issued executive order number 1981-10. That executive order portrayed the North Dakota personnel policies manual as providing the assurance that classified employees would be treated fairly and uniformly if the policies were followed. The executive order identified the state personnel board as the agency that would hold public meetings to receive comments and approve revisions to the policies. Governor Olson also ordered that agencies headed by a gubernatorial appointee adhere to and follow the policies, including the statewide appeal mechanism.

e.However, by late 1986 that manner of personnel policy implementation and its "legality" and effect on various agencies had been challenged before the North Dakota supreme court. By 1990 in order for the division to carry out its statutory purpose of establishing a unified system of personnel administration for the classified service of the state, it was apparent that certain policies had to be adopted as rules in accordance with North Dakota Century Code section 28-32-02.

f.In 2003 the legislative assembly approved changing the name of the central personnel division to human resource management services.

2.Functions of human resource management services. The human resource management services division provides consultative services to agencies on a multitude of human resource areas of focus: talent acquisition, total rewards, talent management and development, operations and digital services, and human resource business partners. Through these areas of focus, the division collaborates with agencies to address a variety of functions, including recruitment, performance management, classification, salary administration, discipline, grievances, investigations, appeals, and federal and state employment requirements. In addition, the division develops, coordinates, and conducts training and leadership development programs; plans, coordinates, and leads activities for the statewide human resource information system; and administers a cooperative education and internship program. The division provides services related to establishing and maintaining a unified system of human resource management for the classified service. The division also serves as secretariat to the state personnel board.

3.Organization of human resource management services.

a.Human resource management services is a division of the office of management and budget. The division is separate from the state personnel board, although the division and board work closely together on classification and pay grade issues. The division and the board each adopts its own rules.

b.Human resource management services has a director and a staff. The director is appointed by and serves at the pleasure of the director of the office of management and budget. The director is responsible for the performance of the division as it exercises its duties and functions. A staff of professional and administrative employees assists the director.

October 1, 2023.

History

• History: Effective March 1, 1991; amended effective July 1, 1995; November 1, 1996; July 1, 2004;
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-01, 54-44.3-11, 54-44.3-12

N.D. Admin. Code 4-07-01-02 Organization and functions subject to chapter 28-32

The portions of human resource management services' organization and functions that are subject to North Dakota Century Code chapter 28-32 are those that involve its authority to adopt policies and rules relating to a unified system of personnel administration which impose requirements on other agencies. Human resource management services has the authority to adopt policies, rules, and procedures in three areas:

1.Subsection 1 of North Dakota Century Code section 54-44.3-12 provides the authority to establish general policies, rules, and regulations which are binding on the agencies affected, including those grant-aided agencies that receive federal funds. The rules referred to in this regard must ensure fairness, enhance greater uniformity in personnel management matters, and include rules on establishing and maintaining the classification and compensation plans.

2.Subsection 7 of North Dakota Century Code section 54-44.3-12 provides the authority to develop procedures that must be followed by all state agencies and institutions regarding salary administration for all employees in the classified service.

3.Subsection 13 of North Dakota Century Code section 54-44.3-12 provides the authority for the director of human resource management services to adopt rules, subject to the approval of the board, to ensure compliance with and resolve compliance issues relating to agencies required by state or federal law or rule to be subject to a merit personnel system.

History

• History: Effective March 1, 1991; amended effective November 1, 1996; July 1, 2004.
• General Authority: NDCC 54-44.3-12(1)
• Law Implemented: NDCC 54-44.3-12(1), 54-44.3-12(7)

N.D. Admin. Code 4-07-01-03 Methods the public may use to obtain information

The public may obtain information, furnish information, or make requests to human resource management services concerning any of its functions or rules by writing to hrms@nd.gov or telephone inquiries may be made by calling 701-328-3290 between eight a.m. and five p.m. Monday through Friday.

October 1, 2023.

History

• History: Effective March 1, 1991; amended effective July 1, 1995; November 1, 1996; July 1, 2004;
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-01, 54-44.3-12

Chapter 4-07-02 Salary Administration Procedures

N.D. Admin. Code 4-07-02-01 Definitions

The terms used throughout this title have the same meaning as in North Dakota Century Code

chapter 54-44.3, and sections 54-06-30 and 54-06-31, except:

1."Appointing authority" has the same meaning as provided in North Dakota Century Code

section 54-44.3-02.

2."Class" or "classification" means a group of positions, regardless of location, which are enough alike in duties and responsibilities to be called by the same descriptive title, to be given the same pay range under similar conditions, and to require substantially the same qualifications.

3."Classification plan" means the listing of all the classes that have been established, the description for those classes, and the process and procedures developed to maintain the plan.

4."Equity increase" means a salary increase provided to a classified employee to mitigate either a serious internal agency inequity or a documented external market condition.

5."General salary increase" means a salary increase provided to classified employees by specific legislative appropriation.

6."Hiring rate" means the salary level assigned to an employee upon initial employment with an agency.

7."Pay grade" means the number assigned to a classification which corresponds with one specific range of pay rates.

8."Performance increase" means a salary increase provided to a classified employee in recognition of documented performance which is consistently superior or which consistently exceeds documented performance standards.

9."Probationary increase" means a salary increase provided to a classified employee upon the successful completion of their applicable probationary period.

10."Promotional increase" means a salary increase provided to a classified employee when the employee is assigned to a regular, classified position in a different class which has a higher pay grade or which reflects a substantially higher level of responsibility than the employee's previous position.

11."Reclassification adjustment" means a salary adjustment applied to a classified employee to ensure salary alignment if the employee's position is reallocated to a different classification that has a different pay grade.

12."Responsibility level or workload increase" means a salary increase provided to a classified employee if either of the following conditions are met:

a.The level of duties and responsibilities assigned to the employee is permanently changed, is documented, and is independent of any change in classification.

b.A substantial, documented, increase in workload is assigned to a position.

13."Salary range" means the range of pay rates, from minimum to maximum that are assigned to a pay grade.

14."Targeted market equity increase" means a salary increase to be granted only if the legislature has defined and approved implementation of an equity program to address talent attraction, retention challenges, or strategic market alignment.

15."Temporary increase" means a salary increase provided to a classified employee when the employee is assigned temporarily to perform a higher level of responsibilities or increased workload on an acting or interim basis.

History

• History: Effective March 1, 1991; amended effective July 1, 2004; July 1, 2014; July 1, 2022; July 1, 2026.

N.D. Admin. Code 4-07-02-02 Scope of chapter

This chapter applies to all state agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services, except those agencies headed by an elected official, and except those institutions in the university system. Elected officials and institutions in the university system may, at their option, agree to the application of chapter 4-07-02 to their specific agency. Sections 4-07-02-05, 4-07-02-06, 4-07-02-12, and 4-07-02-17 apply to local government agencies that employ individuals in positions classified by human resource management services.

History

• History: Effective March 1, 1991; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-02-03 Purpose of chapter

The purpose of this chapter is to ensure that the salaries of classified employees are paid in a manner consistent with the state's classification plan, its compensation plan, and its salary administration policy.

N.D. Admin. Code 4-07-02-04 Relationship to available funds

All salary actions under this chapter are subject to the availability of appropriated funds. No person may take a salary action under this chapter if it were to cause an agency to exceed its budget authorization.

History

• Law Implemented: NDCC 54-44.3-01, 54-44.3-12(1), 54-44.3-12(7), 54-44.3-12.1, 54-44.3-15

N.D. Admin. Code 4-07-02-05 Salaries must be within the assigned salary range

Human resource management services shall assign a pay grade and a salary range to each approved class in the classification plan. Unless otherwise provided by human resource management services, the salary level of a classified employee must be within the assigned salary range.

History

• Law Implemented: NDCC 54-44.3-01, 54-44.3-12(1), 54-44.3-12(7), 54-44.3-15

N.D. Admin. Code 4-07-02-06 Exceptions

Exceptions to the requirements of chapter 4-07-02 normally require prior written approval from the director of human resource management services. In emergency situations exceptions may be provided verbally. Appointing authorities shall describe their justification for the exception and the impact that denying the exception would have on the agency or the state. Written documentation in justification of the exception must be provided by the appointing authority at the earliest practical time following a verbal approval.

History

• Law Implemented: NDCC 54-44.3-12(1), 54-44.3-12(7)

N.D. Admin. Code 4-07-02-07 General salary increase

A general salary increase must be provided in accordance with any specific guidelines or requirements as appropriated by the legislative assembly.

N.D. Admin. Code 4-07-02-08 Hiring rate

When establishing an entry salary, an appointing authority should consider the employee's job-related qualifications, the agency's ability to recruit qualified employees, the overall relationship of state employees' salaries to market salaries, and internal equity with existing employees' salaries. In determining a starting salary for an applicant who is a current employee of another state agency, an appointing authority also should consider equity between the state agencies.

History

• History: Effective March 1, 1991; amended effective July 1, 2004; April 1, 2020.

N.D. Admin. Code 4-07-02-09 Documents needed for hiring rate above the first quartile

Repealed effective July 1, 2004.

N.D. Admin. Code 4-07-02-10 Probationary increase

An appointing authority may grant an increase of up to five percent upon an employee's successful completion of a probationary period. The size of the increase may vary depending on factors that include performance, internal equity, and budget appropriations.

N.D. Admin. Code 4-07-02-11 Responsibility level or workload increase

An appointing authority may grant a responsibility level or workload salary increase if all of the following requirements are met:

1.The increase does not exceed twenty percent per biennium for an employee.

2.Consideration is given to the effect granting the increase would have on internal equity.

3.The change in workload or responsibility is documented and on file within the agency.

N.D. Admin. Code 4-07-02-12 Reclassification adjustment

An appointing authority may make an adjustment to a salary as a result of a reclassification according to the following:

1.If the pay grade is higher following a reclassification action, then an increase up to five percent above the minimum of the new salary range may be provided. The salary must be at least equivalent to the minimum of the new salary range.

2.If the pay grade is lower following a reclassification action, then either of the following apply:

a.The employee's salary may remain the same if it is within the lower salary range.

b.The employee's salary may be reduced to within the lower range to equitably relate to the salaries of other employees in the same or related classes.

3.If the employee's salary is above the maximum of the salary range for the new job grade, then either of the following apply:

a.The salary of the employee may remain above the new maximum when the reclassification is a result of a program change, a reorganization, or is a result of a management need not associated with the employee's performance. The salary may remain above the maximum as long as the employee remains in the classification. No further increases in salary may be granted the employee as long as the salary remains above the maximum, except those legislatively authorized.

b.The salary must be reduced at least to the maximum of the new range if the lower classification results from the removal of duties and responsibilities from the employee as a result of substandard performance or for disciplinary reasons.

4.If the pay grade is not changed, no salary adjustment shall be made.

History

• Law Implemented: NDCC 54-44.3-01, 54-44.3-07, 54-44.3-12(7)

N.D. Admin. Code 4-07-02-13 Promotional increase

An appointing authority may grant a salary increase when an employee is promoted, if all of the following requirements are met:

1.The employee must be paid at least the minimum of the new salary range.

2.Consideration must be given to the internal salary relationships that would exist in the agency if the increase were to be given.

3.The magnitude of the change in jobs is considered.

N.D. Admin. Code 4-07-02-14 Performance increase

An appointing authority may grant an increase for performance if all of the following requirements are met:

1.A proper performance appraisal process is used by the agency pursuant to chapter 4-07-10.

2.The increase does not exceed five percent in any twelve-month period for an employee.

3.Consideration is given to internal salary equity of other agency employees.

History

• History: Effective March 1, 1991; amended effective November 1, 1996.

N.D. Admin. Code 4-07-02-15 Equity increase

1.An appointing authority may grant an equity increase if all of the following requirements are met:

a.The increase does not exceed twenty percent per biennium for an employee.

b.At the time the increase is granted, documentation must be submitted to human resource management services that includes all of the following:

(1)A definition of the inequity.

(2)An explanation of what created the inequity.

(3)A statement that an additional inequity will not result.

(4)The relevant available market data in cases of external equity.

c.The agency shall consider the overall relationship of state employees' salaries to market salaries and avoid creating internal inequities.

2.Targeted market equity increases are distinct from other equity increases in that they are only authorized if the legislature has defined and approved the implementation of an equity program to proactively address talent attraction, retention challenges, or strategic market alignment for one or more categories of state employees. Specific guidelines for administering any targeted market equity increase program must be determined by human resource management services.

History

• History: Effective March 1, 1991; amended effective July 1, 2004; July 1, 2026.

N.D. Admin. Code 4-07-02-16 Temporary increase

An appointing authority may grant a temporary increase if all of the following requirements are met:

1.An increase may not be given for a temporary situation of less than thirty days.

2.An employee may not continue to receive a temporary increase for more than thirty days after the special circumstances ceased to exist.

3.Consideration is given to the magnitude of the change in responsibility level.

N.D. Admin. Code 4-07-02-17 Adjustment following assignment to a lower pay grade

When an employee is assigned to a position at a lower pay grade, and the employee's salary is above the maximum of the new grade, then either of the following may result:

1.The salary may remain above the new maximum when the assignment results from a program change, reorganization, or other management need not associated with the employee's performance. No further increases may be granted as long as the salary remains above the maximum.

2.The salary may be reduced to at least the maximum of the new range if the assignment resulted from substandard performance or other disciplinary reasons.

N.D. Admin. Code 4-07-02-18 Bonuses

A recruitment, retention, or performance bonus may be provided according to North Dakota Century Code sections 54-06-30 and 54-06-31.

History

• History: Effective July 1, 2004; amended effective July 1, 2026.

N.D. Admin. Code 4-07-02-19 Recruitment bonus

A recruitment bonus may be provided by an agency if the employee receiving the bonus was not employed by a state agency immediately preceding employment with the hiring agency, except when a recruitment bonus is provided to an employee for a referral program outlined in the agency's recruitment policy. If application of this rule would result in significant impact on the agency or negative fiscal consequences to the state, an exception may be sought under section 4-07-02-06.

History

• History: Effective July 1, 2004.

N.D. Admin. Code 4-07-02-20 Retention bonus

A retention bonus may be given as an incentive to retain an employee in state government unless the employee is leaving to work for another state agency. If application of this rule would result in significant impact on the agency or negative fiscal consequences to the state, an exception may be sought under section 4-07-02-06.

History

• History: Effective July 1, 2004.

N.D. Admin. Code 4-07-02-21 Performance bonus

Repealed effective April 1, 2020.

Chapter 4-07-03 Classification Plan

N.D. Admin. Code 4-07-03-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.
• General Authority: NDCC 54-44.3-12, 54-44.3-20

N.D. Admin. Code 4-07-03-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3 and section 4-07-02-01.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2014.

N.D. Admin. Code 4-07-03-03 Official class title

The official class title must be used to designate positions or employees when entering such information on payroll and personnel records, or in other communications related to human resource administration processes. However, any suitable or working title to designate persons or positions may be used.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2014.

N.D. Admin. Code 4-07-03-04 Interpretation of class descriptions

Class descriptions represent the duties typical of the class. Neither an appointing authority nor an employee may interpret class descriptions as restrictive, except for the specified minimum qualification requirements. The inclusion of particular phrases in the descriptions that list the duties performed may not be interpreted to exclude other duties of a similar kind and quality. An appointing authority may, at any time, require an employee to perform any of the duties that are in the class descriptions or any other appropriate duties.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2014.

N.D. Admin. Code 4-07-03-05 Classification or reclassification request

A request to have a position reviewed for classification or reclassification must be submitted by the appointing authority to human resource management services for review, if at least one of the following reasons apply:

1.A new position has been authorized.

2.A significant amount of responsibilities are newly assigned, reassigned, or changed for a position.

3.A position is classified in a class or class series that has been revised and the duties and responsibilities assigned to the position are no longer appropriate to the assigned class or class series.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1, 2014.

N.D. Admin. Code 4-07-03-06 Information and forms required

A classification or reclassification request must be submitted to human resource management services using the designated forms with all required information and supplemental documents attached.

Human resource management services may delegate to an agency the responsibility for decisions on certain position classification assignments. Decisions are limited to those classes as specified by the division.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2014. 4-07-03-06.1. Certain classification decisions may be delegated.
• History: Effective November 1, 1996; amended effective July 1, 2004.
• Law Implemented: NDCC 54-44.3-12

N.D. Admin. Code 4-07-03-07 An employee may request a review

An employee may request that an appointing authority submit the employee's position to human resource management services for review if the employee demonstrates that one of the reasons in

section 4-07-03-05 applies to the employee's position. An appointing authority shall consider an employee's request to submit the employee's position to human resource management services for review. The appointing authority shall, within sixty calendar days, determine if any of the reasons in

section 4-07-03-05 apply. If none of the reasons apply, the appointing authority shall notify the employee the request will not be submitted to human resource management services.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2014.

N.D. Admin. Code 4-07-03-08 An appointing authority shall consider an employee's request

Repealed effective July 1, 2014.

N.D. Admin. Code 4-07-03-09 A request for a classification review must be submitted for all positions affected by a reassignment

Superseded by subsection 2 of section 4-07-03-05 effective November 1, 1996. 4-07-03-09.1. Human resource management services may initiate a classification review.

If human resource management services becomes aware of a potentially inappropriate classification assignment, the division may initiate a classification review and request updated documentation of the position.

Human resource management services may correct inconsistencies in class evaluations as related evaluation interpretations occur. If revisions result in grade changes, human resource management services shall notify affected employees and appointing authorities of the proposed change and provide an opportunity to submit related documentation. After review of any documentation received, human resource management services shall provide notification as provided in section 4-07-04-09.

History

• History: Effective November 1, 1996; amended effective July 1, 2004.
• Law Implemented: NDCC 54-44.3-12 4-07-03-09.2. Correcting class evaluation interpretation in consistencies.
• History: Effective July 1, 2014.

N.D. Admin. Code 4-07-03-10 Classification process and notifications

Upon receipt of a classification or reclassification request, human resource management services shall initiate a review of the position and provide the agency with a determination within thirty calendar days or, if referred to the job evaluation committee, within sixty calendar days. If human resource management services concurs with the agency request, the classification or reclassification shall be implemented. Human resource management services also may determine another classification is more appropriate for the position or none of the existing classifications is appropriate for the position. If human resource management services determines none of the existing classifications is appropriate for the position, human resource management services shall draft an appropriate classification description for evaluation by the job evaluation committee. If the agency or employee does not agree with the determination made by human resource management services, human resource management services shall ensure the complete job information is gathered and prepared for presentation to the job evaluation committee for a determination. If the review is not completed within the authorized time period, human resource management services shall notify the appointing authority of the reasons for an extension and the anticipated schedule for completion of the review. Human resource management services shall notify the appointing authority and employee in writing of the job evaluation committee's decision within fifteen calendar days. If either the employee or appointing authority disagrees with the job evaluation committee's decision, an appeal may be made as provided in chapter 59.5-03-02.

The effective date of a classification assignment is the date specified by the appointing authority.

However, the effective date may not be earlier than the month in which the reclassification request is approved pursuant to section 4-07-03-10. An earlier effective date may be applied with written approval from the director of human resource management services.

When reclassification of a position is requested, the appointing authority shall ensure that the position incumbent meets the minimum qualifications for the position's new classification. If the employee does not meet the minimum qualifications, the appointing authority shall do one of the following:

1.Assist the employee in attaining the necessary education, training, or experience to meet the qualifications. The employee must meet the qualifications within one year from the effective date of the reclassification.

2.Reassign the employee to a position for which the employee qualifies.

3.Restructure the duties and responsibilities of the reclassified position to return it to a classification for which the employee qualifies.

4.Request review of the class.

5.Take other action to ensure compliance with the minimum qualifications.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1, 2014; April 1, 2020. 4-07-03-10.1. Effective date of classification assignment.
• History: Effective November 1, 1996; amended effective April 1, 2020. 4-07-03-10.2. Employee in a reclassified position shall meet minimum qualifications.
• History: Effective November 1, 1996.

N.D. Admin. Code 4-07-03-11 Request for reconsideration of classification decision

Repealed effective July 1, 2014.

N.D. Admin. Code 4-07-03-12 Grandfathering

When a current employee affected by a class or class series review does not meet new or revised qualifications as stated on the class description, the employee may be grandfathered into that employee's current position at the appropriate job class level without loss of pay or status. The employee must meet minimum qualifications as stated on the class descriptions of subsequent position reclassification actions in accordance with section 4-07-03-10.2.

History

• History: Effective July 1, 2004.

Chapter 4-07-04 Compensation Plan

N.D. Admin. Code 4-07-04-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.
• Law Implemented: NDCC 54-44.3-12

N.D. Admin. Code 4-07-04-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3 and section 4-07-02-01, except "compensation plan" means the listing of all the pay grades used in the classified service and the pay ranges assigned to each grade.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2014.

N.D. Admin. Code 4-07-04-03 Class evaluation process

The director, human resource management services, shall develop, implement, and maintain a class evaluation process to evaluate and assign an appropriate pay grade to all classes in the classification plan.

History

• History: Effective September 1, 1992; amended effective July 1, 2004. 4-07-04-03.1. Correcting class evaluation interpretation inconsistencies.

N.D. Admin. Code 4-07-04-04 A written request to review a pay grade

A written request to review a pay grade may be submitted to human resource management services by the appointing authority only if one of the following reasons apply:

1.The appointing authority is experiencing recruiting problems due to the assigned pay grade.

2.The appointing authority is experiencing retention problems due to the assigned pay grade.

3.The appointing authority can provide employment market data that shows an extreme variance between market pay and the classified salary range.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1,

N.D. Admin. Code 4-07-04-05 Additional information required

An appointing authority requesting a pay grade review shall furnish additional information to human resource management services at the time the request is made. The additional information must include:

1.A statement of the problem.

2.Up-to-date job description questionnaires.

3.Any available statistical data that relates to the problem encountered, i.e., turnover rate, recruiting costs, training costs, etc.

4.Details of efforts to resolve the problem through alternative methods.

5.Any available analysis of the current use of the salary range assigned to the existing pay grade.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1,

N.D. Admin. Code 4-07-04-06 Information and forms required

Repealed effective July 1, 2004.

