nottawaseppi huron band of the potawatomi indian...
Post on 19-Apr-2018
228 Views
Preview:
TRANSCRIPT
October 8, 2013 Draft 101157v1
1
Nottawaseppi Huron Band of the Potawatomi
Indian Preference in Contracting Code
Chapter 1. General Provisions.
Sec. 1.01. Title
The title of this Code shall be the NHBP Indian Preference in Contracting Code.
Sec. 1.02. Purpose. The purpose of this Code is to:
A. Set forth the policy and requirements for application of Indian preference to
bidding and procurement activities of the Nottawaseppi Huron Band of the
Potawatomi (“NHBP” or the “Tribe”).
B. Promote the economic welfare and self-sufficiency of the Tribe, its members
and spouses and/or parents of members by providing contracting opportunities
to businesses owned by those persons in connection with the purchase of
goods and services, consistent with the technical and business needs of the
Tribe and its political subdivisions.
C. Promote business opportunities for enterprises, which employ NHBP
members and other Native Americans.
D. Provide a legal basis to encourage or require compliance with the policies and
requirements of this Code by other business entities or contractors operating
on or near the Tribe’s Reservation.
Sec. 1.03. Severability. If any provision of this Code is found by the Tribal or Federal
Court to be unconstitutional or unlawful, that provision(s) shall be struck and the
remainder of the Code shall remain in full force and effect.
Sec. 1.04. Effective Date. The effective date of this Code is ____________.
Chapter 2. Definitions.
Sec. 2.01. Definitions. As used in this Code the following words will have these
meanings:
A. Certified NHBP Member-Owned Business means any business, entity,
corporation, partnership, joint stock company, joint venture, or individual or
sole proprietorship that the Indian Preference Office certifies to be at least
60% NHBP member-owned.
October 8, 2013 Draft 101157v1
2
B. Certified NHBP Family-Owned Business means any business, entity,
corporation, partnership, joint stock company, joint venture, or individual or
sole proprietorship that the Indian Preference Office certifies to be at least
60% NHBP family-owned.
C. Certified Native American-Owned Business means any business, entity,
corporation, partnership, joint stock company, joint venture, or individual or
sole proprietorship that the Indian Preference Office certifies to be at least
60% Native American owned.
D. Certified Preference Business means any Certified NHBP Member-Owned
Business, Certified NHBP Family-Owned Business, or Certified Native
American-Owned Business.
E. Contract means any and all written agreements that consist of an offer,
consideration, and acceptance for procurement or disposal of goods or
services including but not limited to, contracts for construction, supplies,
services, and equipment.
F. Officer means the individual(s) within the NHBP Government organization
assigned the responsibilities for the functions and responsibilities assigned to
the Indian Preference Office under this Code.
G. Enrolled Member - An individual who is a duly enrolled member of the
Nottawaseppi Huron Band of the Potawatomi.
H. Joint Venture means a one-time grouping of two or more persons in a business
undertaking.
I. Native American – means a person who is an enrolled member of a federally
recognized Indian tribe, a Canadian Indian tribe or First Nation, or is enrolled
with any non-federally recognized Indian tribe that is recognized by resolution
adopted by the Tribal Council.
J. NHBP means the Nottawaseppi Huron Band of the Potawatomi.
K. NHBP Family means one (1) or more persons who is/are the legal Spouse of
an NHBP member or is the Parent of one (1) or more minor child/children
who is/are NHBP members.
October 8, 2013 Draft 101157v1
3
L. Parent – means a person who is the biological or adoptive parent of minor
child(ren) who is (are) enrolled member(s) of the Tribe who either: (1) resides
in the same household as his/her minor child(ren); or (2) for whom the parent
provides at least 50% of the financial support.
M. Purchasing Office – means the official or department with responsibility for
managing the bid and purchasing functions within any of the following
organizations: (1) Tribal government operations; (2) FireKeepers
Development Authority; (3) Waséyabek Development Company, LLC,; or (4)
any other Tribal-owned instrumentality or business enterprise with delegated
purchasing authority.
N. Qualified Bidder means a bidder who submits a Responsive Bid or Proposal,
who has furnished, when required, information and data to prove that his
financial resources, production or service facilities, personnel,
service/warranty reputation and experience are adequate to ensure satisfactory
delivery and performance of the services, construction or items of tangible
personal property described in a request for proposal or solicitation of bid,
which is on terms that are no less favorable to the Tribe or a Tribal Business
than those that would have been obtained in a comparable transaction on an
arms-length basis by the Tribe or a Tribal Business from a vendor that is not a
Certified Preference Business.
O. Qualified Vendor means, for purposes of the a “Small Purchase”, as defined in
Section 303, a vendor who submits a responsive quote describing the goods or
services the vendor would provide in response to a request for quotes, together
with the vendor’s pricing proposal for providing the goods or services
requested, which is on terms that are no less favorable to the Tribe or a Tribal
Business than those that would have been obtained in a comparable
transaction on an arms-length basis by the Tribe or a Tribal Business from a
vendor that is not a Certified Preference Business.
