Background
Associated General Contractors of North Dakota and the American Concrete Pavement Association–North Dakota Chapter (collectively, the “Association”) sued the City of West Fargo in May 2025, alleging it violated North Dakota’s competitive bidding statutes, N.D.C.C. ch. 48-01.2, by self-performing portions of Improvement District No. 2290, a mill-and-overlay road project estimated to cost more than $200,000. The law required competitive bidding for public improvement construction projects exceeding that threshold. The Association challenged West Fargo’s decision to reserve tasks such as utility adjustments, foam jacking, traffic control, tack coat application, and asphalt paving for its own crews rather than putting the full scope of work out to bid.
West Fargo awarded a contract to the lowest bidder for the remaining work in June 2025. While the Association’s motion for summary judgment was pending, the project was substantially completed on September 4, 2025. Days later, West Fargo adopted Ordinance No. 1257, which purported to authorize city crews to self-perform “routine street maintenance”—defined to include milling and overlaying—regardless of cost. The Association sought leave to amend its complaint to challenge the ordinance’s validity as well.
The district court denied both avenues of relief. It dismissed the original claims as moot because the project was complete, and it denied the motion to amend on the ground that the Association lacked standing to challenge the ordinance because West Fargo had not yet invoked authority under it. The Association appealed.
The Court’s Holding
The North Dakota Supreme Court reversed and remanded on both issues. First, the Court held the dismissal without prejudice was appealable because refiling would inevitably face the same mootness problem—the completed project cannot be undone—leaving the Association no practical way to obtain relief in its chosen forum. On the merits of mootness, the Court applied the public interest exception, concluding that North Dakota’s competitive bidding statutes serve statewide purposes (preventing favoritism, fraud, and waste in the letting of public contracts) and that a ruling would guide public officials across the state, not merely resolve a local dispute. The Court drew on its prior decision in Danzl v. City of Bismarck, 451 N.W.2d 127 (N.D. 1990), where the Court adjudicated a bidding-statute violation even after construction was well along.
Second, the Court held the district court erred in finding the Association lacked standing to challenge Ordinance No. 1257. Under N.D.C.C. § 32-23-11, a trade or professional association whose members are licensed and regulated by the state may seek a declaratory judgment against any ordinance that “threatens to injure” its members. The Court found the threat non-hypothetical: the Association’s contractor members compete for public projects in West Fargo, and the city had already behaved consistently with what the ordinance now purports to authorize. The Court instructed the district court on remand to reconsider whether leave to amend the complaint to add the ordinance challenge should be granted, noting that amendment must still be solidly grounded in the record at the post-summary-judgment stage. The Court declined to adjudicate the underlying merits itself, preserving them for the district court in the first instance.
Key Takeaways
- A challenge to a completed public project is not automatically moot in North Dakota when the underlying competitive bidding statute is statewide in scope and a ruling would guide public officials across political subdivisions.
- Under N.D.C.C. § 32-23-11, a licensed trade association need not wait for a municipality to formally invoke a newly enacted ordinance before it has standing to seek a declaratory judgment; a credible threat of injury to members is sufficient.
- A dismissal “without prejudice” is nonetheless a final, appealable order when the plaintiff cannot cure the defect that caused dismissal—here, the project’s completion would doom any refiled suit to the same mootness ruling.
- Courts will not penalize litigants for declining to seek emergency injunctions that would halt repairs to public infrastructure while litigation proceeds.
Why It Matters
This decision confirms that North Dakota’s competitive bidding requirements carry enough public importance to survive completion of the challenged project, giving contractors and public-interest litigants a meaningful avenue to obtain binding legal interpretations even when construction cannot be stopped or undone. Without this exception, municipalities could effectively insulate bidding-law violations from judicial review simply by moving quickly to finish projects.
The ruling also has immediate practical consequences for West Fargo’s Ordinance No. 1257, which broadly permits self-performance of street maintenance work—including milling and overlaying—regardless of cost. That ordinance now faces a live legal challenge, and the outcome will determine whether cities across North Dakota may similarly opt out of competitive bidding requirements for what they characterize as routine maintenance, a question with significant implications for the construction industry statewide.