N.D. Admin. Code 4-07-04-07 An employee may request a review

An employee may request that an appointing authority submit the pay grade assigned to the employee's class to human resource management services for review if the employee demonstrates that one of the reasons in section 4-07-04-04 applies to the employee's classification. An appointing

authority shall consider an employee's request to submit the pay grade assigned to the employee's class to human resource management services for review. The appointing authority shall, within sixty calendar days, determine if any of the reasons in section 4-07-04-04 apply and if the information required in section 4-07-04-05 is available. If any of the reasons apply and if the information is available, the appointing authority shall submit the request to human resource management services for review. If none of the reasons apply, the appointing authority shall notify the employee the request will not be submitted to human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1,

N.D. Admin. Code 4-07-04-08 An appointing authority shall consider an employee's request

N.D. Admin. Code 4-07-04-09 Pay grade review process, pay grade exceptions, and notifications

Upon receipt of a pay grade review request, human resource management services will initiate review of the pay grade or classification as appropriate. Human resource management services may assign a pay grade that is higher than that determined by the application of the class evaluation system. This may be done when the pay grade assigned to a class has not resolved significant problems in the recruiting or retention of qualified individuals for a class. When a pay grade exception is assigned to a class, the grade must be identified as such and the appointing authority and all employees in the class must be notified. If the review is not completed within sixty calendar days, human resource management services will notify the appointing authority of the reasons for an extension and the anticipated schedule for completion of the review. If either the employee or appointing authority disagree with the decision, an appeal may be made as provided in chapter 59.5-03-02.1.

The effective date of a pay grade assignment is the date specified by the appointing authority.

However, the date may not be earlier than the month in which the change is approved pursuant to

section 4-07-04-09. An earlier effective date may be applied with written approval from the director of human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1, 2014; April 1, 2020; October 1, 2023. 4-07-04-09.1. Effective date of pay grade assignment.
• History: Effective November 1, 1996; amended effective April 1, 2020. 4-07-04-09.2. Request for reconsideration of pay grade assignment.

N.D. Admin. Code 4-07-04-10 Pay grade appeal to the director

Superseded by section 4-07-04-09.2 effective November 1, 1996.

N.D. Admin. Code 4-07-04-11 Pay grade exception

N.D. Admin. Code 4-07-04-12 Periodic review

Classes assigned a pay grade exception are subject to periodic review by human resource management services. Such classes shall be reviewed no less than once every five years to verify the appropriateness of the assigned pay grade. The director, human resource management services, shall notify the respective appointing authorities and all employees in the class that a review is being conducted. The appointing authority and employees may submit information for the review.

History

• History: Effective May 1, 1994; amended effective July 1, 2004.

Chapter 4-07-05 Recruitment and Selection

N.D. Admin. Code 4-07-05-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

The terms used throughout this chapter have the same meaning as those in North Dakota Century Code chapter 54-44.3, except:

1."Closing date" means a date by which applications must be received as specified.

2."External recruiting" means applications for filling a vacant position under an appointing

authority must be accepted from current employees of the appointing authority and persons not employed by the appointing authority.

3."Internal recruiting" means applications for filling a vacant position under an appointing

authority only must be accepted from current employees of the appointing authority and employees eligible for reinstatement by the appointing authority.

4."Promotion" means a personnel action that results in the advancement of an employee to a position in a different class that has a higher pay grade than the employee's previous position or which reflects a substantially higher level of responsibility.

5."Regular employee" means a person who has completed the probationary period and who is or was in a position classified by human resource management services at the time the personnel action occurs.

6."Reinstatement" means a personnel action that involves the re-employment of a previous employee of the appointing authority, who resigned or was separated while in good standing in a classified position.

7."Transfer" means a personnel action that results in the reassignment of an employee from one position to a different position that has the same pay grade as the employee's previous position and that does not result in a break in service.

8."Vacancy announcement" means an announcement that a particular position is vacant and that the appointing authority intends to recruit to fill it.

July 1, 2022; July 1, 2026.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004. 4-07-05-01.1. Definitions.
• History: Effective July 1, 1995; amended effective November 1, 1996; July 1, 2004; April 1, 2020;

N.D. Admin. Code 4-07-05-02 Promotion

An appointing authority may promote a regular or probationary employee to fill a vacant classified position in accordance with section 4-07-05-05.1.

An appointing authority may reinstate a former employee who was hired through a competitive process and who has successfully completed a required probationary period to fill a vacant position.

The reinstatement must be effective within three years from the date of the employee's separation.

An appointing authority may transfer a regular or probationary employee from one classified position to another classified position in accordance with section 4-07-05-05.1.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004. 4-07-05-02.1. Reinstatement.
• History: Effective November 1, 1996; amended effective July 1, 2004. 4-07-05-02.2. Transfer.
• History: Effective November 1, 1996; amended effective July 1, 2004.

N.D. Admin. Code 4-07-05-03 Minimum qualifications

Except as provided in section 4-07-05-06, an appointing authority may employ, promote, reinstate, or transfer a person into or to a position in the classified service provided that person possesses qualifications that at least meet the minimum qualifications for that class as stated in the class descriptions and successfully completes any examination requirement specified by the appointing

authority.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-05-04 Notifying human resource management services

An appointing authority shall notify human resource management services of each vacant classified, nontemporary position the appointing authority intends to fill through external recruitment.

The notification must be submitted in the form of a completed vacancy announcement transmitted electronically in the statewide-approved applicant tracking system. The appointing authority also shall list vacancies for external recruitment with job service North Dakota.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1, 2022; July 1, 2026.

N.D. Admin. Code 4-07-05-05 External recruiting

When an appointing authority proceeds to fill a vacant classified, nontemporary position through external recruiting, the appointing authority shall ensure that the public has the opportunity to know of and apply for the position. Additionally, the appointing authority shall select the applicant for appointment on the basis of the applicant's job-related qualifications for the position.

When an appointing authority proceeds to fill a vacant classified, nontemporary position by recruiting within its agency, the appointing authority shall ensure that all employees occupying classified positions of the appointing authority or within the specified work units have the opportunity to know of and apply for the position. An appointing authority may specify a work unit or work units within the agency from which applicants may be considered. However, there is no requirement for a vacancy announcement when the transfer of an employee to a vacant position is necessary to provide a reasonable accommodation for an employee under the Americans with Disabilities Act, or to avoid a reduction-in-force during a reorganization.

An appointing authority may consider a current temporary employee or individual who has completed an approved internship with the agency as an internal applicant provided the applicant was selected on an open and competitive basis at the time of employment to the current temporary or approved intern position with the agency.

History

• History: Effective September 1, 1992; amended effective November 1, 1996. 4-07-05-05.1. Internal recruiting.
• History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2014. 4-07-05-05.2. Temporary employees and interns.
• History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2026.

N.D. Admin. Code 4-07-05-06 Alternative classification

When no fully qualified candidates are available after an internal or external recruiting effort, an appointing authority may apply an alternative classification when filling a position if each of the following requirements are met:

1.The hiring authority shall include clear language in the position announcement that an alternative classification may be considered and explaining what circumstances will justify an alternative classification.

2.The alternative classification must be one for which human resource management services either has granted specific prior approval for use in the position announcement or has provided delegated authority for position classification assignments to the agency as pursuant to section 4-07-03-06.1.

3.The applicant selected possesses the appropriate license or meets other applicable statutory requirements.

History

• History: Effective July 1, 1995; amended effective November 1, 1996; July 1, 2004; April 1, 2020.

N.D. Admin. Code 4-07-05-07 Veterans' preference

Veterans' preference must be applied in the external recruitment and selection of employees in accordance with North Dakota Century Code chapter 37-19.1.

History

• History: Effective November 1, 1996; amended January 1, 2012; July 1, 2026.
• Law Implemented: NDCC 37-19.1-02, 54-44.3-23

N.D. Admin. Code 4-07-05-08 Vacancy announcement contents

Each vacancy announcement must include the following information:

1.Class or working title, full-time or part-time status, regular or temporary status.

2.Salary or projected hiring range.

3.Closing date.

4.Duty location of position (city) or feasibility of remote work.

5.Procedures for applying.

6.Summary of work.

7.Minimum and optional preferred qualifications.

8.Equal employment opportunity and accessibility statements.

9.Background check or pre-employment requirements.

10.If a position is exempt from veterans' preference, the advertisement must state veterans' preference does not apply to the position being advertised.

Additional preferred qualifications may be listed on the vacancy announcement at the discretion of the appointing authority or a reference to the position description may be made.

April 1, 2020; July 1, 2022; July 1, 2026.

History

• History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; January 1, 2012;
• Law Implemented: NDCC 37-19.1-02(4), 54-44.3-12

N.D. Admin. Code 4-07-05-09 Vacancy announcement requirements

1.A vacancy announcement may not contain minimum qualifications that are less than the established minimum qualifications on the class description, but it may contain more specific requirements.

2.When advertising for required education on a vacancy announcement, an appointing authority may:

a.Narrow the range of appropriate degrees.

b.Specify the additional training or experience needed for working in an upper level of a class series.

3.An appointing authority shall define the type and length of experience that substitutes for a college degree, if a substitution statement is used in the minimum qualifications of the class description.

4.An appointing authority wishing to consider applicants for an alternative classification in the initial vacancy announcement shall indicate such and state the required minimum qualifications for the alternative classification.

History

• History: Effective November 1, 1996; amended effective July 1, 2004; April 1, 2020.

Chapter 4-07-06 Probationary Period

N.D. Admin. Code 4-07-06-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.
• Law Implemented: NDCC 54-44.3-12(1)

N.D. Admin. Code 4-07-06-02 Probationary period

Each newly hired or reinstated employee shall serve a probationary period each time of the employee's hiring into a classified position in an agency. Nonprobationary classified employees are not required to serve a probationary period upon promotion, demotion, or transfer within an agency.

Temporary service at the same level and type of work may be considered toward the probationary period.

History

• History: Effective September 1, 1992; amended effective July 1, 1995; November 1, 1996; July 1, 2004; January 1, 2012; July 1, 2014.

N.D. Admin. Code 4-07-06-03 Purpose and duration

The purpose of the probationary period is to evaluate whether the employee can meet the performance requirements of the position to which the employee has been assigned. The duration of the initial probationary period must be for six months. However, an agency may use a probationary period with a longer duration if it is needed to determine satisfactory performance, and if it does not exceed one year's duration.

History

• History: Effective September 1, 1992; amended effective July 1, 1995.

N.D. Admin. Code 4-07-06-04 Advising a new employee

An appointing authority shall advise in writing each newly hired or rehired employee of the applicable probationary period prior to the time the employee begins work.

History

• History: Effective September 1, 1992; amended effective July 1, 2004.

N.D. Admin. Code 4-07-06-05 Separation during the probationary period

An employee may be separated at will from employment during the probationary period. The appointing authority shall notify the employee of the separation in writing.

N.D. Admin. Code 4-07-06-06 Notice of completion

The appointing authority shall notify the employee in writing at the completion of the probationary period that the employee has satisfactorily completed the probationary period, that the probationary period has been extended, or that employment is terminated. Lack of notice within fifteen working days of completion of the probationary period means that the employee has successfully completed the probationary period.

N.D. Admin. Code 4-07-06-07 Extending a probationary period

An appointing authority may extend an initial period of probation only if there is a documented work-related reason for doing so. The appointing authority shall notify the employee in writing of the decision to extend, the reason for the extension, and the length of the extension. A probation period extension beyond the initial probationary period imposed by the agency under section 4-07-06-03 may not exceed six months. The notification must be accomplished within fifteen working days of completion of the probationary period. A copy of this notice must be retained in the employee's official personnel file.

History

• Law Implemented: NDCC 54-44.3-12(1)

N.D. Admin. Code 4-07-06-08 Promotion during initial probationary period

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-06-09 Promotion following the initial probationary period

Repealed effective November 1, 1996.

Chapter 4-07-07 Working Hours and Holidays

N.D. Admin. Code 4-07-07-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-07-02 Definitions

The terms used in this chapter have the same meaning as in North Dakota Century Code chapter 54-44.3, except:

1."Core time" means the designated period of time within a standard workday and within a standard workweek, when all agency employees must either be on duty or on a leave status.

2."Flextime" means the approved starting and quitting times, outside the core time, that allow employees to vary their arrival and departure times.

3."Standard workweek" means a fixed and regularly recurring forty-hour period within the calendar week.

N.D. Admin. Code 4-07-07-03 The standard workweek

The standard workweek is a fixed and regularly recurring period of seven consecutive twenty-four-hour periods. A workweek may begin on any day of the week and at any hour and minute of the day. Due to the nature of the work, an agency may assign employees to work different workweeks or different workdays to carry out the mission of the agency. Employees must be made aware of their assigned workweek. An agency may establish different workweeks in accordance with requirements of the Fair Labor Standards Act of 1938 [Pub. L. 75-718; 52 Stat. 1060; 29 U.S.C. 201 et seq.]. In the absence of an established standard workweek, the period of 12:00 a.m. Sunday through 11:59 p.m. the following Saturday must be utilized.

The state of North Dakota, as an employer, is required to abide by the Fair Labor Standards Act of 1938 [Pub. L. 75-718; 52 Stat. 1060; 29 U.S.C. 201 et seq.] concerning wage and hour provisions. The appointing authority is responsible for compliance with provisions of the Act, including the determination of exempt or nonexempt status or overtime issues. Human resource management services may assist in this analysis.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2014. 4-07-07-03.1. Compliance with Fair Labor Standards Act.
• History: Effective November 1, 1996; amended effective July 1, 2004.

N.D. Admin. Code 4-07-07-04 Flextime

An appointing authority may allow employees to use flextime provided that regular service to the public is not interrupted.

N.D. Admin. Code 4-07-07-05 Nonstandard hours

An appointing authority may assign an employee to work hours other than the standard work hours.

Additionally, an appointing authority may assign an employee to work hours in excess of the standard workweek.

N.D. Admin. Code 4-07-07-06 Holidays

The holidays for individuals who are employed by agencies subject to this chapter are those that are listed in North Dakota Century Code section 1-03-01.

N.D. Admin. Code 4-07-07-07 Holiday hours accrual for a part-time regular employee

An employee who occupies a part-time regular position must accrue holiday hours proportionately.

History

• History: Effective July 1, 2004.

N.D. Admin. Code 4-07-07-08 Leave status and fringe benefits

A probationary or regular employee who is absent from work in a paid leave status continues to earn fringe benefits, including annual leave and sick leave.

History

• History: Effective July 1, 2004.

Chapter 4-07-08 Working and Inclement Weather Conditions

N.D. Admin. Code 4-07-08-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-08-02 Reporting to work

During inclement weather conditions unless otherwise notified by an authorized official, each employee shall report to work as scheduled at the appointed time. Employees who are authorized and telework enabled (the ability to do all or part of their job from home or a remote location) are expected to follow a normal work schedule.

History

• History: Effective September 1, 1992; amended effective July 1, 2022; October 1, 2023.

N.D. Admin. Code 4-07-08-03 Reporting late or leaving early

An employee who either reports to work late, or who leaves work early during inclement weather conditions while the employee's place of work remains open, must be charged appropriate leave for the time not worked.

N.D. Admin. Code 4-07-08-04 Key positions

An appointing authority may designate key positions. Individuals occupying those positions shall provide continuing services or essential services as required during emergency or inclement weather conditions when the agency is closed by an authorized official. An individual occupying a key position may be provided extra compensation, in addition to the regular pay rate, for performing required work during a period when agency facilities or normal operations have been closed or curtailed due to emergency or inclement weather conditions.

N.D. Admin. Code 4-07-08-05 No pay reduced

An appointing authority may not reduce the pay of an employee who is released from work due to an emergency or inclement weather conditions by an authorized official for those hours the employee was not required to work.

N.D. Admin. Code 4-07-08-06 Employee not scheduled to work

Repealed effective October 1, 2023.

Chapter 4-07-09 Transfers, Annual Leave and Sick Leave Hours

N.D. Admin. Code 4-07-09-01 Scope of chapter

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-09-02 Definitions

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-09-03 Assumption of accrued annual leave and sick leave hours

Superseded by sections 4-07-12-13 and 4-07-13-12 effective November 1, 1996.

Chapter 4-07-10 Performance Management

N.D. Admin. Code 4-07-10-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-10-02 Requirement for performance management program

Each agency, department, and institution shall adopt and use a program to provide for the development and management of the performance of each employee in a classified position.

N.D. Admin. Code 4-07-10-03 Requirement to communicate expected performance

Each employee in a classified position must be informed of the responsibilities assigned to the employee's position and of the level of performance needed to successfully perform the work.

N.D. Admin. Code 4-07-10-04 Criteria for performance management programs

Each agency, department, and institution shall use the criteria in one or the other of the following performance management program types:

1.Individual-based performance.

a.Performance reviews are conducted at least annually.

b.Performance reviews are based on individual job-related requirements.

c.A standard form or approach is used.

d.Performance standards, or goals and objectives are used.

e.The review includes a review of past performance.

f.The review includes a discussion of how performance may be improved or how an employee's skills may be developed.

2.Team-based performance.

a.Performance reviews are conducted at least annually.

b.Performance reviews are based on overall team performance and how the employee functions as part of a team.

c.The emphasis of the program is on improving the quality of a service or product, constantly improving systems and processes, and on preventing problems and eliminating them.

d.The program provides guidance for the education, training, and self-improvement of the employee.

Chapter 4-07-11 Reduction-in-Force

N.D. Admin. Code 4-07-11-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective May 1, 1994; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-11-02 Definitions

The terms throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3, except "reduction-in-force" means the loss of employment by an employee as a result of a reduction in funding, lack of work, curtailment of work, or reorganization.

History

• History: Effective May 1, 1994; amended effective November 1, 1996.

N.D. Admin. Code 4-07-11-03 Reduction-in-force

An appointing authority, after giving written notice to a classified employee, may cause an employee to lose his or her employment due to a reduction-in-force. Prior to initiating a reduction-in-force, an appointing authority shall carefully conduct a written analysis of the affected employees in the agency or in a division or unit within the agency to determine those employees who will be subject to the reduction-in-force. Affected employees means those employees in the same classification identified to be reduced in force within the agency, division, or unit within the agency. The appointing authority shall consider a comparison of the knowledge, skills, number of years and months an employee has in the classified service, other experience, and level of performance employees have with the knowledge, skills, and experience that the agency has determined it will need to accomplish the work to be done following the reduction-in-force.

History

• History: Effective May 1, 1994; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-11-04 Written documentation required

An appointing authority that initiates a reduction-in-force is required to maintain written documentation of the analysis required by section 4-07-11-03.

N.D. Admin. Code 4-07-11-05 Emergency, temporary, or probationary employees

An appointing authority may not subject a classified employee who has satisfactorily completed the probationary period to a reduction-in-force while there are emergency, temporary, or probationary employees serving in the same class in the same agency location.

N.D. Admin. Code 4-07-11-06 Nondiscriminatory

An appointing authority that initiates a reduction-in-force shall do so only in a nondiscriminatory manner in accordance with North Dakota Century Code section 14-02.4-01. Additionally, an appointing

authority may not use a reduction-in-force as a substitute for disciplinary measures.

N.D. Admin. Code 4-07-11-07 Re-employment following a reduction-in-force

An individual who has lost employment due to a reduction-in-force shall be offered re-employment by the former employing agency if all of the following conditions are present:

1.A regular position vacancy, in the same classification or lower classification in the same series, occurs in the former employing agency, and the appointing authority decides to fill the vacancy by appointing someone other than a current employee.

2.The individual meets the qualifications determined to be necessary for successful performance of the position by the agency and successfully completes any examination specified by the agency, including an oral interview.

3.No more than one year has elapsed since the individual lost employment due to the reductionin-force.

4.The individual is not currently employed in a regular position in state service.

History

• History: Effective May 1, 1994; amended effective July 1, 2004; July 1, 2008.

N.D. Admin. Code 4-07-11-08 Applicant status following a reduction-in-force

An individual who has lost employment due to a reduction-in-force shall for one year from the date of the reduction-in-force be considered an internal applicant for all positions within the former employing agency for which that individual applies pursuant to policies and practices established by that agency.

History

• History: Effective July 1, 2004.

Chapter 4-07-12 Annual and New Hire Leave

N.D. Admin. Code 4-07-12-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions, except as indicated, which employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1, 2026.

N.D. Admin. Code 4-07-12-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code chapters 54-06 and 54-44.3 and section 54-52-01, except:

1."Annual leave" means an approved absence from work with pay allowed under an authorized accrual schedule.

2."Interagency transfer" means a personnel action that results in the reassignment of an employee from one position to a different position in another state agency and that does not result in a break in service.

3."New hire leave" means a separate leave balance to use for an approved absence from work with pay within the first year of employment.

4."Regular employee" means a person who has completed the probationary period and who is in a position classified by human resource management services.

5."Reinstatement" means a personnel action that involves the re-employment of a previous employee in a classified position as defined by chapter 4-07-05.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004; July 1, 2026.

N.D. Admin. Code 4-07-12-03 Annual leave accrual

Employees eligible for annual leave begin to accrue leave from the date of hire.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2026.

N.D. Admin. Code 4-07-12-04 Annual leave accrual schedule

1.State agencies are advised the following annual leave accrual schedule is required, except as referenced in subsection 2, for use by each state agency subject to this chapter:

Years of ServiceHours Earned Per Month Zero through threeEight Four through sevenTen Eight through twelveTwelve Thirteen through eighteen Fourteen Over eighteenSixteen

2.Effective after April 30, 2026, a state agency may grant, at hire, annual leave within the parameters of eight to sixteen hours per month, which may exceed the amount based on tenure of employment, if all the following requirements are met:

a.The position being hired for was previously identified as a hard-to-fill occupation pursuant to the requirements set forth in North Dakota Century Code section 54-06-31.

b.Prior to granting an enhanced annual leave accrual schedule, the state agency has a written policy in place identifying eligible positions or occupations and provisions for providing and receiving enhanced annual leave accrual. The written policy must address the specific positions that qualify for enhanced annual leave accrual and why the positions have been identified as hard to fill.

c.The state agency has filed the written policy with human resource management services.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2008; July 1, 2026.

N.D. Admin. Code 4-07-12-05 Accrual for fractional months

An employee accrues annual leave for employment for a fraction of a month. The number of annual leave hours earned by an employee for employment for a fraction of a month must be in proportion to the total number of straight time hours the employee actually worked compared to working hours in the month.

