North Dakota Supreme Court reverses dismissal of contractors’ lawsuit against city of West Fargo

WEST FARGO — A lawsuit against the city of West Fargo will continue after the North Dakota Supreme Court on Thursday, June 25, reversed a 2025 dismissal.

In December, the Associated General Contractors of North Dakota and the American Concrete Pavement Association–North Dakota Chapter, Inc. appealed the dismissal judgment filed in favor of the city of West Fargo.

The North Dakota Supreme Court determined in its Thursday, June 25, ruling that the district court made an error by

dismissing these claims as “moot,”

with the reasoning that the construction project is completed and can’t be undone, and the court additionally erred by denying the plaintiffs the opportunity to amend their complaint “on grounds the association lacks standing to challenge a city ordinance.”

The dismissal was reversed, so the case will continue. The attorney for the plaintiffs/appellants, Nicholas Surma, said his team is very pleased with the outcome.

“(We) look forward to a decision on the merits whether the city can continue to substitute itself for private contractors or whether projects must be competitively bid to achieve the law’s intended purpose — allowing the free market to provide the best quality at the best price for West Fargo’s taxpaying citizens,” Surma said in a written statement.

Rachel Richter Lordemann, director of communications for the city of West Fargo, said the city doesn’t comment on ongoing litigation.

The plaintiffs, collectively referred to as the “association,” originally filed a claim against West Fargo in May 2025, arguing the city violated competitive bidding requirements for a public improvement project by delegating some tasks to city staff rather than putting them up for bid.

North Dakota Century Code at the time stated the threshold for bidding the construction of a public improvement project was $200,000, according to Thursday’s Supreme Court ruling. The project in this case was expected to exceed that cost.

The plaintiffs asked the court to enter a judgment saying the city can’t self-perform any public improvement that exceeds $200,000, and violated state law by doing so in the Improvement District No. 2290 mill and overlay project. They also asked the court to prohibit West Fargo from self-performing work on that project and future projects required to be publicly bid on under state law.

West Fargo approved a contract for the project in June 2025, and the project was completed in September. After the project was finished, the city adopted an ordinance allowing the city to self-perform routine street maintenance with available funds, regardless of the estimated value, if the city feels it’s in its best interest to internally handle the job.

After the ordinance passed, the plaintiffs filed a motion to amend their complaint to include, among other things, a request for a declaration that the ordinance is invalid. The district court allowed the case to be put on hold while the plaintiffs gathered information, but denied their challenge of the ordinance.

“The court reasoned the association lacked standing to challenge the ordinance because the association had not alleged ‘an actual or threatened injury stemming from action under the ordinance’ or that ‘the City has exercised authority under the ordinance,’” the Supreme Court ruling said.

After oral arguments, the claims were dismissed without prejudice or costs awarded to either party.

Dismissals without prejudice can rarely be appealed, since plaintiffs can simply refile their case, however, the Supreme Court found an appeal was appropriate because the association has no ability to seek the relief it was when originally filing the case. The project can’t be undone.

The Supreme Court determined the public interest exception to mootness applies in this case, because “competitive bidding laws are designed to protect the public, and a decision will guide public officials administering political subdivisions across the state.”

The Supreme Court also disagreed with the district court’s ruling that the association had no ability to challenge the ordinance. It said the association has alleged facts that demonstrate the ordinance presents a threat to the interests of its members.