P. Qualified Certified Firm means a firm that submits a bid in response to an
invitation to bid or request for proposal that is entitled to Indian preference
under Chapter 3 of this Code.
Q. Reservation means the Pine Creek Reservation and all other lands held in trust
for the Tribe.
October 8, 2013 Draft 101157v1
4
R. Responsive Bid means a bid that conforms in all material respects to the
requirements of the Request for Proposal and Instructions to Bidders portion
of the solicitation for bid. Material respects of a request for proposal or bid
include but are not limited to price, quality, quantity and/or delivery
requirements.
S. Spouse – means the legally married spouse of an enrolled member of the
Tribe.
T. Tribe or Tribal Government – means the government operations of the NHBP,
or any branch or sub-division of the Tribal government that performs essential
government functions, regulatory functions or provides governmental
services.
U. Tribal Business – means any subdivision or instrumentality of the Tribe that
operates as a business enterprise which provides goods or services in the
market place which are regularly provided by private, for-profit businesses
and operates on the NHBP Reservation.
V. Tribal Council means the duly elected governing body of the Nottawaseppi
Huron Band of the Potawatomi.
Chapter 3. Indian Preference and Priority in Contracting and Subcontracting.
Sec. 3.01. Indian Preference. The award of contracts and subcontracts for goods and
services purchased by the Tribe or a Tribal Business operating on the Reservation shall
include preference criteria to the greatest extent possible. The award of contracts and
sub-contracting for goods and services by the Tribe or a Tribal Business shall include
preference criteria that create business opportunities for Qualified Bidders which are
Certified NHBP Member-Owned Business, Certified NHBP Family-Owned Businesses
and other Certified Native American-Owned Businesses. The contracting preferences
required by this Code shall not be construed to require the Tribe or Tribal Business to
purchase goods or services that do not meet the demonstrable business needs or technical
requirements of the Tribe or any Tribal Business.
Sec. 3.02. Priority in Contracting and Subcontracting. Provided the Bid or Proposal
is on terms that are no less favorable to the Tribe or a Tribal Business, as the case may
be, preference for contracting and subcontracting shall be granted to Qualified Bidders
according to the following priority:
A. First preference is an NHBP member-owned business.
October 8, 2013 Draft 101157v1
5
B. Second Preference is any NHBP Family-owned Business.
C. Any other Native American-owned business.
D. Other Qualified Bidders
Sec. 3.03. Application of Preference in Contracting and Subcontracting Decisions.
A. Small Purchases. For purposes of this section, “small purchases” shall
include any procurement of goods or services with an actual or estimated
value not exceeding $100,000. The governing body responsible for setting
policy for each Purchasing Office shall have the discretion to establish
procedures for procuring “small purchases” consistent with the requirements
contained in this subsection 3.03.A. Except as provided in Section 3.05(A), a
Purchasing Office shall not break down requirements aggregating more than
the small purchase threshold into several purchases that are less than the
applicable threshold merely to: (1) permit use of the small purchase
procedures or (2) avoid any requirements that apply to procurement by a
traditional invitation to bid, request for proposal, or request for qualifications
process. Nothing shall preclude a Purchasing Office from electing to utilize a
traditional invitation to bid, request for proposal process, or request for
qualification process for any procurement with a value of less than $100,000.
1. Any Certified Preference Business on the current List of Certified
Preference Businesses, which provides the goods or services to be
obtained through a “small purchase”, shall be offered the opportunity to
submit a quote.
2. Subject to the requirements of paragraph A.3., infra, the award shall be
made to the qualified vendor that provides the lowest price, unless that
vendor’s proposal does not meet other specifications (i.e. delivery
requirements; product specifications) requested. If award is to be made for
reasons other than lowest price, documentation shall be provided in the
contract file to justify departure from utilizing the lowest price as the
primary factor in awarding a contract.
3. If a qualified quote is received from a Certified Preference Business, the
award shall be made to the Qualified Preference Business, after first
applying the preference order stated in section 3.02, with the lowest
responsive bid if that bid is within budgetary limits established for the
specific project or activity for which bids are to being taken and not more
than “X” higher than the total bid price of the lowest responsive bid from
October 8, 2013 Draft 101157v1
6
any qualified bidder. For purposes of this subsection, “X” is 10% of that
bid up to $10,000.
B. Invitation to Bid. Preference in the award of contracts and subcontracts that
are let under a traditional invitation to bid process (e.g. conventional bid
construction contracts, material supply contracts) that will be awarded based
almost exclusively on price shall be provided as follows:
1. The invitation to bid may initially be restricted to Qualified Certified
Firms only, provided that the Purchasing Office has a reasonable
expectation that three (3) or more Qualified Certified Firms are likely to
submit responsive bids, which comply with the bid specifications. If three
(3) or more qualified certified firms submit responsive bids which comply
with the bid specifications, preference shall be given in the order stated in
section 3.02, to the lowest responsive bid if that bid is within budgetary
limits established for the specific project or activity for which bids are
being taken. In determining whether there is a reasonable expectation that
three (3) or more Qualified Certified Firms are likely to submit bids, the
Purchasing Office may rely on the list of Certified Preferences Businesses
maintained by the Officer.