History

• History: Effective September 1, 1992; amended effective July 1, 2026.

N.D. Admin. Code 4-07-12-06 Annual leave taken in fifteen-minute increments

Repealed effective January 1, 1993.

N.D. Admin. Code 4-07-12-07 Approval required

Generally, a request to use annual leave must be approved before the employee is authorized to take the leave. A leave request may be denied if the employee's absence would unduly disrupt the operations or services of the agency.

History

• History: Effective September 1, 1992.

N.D. Admin. Code 4-07-12-08 Annual leave limit

No more than two hundred forty hours of accrued annual leave may be carried forward beyond April thirtieth of each year. If a political subdivision that employs individuals in positions classified by human resource management services uses a cutoff date other than April thirtieth, then the political subdivision may continue to do so as long as the same cutoff date is used for all of the agency's employees who occupy positions that are classified by human resource management services, and the two-hundred-forty-hour limit is observed.

History

• History: Effective September 1, 1992; amended effective July 1, 2004.

N.D. Admin. Code 4-07-12-09 Change of cutoff date

Repealed effective July 1, 2004.

N.D. Admin. Code 4-07-12-10 Pay during employment

An employee may not be paid for unused annual leave while the employee remains in the service of the agency, except for the following reasons:

1.The employee takes a long-term leave of absence;

2.The employee goes on educational leave;

3.The employee moves to temporary employment; or

4.Human resource management services approves a written request from an agency for an exception to this section for a business-related reason.

When an employee is transferring from one agency to another, the employee must be paid for the difference in hours between what the employee has accumulated and the number of hours the gaining agency will accept. When an employee is leaving the service of the agency, the employee must be paid for all accrued hours of annual leave.

History

• History: Effective September 1, 1992; amended effective July 1, 1995; November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-12-11 Credit for temporary service

A temporary employee who becomes regular must be given credit for the employee's length of service as a temporary employee for the purpose of determining the annual leave accrual rate provided there was no break in service beyond one year. An agency may not grant annual leave hours to a temporary employee.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-12-12 Annual leave and re-employment

An employee who leaves employment and who is rehired within three years must be credited with the employee's previous years of continuous service for the purpose of determining the employee's annual leave accrual rate.

History

• History: Effective September 1, 1992; amended effective July 1, 2008; July 1, 2026.

N.D. Admin. Code 4-07-12-13 Assumption of accrued annual leave or an enhanced annual leave accrual

1.A state agency appointing authority employing an individual from another state agency shall accept all or only a part of the employee's accrued annual leave hours the employee requests to transfer. If the individual granted an interagency transfer from another state agency previously was granted an enhanced annual leave accrual rate, the hiring agency may continue the enhanced rate only if the individual is hired into a designated hard-to-fill position, as defined in section 4-07-12-04. If the individual is not hired into a designated hard-to-fill position, the individual's annual leave accrual rate must revert to the standard rate based on total years of qualifying service, as defined in section 4-07-12-04. State agencies shall accept all or a part of accrued annual leave hours a human service zone employee requests to transfer, if the employee occupies a position classified by human resource management services.

2.A human service zone board shall accept all or a part of accrued annual leave hours an employee requests to transfer from another human service zone board or a state agency, if the employee occupies a position classified by human resource management services.

July 1, 2026.

History

• History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; October 1, 2023;

N.D. Admin. Code 4-07-12-14 New hire leave

1.New hire leave is applicable to state agencies only.

2.A state agency that employs an employee eligible for new hire leave shall grant, upon hire, the individual forty hours of new hire leave. Employees that start employment with a state agency after April 30, 2026, are eligible for new hire leave.

3.Employees who were previously employed with a state agency and are eligible for reinstatement or who are granted an interagency transfer are not eligible for new hire leave.

4.New hire leave must be used within the first year of employment.

5.Any new hire leave remaining after completion of the first year of employment is eliminated.

6.New hire leave is not earned paid time off and is not paid out upon separation of employment.

7.New hire leave is not accrued leave.

History

• History: Effective July 1, 2026.
• Law Implemented: NDCC 54-06-14

Chapter 4-07-13 Sick Leave

N.D. Admin. Code 4-07-13-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-13-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code chapters 54-06, 54-44.3, and 54-52.4, except:

1."Eligible family member" means the employee's spouse, parent (natural, adoptive, foster, and stepparent), child (natural, adoptive, foster, and stepchild), or any other family member who is financially or legally dependent upon the employee or who resides with the employee for the

purpose of the employee providing care to the family member.

2."Sick leave" means an approved absence from work, with pay, for use in accordance with

section 4-07-13-07.

History

• History: Effective September 1, 1992; amended effective November 1, 1996.

N.D. Admin. Code 4-07-13-03 Sick leave accrual

Employees eligible for sick leave begin to accrue leave from the date of hire.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2026.

N.D. Admin. Code 4-07-13-04 Sick leave accrual rate

State agencies are advised an accrual schedule providing eight hours of sick leave per month is required for use by each state agency subject to this chapter.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2008; July 1, 2026.

N.D. Admin. Code 4-07-13-05 Accrual for fractional months

An employee accrues sick leave for employment for a fraction of a month. The number of sick leave hours earned by an employee for employment for a fraction of a month must be in proportion to the total number of straight time hours the employee actually worked compared to the total number of working hours in a month.

History

• History: Effective September 1, 1992.

N.D. Admin. Code 4-07-13-06 No limit on sick leave carryover

An employee may not be limited in the number of unused earned sick leave hours that may be carried over from one calendar year to another.

History

• History: Effective September 1, 1992.

N.D. Admin. Code 4-07-13-07 Uses of sick leave

Sick leave may be used by an employee if:

1.The employee is ill or injured and is unable to work.

2.The employee has an appointment for the diagnosis or treatment of a medically related condition.

3.The employee wishes to attend to the needs of the employee's eligible family members who are ill or to assist them in obtaining other services related to their health or well-being.

a.Sick leave used for these purposes may not exceed eighty hours per calendar year.

b.The employee may take up to an additional four hundred eighty hours of the employee's accrued sick leave per calendar year to care for the employee's child, spouse, or parent with a serious health condition. The employer may require the employee to provide written verification of the serious health condition by a health care provider.

4.The employee has a newborn child or newly placed child, as follows. During the first six months following the birth or placement of a child, an employee may use up to two hundred forty hours of the employee's accrued sick leave for the employee's newborn child or to care for a child placed with the employee for adoption or placed with the employee as a precondition to adoption. This does not prevent an employee from using sick leave for the employee's illness, medical needs, or health needs following the birth of a child or from using leave under North Dakota Century Code section 54-52.4-03.

5.The employee is seeking services or assisting the employee's spouse, parent, child, or sibling in obtaining services, relating to domestic violence, a sex offense, stalking, or terrorizing. At the discretion of the employee's supervisor, the sick leave hours used for this purpose may be limited to forty hours per calendar year.

6.The employee requests leave to bereave the death of a child. Sick leave for this purpose is limited to one hundred sixty hours and must be taken within six months following the death of the child.

7.It is appropriate as a participant in and per the recommendations from an employee assistance program.

History

• History: Effective September 1, 1992; amended effective January 1, 2012; January 1, 2017; April 1, 2020; July 1, 2026.
• Law Implemented: NDCC 54-44.3-12(1), 54-52.4-02, 54-52.4-03

N.D. Admin. Code 4-07-13-08 Sick leave taken in increments

Repealed effective January 1, 1993.

N.D. Admin. Code 4-07-13-09 Sick leave and pregnancy

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-13-10 Temporary employment

A temporary employee may not be credited with any accrued sick leave hours.

History

• History: Effective September 1, 1992; amended effective July 1, 2008.

N.D. Admin. Code 4-07-13-11 Sick leave and re-employment

An employee who leaves employment and who is rehired within one year must be credited with the amount of sick leave hours the employee had accumulated at the time of departure, less any amount for which the employee had subsequently been paid. An employee affected by a reduction in force and rehired within two years must be credited with the amount of sick leave hours the employee had accumulated at the time of departure, less any amount for which the employee had subsequently been paid.

History

• History: Effective September 1, 1992; amended effective July 1, 2026.

N.D. Admin. Code 4-07-13-12 Assumption of accrued sick leave

1.A state agency appointing authority employing an individual from another state agency shall accept all of the employee's accrued sick leave hours. State agencies shall accept all accrued sick leave hours of a human service zone employee in a position classified by human resource management services.

2.A human service zone board shall accept all accrued sick leave hours an employee requests to transfer from another human service zone board or a state agency, if the employee occupies a position classified by human resource management services.

History

• History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; July 1, 2026.

Chapter 4-07-14 Funeral Leave and Honor Guard Leave

N.D. Admin. Code 4-07-14-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-14-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3 and section 54-06-36, except:

1."Family" means an employee's spouse; natural, adoptive, or foster parent, parent-in-law, and stepparent; natural, adoptive, or foster child, and stepchild; spouse of child; natural, adoptive, or foster sibling, sibling-in-law, and stepsibling; natural, adoptive, or foster grandparent, and stepgrandparent; and natural, adoptive, or foster grandchild, and stepgrandchild.

2."Funeral leave" means an approved absence from work, with pay, of up to twenty-four working hours, provided to an employee to attend or make arrangements for a funeral, memorial, or burial service, including travel to and from the funeral or other service, or to address financial or legal matters that arise as a result of a death in the employee's family.

3."Honor guard" means an individual with an essential ceremonial role in the funeral service of a veteran.

4."Honor guard leave" means the approved absence from work, with pay, for up to twenty-four working hours per calendar year for an employee to participate in an honor guard for a funeral service of a veteran.

5."Individual with an essential ceremonial role" performing as part of the official funeral service of a veteran is a member of the flagbearers, a member of the flag-folding team, a member of the firing party, the bugler, or the honor guard captain.

History

• History: Effective September 1, 1992; amended effective January 1, 2012; July 1, 2026.

N.D. Admin. Code 4-07-14-03 Granting funeral or honor guard leave

An appointing authority may grant a request for funeral or honor guard leave even if the absence of the employee might interfere with the normal operations of the agency.

History

• History: Effective September 1, 1992; amended effective January 1, 2012.

N.D. Admin. Code 4-07-14-04 Not considered sick leave or annual leave

An agency may not consider funeral or honor guard leave as sick leave or annual leave.

History

• History: Effective September 1, 1992; amended effective January 1, 2012.

Chapter 4-07-15 Leave Without Pay

N.D. Admin. Code 4-07-15-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-15-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3, except:

1."Leave without pay" means the approved absence from work without pay of an employee.

2."Educational leave" means the approved leave of absence from work without pay of an employee to attend school.

History

• History: Effective September 1, 1992; amended effective May 1, 1994.

N.D. Admin. Code 4-07-15-03 Leave without pay

An appointing authority may grant an employee's request for a leave of absence without pay provided that:

1.The absence of the employee will not unduly disrupt the agency's operations or services.

2.The employee is placed on leave without pay status and is not terminated.

3.The employee does not accrue annual leave while on leave without pay status, but retains any unused annual leave hours, subject to other restrictions, and retains the employee's previous years of continuous service for the purpose of determining the employee's annual leave accrual rate.

4.The employee does not accrue sick leave while on leave without pay status, but retains any unused sick leave hours.

5.If the leave without pay status is scheduled to extend longer than fourteen consecutive calendar days, the appointing authority and the employee must agree in writing, prior to the beginning of the leave, about the status of employee benefits, and the terms and conditions of the employee's return to work.

6.The leave without pay does not exceed one year in duration.

History

• History: Effective September 1, 1992; amended effective May 1, 1994.

N.D. Admin. Code 4-07-15-04 Educational leave

An appointing authority may grant an employee educational leave provided that:

1.The absence of the employee will not unduly disrupt the agency's operations or services.

2.The employee is placed on educational leave status and is not terminated.

3.The employee does not accrue annual leave while on educational leave, but retains any unused annual leave hours, subject to other restrictions, and retains the employee's previous years of continuous service for the purpose of determining the employee's annual leave accrual rate.

4.The employee does not accrue sick leave while on educational leave, but retains any unused sick leave hours.

5.The appointing authority and the employee must agree in writing, prior to the beginning of the leave, about the status of employee benefits, and the terms and conditions of the employee's return to work.

6.The educational leave does not exceed two years in duration.

History

• History: Effective May 1, 1994.

Chapter 4-07-16 Jury and Witness Leave

N.D. Admin. Code 4-07-16-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-16-02 Jury duty

An employee selected for jury duty must be granted an approved absence from work with pay, except that an amount of pay equal to the amount the employee received from the court for jury duty service must be deducted from the employee's regular pay. However, if an employee is on authorized annual leave while performing jury duty, the employee may retain the fee paid by the court and the employee's pay may not be reduced.

N.D. Admin. Code 4-07-16-03 Witness on behalf of the employer

When an employee is called or appears as a witness, or as an expert witness, on behalf of the employer, and the employee's department reimburses the employee for mileage, meals, and lodging, then the employee may not submit an additional claim for mileage, meals, and lodging. Also, the employee must be paid the employee's regular rate of compensation for time spent as a witness.

N.D. Admin. Code 4-07-16-04 Witness fee

An employee may retain a witness fee paid by a party only when each of the following apply:

1.The employee's agency did not reimburse the employee for mileage, meals, and lodging.

2.The employee is on authorized leave.

N.D. Admin. Code 4-07-16-05 Witness fee and law enforcement personnel

When a law enforcement officer performs duties as a witness during off-duty time, the officer may receive a witness fee and reimbursement for mileage, meals, and lodging, provided the officer is not otherwise reimbursed by the employer. When a law enforcement officer performs duties as a witness in an official capacity in a criminal case, the officer is regarded as performing normal duties, and consequently the officer may not retain a witness fee.

N.D. Admin. Code 4-07-16-06 Witness duties

An employee who performs witness duties unrelated to the employee's official capacity, or because the employee is personally interested in the proceedings, or because the employee volunteers to do so, must be placed on annual leave or leave without pay status. In these situations, the employee may retain any witness fee provided to the employee.

Chapter 4-07-17 Workers' Compensation and Leave

N.D. Admin. Code 4-07-17-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-17-02 Employee election to use leave

If an employee is receiving workers' compensation benefits, the employee may elect to use either the employee's accumulated sick leave, annual leave, or leave without pay during the period the employee is unable to work.

N.D. Admin. Code 4-07-17-03 Leave without pay while receiving benefits

An employee receiving workers' compensation benefits who has either utilized all leave benefits, or who has elected not to use accrued leave benefits, must be placed in a leave without pay status for the remainder of the period that the employee is unable to work. An employee may remain in a leave without pay status for a time period not to exceed two years.

N.D. Admin. Code 4-07-17-04 Pay differential and charging leave account

An employee who elects to use leave while receiving workers' compensation benefits must be paid by the employee's agency an amount equal to the difference between the employee's regular base salary and the amount the employee receives from workers' compensation while the employee is on leave. An employee's leave account must then be charged with the number of hours that corresponds to the percentage of salary the agency pays.

Chapter 4-07-18 Service Award Programs

N.D. Admin. Code 4-07-18-01 Scope of chapter

This chapter applies to all state agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-18-02 Requirement for service award program

Each agency, department, institution, board and commission shall recognize certain service anniversaries of classified employees by implementing and administering a service award program.

Service awards may be postponed or withheld if there are documented problems with an employee's performance.

History

• History: Effective September 1, 1992; amended effective July 1, 2004.

N.D. Admin. Code 4-07-18-03 Retroactivity

The required service award program may not be retroactive. However, all times worked in the employment of the state prior to January 1, 1986, must be counted toward any future service award.

History

• History: Effective September 1, 1992.

N.D. Admin. Code 4-07-18-04 Length of service required to receive award

An employee must have completed three, five, ten, fifteen, twenty, twenty-five, thirty, thirty-five, forty, forty-five, or fifty years of employment with the state in order to receive a service award. An employee who leaves employment with the state and then returns, again begins to accumulate time.

That time must be added to the employee's previous service and applied to any future service award.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2008.

N.D. Admin. Code 4-07-18-05 Service award types

The types of service awards that are given to employees must be provided as follows:

1.Following the completion of three years; certificate or plaque, and a gift not to exceed a value of twenty-five dollars.

2.Following the completion of five years; certificate or plaque, and a gift not to exceed a value of fifty dollars.

3.Following the completion of ten years; certificate or plaque, and a gift not to exceed a value of one hundred dollars.

4.Following the completion of fifteen years; certificate or plaque, and a gift not to exceed a value of one hundred fifty dollars.

5.Following the completion of twenty years; certificate or plaque, and a gift not to exceed a value of two hundred dollars.

6.Following the completion of twenty-five years; certificate or plaque, and a gift not to exceed a value of two hundred fifty dollars.

7.Following the completion of thirty years; certificate or plaque, and a gift not to exceed a value of three hundred dollars.

8.Following the completion of thirty-five years; certificate or plaque, and a gift not to exceed a value of three hundred fifty dollars.

9.Following the completion of forty years; certificate or plaque, and a gift not to exceed a value of four hundred dollars.

10.Following the completion of forty-five years; certificate or plaque, and a gift not to exceed a value of four hundred fifty dollars.

11.Following the completion of fifty years and every five-year increment thereafter; certificate or plaque, and a gift not to exceed a value of five hundred dollars.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2008.

N.D. Admin. Code 4-07-18-06 Retirement awards

A retirement award shall be provided to an employee who has a minimum of fifteen years of state service, and who has not been previously recognized for a retirement by the state, as follows:

1.A retirement certificate signed by the governor and/or a plaque.

2.A gift with a value not to exceed two hundred dollars.

A farewell party may be provided upon agreement of the employee and the agency. Retirement awards may be withheld if there are documented problems with an employee's performance.

History

• History: Effective September 1, 1992; amended effective July 1, 2004.

N.D. Admin. Code 4-07-18-07 Payment type

An agency may not provide physical cash as a form of payment. Payment to an employee as part of a service or retirement award program must be issued through one of the following approved methods: payroll adjustment, gift certificate, general-use prepaid gift card, or another office of management and budget-approved cash-equivalent payment method.

History

• History: Effective September 1, 1992; amended effective July 1, 2004; July 1, 2026.
• Law Implemented: NDCC 54-06-32, 54-44.3-12(1)

Chapter 4-07-19 Disciplinary Actions

N.D. Admin. Code 4-07-19-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-19-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3, except:

1."Cause" means conduct or factors related to a regular employee's job duties, job performance, or working relationships that is detrimental to the discipline and efficiency of the service in which the employee is or was engaged.

2."Demotion" means an involuntary reduction in the current base salary or grade level where the newly assigned grade level forecloses pay adjustments of a regular employee resulting from reassignment for cause to a position in a lower class.

3."Dismissal" means an involuntary termination of a regular employee's employment.

4."Progressive discipline" means the disciplinary actions imposed to correct a regular employee's behavior, beginning with a less severe appropriate action and progressing to a more severe appropriate action, for repeated instances of poor job performance or for repeated violations of the same or similar rules or standards.

5."Regular employee" means a person who has completed the probationary period and who is or was in a position classified by human resource management services at the time of the disciplinary action.

6."Suspension with pay" means a forced paid leave of absence.

7."Suspension without pay" means a forced unpaid leave of absence.

8."Working days" means Monday through Friday exclusive of holidays, unless otherwise defined by an agency.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-19-03 Discipline only for cause

A regular employee may be disciplined only for cause.

History

• History: Effective September 1, 1992; amended effective November 1, 1996.

N.D. Admin. Code 4-07-19-04 Use of progressive discipline

Progressive discipline must be used to correct a regular employee's job performance problems or for a violation of rules or standards unless an infraction or a violation of a serious nature is committed, including insubordination, theft, falsification of pay records, or assaulting or threatening to harm a supervisor or coworker, patient, or client, and for which the imposition of less severe disciplinary action would be inappropriate.

A suspension without pay may not exceed thirty calendar days. If the suspended employee is exempt from the overtime provisions of the Fair Labor Standards Act of 1938 [29 C.F.R. 541.602(5)], the appointing authority may make deductions from pay for unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace conduct rules.

A suspension with pay may be used during an investigation or pending disciplinary action.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004. 4-07-19-04.1. Suspension without pay.
• History: Effective November 1, 1996; amended effective July 1, 2010. 4-07-19-04.2. Suspension with pay.
• History: Effective July 1, 2004.

N.D. Admin. Code 4-07-19-05 Appointing authority shall provide a written preaction notice

An appointing authority shall provide a written preaction notice when the suspension without pay, demotion, or dismissal of a regular employee is being considered. The preaction notice must include the following:

1.A statement that the appointing authority intends to take disciplinary action that may result in demotion, suspension without pay, or dismissal of the employee.

2.An explanation of the alleged charges against the employee.

3.A provision for the employee to respond in writing within a minimum of five working days.

4.A statement regarding the employee's status until a final decision is made.

5.A statement that a written notice of the final action taken will be provided to the employee.

The appointing authority shall determine the method of delivery that best guarantees the employee's receipt of the preaction notice.

History

• History: Effective May 1, 1994; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-19-06 Appointing authority shall provide a written final action notice

Once a final decision has been made, the appointing authority shall provide a written notice to the employee of the final action to be taken. The final action notice must contain either of the following:

1.If the final action is less than demotion, suspension without pay, or dismissal, a statement must be made explaining the reasons for reducing the intended disciplinary actions. Any stipulations that may apply to continued employment must also be stated.

2.If the final action taken demotes, suspends, or dismisses the employee, a detailed explanation of the basis for the action must be provided. This notice must also inform the employee of the right to appeal the decision in accordance with the provisions of section 4-07-20.1-03.

The appointing authority shall determine the method of delivery that best guarantees the employee's receipt of the final action notice.

History

• History: Effective November 1, 1996.

N.D. Admin. Code 4-07-19-07 Agency reconsideration of prior discipline

An appointing authority may reopen and reconsider previously imposed discipline in the event the appointing authority determines that new information or circumstances exist or that discipline imposed pursuant to delegated authority is inconsistent with established agency policy, standard, or practice or otherwise is inappropriate in light of the adequacy of any prior investigation or the obligations the agency has to take corrective action. An appointing authority must rescind previously imposed discipline and restore any lost pay and other benefits of employment as a condition of exercising

authority under this section. An employee who is demoted, suspended, or dismissed under this section may appeal the basis for reopening and reconsidering the previously imposed discipline as well as the grounds for the discipline imposed in accordance with the provisions of chapter 4-07-20.1.

