purchasing

South Dakota Resident Bidder Preference

Revised August 14, 2024

South Dakota Codified Laws

Title 5. Public Property, Purchases and Contracts

Chapter 18A. Public Agency Procurement--General Provisions

5-18A-1 . Definitions

Terms used in this chapter and chapters 5-18B, 5-18C, and 5-18D mean:

(23) “Qualified agency,” any public or private nonprofit corporation geographically located in the State of South Dakota that provides services for persons with disabilities and is certified by the Department of Human Services;

(26) “Resident,” any person, partnership, association, limited liability company, foreign limited liability company, corporation, or foreign corporation licensed to do business within this state that has maintained a substantial and bona fide place of business and has conducted business from within this state for at least one year prior to the date on which a contract was awarded. The members of the partnership or association shall have been bona fide residents of the state for one year or more immediately prior to bidding upon the contract. A foreign corporation licensed pursuant to §§ 47-1A-1501 to 47-1A-1532, inclusive, is not a resident as defined by this section if the state or country in which it is organized enforces or has a preference for resident bidders;

5-18A-22 . Procurements exempt from chapters 5-18D

The provisions of this chapter and chapters 5-18B , 5-18C , and 5-18D do not apply to:

(1) Any highway construction contract entered into by the Department of Transportation;

(2) Any contract for the purchase of supplies from the United States or its agencies or any contract issued by the General Services Administration;

(3) Any purchase of supplies or services, other than professional services, by purchasing agencies from any active contract that has been awarded by any government entity by competitive sealed bids or competitive sealed proposals or from any contract that was competitively solicited and awarded within the previous twelve months;

(4) Any equipment repair contract;

(5) Any procurement of electric power, water, or natural gas; chemical and biological products; laboratory apparatus and appliances; published books, maps, periodicals and technical pamphlets; works of art for museum and public display; medical supplies; communications technologies, computer hardware and software, peripheral equipment, and related connectivity; tableware or perishable foods;

(6) Any supplies, services, and professional services required for externally funded research projects at institutions under the control of the Board of Regents;

(7) Any property or liability insurance or performance bonds, except that the actual procurement of any insurance or performance bonds by any department of the state government, state institution, and state agency shall be made under the supervision of the Bureau of Administration;

(8) Any supplies needed by the Department of Human Services or the Department of Social Services or prison industries for the manufacturing of products;

(9) Any printing involving student activities, conducted by student organizations and paid for out of student fees, at institutions under the control of the Board of Regents. However, nothing in this subdivision exempts, from the requirements of this chapter and chapters 5-18B , 5-18C , and 5-18D , purchases that involve printing for other activities at institutions under the control of the Board of Regents;

(10) Any purchase of surplus property from another purchasing agency;

(11) Any animals purchased;

(12) Any purchase by a school district of perishable food, raw materials used in construction or manufacture of products for resale, or for transportation of students;

(13) Any authority authorized by chapters 1-16A , 1-16B , 1-16G , 1-16H , 1-16J , 5-12 , or 11-11 ;

(14) Any seeds, fertilizers, herbicides, pesticides, feeds, and supplies used in the operation of farms by institutions under the control of the Board of Regents;

(15) Any purchase of supplies for any utility owned or operated by a municipality if the purchase does not exceed the limits established in § 5-18A-14 ;

(16) For political subdivisions, any contract for asbestos removal in emergency response actions and any contract for services provided by individuals or firms for consultants, audits, legal services, ambulance services, architectural services and engineering, insurance, real estate services, or auction services;

(17) Any purchase of supplies or services from a contract established through a Midwestern Higher Education Compact group purchasing program by a competitive sealed bid or a competitive sealed proposal; or

(18) Any contract concerning the custody, management, purchase, sale, and exchange of fund investments and research by the State Investment Council or Division of Investment.

5-18A-25 . Preferences to certain resident businesses, qualified agencies, and businesses using South Dakota supplies or services

In awarding a contract, if all things are equal, including the price and quality of the supplies or services, a purchasing agency shall give preference:

(1) To a qualified agency if the other equal low bid or proposal was submitted by a business that was not a qualified agency;

(2) To a resident business if the other equal low bid or proposal was submitted by a nonresident business;

(3) To a resident manufacturer if the other equal low bid or proposal was submitted by a resident business that is not a manufacturer;

(4) To a resident business whose principal place of business is located in the State of South Dakota, if the other equal low bid or proposal was submitted by a resident business whose principal place of business is not located in the State of South Dakota; or

(5) To a nonresident business providing or utilizing supplies or services found in South Dakota, if the other equal low bid or proposal was submitted by a nonresident business not providing or utilizing supplies or services found in South Dakota.

In computing price, the cost of transportation, if any, including delivery, shall be considered.

5-18A-26 . Resident bidder preferred over nonresident bidder from state or foreign province that has preference for resident bidders

A resident bidder shall be allowed a preference on a contract against the bid of any bidder from any other state or foreign province that enforces or has a preference for resident bidders. The amount of the preference given to the resident bidder shall be equal to the preference in the other state or foreign province.

South Dakota Codified Laws

Title 5. Public Property, Purchases and Contracts

Chapter 18B. Procurement of Public Improvements

5-18B-6 . Certification regarding labor provided by nonresident subcontractors

Prior to execution of a public improvement contract, a successful bidder shall certify:

(1) That no more than twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors; or

(2) That more than twenty percent of the cost of labor included in the contract is being provided by nonresident subcontractors because resident contractors are not available and at competitive prices.