History

• History: Effective July 1, 2014.

Chapter 4-07-20 Grievance Procedures

N.D. Admin. Code 4-07-20-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective May 1, 1994; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-20-02 Requirements for grievance procedures

Each agency, department, institution, board, and commission subject to this chapter shall establish internal grievance procedures that include the following:

1.A provision that allows an employee to grieve an employer action of demotion, dismissal, suspension without pay, forced relocation, reduction-in-force, reprisal, or discrimination in employment. The provision must require the employee to begin the agency grievance procedure within fifteen working days from the date of notice of the employer action, except in the case of reprisal. The date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery. The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery. The provision must also require that in the case of reprisal the employee shall begin the agency grievance procedure within fifteen working days from the date of the reprisal action.

2.Specific steps to be followed in processing the grievance, limitations on the amount of time the parties have to respond, and any procedures for extending time limitations.

3.A requirement that the parties must respond to the issues raised in the grievance.

4.A method of counting time that is in working days.

5.Provisions that allow an employee a reasonable amount of time to process a grievance without loss of pay during regular working hours.

6.An option that if the appointing authority misses an established deadline in the grievance procedure, the grievance may be advanced to the next step.

7.The use of a standard grievance form.

A waiver of the agency grievance procedure is allowed by mutual agreement of the employee and appointing authority. Each party must sign the waiver within fifteen working days of the employer action.

Upon obtaining the waiver, the employee may appeal directly to human resource management services in accordance with section 4-07-20.1-08. An additional fifteen working days is not available if the requested waiver is denied.

History

• History: Effective May 1, 1994; amended effective November 1, 1996; July 1, 2004; July 1, 2010. 4-07-20-02.1. Waiver of agency grievance procedure.
• History: Effective July 1, 2004; amended effective July 1, 2008.
• General Authority: NDCC 54-44.3-12(1)
• Law Implemented: NDCC 54-44.3-12.2

N.D. Admin. Code 4-07-20-03 Absence of established written agency grievance procedure

In the absence of an established written agency grievance procedure, the aggrieved employee may appeal an employer action as covered in subsection 1 of section 4-07-20.1-02 and section 4-07-20.2-04 directly to human resource management services by following the applicable appeal procedures outlined in section 4-07-20.1-08 or 4-07-20.2-07. Human resource management services shall act upon the appeal in the same manner as an appeal processed through an agency grievance procedure. This avenue of appeal does not negate the requirements for an agency grievance procedure.

History

• History: Effective November 1, 1996; amended effective July 1, 2004.

Chapter 4-07-20.1 Appeals of Employer Actions

N.D. Admin. Code 4-07-20.1 Appeals of Employer Actions

CHAPTER 4-07-20.1

APPEALS OF EMPLOYER ACTIONS

Section 4-07-20.1-01Scope of Chapter 4-07-20.1-02Definitions 4-07-20.1-03A Regular Employee May File a Grievance Regarding an Employer Action 4-07-20.1-04Commencement of Agency Grievance Procedure - Time Limitations 4-07-20.1-05Waiver of Agency Grievance Procedure 4-07-20.1-06A Regular Employee May Appeal to Human Resource Management Services 4-07-20.1-07Limitations for Reduction-in-Force Appeal 4-07-20.1-08Procedure for Appeals of Employer Actions to Human Resource Management Services 4-07-20.1-01. Scope of chapter.

This chapter applies to regular employees.

History: Effective November 1, 1996. 4-07-20.1-02. Definitions.

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3, except:

1."Date of service" means the date the notice was mailed or transmitted by electronic means.

2."Employer action" means an action taken by an appointing authority that affects a regular employee through a demotion, dismissal, suspension without pay, forced relocation, reduction-in-force, or reprisal.

3."Forced relocation" means the involuntary transfer or reassignment of a regular employee from one work location in the state to another work location in the state that requires the employee to move to a different place of residence. Telecommuting and other alternative work location agreements are not considered forced relocations.

4."Reduction-in-force" means the loss of employment by a regular employee as a result of a reduction in funding, lack of work, curtailment of work, or reorganization.

5."Regular employee" means a person who has completed the probationary period and who is or was in a position classified by human resource management services at the time the employer action occurred.

6."Reprisal" means an unfavorable employment-related action taken against an applicant or employee by an appointing authority for:

a.In good faith filing a complaint, or testifying, assisting, appealing, or participating in an investigation, proceeding, hearing, or litigation;

b.Opposing any unlawful discriminatory practice; or

c.Exercising the employee's rights under North Dakota Century Code chapter 34-11.1 or

section 34-01-20.

7."Waiver" means a written agreement between a regular employee and the appointing authority not to proceed with the agency grievance procedure and to permit an appeal to be made directly to human resource management services.

8."Working days" means Monday through Friday exclusive of holidays.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010; January 1, 2024;

July 1, 2026.

Law Implemented: NDCC 34-11.1-04(5), 54-44.3-12.2 4-07-20.1-03. A regular employee may file a grievance regarding an employer action.

A regular employee may, in accordance with the respective agency's grievance procedure, file a grievance regarding demotion, dismissal, suspension without pay, forced relocation, reduction-in-force, or reprisal. A grievance must be processed through the agency grievance procedure prior to submitting an appeal to human resource management services, unless a waiver is agreed upon as provided for in

section 4-07-20.1-05. 4-07-20.1-04. Commencement of agency grievance procedure - Time limitations.

The employee shall begin the agency grievance procedure within fifteen working days from the date of notice of the employer action, except in the case of reprisal. The date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery.

The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery. The employee grieving reprisal action shall begin the agency grievance procedure within fifteen working days from the date of the reprisal action.

Failure to begin the procedure within time limitations may cause the employee to lose the right to appeal to human resource management services. The agency appointing authority or designee, for good cause shown, may waive the time limitations for filing a grievance. Good cause means those circumstances that reasonably and without any fault on the part of the grievant prevented the filing of a grievance in a timely fashion. In no event may a grievance be deemed timely after sixty days have elapsed from the date of the employer action.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010. 4-07-20.1-05. Waiver of agency grievance procedure.

A waiver of the agency grievance procedure is allowed by mutual agreement of the employee and appointing authority. The waiver must be signed by both parties within fifteen working days of the employer action. Upon obtaining the waiver, the employee may appeal directly to human resource management services in accordance with section 4-07-20.1-08. An additional fifteen working days is not available if the requested waiver is denied.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008. 4-07-20.1-06. A regular employee may appeal to human resource management services.

A regular employee may appeal an employer action to human resource management services if:

1.The employee has processed a grievance through the agency grievance procedure and is dissatisfied with the result;

2.The employee and the appointing authority have agreed to a waiver of the agency grievance procedure; or

3.The agency has not established a grievance procedure or has failed to respond to a grievance in a timely manner.

No other employer actions except as defined in this chapter or otherwise specifically provided by administrative rule are appealable to human resource management services. 4-07-20.1-07. Limitations for reduction-in-force appeal.

A regular employee may appeal a reduction-in-force only on the basis that the agency did not utilize a uniform comparative analysis as required by section 4-07-11-03 or that the reduction-in-force was conducted in a discriminatory manner that would violate the state's policy against discrimination as stated in North Dakota Century Code section 14-02.4-01. A former regular employee who was reduced in force may appeal a denial of re-employment only on the basis that the agency did not follow section 4-07-11-07 or that the denial of re-employment was conducted in a discriminatory manner that would violate the state's policy against discrimination as stated in North Dakota Century Code section 14-02.4-01. The assessment of whether an individual meets the qualifications necessary for successful performance shall remain with the agency. 4-07-20.1-08. Procedure for appeals of employer actions to human resource management services.

1.The employee shall file the properly completed prescribed appeal form with the director, human resource management services. The appeal form must be mailed or transmitted by electronic means and must be received in the human resource management services office by five p.m. within fifteen working days of service of the notice of results of the agency grievance procedure or within fifteen working days from the date of the waiver. An additional fifteen working days is not available if the requested waiver is denied. The date of service of the notice shall be considered to be the date transmitted or delivered by electronic means. The agency shall prepare a certificate of service or provide reliable means, to show proof of the date transmitted or delivered by electronic means.

2.The director, human resource management services, shall within two working days submit a written request by electronic means to the director, office of administrative hearings, to conduct a hearing on behalf of the division and shall forward a copy of the appeal form to the appointing authority.

3.The administrative law judge shall initially consider whether the appeal was filed within required time limitations. If the administrative law judge determines the time limitations have not been met, the administrative law judge shall prepare an appropriate order dismissing the appeal, which shall be final, and provide a copy of it to the parties. The administrative law judge may, for good cause shown, waive the time limitations for filing an appeal. Good cause means those circumstances that reasonably and without any fault on the part of the appellant prevented the filing of an appeal in a timely fashion. In no event may an appeal be deemed timely after sixty days have elapsed from the date of the employer action.

4.The administrative law judge shall consider whether human resource management services has jurisdiction over the subject matter of the appeal and whether all rules and regulations were followed in the internal agency grievance process. If the administrative law judge is unable to establish whether human resource management services has jurisdiction over the subject matter of the appeal or whether the appropriate rules were followed, a hearing may be conducted to ascertain the facts related to those issues.

5.If the administrative law judge determines that human resource management services does not have jurisdiction in the matter of the appeal, the administrative law judge shall prepare findings of fact and conclusions of law, if appropriate; issue a final decision dismissing the appeal; and provide a copy of them to the parties.

6.If it is determined that human resource management services has jurisdiction over the appeal, the administrative law judge shall schedule a hearing. The administrative law judge shall conduct the hearing and related proceedings, receive evidence related to the issues, prepare findings of fact and conclusions of law, and issue a final decision.

7.The administrative law judge shall notify the employee and the appointing authority of the final decision by sending each of them a copy of the findings of fact, conclusions of law, and final decision. Notification shall be accomplished in the same manner as for notification of final orders required by subsection 3 of North Dakota Century Code section 28-32-39. The parties shall implement the final decision within any time periods specified by the administrative law judge.

8.The administrative law judge shall return the completed appeal file to human resource management services by electronic means.

9.Any party to the appeal may review the recordings of the hearing by making a request to human resource management services by electronic means.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; July 1, 2010;

January 1, 2024.

Chapter 4-07-20.2 Appeals of Discrimination or Reprisal

N.D. Admin. Code 4-07-20.2 Appeals of Discrimination or Reprisal

CHAPTER 4-07-20.2

APPEALS OF DISCRIMINATION OR REPRISAL

Section 4-07-20.2-01Scope of Chapter 4-07-20.2-01.1Employees Not in the Classified Service May Appeal Claims of Reprisal 4-07-20.2-02Definitions 4-07-20.2-03Statutory Definitions 4-07-20.2-04Applicants, Probationary Employees, or Regular Employees May Appeal Reprisal or Discrimination in Employment 4-07-20.2-04.1Procedure for Applicant Appeals of Discrimination or Reprisal in Employment to Agency Appointing Authority 4-07-20.2-05Completion of Agency Grievance Process Prior to Appeal to Human Resource Management Services 4-07-20.2-06Waiver of Agency Grievance Procedure 4-07-20.2-07Procedure for Appeals of Discrimination or Reprisal to Human Resource Management Services 4-07-20.2-01. Scope of chapter.

This chapter applies to applicants for positions classified by human resource management services, probationary employees or regular employees in classified positions who want to appeal reprisal or who want to appeal discrimination in employment because of race, color, religion, sex, national origin, age, genetics, the presence of any mental or physical disability, status with respect to marriage or public assistance, participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer, or political opinions or affiliations.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010. 4-07-20.2-01.1. Employees not in the classified service may appeal claims of reprisal.

This chapter also applies to employees not in the classified service who appeal a claim of reprisal under subsection 5 of North Dakota Century Code section 34-11.1-04.

History: Effective July 1, 2010.

Law Implemented: NDCC 34-11.1-04(5) 4-07-20.2-02. Definitions.

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3, except:

1."Applicant" means a person who has applied for a position classified by human resource management services and who has complied with the application procedures required by the employing agency.

2."Date of service" means the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery of electronic means, the date of actual delivery.

3."Regular employee" means a person who has completed the probationary period and who is or was in a position classified by human resource management services at the time the alleged action occurred.

4."Reprisal" means an unfavorable employment-related action taken against an applicant or employee by an appointing authority for:

a.In good faith filing a complaint, or testifying, assisting, appealing, or participating in an investigation, proceeding, hearing, or litigation;

b.Opposing any unlawful discriminatory practice; or

c.Exercising the employee's rights under North Dakota Century Code chapter 34-11.1 or

section 34-01-20.

5."Working days" means Monday through Friday exclusive of holidays.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010; July 1, 2026. 4-07-20.2-03. Statutory definitions.

Unless otherwise defined, or made inappropriate by context, all words used in this chapter have meanings given to them under North Dakota Century Code chapter 14-02.4 and subsection 5 of North Dakota Century Code section 34-11.1-04.

History: Effective November 1, 1996; amended effective July 1, 2010.

Law Implemented: NDCC 34-11.1-04(5), 54-44.3-12.2 4-07-20.2-04. Applicants, probationary employees, or regular employees may appeal reprisal or discrimination in employment.

Applicants for positions classified by human resource management services and probationary or regular employees in classified positions may appeal reprisal or may appeal discrimination in employment because of race, color, religion, sex, national origin, age, genetics, the presence of any mental or physical disability, status with respect to marriage or public assistance, participation in lawful activity off the employer's premises during nonworking hours which is not in direct conflict with the essential business-related interests of the employer, or political opinions or affiliations.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010. 4-07-20.2-04.1. Procedure for applicant appeals of discrimination or reprisal in employment to agency appointing authority.

1.An applicant who has completed a timely and properly completed application for a classified position within an agency and who alleges discrimination or reprisal in employment shall file a written appeal to the agency appointing authority. The letter of appeal must specify what alleged discriminatory or reprisal action against the applicant was taken by the agency. The appeal information must be delivered, mailed, or transmitted by electronic means and must be received in the office of the agency appointing authority by five p.m. within fifteen working days of the alleged discriminatory or reprisal action.

2.The agency appointing authority has fifteen working days from the receipt of the appeal to review the appeal and provide a written response to the applicant.

3.If the applicant does not agree with the response of the agency appointing authority, the applicant may further appeal to human resource management services in accordance with

section 4-07-20.2-07.

History: Effective July 1, 2008; amended effective July 1, 2010.

General Authority: NDCC 54-44.3-12

Law Implemented: NDCC 54-44.3-12 4-07-20.2-05. Completion of agency grievance process prior to appeal to human resource A probationary or regular employee shall complete the agency grievance process prior to submitting an appeal to human resource management services for an appeal hearing, unless a waiver is granted as provided for in section 4-07-20.2-06. The employee shall begin the agency grievance procedure within fifteen working days from the date of the alleged discriminatory or reprisal action.

Failure to begin the procedure within time limitations may cause the employee to lose the right to appeal to human resource management services. The agency appointing authority or designee, for good cause shown, may waive the time limitations for filing a grievance. Good cause means those circumstances that reasonably and without any fault on the part of the grievant prevented the filing of a grievance in a timely fashion. In no event may a grievance be deemed timely after sixty days have elapsed from the date of the employer action. If an agency does not have an established written grievance procedure, the employee shall submit the appeal to human resource management services within fifteen working days from the date of the alleged discriminatory or reprisal action.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010. 4-07-20.2-06. Waiver of agency grievance procedure.

A waiver of the agency grievance procedure is allowed by mutual agreement of the probationary or regular employee and appointing authority. The waiver must be signed by both parties within fifteen working days of the alleged discriminatory or reprisal action. Upon obtaining the waiver, the employee may appeal directly to human resource management services in accordance with section 4-07-20.2-07.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2010. 4-07-20.2-07. Procedure for appeals of discrimination or reprisal to human resource

1.A probationary or regular employee shall file the properly completed prescribed appeal form with the director, human resource management services. The appeal form must be delivered, mailed, or transmitted by electronic means and must be received in the human resource management services office by five p.m. within fifteen working days of service of the notice of results of the agency grievance procedure or within fifteen working days from the date of the waiver. An additional fifteen working days is not available if the requested waiver is denied.

The date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery. The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery.

2.An applicant shall file the appeal form by delivery, mail, or transmittal by electronic means, and the form must be received in the human resource management services office by five p.m. within fifteen working days of the service of notice of the agency appointing authority's response to the alleged discriminatory or reprisal action. The date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery. The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery.

3.An employee in a nonclassified position may appeal claims of reprisal by filing the properly completed prescribed appeal form with the director, human resource management services.

The appeal form must be delivered, mailed, or transmitted by electronic means and must be received in the human resource management services office by five p.m. within fifteen working days of service of the notice of results of the agency grievance procedure, or within fifteen working days of the date of the reprisal action if an agency does not have an established grievance process. When an employee is using an agency internal grievance procedure, the date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery. The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery.

4.The director, human resource management services, shall within two working days submit a written request to the director, office of administrative hearings, to conduct a hearing on behalf of human resource management services and shall forward a copy of the appeal form to the affected appointing authority.

5.The administrative law judge shall initially consider whether the appeal was filed within required time limitations. If the administrative law judge determines the time limitations have not been met, the administrative law judge shall prepare an appropriate order dismissing the appeal, which shall be final, and provide a copy of it to the parties. The administrative law judge may, for good cause shown, waive the time limitations for filing an appeal. Good cause means those circumstances that reasonably and without any fault on the part of the appellant prevented the filing of an appeal in a timely fashion. In no event may an appeal be deemed timely after sixty days have elapsed from the date of the employer action.

6.The administrative law judge shall consider whether human resource management services has jurisdiction over the subject matter of the appeal and whether all rules and regulations were followed in the internal agency grievance process. If the administrative law judge is unable to establish whether human resource management services has jurisdiction over the subject matter of the appeal or whether the appropriate rules were followed, a hearing may be conducted to ascertain the facts related to those issues.

7.If the administrative law judge determines that human resource management services does not have jurisdiction in the matter of the appeal, the administrative law judge shall prepare findings of fact and conclusions of law, if appropriate; issue a final decision dismissing the appeal; and provide a copy of them to the parties.

8.If it is determined that human resource management services has jurisdiction over the appeal, the administrative law judge shall schedule a hearing. The administrative law judge shall conduct the hearing and related proceedings, receive evidence related to the issues, prepare findings of fact and conclusions of law, and issue a final decision.

9.The administrative law judge shall notify the employee or the applicant and the affected appointing authority of the final decision by sending each of them the findings of fact, conclusions of law, and final decision. Notification shall be accomplished in the same manner as for notification of final orders required by subsection 3 of North Dakota Century Code

section 28-32-39. The parties shall implement the final decision within any time periods specified by the administrative law judge.

10.The administrative law judge shall return the completed appeal file to human resource

11.Any party to the appeal may review the recordings of the hearing by making a request to human resource management services.

History: Effective November 1, 1996; amended effective July 1, 2004; July 1, 2008; July 1, 2010.

Law Implemented: NDCC 34-11.1-04(5), 54-44.3-12.2

Chapter 4-07-21 Alternative Dispute Resolution

N.D. Admin. Code 4-07-21-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective September 1, 1992; amended effective November 1, 1996; July 1, 2004.

N.D. Admin. Code 4-07-21-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3, except "alternative dispute resolution" means a method of resolving disputes, outside the grievance process, that involves a neutral person to assist in identifying issues, developing options, and arriving at a resolution.

N.D. Admin. Code 4-07-21-03 Alternative dispute resolution

Alternative dispute resolution may be used to resolve disputes that occur within an agency. All parties involved in the dispute must agree to the use of alternative dispute resolution prior to using the method.

N.D. Admin. Code 4-07-21-04 Grievance time limits suspended

During the time period when the agency appointing authority and the employee involved in a dispute are utilizing alternative dispute resolution, the time limits of the internal agency grievance procedure must be suspended. If a resolution is not agreed to by the participants at the conclusion of the resolution process, then the time limits of the agency grievance procedure must be activated. The alternative dispute resolution process facilitator shall determine the date of conclusion of the resolution process and notify the parties.

Chapter 4-07-22 Merit System Vacancy Announcements

N.D. Admin. Code 4-07-22-01 Scope of chapter

N.D. Admin. Code 4-07-22-02 Definitions

Superseded by section 4-07-05-01.1 effective November 1, 1996.

N.D. Admin. Code 4-07-22-03 Requirements

Superseded by section 4-07-05-08 effective November 1, 1996.

N.D. Admin. Code 4-07-22-04 Minimum qualifications

N.D. Admin. Code 4-07-22-05 Open register vacancy announcements

Repealed effective July 1, 1995.

N.D. Admin. Code 4-07-22-06 Vacancy announcements

Superseded by section 4-07-05-09 effective November 1, 1996.

N.D. Admin. Code 4-07-22-07 Closing date

Chapter 4-07-23 Merit System Agencies and Veterans' Preference Documentation

N.D. Admin. Code 4-07-23-01 Scope of chapter

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-23-02 Documentation required

Superseded by sections 4-07-05-07 and 4-07-05-08 effective November 1, 1996.

N.D. Admin. Code 4-07-23-03 Deadlines for receipt of documentation

Repealed effective July 1, 1995.

N.D. Admin. Code 4-07-23-04 Expiration of documentation

Repealed effective November 1, 1996.

Chapter 4-07-24 Merit System Applications and Appeals

N.D. Admin. Code 4-07-24-01 Scope of chapter

This chapter applies to applicants who apply for positions in agencies covered by the North Dakota merit system and to all agencies, departments, institutions, boards, commissions, and political subdivisions required to comply with standards for a merit system of human resource administration.

The terms used throughout this chapter have the same meaning as those in North Dakota Century Code chapter 54-44.3, except "regular employee" means a person who has completed the probationary period and who is or was in a position classified by human resource management services at the time the personnel action occurs.

History

• History: Effective September 1, 1992; amended effective July 1, 1995; July 1, 2004. 4-07-24-01.1. Definitions.
• History: Effective November 1, 1996; amended effective January 1, 1998; July 1, 2004.

N.D. Admin. Code 4-07-24-02 Application for a position

Each application for a position in an agency covered by the North Dakota merit system must be made on an application, supplemental application form, or as otherwise specified by the employing agency.

History

• General Authority: NDCC 54-44.3
• Law Implemented: NDCC 54-44.3

N.D. Admin. Code 4-07-24-03 Open register applications

Repealed effective July 1, 1995.

N.D. Admin. Code 4-07-24-04 Application accepted after announced

The employing agency shall accept an application for a position only after it has been announced.

An application may not be accepted after the closing date.

N.D. Admin. Code 4-07-24-05 Investigation of application information

The employing agency may investigate an applicant's training and experience in order to verify the application information provided. If the investigation produces evidence that the applicant falsified information, the employing agency may take any necessary action and notify the applicant of the action.

N.D. Admin. Code 4-07-24-06 Disapproval and disqualification of applications

Applications may be disapproved or disqualified after review for any of the following reasons:

1.If an applicant does not meet the minimum qualifications.

2.If an applicant has made a false statement of material fact on the application.

3.If an erroneous approval was made by the employing agency.

4.If an applicant has used or attempted to use political pressure or bribery to secure an advantage in the examination or employment process.

5.If an applicant has directly or indirectly obtained information regarding the examination process to which the applicant was not entitled.

6.If there are other valid reasons to justify the disqualification.

N.D. Admin. Code 4-07-24-07 Merit system application appeals to the agency appointing authority

1.An applicant who has submitted a timely and properly completed application for a position within an agency, department, or institution subject to this chapter and who has been determined by the employing agency to be disqualified for that position because of failure to meet the minimum qualifications, may appeal the disqualification to the agency appointing

authority.

2.The employing agency must notify an applicant who fails to meet the minimum qualifications for a position of the applicant's disqualification and right to appeal by letter mailed to the applicant's last-known address or transmitted by electronic means. If an applicant wishes to appeal the disqualification, the applicant shall file a written appeal to the agency appointing

authority. The appeal must be delivered, mailed, or transmitted by electronic means and must be received by the agency appointing authority within fifteen working days from the date of notice of the applicant's disqualification. The date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery.

The agency shall prepare a certificate of service, or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery. The letter of appeal must specify the basis upon which the applicant relies to assert that the applicant meets the minimum qualifications for the position.

3.The agency appointing authority has fifteen working days from the receipt of the appeal to review the appeal and provide a written response to the applicant.

History

• History: Effective July 1, 1995; amended effective January 1, 2012.

N.D. Admin. Code 4-07-24-08 Merit system application appeals to human resource management services

1.If an applicant is a regular employee and does not agree with the response of the agency appointing authority, the applicant may further appeal the disqualification to human resource management services. A letter of appeal must be addressed to the Director, Human Resource Management Services, 600 East Boulevard Avenue, Dept. 113, Bismarck, ND 58505-0120, and must be delivered, mailed, or transmitted by electronic means and must be received in the human resource management services office by five o'clock p.m. within fifteen working days of service of the notice of the agency's response to the appeal. The date of service of the notice shall be considered to be the date the notice was mailed or the date transmitted by electronic means, or absent proof of the date of mailing or delivery through electronic means, the date of actual delivery. The agency shall prepare a certificate of service or provide reliable means, to show proof of the date of mailing, transmittal by electronic means, or hand delivery.

The letter of appeal must specify the basis upon which the applicant relies to assert that the applicant meets the minimum qualifications for the position.

2.Upon receipt of the appeal letter, the director, human resource management services, shall certify the appeal and submit a written request to the director, office of administrative hearings, to conduct the hearing in accordance with this section.

3.If the applicant and the appointing authority agree in writing, an appeal taken under this

section may be disposed of informally as provided in this subsection. The administrative law judge shall notify the applicant and the appointing authority to provide documentation upon which each relies to assert its position on the appeal. Each party may also provide a memorandum of support for its position and may request oral argument before the administrative law judge at the time it submits its memorandum. If either party requests oral argument before the administrative law judge, the administrative law judge shall notify the parties of the time, date, and location of the oral argument. After oral argument, if any, the administrative law judge shall issue findings of fact, conclusions of law, and a final order and provide them to the parties and human resource management services. If the applicant and the appointing authority do not agree to informal disposition of the appeal, the administrative law judge shall conduct a hearing in accordance with this section. After the hearing, the administrative law judge shall issue findings of fact, conclusions of law, and a final order and provide them to the parties and human resource management services.

History

• History: Effective August 1, 1995; amended effective November 1, 1996; July 1, 2004; January 1, 2012.
• General Authority: NDCC 28-32-05.1, 54-44.3-12
• Law Implemented: NDCC 28-32-05.1, 54-44.3-12

Chapter 4-07-25 Merit System Examinations

N.D. Admin. Code 4-07-25-01 Scope of chapter

This chapter applies to all applicants who apply for positions in agencies covered by the North Dakota merit system and to all agencies, departments, institutions, boards, commissions, and political subdivisions required to comply with standards for a merit system of personnel administration.

N.D. Admin. Code 4-07-25-02 Examinations

Examinations may include one or a combination of the following:

1.A rating of training and experience.

2.A written examination to determine skill or otherwise measure suitability.

3.A performance examination.

4.A pass or fail review.

5.A scored oral interview.

6.Or another appropriate job screening technique.

N.D. Admin. Code 4-07-25-03 Conduct of examinations

The employing agency shall conduct all examinations in places convenient for applicants and practicable for administration. The employing agency may make arrangements for the use of various public buildings in order to conduct the examinations.

N.D. Admin. Code 4-07-25-04 Reexamination schedule

An applicant who has taken an examination may retake the examination according to procedures established by the employing agency solely at the agency discretion. The employing agency shall then use the highest of the examination scores.

History

• History: Effective September 1, 1992; amended effective May 1, 1994; July 1, 1995; July 1, 2004.

N.D. Admin. Code 4-07-25-05 Notice of final status

The employing agency shall notify an applicant who applies for a job vacancy of the applicant's final status in writing. 4-07-25-05.1. Exception.

If an agency has a contract with job service North Dakota, only those applicants referred to the agency by job service must be notified of their final status in writing.

History

• History: Effective July 1, 1995.

N.D. Admin. Code 4-07-25-06 Correcting an error

The employing agency shall promptly take action, upon notification, to correct an error made by the agency in any part of the examination process. The agency shall notify an applicant in writing of any corrective action taken.

Chapter 4-07-26 Merit System Registers [Repealed]

N.D. Admin. Code 4-07-26 Merit System Registers [Repealed]

CHAPTER 4-07-26

MERIT SYSTEM REGISTERS [Repealed effective July 1, 1995]

Chapter 4-07-27 Merit System Certificates of Eligibles [Repealed]

N.D. Admin. Code 4-07-27 Merit System Certificates of Eligibles [Repealed]

CHAPTER 4-07-27

MERIT SYSTEM CERTIFICATES OF ELIGIBLES [Repealed effective July 1, 1995]

Chapter 4-07-28 Merit System Employment Status

N.D. Admin. Code 4-07-28-01 Scope of chapter

This chapter applies to all applicants who apply for positions in agencies covered by the North Dakota merit system and to all agencies, departments, institutions, boards, commissions, and political subdivisions required to comply with standards for a merit system of personnel administration.

History

• History: Effective September 1, 1992; amended effective July 1, 1995.
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-12

N.D. Admin. Code 4-07-28-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code

chapter 54-44.3 except:

1."Emergency status" means a category of employment that applies to an individual employed as a result of unusual or unexpected conditions without regard to the normal open, competitive selection process and the duration of the employment does not exceed ninety working days.

2."Internal applicant" means an employee who has regular, probationary, temporary merit system employment status within an agency; a previous employee who is eligible for reinstatement to an agency; or an individual who has completed a documented internship with the agency within the past two years.

3."Merit system exempt status" means a category of employment that applies to an individual employed in a nonclassified position without regard to the normal open, competitive selection process such as with seasonal or time-limited programs and for appointed officials.

4."Probationary status" means a category of employment that applies to an individual employed in a classified position, who was selected for a position on an open, competitive basis and who has not yet completed the initial probationary period.

5."Regular status" means a category of employment that applies to an individual employed in a classified position, who was selected for a position on an open, competitive basis and who has successfully completed a six-month or longer probationary period.

6."Temporary status" means a category of employment that applies to an individual who was selected for a position on an open, competitive basis and is employed in a position that is specified as time-limited in duration.

History

• History: Effective September 1, 1992; amended effective July 1, 1995; November 1, 1996; July 1, 2008.
• General Authority: NDCC 54-44.3
• Law Implemented: NDCC 54-44.3

N.D. Admin. Code 4-07-28-03 Merit system employment status - Exceptions

Each employee of a merit system agency shall be assigned employment status to one of the categories defined in section 4-07-28-02.

History

• History: Effective September 1, 1992; amended effective November 1, 1996.
• General Authority: NDCC 54-44.3
• Law Implemented: NDCC 54-44.3

N.D. Admin. Code 4-07-28-04 Extension of merit system coverage

If merit system coverage is extended to a program or agency, examination requirements, if applicable, are waived and each employee must be granted merit system employment status as follows:

1.An employee who meets the minimum qualifications for the class and who has successfully completed a probationary period must be granted regular status.

2.An employee who meets the minimum qualifications for the class but who has not completed a probationary period must be granted probationary status. The employee may obtain regular status upon successful completion of the probationary period.

3.An employee who does not meet the minimum qualifications for the class must be considered as in a merit system exempt status until the employee meets the minimum qualifications. The employee may obtain regular status when the employee meets the minimum qualifications.

History

• History: Effective September 1, 1992; amended effective November 1, 1996.
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-12

Chapter 4-07-29 Merit System Internal Applicant Review [Repealed]

N.D. Admin. Code 4-07-29 Merit System Internal Applicant Review [Repealed]

CHAPTER 4-07-29

MERIT SYSTEM INTERNAL APPLICANT REVIEW [Repealed effective July 1, 1995]

Chapter 4-07-30 Merit System Promotions

N.D. Admin. Code 4-07-30-01 Scope of chapter

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-30-02 Definitions

Superseded by subsection 1 of section 4-07-05-01.1 effective November 1, 1996.

N.D. Admin. Code 4-07-30-03 Requirements

Superseded by section 4-07-05-03 effective November 1, 1996.

Chapter 4-07-31 Merit System Transfers

N.D. Admin. Code 4-07-31-01 Scope of chapter

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-31-02 Definitions

Superseded by subsection 3 of section 4-07-05-01.1 effective November 1, 1996.

N.D. Admin. Code 4-07-31-03 Requirements

Superseded by section 4-07-05-03 effective November 1, 1996.

Chapter 4-07-32 Merit System Reclassifications

N.D. Admin. Code 4-07-32 Merit System Reclassifications

CHAPTER 4-07-32

MERIT SYSTEM RECLASSIFICATIONS [Superseded by section 4-07-03-10.2 effective November 1, 1996]

Chapter 4-07-33 Merit System Reinstatements

N.D. Admin. Code 4-07-33-01 Scope of chapter

Repealed effective November 1, 1996.

N.D. Admin. Code 4-07-33-02 Definitions

Superseded by subsection 2 of section 4-07-05-01.1 effective November 1, 1996.

N.D. Admin. Code 4-07-33-03 Requirements

Superseded by section 4-07-05-02.1 effective November 1, 1996.

N.D. Admin. Code 4-07-33-04 Employment status upon reinstatement

Repealed effective November 1, 1996.

Chapter 4-07-34 Merit System Oversight and Audit Procedures

N.D. Admin. Code 4-07-34-01 Scope of chapter

This chapter applies to all agencies covered by the North Dakota merit system and to all agencies, departments, institutions, boards, commissions, and political subdivisions required to comply with standards for a merit system of personnel administration.

History

• History: Effective September 1, 1992; amended effective July 1, 1995; November 1, 1996.
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-12

N.D. Admin. Code 4-07-34-02 Payroll review

Repealed effective July 1, 1995.

N.D. Admin. Code 4-07-34-03 Oversight and audit procedures

Human resource management services shall conduct annual audits or oversight reviews of the policies, procedures, and practices for the following purposes:

1.To ensure compliance with the federal merit system principles.

2.To respond to any complaint relating to an agency's recruitment, selection, or employment procedures.

The reviews may include a periodic or selective audit of payroll records, personnel records, or other employment-related records. Human resource management services shall provide a notice of ten working days prior to an audit or oversight review, unless the audit or review is the result of a complaint provided for in subsection 2.

History

• History: Effective July 1, 1995; amended effective November 1, 1996; July 1, 2004.
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-12

Chapter 4-07-34.1 Local County Social Service Merit Systems [Repealed]

N.D. Admin. Code 4-07-34.1 Local County Social Service Merit Systems [Repealed]

CHAPTER 4-07-34.1

LOCAL COUNTY SOCIAL SERVICE MERIT SYSTEMS [Repealed effective July 1, 2022.]

Chapter 4-07-35 Severability

N.D. Admin. Code 4-07-35-01 Severability

If any provision of article 4-07 or application thereof to any person or circumstances is held invalid, such invalidity may not affect other provisions or applications of article 4-07 which can be given effect without the invalid provision or application. The rules of article 4-07 are declared to be severable.

History

• History: Effective September 1, 1992.
• General Authority: NDCC 54-44.3
• Law Implemented: NDCC 54-44.3-12

Chapter 4-07-36 Training and Tuition Reimbursement

N.D. Admin. Code 4-07-36-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

History

• History: Effective July 1, 2008.
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-44.3-12

N.D. Admin. Code 4-07-36-02 Payment of training and tuition

An appointing authority may adopt policies to provide training and educational opportunities to its employees to learn new required skills or to enhance their current skills, to increase the opportunity for advancement within the agency or state service, to increase proficiency and productivity, and to improve work performance.

Costs of training or educational courses, including tuition and fees, may be paid for, within budgetary constraints, by the agency or reimbursed to the employee in accordance with agency policy.

An employee who leaves employment with the state within two years of receiving the tuition must repay the tuition received on a prorated basis.

History

• History: Effective July 1, 2008; amended effective July 1, 2010; July 1, 2014.
• General Authority: NDCC 54-44.3-12
• Law Implemented: NDCC 54-06-33, 54-44.3-12

Chapter 4-07-37 Shared Leave

N.D. Admin. Code 4-07-37-01 Scope of chapter

This chapter applies to all regular and probationary state employees. Independent programs consistent with the human resource management services division program may be administered for state judiciary, legislative, and North Dakota university system employees.

History

• History: Effective July 1, 2022; July 1, 2026.

N.D. Admin. Code 4-07-37-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code chapters 54-06, 54-44.3, and 54-52.4, except:

1."Annual leave" means an approved absence from work with pay, as defined in section 4-07-12-02.

2."Eligible employee" means a regular or probationary state employee. It does not include employees on temporary or other limited term appointments.

3."Eligible family member" means the employee's spouse, parent (natural, adoptive, foster, and stepparent), child (natural, adoptive, foster, and stepchild), or any other family or household member who is financially or legally dependent upon the employee or who resides with the employee for the purpose of the employee providing care to the family member.

4."Sick leave" means an approved absence from work with pay, for use in accordance with

section 4-07-13-07.

History

• History: Effective July 1, 2022; amended effective July 1, 2024; July 1, 2026.

N.D. Admin. Code 4-07-37-03 Administration of statewide leave sharing program

1.The human resource management services division of the office of management and budget shall administer a state leave sharing program for regular and probationary state employees.

The program provides a mechanism for eligible employees to donate accrued annual and sick leave to an eligible employee who does not have available leave who is suffering from a severe, extreme, or life-threatening illness, injury, impairment, or physical or mental condition.

State employees also may donate accrued annual leave to another eligible employee who does not have available leave and who is caring for an eligible family member who is suffering from a severe, extreme, or life-threatening illness, injury, impairment, or physical or mental condition.

2.The human resource management services division shall approve or disapprove each request for donated leave after consultation with the requesting eligible employee's agency administrator. The division shall track the amount of leave taken by eligible employees under the program.

3.All forms of leave available for use by the recipient must be used before using shared leave.

Donated leave must be credited to the eligible employee in increments that may not exceed one month. An eligible employee may not use more than four months donated leave in any twelve-month period, and an eligible employee may not retain leave beyond the occurrence necessitating the leave. Leave that has been donated but remains unused beyond the qualifying occurrence must be returned to the donating employee.

4.All donated leave must be given voluntarily. An eligible employee may not donate more than five percent of the eligible employee's accrued sick leave hours per month. An eligible employee's donation of annual leave may not reduce the employee's annual leave balance to less than forty hours.

5.An eligible employee may request and use donated annual leave or sick leave for the purpose of donating an organ or bone marrow.

6.An employee who has received a documented verbal or written warning for inappropriate use of annual or sick leave is not eligible to receive donated leave without specific approval from the director of the human resource management services division.

History

• History: Effective July 1, 2022; amended effective July 1, 2026.

N.D. Admin. Code 4-07-37-04 Policy on qualifying medical conditions

1.The human resource management services division shall maintain and publish criteria to utilize in assessing whether a condition qualifies as a serious, extreme, or life-threatening condition under North Dakota Century Code section 54-06-14.7.

2.For each shared leave request, the division shall require medical certification from a physician, physician assistant, psychologist, or advanced practice nurse practitioner verifying the medical condition and the expected duration of the condition.

3.Requests for donated leave may not be considered without this specific documentation.

4.Conditions associated with normal pregnancy do not generally qualify as serious, extreme, or life-threatening conditions.

History

• History: Effective July 1, 2022; amended effective July 1, 2026.

Chapter 4-07-38 Family Medical Leave

N.D. Admin. Code 4-07-38-01 Scope of chapter

This chapter applies to all state and local government agencies, departments, institutions, and boards and commissions that employ individuals in positions classified by human resource management services.

N.D. Admin. Code 4-07-38-02 Definitions

The terms used throughout this chapter have the same meaning as in North Dakota Century Code chapters 54-06, and 54-44.3, except:

1."Employee" means a state employee, who has been employed by the employer for at least twelve months, and who has worked at least one thousand two hundred fifty hours for the employer over the previous twelve months.

2."Employer" means the state but does not include any political subdivision of the state.

3."Intermittently" means leave taken in separate periods of time due to a single illness or injury, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks.

4."Rolling twelve-month period" means the twelve-month period measured backward from the date an employee uses any family medical leave.

5."Serious health condition" means a disabling physical or mental illness, injury, impairment, or condition involving:

a.Inpatient care in a hospital, long-term care facility, or hospice program; or

b.Outpatient care that requires continuing treatment by a health care provider.

6."Spouse" means an employee's husband or wife.

N.D. Admin. Code 4-07-38-03 Uses of family medical leave

1.An employee shall be granted a request for family medical leave of absence consistent with North Dakota Century Code section 54-52.4-02.

2.An employee may take family medical leave, for any combination of reasons, in any rolling twelve-month period for not more than twelve workweeks, except when leave is under North Dakota Century Code section 54-52.4-02 subdivision f of subsection 1, the employee is limited to a combined twenty-six workweeks of leave in any rolling twelve-month period and is limited to once per service member or veteran per serious injury or illness. When medically necessary, employees may take family medical leave intermittently or on a reduced work schedule for their own serious health condition, the serious health condition of a family member, or to care for a covered service member with a serious injury or illness.

3.An employee and spouse who work for the same employer are entitled to a combined total of twelve weeks of family medical leave if taken under North Dakota Century Code section 54-52.4-02 subdivisions a through e of subsection 1 and a combined total of twenty-six weeks of family medical leave if taken under subdivision f of subsection 1.

4.Family medical leave runs concurrently with all other available leave including paid or donated leave.

5.During a period that an employee takes family medical leave, the employer shall continue any group health insurance coverage for its employees and their dependents available to the employee under the conditions that applied immediately before the family medical leave began.

Article 4-11 Risk Management

Chapter 4-11-01 Risk Management Motor Vehicle Accident Review Board [Repealed]

N.D. Admin. Code 4-11-01 Risk Management Motor Vehicle Accident Review Board [Repealed]

ARTICLE 4-11

RISK MANAGEMENT

Chapter 4-11-01Risk Management Motor Vehicle Accident Review Board [Repealed] 4-11-02Risk Management Workers' Compensation Program

CHAPTER 4-11-01

RISK MANAGEMENT MOTOR VEHICLE ACCIDENT REVIEW BOARD [Repealed effective August 1, 2023]

Determined repealed by the office of the Legislative Council under North Dakota Century Code section 28-32-06 because the authority for adoption of the rules was transferred to another agency.

Chapter 4-11-02 Risk Management Workers' Compensation Program

N.D. Admin. Code 4-11-02-01 History and purpose

The fifty-seventh North Dakota legislative assembly directed the risk management division of the office of management and budget to administer a single workers' compensation account for the state.

The purpose is to reduce the cost of workplace injuries while enhancing the recovery of injured employees.

N.D. Admin. Code 4-11-02-02 Definitions

Terms used in this chapter are as defined in North Dakota Century Code title 65, except that "employee" is limited to an employee who is employed by the state at the time the employee sustains a compensable work injury. Additionally:

1."Employing authority" means the state entity that is the employer at the time the alleged injury occurred to the employee.

2."First aid" means any one-time treatment of minor bruises, scratches, cuts, burns, splinters, and other incidents, which do not ordinarily require medical care. Treatment is considered first aid even when provided by registered professional personnel employed by the employing

authority.

3."Receiving authority" means a state entity other than the employing authority that provides the transitional duty to an injured employee who is temporarily unable to return to the preinjury position.

4."State" means any agency, authority, board, body, branch, bureau, commission, committee, council, department, division, industry, institution, instrumentality, or office of the state.

5."Transitional duty" means employment that includes only short-term duties that can be taught to the employee quickly and which fall within the employee's restrictions and physical limitations.

N.D. Admin. Code 4-11-02-03 Reporting a work-related injury

1.The risk management workers' compensation program contact for the employing authority shall file a completed incident report which includes details of the employee's alleged injury, the cause, the contributing factors, and the action taken to prevent further occurrences. The contact shall fax the report to the office of management and budget risk management division within forty-eight hours of the occurrence or first report of the alleged injury unless the employing authority has an approved data management system to furnish monthly reports to the risk management division. All employing authorities must meet the forty-eight hour filing requirement for suspected time loss claims.

2.For injuries requiring treatment other than first aid, the employee or the employing authority, or both, shall complete a North Dakota workers' compensation claim for injury form (SFN 2828) and shall file both parts C1 and C2 of the SFN 2828 electronically with the bureau as soon as possible and no more than forty-eight hours after the employee seeks medical treatment from the preferred provider or the provider selected by the employee prior to the alleged injury.

N.D. Admin. Code 4-11-02-04 Medical treatment

1.Immediately following an injury, the employing authority shall:

a.Assist the employee onsite; or

b.Arrange for the transport of the employee for treatment to the preferred provider or the provider selected by the employee prior to the alleged injury.

2.An employing authority may not render medical care beyond first aid except for emergency response by qualified personnel unless the employer has chosen an onsite provider as its designated medical provider. The designated medical provider must be staffed by licensed physicians and x-ray and laboratory personnel whose job description and qualifications include treatment of employees.

3.An employee with an alleged compensable injury may request to change medical providers by submitting a letter to the bureau and the risk management division indicating the employee's request and the name, address, and telephone number of the proposed new medical provider.

4.After each visit to a treating medical provider, an employee with an alleged compensable injury shall submit to the employee's supervisor the provider's assessment of the alleged compensable injury with any restrictions and recommendations noted. Each physical assessment must be reported on the North Dakota workers' compensation claim for injury form (SFN 2828) part C3 and be submitted to the employee's supervisor as soon as possible and no more than forty-eight hours after the employee's visit to the treating medical provider.

5.If an employee is on family and medical leave because of an alleged compensable injury, the employee must submit certification from a licensed provider of health care substantiating the need for family medical leave.

N.D. Admin. Code 4-11-02-05 Transitional duty - Conditions for offer - Termination - Additional transitional duty

1.The state shall offer an employee with an alleged compensable injury transitional duty meeting the limitations or restrictions imposed on the employee's ability to work due to the alleged compensable injury. Priority must be given to offering transitional duty within the jurisdiction of the employing authority. If transitional duty is not available, the employing authority shall determine if transitional duty is available elsewhere with the state. Transitional duty is determined to be appropriate if:

a.The employee is unable to perform the duties of the employee's preinjury position;

b.The employee files, in a timely manner:

(1)A notice of the alleged compensable injury; and (2)A claim for workers' compensation;

c.Appropriate transitional duty is available;

d.The employee's treating medical provider approves the transitional duty;

e.The transitional duty is not prohibited by the source that funds the employee's preinjury position; and

f.The employee would otherwise be employed by the employing authority if the employee had not incurred the alleged compensable injury.

2.Transitional duty offered pursuant to this section must be terminated by whichever of the following occurs earliest:

a.When ninety days have passed since the date the employee began the assignment;

b.When the employee's treating medical provider verifies that the employee has permanent restrictions preventing the employee from returning to the employee's preinjury position;

c.When the transitional duty is no longer available;

d.When the employee's treating medical provider verifies that the employee is capable of performing the duties of the employee's preinjury position;

e.When the employee's entire claim or claim for disability benefits is denied by the bureau; or

f.When the employee retires or otherwise terminates employment.

3.The state may extend the original transitional duty or offer an employee who has an alleged compensable injury additional transitional duty if:

a.The employee has returned to work at the employee's preinjury position and is temporarily unable to perform the duties of that position due to the alleged compensable injury; and

b.The additional transitional duty is recommended by the risk management division and the bureau.

4.If the employing authority is unable initially to provide transitional duty and transitional duty is found with a receiving authority, the transitional duty with the receiving authority must end if transitional duty meeting the restrictions and limitations of the employee becomes available with the employing authority.

5.Transitional duty offered to an employee must be located twenty-five miles or less from the location of the employee's preinjury position, unless the employee agrees to accept transitional duty which is greater than twenty-five miles away from the location of the employee's preinjury position.

6.An employee must accept or decline transitional duty within twenty-four hours of receipt of the offer, when possible, and not later than two days. Failure by an employee to accept transitional duty that is approved by the employee's medical provider that is within twenty-five miles of the employee's preinjury position may jeopardize the employee's receipt of workers' compensation benefits.

6.If the employee is offered transitional duty with a receiving authority:

a.The transitional duty does not constitute a transfer to the position;

b.The employee shall be deemed to remain in the employee's preinjury position; and

c.The employing authority is responsible for the payment of the employee's salary and benefits.

7.An employing authority shall:

a.Coordinate with the receiving authority a description of the transitional duty to be offered to an employee with an alleged compensable injury; and

b.Review with the bureau and the office of management and budget risk management workers' compensation manager, after each physical assessment, the limitations placed on the injured employee by the medical provider to determine required adjustments to the transitional duty, if needed.

N.D. Admin. Code 4-11-02-06 Transitional duty - Compensation - Effect of duties assigned

1.An employee who accepts transitional duty is entitled to receive the preinjury wage and the benefits of the employee's preinjury position for the number of hours the employee works or is on paid leave during the transitional duty.

2.For the duration of the transitional duty, the duties assigned to the employee may not be used to reclassify the employee's regular position or to reallocate the class in which the employee is employed.

N.D. Admin. Code 4-11-02-07 Failure by employing authority to participate in the transitional duty program

1.The risk management division of the office of management and budget may impose a surcharge of twenty-five dollars per day upon an employing authority for each calendar day the employing authority fails to provide transitional duty to an employee with an alleged compensable injury if:

a.The employee has been off work for at least five consecutive calendar days;

b.A position is available to meet the employee's limitations and restrictions; and

c.The employee has been cleared for transitional duty by the treating medical provider.

2.The risk management division of the office of management and budget shall deposit any funds collected pursuant to this section in the risk management workers' compensation fund.

N.D. Admin. Code 4-11-02-08 Transitional duty - Effect of Family and Medical Leave Act

An employee who is placed on family and medical leave by the employing authority because of an alleged compensable injury may not be required to accept transitional duty offered in lieu of continuing on family and medical leave. If, however, an employee accepts transitional duty while on family and medical leave, the employee retains the right to be returned to the employee's preinjury position or an equivalent position upon expiration of the employee's family and medical leave.

N.D. Admin. Code 4-11-02-09 Permanency

An employee shall be deemed permanently unable to return to the employee's preinjury position due to a disability arising from a compensable injury on the date on which the employee's treating medical provider has informed the bureau that the employee has permanent physical restrictions as a result of the work injury and the employing authority has notified the bureau that it cannot accommodate those restrictions.

N.D. Admin. Code 4-11-02-10 Eligibility for reassignment

1.An employee is eligible for reassignment with the employing agency under this section if:

a.The employee was a regular employee;

b.The employee would otherwise have continued in the regular position;

c.The employee is unable to perform the essential functions of the regular position, even with reasonable accommodations, because the employee is permanently unable to return to the preinjury position pursuant to section 4-11-02-09;

d.The bureau determines that the employee has a medical condition which results in the employee being unable to return to the preinjury position;

e.The bureau determines that the employee has permanent physical restrictions due to the compensable injury and that the employee may be eligible for vocational rehabilitation benefits;

f.The bureau determines that the employee's claim is not being contested; and

g.If an employee must be completely retrained into a different capacity from the employee's employment at the time of the compensable injury, the employee, upon completion of training, may compete as an internal candidate for a position through regular procedures.

2.An employee is eligible for reassignment under this section in a full-time position if the employee's preinjury position was on a full-time basis. An employee whose preinjury position was part time, seasonal, or temporary is eligible for reassignment on the same basis as the employee's preinjury position. An employee who is eligible for reassignment on a full-time

basis may be reassigned on either a full-time or part-time basis, as appropriate, based on the employee's permanent physical restrictions.

3.The employee, the employee's employing authority, and the bureau shall provide any necessary information for job development and reassignment to the personnel or administrative officer.

Article 4-12 State Procurement Practices

Chapter 4-12-01 General Rules

N.D. Admin. Code 4-12-01-01 Authority

Rules set forth in this article are promulgated by the office of management and budget, in accordance with North Dakota Century Code sections 44-08-01, 46-01-01, 46-01-02, 46-02-01, 54-44-04, and 54-44.4-04 and other laws as contained in the North Dakota Century Code.

History

• Law Implemented: NDCC 44-08-01, 46-01-01, 46-01-02, 46-02-01, 54-44-04, 54-44.4-04

N.D. Admin. Code 4-12-01-02 Definitions

The terms throughout this article have the same meaning as in North Dakota Century Code chapter 54-44.4, except:

1."Approved vendor" means a person or business entity that has completed the registration requirements of North Dakota Century Code section 54-44.4-09 and been placed on the North Dakota state bidders list.

2."Award" means the selection of a successful bidder or offeror for presentation of a purchase agreement or contract.

3."Bidder" means a person or business entity that submits a response to an informal or formal bidding process.

4."Bidders list" is the list of approved vendors that have completed the registration requirements of North Dakota Century Code section 54-44.4-09.

5."Contractor" means a person or business entity having a contract with the state to furnish commodities or services for a certain price.

6."Cooperative purchasing" means procurement conducted on behalf of two or more public procurement entities.

7."Determination" means a document prepared by a procurement officer justifying the decision to take a certain action, including the reason or findings of fact and a conclusion.

8."Director" means the director of the office of management and budget.

9."Formal competition" means a solicitation process that requires bids or proposals to be submitted in a prescribed format in a sealed envelope, sealed package, or electronic means to be opened at a specified time.

10."Informal competition" means a solicitation process that requests unsealed bids or proposals that may be conveyed by letter, telephone, or other means under conditions different from those required for formal competition.

11."Negotiation" means to attempt resolution of an issue through conference, discussion, and agreement or compromise.

12."Notice of intent to award" means notification that a bidder or offeror has been selected for award of a contract.

13."Offeror" means a person or business entity that submits a response to an informal or formal request for proposal process.

14."Procurement" means the process of purchasing, renting, leasing, or otherwise acquiring any commodities or services. This includes the process of acquisition, including description of requirements, solicitation of bids or proposals, evaluation and selection of sources, preparation and award of a contract, and all phases of contract administration.

15."Procurement file" means a written record maintained by the purchasing agency that contains documents related to the origination, solicitation, award, contract, and contract administration, including written determinations and approvals.

16."Protest" means a written objection by an interested party to a solicitation, intent to award a contract, or award of a contract with the intent of receiving a remedial result.

17."Responsive bidder or offeror" means a vendor who has submitted a bid or proposal that conforms in material respects to the requirements stated in the solicitation.

18."Sole source" means a noncompetitive procurement in which a particular person or business entity is identified as the only qualified source capable of supplying the commodity and service.

19."Solicitation" means a request for bids or proposals to provide commodities or services.

20."Statement of work" means a detailed description of work the purchasing agency wants the contractor to perform.

21."Vendor" means a person or business entity that offers to sell commodities or services.

22."Written directives" means directives, policies, procedures, guidelines, and standards issued by the director of the office of management and budget or designee under North Dakota Century Code chapter 54-44.4.

History

• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 54-44.4-01, 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-06, 54-44.4-09, 54-44.4-10

N.D. Admin. Code 4-12-01-03 Determinations

1.In a determination made by a state employee or official, the state employee or official making the determination shall independently examine the material facts of the procurement and independently determine whether the procurement is eligible for the procurement method requested.

2.A state employee or official must not knowingly make a false statement in a determination required by law or these rules.

3.Determinations required by law or these rules must be in writing and retained in the procurement file.

History

• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-06, 54-44.4-09, 54-44.4-10, 54-44.4-12

N.D. Admin. Code 4-12-01-04 Applicability

1.These rules apply to all procurements of commodities and services, regardless of the funding source, by each state agency and institution in the executive branch of government, except this chapter does not apply to:

a.Those agencies or institutions governed by the state board of higher education, which are exempt under subsection 5 of North Dakota Century Code section 15-10-17 and North Dakota Century Code section 54-44.4-02;

b.Those commodities and services not subject to state procurement laws under North Dakota Century Code section 54-44.4-02;

c.Those procurements costing less than a specified amount and those specific commodities or services as determined by the director's written directive, pursuant to North Dakota Century Code section 54-44.4-02;

d.Contracts for services of legal counsel with attorneys who are not employed by the state, pursuant to North Dakota Century Code section 54-12-08;

e.Contracts for public buildings and public improvement contract bids, pursuant to North Dakota Century Code title 48;

f.Contracts for architect, engineer, and land surveying services, pursuant to North Dakota Century Code chapter 54-44.7;

g.Contracts for concessions, pursuant to North Dakota Century Code chapter 48-09;

h.Grant programs, not including procurements using grant dollars; or

i.Professional memberships.

2.The office of management and budget may procure exempted commodities or services upon request by an agency or institution.

3.The office of management and budget may require state agencies or institutions to provide an annual report of commodities and services exempted by the director's written directive.

History

• Law Implemented: NDCC 54-44.4-02, 54-44.4-02.1, 54-44.4-04

N.D. Admin. Code 4-12-01-05 Compliance with federal requirements and other funding sources

1.When a procurement involves the expenditure of federal assistance or contract funds, the office of management and budget or purchasing agency will comply with all federal laws and regulations that are mandatory and that are not presently reflected in these rules.

2.Nothing in these rules or the written directives of the office of management and budget prevents any state agency or institution from complying with the terms and conditions of federal funds, federal assistance, grants, gifts, bequests, or cooperative agreements.

History

• Law Implemented: NDCC 54-44-04, 54-44.4-01, 54-44.4-04

N.D. Admin. Code 4-12-01-06 Procurement violations

Violations of state laws, rules, and office of management and budget written directives relating to procurement will be reported to the employing agency for appropriate disciplinary action. A violation of state laws, rules, and office of management and budget written directives related to procurement may constitute action outside the employee's scope of employment.

History

• General Authority: NDCC 32-12.2-03, 54-44.4-04
• Law Implemented: NDCC 54-44.4-01, 54-44.4-02, 54-44.4-02.1, 54-44.4-04

Chapter 4-12-02 Procurement Organization and Leadership

N.D. Admin. Code 4-12-02-01 State procurement office

1.The state procurement office within the office of management and budget is responsible for carrying out the duties, powers, and responsibilities involved with the operation of a centralized purchasing service.

2.The state procurement office is headed by the state procurement manager who serves as the central procurement officer of the state and is responsible for the state procurement office as it exercises its duties and functions.

History

• General Authority: NDCC 54-44-03, 54-44-04, 54-44.4-04
• Law Implemented: NDCC 54-44-04, 54-44.4-02, 54-44.4-04

N.D. Admin. Code 4-12-02-02 Duties and functions of the state procurement office

The state procurement manager or designee shall:

1.Adopt policies, procedures, guidelines, and standards consistent with the laws and rules governing the procurement of commodities and services.

2.Procure or supervise the procurement of all commodities and services needed by the state, except those exempted by state law or the director's written directive.

3.Manage the delegation of procurement authority.

4.Conduct periodic reviews of procurements made by state agencies and institutions with delegated authority to ensure compliance with state laws and rules and office of management and budget written directives related to procurement.

5.Make written determinations regarding procurement issues, including exemptions, emergency purchases, restriction of competition, use of federal contracts, cooperative purchasing agreements, vendor responsibility, suspension or debarment of vendors from the state bidders list, and appeals of protest decisions.

6.Collect statistical data from each state agency and institution concerning the procurement of commodities and services.

7.Establish procurement education and training programs for state employees.

8.Develop standard forms, terms and conditions for solicitations, purchase orders, amendments, and contract administration tasks in consultation with the attorney general.

9.Work with state agencies and institutions and vendors to establish effective and economical state contracts for the procurement of commodities and services of common use, which may be made mandatory for use by state agencies and institutions.

10.Coordinate with agencies and institutions governed by the state board of higher education to identify commodities or services of high common usage suitable for joint purchase.

11.Coordinate with political subdivisions to cooperatively purchase commodities or services when determined to be beneficial to the state and political subdivisions.

History

• General Authority: NDCC 54-44-04, 54-44.4-04
• Law Implemented: NDCC 44-08-01, 54-44-03, 54-44-04, 54-44.4-02, 54-44.4-02.1, 54-44.4-04, 54-44.4-05, 54-44.4-09, 54-44.4-10, 54-44.4-12

N.D. Admin. Code 4-12-02-03 Procurement advisory council

A procurement advisory council, appointed by the director and headed by the state procurement manager, shall meet at least twice per year for the discussion of procurement practices and recommendations for improvement of the state procurement process. The committee advises the state procurement manager regarding statewide procurement policies, standards, and guidelines.

History

• General Authority: NDCC 54-44-04, 54-44.4-04
• Law Implemented: NDCC 54-44-04, 54-44.4-01, 54-44.4-02, 54-44.4-02.1, 54-44.4-04

Chapter 4-12-03 Delegation of Purchasing Authority

N.D. Admin. Code 4-12-03-01 Delegation of purchasing authority

The director or director's designee may delegate purchasing authority, in writing, to the head of a state agency or institution. The head of the state agency or institution may delegate that person's

authority to specific individuals. The delegation will specify dollar limits for making required determinations, approving limited and noncompetitive procurements, conducting procurements, and amending contracts. The delegation may specifically include or exclude certain commodities or services. The authority remains in effect for the time specified in the written delegation unless revoked in writing by the director, director's designee, or the head of the state agency or institution.

N.D. Admin. Code 4-12-03-02 Request for additional delegation

The head of a state agency or institution may request a special delegation of purchase authority for a specific requirement. The request must be made in writing to the state procurement office and approval obtained before the agency or institution issues a solicitation or awards a contract.

N.D. Admin. Code 4-12-03-03 Decision to delegate

1.Factors to consider in making the decision to delegate include:

a.The procurement expertise or other specialized knowledge of the potential delegate;

b.The past experience of the potential delegate in exercising similar authority;

c.The degree of economy and efficiency to be achieved in meeting the state's requirements if authority is delegated;

d.The available resources of the office of management and budget to exercise the authority if it is not delegated; and

e.The consistency of delegation under similar circumstances.

2.Provisional or partial delegation may be made to employees and officials who have limited training or experience.

N.D. Admin. Code 4-12-03-04 Compliance with state procurement policies

1.Any person with delegated purchasing authority will exercise this authority in accordance with the terms of the delegation, the state laws, rules, and office of management and budget procurement written directives.

2.State agencies and institutions may adopt internal procurement policies and procedures that are consistent with state laws, these rules, and office of management and budget procurement written directives.

N.D. Admin. Code 4-12-03-05 Procurement officer training program

The state procurement office conducts a procurement training and development program. The state procurement office may charge fees for training on a cost-recovery basis.

Chapter 4-12-04 Ethics in Public Procurement

N.D. Admin. Code 4-12-04-01 Requirement for good-faith actions

All parties involved in the solicitation, negotiation, performance, and administration of contracts for the state shall act in good faith.

N.D. Admin. Code 4-12-04-02 Emphasis on competition

Solicitations for bids or proposals will be issued in sufficient time and in a form that will permit the highest practicable degree of full and free competition.

History

• Law Implemented: NDCC 44-08-01, 54-44.4-01, 54-44.4-04

N.D. Admin. Code 4-12-04-03 Handling of information

1.No state employee or official will furnish information to a prospective bidder or offeror if, alone or together with other information, it might give the prospective bidder or offeror an unfair advantage.

2.Each state employee or official will handle confidential or proprietary information belonging to the state, a vendor, or a contractor with due care and compliance with state procurement laws and open records laws.

N.D. Admin. Code 4-12-04-04 Conflict of interest

1.Each state employee or official directly or indirectly involved in procurement activities for the state will exercise caution in professional and personal activities to prevent a conflict of interest, or the appearance of conflict, regarding any vendor or contractor.

2.An employee or official shall not participate directly or indirectly in a procurement when the employee or official knows that:

a.The employee or any member of the employee's immediate family, including a parent, spouse, child, sibling, grandparent, step- (parent, child, siblings), or in-laws (parent, child, and sibling), has a financial interest pertaining to the procurement;

b.A business or organization in which the employee, or any member of the employee's immediate family, has a financial interest pertaining to the procurement; or

c.Any other person, business, or organization with which the employee or any member of the employee's immediate family is negotiating or has an arrangement concerning prospective employment involved in the procurement.

3.Upon discovery of an actual or potential conflict of interest, an employee or official shall promptly file a written statement of disqualification and withdraw from further participation in the transaction involved. The head of the state agency or institution, in consultation with the attorney general, shall make a written determination as to what further participation, if any, the employee may have in the procurement.

History

• Law Implemented: NDCC 12.1-13-02, 12.1-13-03, 48-02-12, 54-44.4-01, 54-44.4-04

N.D. Admin. Code 4-12-04-05 Attempt to influence award

1.Any vendor or contractor is prohibited from giving or offering to give, and any employee and official of the office of management and budget or a purchasing agency involved in any aspect of the procurement process is prohibited from soliciting, accepting, or agreeing to accept money, loans, credits, or prejudicial discounts, subscriptions, offer of employment, gifts, entertainment, favors, or services that might influence, or appear to influence, procurement decisions.

2.Items of nominal value may be offered by a vendor or contractor as a gesture of good will or for public relations purposes and may be accepted.

3.A vendor, contractor, agent, consultant, subcontractor, employee, lobbyist, or any state employee or official may not attempt to influence a procurement decision.

4.A state employee or official involved in any aspect of the procurement process shall report to the state procurement manager any person or business entity that attempts to influence an award or makes or offers to make a gift prohibited by this section. All bids or proposals submitted by the person or business entity will be rejected and the person or business entity will be barred from further bidding for a period of time determined by the state procurement manager. The state procurement manager will notify the attorney general of any violation of this section for any action as the attorney general may deem appropriate.

History

• General Authority: NDCC 12.1-12, 54-44.4-04
• Law Implemented: NDCC 12.1-12-01, 12.1-12-03, 54-44.4-01, 54-44.4-04, 54-44.4-10

N.D. Admin. Code 4-12-04-06 Collusion of bidders or offerors

A state employee or official involved in any aspect of the procurement process must promptly report to the state procurement manager any case of suspected collusion or suspicious bidding pattern indicating anticompetitive trade practices between actual or prospective bidders or offerors. The procurement action must be suspended. The state procurement manager will notify the attorney general of any violation of this section for any action as the attorney general may deem appropriate.

N.D. Admin. Code 4-12-04-07 Nondiscrimination in source selection

Source selection may not be based upon discrimination because of race, religion, color, national origin, sex, age, marital status, pregnancy, parenthood, disability, or political affiliation.

N.D. Admin. Code 4-12-04-08 Artificial fragmentation prohibited

Requirements may not be artificially divided to avoid requirements for obtaining competition.

Fragmentation of current requirements for commodities and services must be based upon actual need by the purchasing agency.

History

• Law Implemented: NDCC 54-44.4-01, 54-44.4-04, 54-44.4-11

Chapter 4-12-05 Bidders List

N.D. Admin. Code 4-12-05-01 Bidders list

1.A vendor that wants to receive notice of solicitations for bids or proposals must apply to have its name placed on the bidders list for the type of commodities or services that the vendor sells.

2.Placement on the bidders list does not guarantee a vendor will receive notice of every solicitation over the amount established for small purchases.

3.If notice of a solicitation sent to an approved vendor is returned as undeliverable, that vendor may be removed from the state bidders list.

4.The office of management and budget shall develop policies for maintaining the bidders list to include periodically removing from the bidders list vendors that have not responded to solicitations for a particular commodity or service.

History

• General Authority: NDCC 54-44.4-04, 54-44.4-09

N.D. Admin. Code 4-12-05-02 Suspension or debarment from bidders list

1.The state procurement manager may, after consultation with the attorney general, suspend or debar any vendor from a bidders list for cause. The suspension period must be less than six months; the debarment period must be less than three years.

2.The vendor will be given written notice that describes the term of the suspension or debarment, the vendor's right to make a written appeal within seven calendar days, and the reinstatement process.

3.After seven calendar days of notice to the vendor and reasonable opportunity for that person to be heard, the state procurement manager, after consultation with the attorney general, shall have authority to suspend or debar the vendor for cause.

N.D. Admin. Code 4-12-05-03 Explanation by vendor

1.At any time after the vendor receives notice of suspension or debarment, the vendor may submit a written explanation of the circumstances that were the cause of the suspension or debarment order, or may show that the circumstances have been corrected.

2.On the basis of the explanation or showing, the state procurement manager will respond within seven working days and may modify or rescind the removal or suspension.

3.Any modification or rescission will not waive or otherwise affect any other remedies the state might have concerning the vendor.

N.D. Admin. Code 4-12-05-04 Cause for suspension or debarment

Sufficient grounds for suspension or debarment include:

1.Failing to maintain active, good-standing status with the secretary of state;

2.Delivering items that do not comply with the specifications of the vendor's contract with the state;

3.Failing to make delivery within the time specified in the contract or purchase order;

4.Failing to keep an offer firm for the length of time specified by the vendor in the solicitation or the vendor's bid or proposal;

5.Failing to provide a performance bond when required by a solicitation;

6.Colluding with other vendors to restrain competitive bidding;

7.Engaging in unauthorized communications or seeking to obtain information about an open solicitation with any state employee or official other than the responsible procurement officer or designee;

8.Giving information in an application for inclusion on a bidders list that is later found to be false or materially misleading;

9.Substituting of an article, even if it is the same quality, without first securing the written consent of the purchasing agency;

10.Declaring bankruptcy or other evidence of insolvency of the vendor;

11.Any other facts causing substantial doubt as to whether the vendor will continue to be a responsible bidder or offeror that can be relied upon to fulfill its obligations under this article and under any contract awarded to the vendor;

12.Violating the laws of the state that would make it inadvisable for the state to deal with the vendor; or

13.Violating any other provisions of this article.

Chapter 4-12-06 Specifications for Commodities and Services

N.D. Admin. Code 4-12-06-01 Purpose of specifications

1.The purpose of a specification is to serve as a basis for obtaining a commodity or service suitable for the state's needs in a cost-effective manner.

2.Commodities and services will be specified at the proper level of utility and quality for the

purpose intended in order to promote overall economy for the purpose intended.

3.All required functional, performance, physical, design, and other characteristics of a commodity or service and any other requirements such as certification, licensing, insurance, delivery, installation, inspection, testing, training, maintenance, and service support must be included in the specification.

N.D. Admin. Code 4-12-06-02 Restrictive specifications to be avoided

1.Specifications should encourage competition in meeting the state's needs and may not be restrictive. Restrictive specifications are contrary to the policy of the state and should be avoided.

2.Standard commercial commodities will be specified whenever possible.

3.A specification is restrictive when the specifications, requirements, restrictions, or conditions have the effect of limiting responses to only one brand, make, source of supply, or service provider and have no reasonable relation to the actual needs of the purchasing agency.

4.When only one brand, make, source of supply, or service provider can meet the specifications in a competitive solicitation, the procurement officer must make a determination regarding whether the specification was restrictive.

5.Award is subject to the approval requirements for limited and noncompetitive procurements in

chapter 4-12-09.

History

• Law Implemented: NDCC 44-08-01, 54-44.4-01, 54-44.4-04, 54-44.4-06

N.D. Admin. Code 4-12-06-03 Use of brand name in specifications

1.Specification may include brand name, make, or source of supply, but in those cases it will be clearly indicated that equivalent products may be acceptable.

2.If a commodity or service put forth as equivalent is rejected by an agency or institution as not being equivalent, the procurement officer must make a written determination and notify the bidder or offeror of the rejection.

3.Whenever an agency specifies products or services exclusive to a particular individual, company, manufacturer, or brand name to the exclusion of competitive products or services, the proprietary product or service will be procured competitively, unless it is available only from one source of supply or emergency circumstances exist. When competition is limited or restricted by the use of a brand name or proprietary specification, a written determination for a limited competitive or noncompetitive procurement must be made in accordance with North Dakota Century Code section 44-08-01 and North Dakota Administrative Code chapter 4-12-09.

History

• Law Implemented: NDCC 44-08-01, 54-44.4-01, 54-44.4-04, 54-44.4-06

N.D. Admin. Code 4-12-06-04 Qualified products list

1.If testing or examination of the commodities or services is desirable or necessary to best satisfy state requirements, a qualified products list may be developed with approval of the state procurement office.

2.When developing a qualified products list, a representative group of vendors must be solicited, in writing, to submit products for testing and examination to determine acceptability for inclusion on the qualified products list.

3.Inclusion on a qualified products list must be based on results of tests or examinations conducted in accordance with state requirements and the product specification.

4.The existence of prequalified products on a qualified products list does not constitute prequalification of any prospective vendor.

N.D. Admin. Code 4-12-06-05 Equipment leases and lease-purchases

1.Specifications for equipment leases and lease-purchases will include the total term of the lease, including all provisions for extensions or renewals of the lease agreement. If the purchasing agency will purchase insurance for the equipment being leased from the leasor, those requirements will be stated in the specifications.

2.The purchasing agency will prepare a written analysis documenting the decision to lease or lease-purchase, in accordance with North Dakota Century Code section 54-27-21.1.

3.The state agency or institution will notify the office of the insurance commissioner, fire and tornado fund division, if the equipment being leased or lease-purchased will be insured under that fund.

4.The purchasing agency must comply with the requirements of North Dakota Century Code

section 54-27-21 related to fixed asset reporting when the equipment lease or lease-purchase is determined to be a fixed asset acquisition.

History

• Law Implemented: NDCC 54-27-21.1, 54-44.4-02, 54-44.4-06

N.D. Admin. Code 4-12-06-06 Specifications prepared by non-state personnel

1.The requirements of these rules regarding the purpose and nonrestrictiveness of specifications applies to all specifications prepared by someone other than a state employee or official.

2.When a purchasing agency has specifications prepared by someone other than a state employee or official on behalf of the state, that person or business entity must be excluded from submitting bids or proposals.

N.D. Admin. Code 4-12-06-07 Request for information

A noncompetitive solicitation may be issued to obtain information, data, comments, or reactions from possible vendors preceding the issuance of solicitation for bids or proposals or a multistep bidding procedure. Information obtained as a result of a request for information is subject to the state open records law.

History

• General Authority: NDCC 54-44.4-04, 54-44.4-06

N.D. Admin. Code 4-12-06-08 Specification meeting

Prior to issuing a solicitation, the procurement officer may hold a specification meeting to seek information necessary to prepare a suitable specification and competitive solicitation. The procurement officer will provide adequate notice to potential bidders or offerors. The meeting is open to the public.

Attendance at such meeting may not be made mandatory as a condition for submitting a bid or proposal.

Chapter 4-12-07 Managing Contractual Risk

N.D. Admin. Code 4-12-07-01 Risk management analysis

In preparing a solicitation or contract, the procurement officer will consider the potential risks involved in the contract for procurement of commodities or services to determine reasonable measures that can be taken to mitigate those risks, including the use of insurance, bonding, or other types of security.

N.D. Admin. Code 4-12-07-02 Insurance requirements

As a result of a risk management analysis, it may be determined that the contractor will be required to acquire and maintain insurance. The insurance requirements must be stated in the solicitation.

N.D. Admin. Code 4-12-07-03 Bid security

1.As a result of a risk management analysis prior to the solicitation being issued, security may be required to protect the interests of the state and ensure that a vendor will not withdraw a bid or proposal prior to contract award. In this circumstance, a bid bond, certified check, or cashier's check drawn on the Bank of North Dakota or a federally insured bank, or other form of bid security acceptable to the purchasing agency, may be required to accompany the bid or proposal.

2.When a bid bond is required, the bid or proposal must specify the form and amount of the bond, up to five percent of the full amount of the bid or proposal, unless it is in the best interest of the state to specify another amount.

3.The bidder or offeror must sign any bid bond as principal, and the bond must be signed by a surety company licensed by the insurance commissioner to do business in the state. If the surety on a bond has its authority to do business in this state revoked or if for any reason it ceases to do business in the state, the bidder or offeror must promptly obtain another surety on the bond. The bond must be noncancelable, regardless as to whether the bonding company remains licensed in the state, and must remain in effect until a replacement bond is filed.

4.The bond must be conditioned on full performance of all obligations imposed on the bidder or offeror, including the obligation to keep the price firm for the period specified in the solicitation and the obligation to file a performance bond when required. The bond must provide that upon failure to perform any obligations the state will recover from the bidder and the surety, or either, any damages suffered because of failure to perform.

5.The purchasing agency may allow a vendor to file a continuing bond good for all bids or proposals made during a certain period of time up to a stated amount.

6.Bid bonds or other form of bid security submitted by unsuccessful bidders or offerors will be returned as soon as possible after the award is made. The purchasing agency may retain the bid bonds of those unsuccessful bidders or offerors determined to be reasonably susceptible for award for use in the event of default by the successful bidder or offeror. The bid bond or other form of security submitted by the successful bidder or offeror will be returned as soon as possible after the contract is awarded or as soon as the successful bidder or offeror has filed a performance bond if one is required.

N.D. Admin. Code 4-12-07-04 Performance bonds

1.As a result of a risk management analysis prior to the solicitation being issued, the successful bidder or offeror may be required to file a performance bond, certified check, or cashier's check drawn on the Bank of North Dakota or a federally insured bank, or other form of surety deposit acceptable to the purchasing agency.

2.The state may require that the bond, certified check, or cashier's check be filed within a specified number of days after the award is made or the contract may be canceled and the vendor will be liable for any damages caused by failure to file the bond, certified check, or cashier's check.

3.When a performance bond is required, the solicitation must specify the form and amount of the bond. The amount of the performance bond must be adequate to cover the risk assumed by the state, depending on the nature and circumstances of the contract, up to one hundred percent of the contract amount.

4.The successful bidder or offeror must sign any bid bond as principal, and the bond must be signed by a surety company licensed by the insurance commissioner to do business in the state. If the surety on a bond has its authority to do business in this state revoked or if for any reason it ceases to do business in the state, the bidder or offeror must promptly obtain another surety on the bond. The bond must be noncancelable, regardless as to whether the bonding company remains licensed in the state, and must remain in effect until a replacement bond is filed.

5.The bond must be conditioned on full performance of all obligations imposed on the vendor by the contract with the state. The bond must provide that if the vendor fails to perform any obligations, the state may recover from the vendor and the surety, or either of them, any damages suffered because of failure to perform.

N.D. Admin. Code 4-12-07-05 Payment bonds

1.A payment bond may be required by the purchasing agency for the protection of all persons supplying labor and material to the contractor or its subcontractors for the performance of work provided for in the contract.

2.When a payment bond is required, the bid or proposal must specify the form and amount of the bond, up to one hundred percent of the contract amount.

Chapter 4-12-08 Competitive Solicitation Methods

N.D. Admin. Code 4-12-08-01 Competitive solicitation methods

1.Commodities and services will be procured through a competitive solicitation method unless competitive solicitation is not required by state law or circumstances exist under which competition can be limited or waived in accordance with North Dakota Century Code section 54-44.4-05 and these rules.

2.The state procurement office will establish policies, procedures, guidelines, and standards for the purchase of commodities and services, based upon dollar value thresholds established by the director pursuant to North Dakota Century Code sections 54-44.4-02 and 54-44.4-11.

3.Depending upon the value and complexity of commodities or services to be purchased, the state procurement office and each purchasing agency, in accordance with guidelines issued by the state procurement office, may issue solicitations by one of the following methods:

a.Small purchase procedures, including an informal competitive process;

b.Competitive sealed bids;

c.Competitive sealed proposals; or

d.Multistep competitive process.

History

• General Authority: NDCC 54-44.4-04, 54-44.4-11
• Law Implemented: NDCC 54-44.4-02, 54-44.4-02.1, 54-44.4-04, 54-44.4-05, 54-44.4-06, 54-44.4-10, 54-44.4-11

N.D. Admin. Code 4-12-08-02 Small purchases

1.Extremely low-value purchases, including purchases made using a purchasing card, will be made using adequate procedures to ensure commodities and services are obtained at a fair and reasonable price, which may include the solicitation of only one bid or proposal. The procurement officer will rotate vendors solicited on an equitable basis.

2.For small purchases between the threshold for extremely low-value purchases and formal sealed competition, informal competition should be obtained and no less than three vendors should be solicited, insofar as practical, to submit oral or written bids or proposals.

3.Vendors that are not approved under North Dakota Century Code section 54-44.4-09 may be solicited.

4.All responses will be recorded and placed in the procurement file.

5.After application of North Dakota Century Code section 44-08-01, an award shall be made to the responsible vendor offering the lowest responsive bid or most advantageous proposal.

History

• Law Implemented: NDCC 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-09, 54-44.4-11

N.D. Admin. Code 4-12-08-03 Competitive sealed bidding

1.Invitation for bids will be issued and will include a purchase specification or statement of work and all contractual terms and conditions applicable to the procurement.

2.Notice of the solicitation will be made in accordance with section 4-12-08-06.

3.At the specified date and time, a public bid opening will be held and each bid received will be opened and read.

4.A listing of the bidders' names and their responses must be prepared, including any responses declining to submit a bid and those bids received late. The record of bidders' names, all the bids, and tabulation sheets form part of the procurement file.

5.The procurement file becomes public upon the bid opening.

6.No discussions or negotiations with bidders are permitted after the opening of bids. Award is to be made to the responsible vendor with the lowest responsive bid, based strictly on the criteria set forth in the invitation for bids.

7.The procurement officer may reject all bids or negotiate for a lower price with the successful bidder as provided in North Dakota Century Code section 54-44.4-05.

History

• Law Implemented: NDCC 54-44.4-02, 54-44.4-04, 54-44.4-05, 54-44.4-09

N.D. Admin. Code 4-12-08-04 Competitive sealed proposals

1.The following types of commodities and services, for which the use of competitive sealed bidding is either not practicable or advantageous to the state, may be procured by competitive sealed proposals without a written determination by the procurement officer:

a.Services;

b.Information technology as defined in North Dakota Century Code section 54-59-01; and

c.Equipment.

2.Request for proposals will be issued and must include a purchase specification or statement of work, all contractual terms and conditions applicable to the procurement, and the relative importance of price and other factors or subfactors, if any.

3.Notice of the solicitation will be made in accordance with section 4-12-08-06.

4.At the specified date and time, each proposal will be opened in a manner to avoid disclosure of the contents to competing offerors. The openings may be made public at the discretion of the purchasing agency, as indicated in the request for proposal. If a public opening is held, only the names of offerors that submitted proposals can be revealed at the opening.

5.A listing of the offerors' names must be prepared, including any responses declining to submit a proposal and those proposals received late. The record of offerors' names, all the proposals, and tabulation sheets form part of the procurement file.

6.The procurement file becomes public when a notice of intent to award is issued.

7.After the initial evaluation of proposals, the procurement officer or proposal evaluation committee may meet to discuss or evaluate proposals or hold discussions with those offerors determined to be reasonably susceptible of being selected for award. A motion may be made to close the open meeting to prevent disclosure of any information derived from proposals submitted by competing offerors. Written records of these meetings will become open records after an award of a contract has been made.

8.During the evaluation period, only the procurement officer and others specifically authorized by the procurement officer may transmit technical or other information and conduct discussions with prospective contractors. Discussions and negotiations must be conducted in accordance with chapter 4-12-12. These discussions are for the purpose of clarification to ensure full understanding of, and responsiveness to, the solicitation requirements. In conducting discussions, any information derived from proposals submitted by competing offerors shall not be disclosed.

9.Offerors must be accorded fair and equal treatment with respect to any opportunity for discussion and revision of proposals, and revisions may be permitted after submissions and prior to award for the purpose of obtaining best and final offers. There must be a cutoff for the submission of revised proposals and final offers.

10.After proposals have been evaluated and the successful vendor selected, notice of intent to award must be promptly issued to all offerors that submitted proposals. Notice can be made by mail, facsimile, or electronic means. Upon issuance of this notice, the procurement file becomes an open record.

History

• General Authority: NDCC 44-04-19.2, 54-44.4-04, 54-44.4-10
• Law Implemented: NDCC 54-44.4-04, 54-44.4-10

N.D. Admin. Code 4-12-08-05 Multistep solicitations

1.Solicitations for commodities or services may be a multistep process, in which an initial solicitation for unpriced technical bids or proposals may be used to develop a shortlist of qualified vendors and a subsequent solicitation may be limited only to those vendors that qualified for the shortlist.

2.The multistep sealed solicitation method may be used when it is not practical to prepare initially a definitive purchase description that will be suitable to permit an award.

3.During the first phase of a multistep sealed solicitation while evaluating unpriced technical bids or proposals, the procurement officer may have discussions with vendors or hold a conference of all potential bidders or offerors.

History

• Law Implemented: NDCC 54-44.4-02, 54-44.4-04, 54-44.4-06

N.D. Admin. Code 4-12-08-06 Notice of competitive sealed solicitations

1.When making purchases over the amount established for small purchases, state agencies and institutions will send notice of the solicitation to vendors on the bidders list of approved vendors for the commodity or service being purchased, unless a written determination is made to limit competition.

2.Notice of the solicitation may be made by mail, facsimile, or electronic means. The notice must include the purchasing agency, a brief description of the commodity or service being procured, instructions for obtaining the solicitation, and the deadline for receipt of bids or proposals.

3.The purchasing agency may also elect to use a means of public notice, electronic posting, or send notice to vendors that are not on the bidders list.

4.A record of the notice will be made, including a list of the vendors who were sent notice and any vendors that requested the solicitation or notice provided by other means.

5.Notice shall be given in sufficient time for potential bidders or offerors to prepare bids or proposals.

History

• Law Implemented: NDCC 54-44.4-04, 54-44.4-09

N.D. Admin. Code 4-12-08-07 Approved vendor registration requirements

All solicitations over the amount established for small purchases must state the requirements for registration as an approved vendor under North Dakota Century Code section 54-44.4-09. The procurement officer may:

1.Require all bidders or offerors to be registered as approved vendors by the deadline established for receipt of bids and proposals;

2.Make a determination to accept bids or proposals from vendors that are not approved and require the successful bidder or offeror to become registered before contract award; and

3.Make a determination that registration with the secretary of state and appointment of an agent for service of process in this state are not required and waive the registration requirement.

History

• Law Implemented: NDCC 54-44.4-04, 54-44.4-09

N.D. Admin. Code 4-12-08-08 Questions and clarification

1.Any questions or requests for clarification during the solicitation period shall be submitted only to the procurement officer identified on the solicitation document.

2.The procurement officer may establish a deadline for submission of questions or requests for clarification in the solicitation.

3.When the response to the question or request for clarification contains information that is material to the solicitation process that cannot be answered by directing the potential bidder or offeror to a specific section within the solicitation document, the procurement officer will prepare a written response that must be distributed to all potential bidders or offerors.

History

• Law Implemented: NDCC 54-44.4-01, 54-44.4-04, 54-44.4-05, 54-44.4-10

N.D. Admin. Code 4-12-08-09 Solicitation amendment - Extension of solicitation opening time - Cancellation of solicitations

1.Before the opening of bids or proposals, a solicitation may be amended, or time for opening may be extended, upon the procurement officer's determination that the extension or amendment is in the state's best interest. All potential bidders or offerors known to have copies of the solicitation shall be notified of the amendment or extension.

2.Bidders or offerors may be required to acknowledge receipt of the solicitation amendment in writing.

3.Before the opening of bids or proposals, a solicitation may be canceled in whole or in part if the procurement officer determines that cancellation is in the best interest of the state. All potential bidders or offerors known to have copies of the solicitation shall be notified of the cancellation. Bids or proposals may be returned upon request. Reasons for cancellation include:

a.The state no longer requires the commodities or services;

b.Proposed amendments to the solicitation would be of such magnitude that a new solicitation is desirable; or

c.Sufficient funds are not available to pay for the procurement.

N.D. Admin. Code 4-12-08-10 Presolicitation, prebid, or preproposal conferences and site inspections

1.A presolicitation conference may be held prior to issuing a competitive sealed solicitation to obtain comments and suggestions about the draft solicitation. The purchasing agency may invite specific selected potential bidders or offerors or provide public notice of the presolicitation conference. Attendance at such conference may not be made mandatory as a condition for submitting a bid or proposal.

2.A prebid or preproposal conference or site inspection may be scheduled in a solicitation to be conducted prior to the submission of sealed bids, sealed proposals, or unpriced technical offers in response to a multistep process. Adequate notice of the conference must be given to all potential bidders or offerors.

a.The prebid or preproposal conference or site inspection may be made mandatory as a prerequisite for submitting a bid or proposal if the information provided at the conference is necessary to adequately prepare a bid or proposal and cannot be otherwise provided to prospective bidders or offerors.

b.If attendance is made mandatory in the solicitation, only those bidders or offerors in attendance are eligible to submit bids or proposals.

c.After the prebid or preproposal conference or site inspection, questions raised and answers along with any changes made to the solicitation must be disseminated to potential bidders or offerors through a solicitation amendment. If attendance at the conference or site inspection was made mandatory, notice of the amendment may be limited to eligible bidders or offerors.

History

• Law Implemented: NDCC 54-44.4-01, 54-44.4-04

N.D. Admin. Code 4-12-08-11 Samples

1.The purchasing agency may require in the solicitation that bidders or offerors submit representative samples of the commodity being offered, at no cost to the state, to ensure compliance with the specifications. Such samples may be subject to examination and testing by the purchasing agency.

2.Samples of the successful bidder or offeror may be retained for comparison to commodities delivered under contract.

3.Upon request of the bidder or offeror, samples not destroyed by examination or testing will be returned at the expense of the bidder or offeror. If the bidder or offeror does not request return of the sample, the sample will become property of the state.

History

• General Authority: NDCC 54-44.4-04, 54-44.4-06
• Law Implemented: NDCC 54-44.4-01, 54-44.4-04, 54-44.4-06

N.D. Admin. Code 4-12-08-12 Receiving sealed bids or proposals

1.All sealed bids and sealed proposals received at the place designated in the solicitation will be secured and held unopened until the date and time specified in the solicitation for opening of bids or proposals.

2.As bids and proposals are received, the outer envelope will be annotated with the date and time of receipt.

3.If the person delivering a sealed bid or proposal requests a receipt, the purchasing agency will provide a written receipt confirming the identification of the bid or proposal and the time of receipt.

N.D. Admin. Code 4-12-08-13 Late bids or proposals

1.Sealed bids and proposals that are delivered late will not be accepted for consideration, unless the delay is due to the error of the purchasing agency and discovered before selection of the successful bidder or offeror.

2.The vendor will be promptly sent written notice of rejection.

3.The procurement officer may retain the late bid or proposal in the procurement file, return the late bid or proposal, or notify the vendor to make arrangements for pickup of the late bid or proposal by a specified date.

4.If the late bid or proposal was returned, a record of the return must be made and placed in the procurement file.

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

N.D. Admin. Code 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

• History: Effective August 1, 2004; amended effective October 1, 2012; amended effective January 1, 2013.
• Law Implemented: NDCC 54-44.4-02.1, 54-44.4-04, 54-44.4-05

N.D. Admin. Code 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

• Law Implemented: NDCC 54-44.4-04, 54-44.4-05

N.D. Admin. Code 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

• Law Implemented: NDCC 54-44.4-04, 54-44.4-05

N.D. Admin. Code 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

• General Authority: NDCC 54-44.4-02, 54-44.4-04
• Law Implemented: NDCC 54-44.4-02, 54-44.4-04

N.D. Admin. Code 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

• 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

N.D. Admin. Code 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

• 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

Chapter 4-12-10 Mistakes in Bids or Proposals

N.D. Admin. Code 4-12-10-01 Minor informalities

1.Minor informalities are insignificant omissions or nonjudgmental mistakes that are matters of form rather than substance, evident from the bid or proposal document, with a negligible effect on price, quantity, quality, delivery, or contractual conditions, that can be waived or corrected without prejudice to other bidders or offerors.

2.If the mistake is attributable to an error in judgment by the bidder or offeror, the bid or proposal may not be waived or corrected. An example of an error in judgment would be failure to consider all the requirements of the solicitation and submitting an inaccurate price.

3.Correction or withdrawal of a bid or proposal because of an inadvertent, minor informality requires careful consideration to protect the integrity of the competitive solicitation process and to ensure fairness.

4.Bid or proposal correction or withdrawal by reason of a minor informality is permissible but only to the extent it is not contrary to the interest of the state or the fair treatment of other bidders or offerors.

5.Examples of minor informalities include failure of a bidder or offeror to:

a.Return the number of signed bid or proposal documents required by the solicitation;

b.Sign the response, but only if the unsigned response is accompanied by other material indicating the bidder's intent to be bound, such as a cover letter, or a signed bid or proposal is provided within the time limit set by the procurement officer;

c.Sign or initial a material correction to the bid or proposal, including a typeover, writeover, correction tape, or white-out, but the bidder or offeror may be required to confirm the correction within the time limit set by the procurement officer;

d.Submit product literature or other documents required in the solicitation, but only if the bidder or offeror complies within the time limit set by the procurement officer; and

e.Acknowledge receipt of an amendment to the solicitation, but only if:

(1)It is clear from the bid or proposal that the bidder or offeror received the amendment and intended to be bound by its terms;

(2)The amendment involved had a negligible effect on price, quantity, quality, or delivery; or (3)The bidder or offeror provides an acknowledgment of receipt within the time limit set by the procurement officer.

N.D. Admin. Code 4-12-10-02 Unit price governs

In case of a mistake in the calculation of total price, the unit price will govern.

N.D. Admin. Code 4-12-10-03 Mistakes discovered before opening

A bidder or offeror may correct a mistake discovered before the time and date set for opening of bids or proposals by withdrawing or correcting the bid or proposal.

N.D. Admin. Code 4-12-10-04 Confirmation of bid or proposal

1.When the procurement officer knows or has reason to conclude that a mistake has been made, the procurement officer may request the bidder or offeror to confirm the bid or proposal.

Examples of situations in which confirmation is appropriate include obvious, apparent errors on the face of the bid or proposal, or a bid or proposal unreasonably priced in relation to the others submitted.

2.If the bidder or offeror confirms the mistake, the bid or proposal may be corrected or withdrawn in accordance with these rules.

N.D. Admin. Code 4-12-10-05 Mistakes discovered after opening but before award

1.The procurement officer may waive minor informalities or allow the bidder or offeror to correct them depending on which is in the best interest of the state.

2.If the mistake and the intended correct bid or proposal are clearly evident on the face of the bid or proposal document, the bid or proposal must be corrected to the intended correct bid or proposal and may not be withdrawn. Examples of mistakes that may be clearly evident on the face of the bid or proposal document are typographical errors, errors in extending unit prices, transposition errors, and mathematical errors.

3.A bidder may be permitted to withdraw a low bid or proposal if a mistake is clearly evident on the face of the solicitation response but the intended correction is not similarly evident or the bidder or offeror submits proof of evidentiary value that clearly and convincingly demonstrates that a mistake was made.

N.D. Admin. Code 4-12-10-06 Mistakes discovered after award

A mistake in a bid or proposal discovered after award does not relieve the contractor from performance in accordance with the contract award. The bidder or offeror must submit evidentiary proof of value that clearly and convincingly demonstrates a mistake has been made. If the terms of the contract permit modification of the contract price, no correction may be permitted that would cause the contract price to exceed the next low bid or result in another proposal being determined to be most advantageous.

N.D. Admin. Code 4-12-10-07 Determinations required

When a bid or proposal is corrected or withdrawn, or a correction or withdrawal is denied, the procurement officer will prepare a written determination showing that the relief was granted or denied in accordance with these rules.

History

• Law Implemented: NDCC 54-44.4-04

Chapter 4-12-11 Evaluation of Bids or Proposals

N.D. Admin. Code 4-12-11-01 Standards for awarding contracts

Unless circumstances exist under which competition can be limited or waived, contracts must be awarded through a competitive solicitation process to the responsible vendor with the lowest responsive bid or the most advantageous proposal. An award will be made according to the evaluation criteria specified in the solicitation. A contract award will be made as soon as practicable after the opening and evaluation of bids or proposals.

N.D. Admin. Code 4-12-11-02 Application of preference for North Dakota vendors

When considering bids or proposals from nonresident vendors, the procurement officer must determine whether the vendor's state of residence has a preference law. The state procurement office shall make publicly available a listing of state preference laws. The preference given to North Dakota bidders must be equal to the preference given or required by the state of the nonresident bidder, in accordance with North Dakota Century Code section 44-08-01.

History

• Law Implemented: NDCC 44-08-01, 54-44.4-04

N.D. Admin. Code 4-12-11-03 Responsiveness of the bid or proposal

Any bid or proposal that does not meet the requirements of the solicitation, other than mistakes determined to be minor informalities, will be rejected.

N.D. Admin. Code 4-12-11-04 Responsibility of the bidder or offeror

1.The procurement officer, at any time, may make a supplementary investigation as to the responsibility of any bidder or offeror, even though the bidder or offeror may be on the bidders list for the commodity or service being purchased.

2.This may include investigation of financial responsibility, insurability, effective equal employment opportunity, capacity to produce, sources of supply, performance record in the business or industry, and other matters relating to the bidder's or offeror's probable ability to deliver in the quantity and at the time required under the contract if it is awarded to the bidder or offeror.

3.The procurement officer may require the submission of written statements from the bidder or offeror or other persons concerning any related matter. If it is concluded on the basis of all available information that a particular bidder or offeror appears not to be sufficiently responsible to assure adequate performance if the contract were awarded to the bidder or offeror, the bid or proposal will be rejected even if it is the lowest bid or the best offer.

4.If a vendor is determined to be not responsible, that vendor may be debarred or suspended from the bidders list.

N.D. Admin. Code 4-12-11-05 Tie bids or proposals

In the event of a tie bid or proposal, the procurement officer will ensure that any applicable preference has been applied to price in accordance with North Dakota Century Code section 44-08-01.

If a tie remains, award shall be determined as follows:

1.If the tie is between an approved vendor and vendor that is not approved, preference will be given to the approved vendor in accordance with North Dakota Century Code section 54-44.4-09.

2.If the solicitation specified delivery as soon as possible, the bid or proposal with the earliest delivery time will be accepted. In all other cases, delivery time will not be considered in making award, provided the bid or proposal states that delivery can be made within the required time.

3.If a tie remains, a split award may be made or award will be made through a random drawing.

History

• Law Implemented: NDCC 44-08-01, 54-44.4-04, 54-44.4-05, 54-44.4-09, 54-44.4-10

N.D. Admin. Code 4-12-11-06 Conditioned bids or proposals

1.No alterations or variations of the terms and conditions of the solicitation by the bidder or offeror will be valid and binding upon the state, unless made in writing and accepted by the purchasing agency.

2.Bids or proposals subject to conditions imposed by the bidder or offeror may be rejected as being nonresponsive, as determined by the purchasing agency.

History

• Law Implemented: NDCC 54-44.4-02.1, 54-44.4-04, 54-44.4-05, 54-44.4-10

N.D. Admin. Code 4-12-11-07 Multiple awards

1.A multiple award can be made when it is determined to be in the best interest of the state to award multiple contracts to two or more bidders or offerors of similar products or services.

2.The intent to make a multiple award must be stated in the solicitation.

3.A multiple award may be appropriate under circumstances in which more than one contractor is required to ensure adequate delivery, service, or product compatibility.

History

• Law Implemented: NDCC 54-44.4-02.1, 54-44.4-04, 54-44.4-05, 54-44.4-10

N.D. Admin. Code 4-12-11-08 Only one responsive bid or proposal received

1.If only one responsive bid or proposal is received in response to a solicitation, the procurement officer may:

a.Make an award to the vendor upon determination that the specifications were not restrictive in accordance with section 4-12-06-02, other prospective bidders and offerors had a reasonable opportunity to respond, the bidder is responsible, and the price submitted is fair and reasonable;

b.Reject the bid or proposal and solicit new bids or proposals; or

c.Cancel the procurement.

2.If the price submitted is not fair and reasonable and there is no time for resolicitation, or it is unlikely that resolicitation will increase the number of bids or proposals, the procurement may be conducted as a limited competitive or noncompetitive purchase, as appropriate, pursuant to subsection 2 of North Dakota Century Code section 54-44.4-05.

N.D. Admin. Code 4-12-11-09 Rejection of all bids or proposals

1.If it appears to be in the best interest of the state, all bids or proposals may be rejected and invitations for bid or requests for proposal containing the same or rewritten specifications, terms, and conditions may be reissued.

2.The procurement officer will send written notice to the bidders or offerors, including the reason all bids or proposals were rejected.

3.The rejected bids or proposals will be retained in the procurement file.

Chapter 4-12-12 Contract Negotiations

N.D. Admin. Code 4-12-12-01 General provisions for negotiations

1.Discussions may be conducted in connection with competitive sealed proposals, noncompetitive, or emergency procurements. This means an exchange of information or other manner of negotiation during which the offeror and the procurement officer may alter or otherwise change the conditions, terms, and price of the proposed contract.

2.Negotiation of proposals, noncompetitive, and emergency purchases provides the procurement officer an opportunity to make certain that the bidder or offeror fully understands the solicitation requirements and provides an opportunity to make clarifications, when necessary, to ensure responsiveness to the solicitation. Price discussions can best be conducted when there is a mutual understanding of the contractual requirements.

3.Clarifications are intended to promote exchanges between the procurement officer and an offeror that may occur when an award is contemplated without discussions, for example, to resolve minor or clerical errors or ambiguities in proposals.

History

• History: Effective August 1, 2004.
• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 54-44.4-04, 54-44.4-05, 54-44.4-10

N.D. Admin. Code 4-12-12-02 Ethical standards for negotiations

1.When discussions or negotiations are contemplated after the receipt of proposals that are expected to lead to the revision of proposals or to best and final offers, fair and equitable treatment of competitors dictates that negotiations be conducted in accordance with ethical business standards.

2.Auction techniques are prohibited in discussions with offerors under the competitive sealed proposal method.

3.Prices; technical solutions; unique technologies; innovative use of commercial items, design, construction, or operating techniques; or other aspects of proposals submitted by one offeror must not be disclosed to competing offerors pursuant to North Dakota Century Code section 54-44.4-10.

4.Safeguards against abuse in the conduct of negotiations must be strictly observed to maintain the essential integrity of the process.

History

• History: Effective August 1, 2004.
• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 54-44.4-04, 54-44.4-05, 54-44.4-10

Chapter 4-12-13 Contract Administration

N.D. Admin. Code 4-12-13-01 Contract amendment

1.A contract cannot be amended after the expiration date of the contract.

2.A state contract may include a clause that provides for adjustment of contract price, adjustment of time of performance, and other terms the procurement officer deems appropriate.

3.Unanticipated contract amendments must be within the scope of the original contract, authorized by the terms of the contract, and due to legitimate, unforeseen circumstances.

4.Prior to amending a contract, the procurement officer must prepare a written determination for the amendment.

5.The amending of contracts cannot be utilized to avoid any requirements to obtain competition or to make purchases that exceed the procurement officer's delegated purchase authority.

6.Amendments that require the state to pay any amount over the stated contract price must be funded prior to approval.

History

• History: Effective August 1, 2004.
• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 54-44.4-01, 54-44.4-04, 54-44.4-05, 54-44.4-10

N.D. Admin. Code 4-12-13-02 Assignment of contract

A successful bidder or offeror shall not assign the bidder's or offeror's interest in the contract without the written consent of the procurement officer.

History

• History: Effective August 1, 2004.
• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 54-44.4-01, 54-44.4-04, 54-44.4-05, 54-44.4-10

Chapter 4-12-14 Resolution of Protested Solicitations and Awards

N.D. Admin. Code 4-12-14-01 Resolution of protested solicitations

The following provisions must be followed by any actual or prospective bidder or offeror that is aggrieved in connection with a solicitation:

1.The aggrieved party shall submit a protest to the procurement officer in written form, clearly identifying the solicitation and the details of the nature of the protest.

2.When the solicitation contains a deadline for submission of questions and requests for clarifications, protests of the solicitation will not be allowed if these faults have not been brought to the attention of the procurement officer before the specified deadline. If no deadline for questions is specified, protests based on defects in the solicitation must be made at least seven calendar days before the deadline for receipt of bids or proposals.

3.The procurement officer has seven calendar days to review the protest and to render a written decision. The procurement officer may extend the protest review period by no more than seven days and will send written notice to the aggrieved party of the extension.

4.The procurement officer has the authority to cancel or amend a solicitation prior to the opening date and to delay the subsequent opening date.

5.During the time the protest and appeals are being considered, the solicitation period will be extended if not resolved before the opening date.

6.The aggrieved party has seven calendar days to appeal the decision of the procurement officer.

N.D. Admin. Code 4-12-14-02 Resolution of protested award or intent to award

A bidder or offeror that has submitted a response to a solicitation and is aggrieved may protest an award or notice of intent to award in accordance with the following provisions:

1.The aggrieved party shall submit a written protest to the procurement officer that clearly identifies the solicitation, award or proposed award, and the details of the nature of the protest.

2.The protest must be received within seven calendar days after the aggrieved party knew or should have known of the facts giving rise to the protest. Seven days after award or issuance of a notice of intent to award, it will be assumed that all interested parties knew or should have known all the facts surrounding the solicitation.

3.During the time the protest is being considered, the award will be stayed, unless a written determination is made that award without delay is necessary to protect the interests of the state. Written notice of the protest and stay of award will be sent to the successful bidder or offeror.

4.The procurement officer has seven calendar days to review the protest and render a written decision. The procurement officer may extend the protest review period by no more than seven calendar days and will send written notice to the aggrieved party of the extension.

5.The aggrieved party has seven calendar days to appeal the decision of the procurement officer.

N.D. Admin. Code 4-12-14-03 Appeals of protest decisions

1.The aggrieved party may appeal the decision of the procurement officer to the director or designee within seven calendar days after receiving notice of the decision.

a.The director or designee has seven calendar days to review the protest and render a decision in writing. If the appeal is submitted on a weekend or state holiday, the seven-day period will commence on the first working day after the appeal was submitted.

b.During the time the appeal is being considered, the award will be stayed, unless a written determination is made that award without delay is necessary to protect the interests of the state.

c.If the protest is not resolved by mutual agreement, the director or designee will promptly issue a decision in writing stating the reasons for the action taken and informing the protestant of its right to judicial or administrative review, if any, as provided by the laws of North Dakota.

d.A decision under this subsection is final and conclusive.

2.If the protest is sustained, the director or designee has the authority to resolve the protest in the best interests of the state.

a.Remedies may include cancellation and reissue of a solicitation, amendment of a solicitation and evaluation criteria, and cancellation of a contract award.

b.When a protest is sustained and the protesting bidder or offeror should have been awarded the contract under the solicitation but is not, a bidder or offeror may not recover profits that it anticipates would have been made if that party had been awarded the contract. Any other settlement of relief must be referred to the office of the attorney general.

3.Frivolous protests may be cause for suspension or debarment from consideration of contract award for a period of up to three years. A written determination by the state procurement manager is required for this action.

4.Nothing in this section is intended to affect the power of the attorney general to settle actions pending before the courts.

Chapter 4-12-15 Intergovernmental Relations

N.D. Admin. Code 4-12-15-01 Procurement from state agencies and other governmental entities

1.If a needed commodity or service can be obtained from a state agency or institution or other governmental entity within the state, that commodity or service may be purchased without obtaining competition. State agencies and institutions that provide commodities and services include printing services by the central duplicating service of the office of management and budget pursuant to North Dakota Century Code section 46-02-09, department of corrections and rehabilitation roughrider industries, information technology department, and agencies or institutions governed by the state board of higher education.

2.When conducting a competitive solicitation for a commodity or service otherwise available from a state agency or institution or other governmental entity within the state, the purchasing agency may elect to solicit bids or proposals from the state source of supply. The bid or proposal will be awarded according to the evaluation criteria set forth in the solicitation.

3.State agencies or institutions and other governmental entities may apply to be placed on the state bidders list established pursuant to North Dakota Century Code section 54-44.4-09.

History

• History: Effective August 1, 2004.
• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 12-48-03.1, 54-44-04, 54-44.4-02, 54-44.4-04, 54-44.4-09, 54-59-05

Chapter 4-12-16 Printing

N.D. Admin. Code 4-12-16-01 Resident North Dakota printers

1.Resident North Dakota printers must do any printing not done by the central duplicating service of the office of management and budget, unless circumstances exist under which it is determined to be not practicable. These circumstances include:

a.When North Dakota printers are not capable of providing the required printing services at a reasonable price or meet the required delivery schedule; or

b.When specialized printing services are required and there is a lack of qualified North Dakota printers that provide those services.

2.Bids for printing services may be rejected if the printing will be done by a nonresident printer, unless otherwise specified in the solicitation.

History

• History: Effective August 1, 2004.
• General Authority: NDCC 54-44.4-04
• Law Implemented: NDCC 46-02-09, 46-02-15, 54-44.4-02, 54-44.4-04, 54-44.4-05

Chapter 4-02

N.D. Admin. Code 4-02

ARTICLE 4-02

CENTRAL PERSONNEL DIVISION [Repealed effective December 1, 1985]

Chapter 4-03

N.D. Admin. Code 4-03

ARTICLE 4-03

PURCHASING DIVISION [Repealed effective August 1, 2004]

Chapter 4-04

N.D. Admin. Code 4-04

ARTICLE 4-04

PURCHASING DIVISION - SURPLUS PROPERTY [Repealed August 1, 2004]

Chapter 4-05

N.D. Admin. Code 4-05

ARTICLE 4-05

RECORDS MANAGEMENT AND CENTRAL MICROFILM [Superseded by Article 4-06]

Chapter 4-06

N.D. Admin. Code 4-06

ARTICLE 4-06

COUNTY, CITY, AND PARK DISTRICT RECORDS MANAGEMENT [Repealed August 1, 2004]

Chapter 4-08

N.D. Admin. Code 4-08

ARTICLE 4-08

STATE BUILDING CODE AND ENERGY CONSERVATION STANDARDS IN NEW BUILDING

CONSTRUCTION

Determined repealed by the office of the Legislative Council pursuant to North Dakota Century Code

section 28-32-06 because the authority for adoption of the rules was transferred to another agency by S.L. 2001, ch. 488, § 27.

Chapter 4-09

N.D. Admin. Code 4-09

ARTICLE 4-09

STATE RECORDS MANAGEMENT [Repealed August 1, 2004]

Chapter 4-10

N.D. Admin. Code 4-10

ARTICLE 4-10

FORMS MANAGEMENT [Repealed August 1, 2004]