2. If the Purchasing Office prefers not to restrict the invitation to bid to
qualified certified firms, or if an insufficient number of qualified certified
firms submit responsive bids, as described in section 303.B.1., the
Purchasing Office may advertise generally for bids. Award may be made
to the qualified certified firm, after first applying the preference order
stated in section 3.02, with the lowest responsive bid which complies with
the bid specifications if that bid is within budgetary limits established for
the specific project or activity for which bids are being taken and not more
than “X” higher than the total bid price of the lowest responsive bid from
any qualified bidder.
3. “X” is determined as follows:
When the lowest responsive bid is:
Less than $100,000 10% of the lowest responsive
bid
At least $100,000, but less than $200,000 9% of the lowest responsive
bid
At least $200,000 but less than $300,000 8% of the lowest responsive
bid
October 8, 2013 Draft 101157v1
7
At least $300,000 but less than $400,000 7% of the lowest responsive
bid
At least $400,000 but less than $500,000 6% of the lowest responsive
bid
At least $500,000 but less than $1 Million 5% of the lowest responsive
bid
At least $1 Million but less than $2 Million 4% of the lowest responsive
bid
At least $2 Million but less than $4 Million 3% of the lowest responsive
bid
At least $4 Million but less than $7 Million 2% of the lowest responsive
bid
$7 Million but less than $10 Million 1.5% of the lowest
responsive bid
Over $10 Million 1% of the lowest responsive
bid
4. If no qualified certified firm submits a responsive bid which complies with
the bid specifications and that is within the stated range of the total bid
price of the lowest responsive bid, as described in the chart in section
3.03.B.3., the award shall be made to the qualified bidder with the lowest
price which complies with the bid specifications.
C. Request for Proposal (RFP). Preference in the award of contracts and
subcontracts that are let under an RFP process that will be awarded based on
combination of technical requirements, specifications, price and other
appropriate factors shall be provided as follows:
1. The Purchasing Office shall, in collaboration with the department,
instrumentality or business initiating the procurement, develop the
particular specifications (i.e. technical specifications; components;
compatibility requirements; warranties; delivery/completion dates;
pricing; etc.) for the RFP, including to the extent possible a rating system
that provides for the assignment of points for, or rating of, the relative
merits of submitted proposals. The RFP shall identify all rated factors,
including price or cost, and any significant sub-factors that will be
October 8, 2013 Draft 101157v1
8
considered in awarding the contract, and shall state the relative importance
the Purchasing Office places on each evaluation factor and sub-factor.
2. As noted in Section 3.03.B.1, the RFP may be restricted to Qualified
Certified Firms. The RFP should, however, not be so restricted unless the
Purchasing Office has a reasonable expectation that a reasonable number
of qualified certified firms (in most cases not less than three (3)) are likely
to submit responsive proposals. Notification that Indian preference is
applicable to the procurement shall be included in the RFP. If at least
three (3) total and two (2) or more qualified certified firms submit
responsive proposals, preference shall be given in the order stated in
section 3.02, with the best proposal based on a rating system established
for the RFP. If fewer than the minimum required number of qualified
certified firms submit responsive proposals, the Purchasing Office may
reject all proposals, and may re-advertise the RFP in accordance with
section 3.03.C.2 or may award the contract to a non-certified firm in
which case the basis of the determination to award the contract and not re-
bid shall be documented.
3. If the Purchasing Office prefers not to restrict the RFP to qualified
certified firms, or if an insufficient number of qualified certified firms
submit responsive RFPs, as described in section 3.03.C.1., the Purchasing
Office may issue the RFP inviting proposals from qualified non-certified
firms as well as qualified certified firms. Notification that Indian
preference is applicable to the procurement shall be included in the RFP
solicitation.
4. The Purchasing Office shall set aside up to 15 additional rating points for
the provision of Indian preference to qualified certified firms in the award
of contracts and subcontracts. The number of additional points set aside
for preference and the method for allocating these points shall be specified
in the RFP.
Sec. 3.04. Application of Preference Not Feasible; Limits on Application of
Preference.
A. Each Purchasing Office shall, in the conduct of their own operations, adhere
to the preference requirements of this Code; provided that, if a Purchasing
Office determines that provision of preference is not feasible in any invitation
to bid or RFP process, the Purchasing Office shall:
1. Document in writing its determination and the basis for its
findings;
October 8, 2013 Draft 101157v1
9
2. Shall maintain that documentation in the files pertaining to that bid/RFP
process for three (3) years to permit the Officer to review the same; and
3. Provide the Officer with a copy of the determination within twenty (20)
days of its issuance.
B. Sole Source Bid. Nothing in this Code shall preclude a Purchasing Office from
awarding a contract or subcontract without competitive bidding or RFP if the
Purchasing Office makes a determination, after conducting a good faith
review of the technical or other requirements of the entity for which the
contract or purchase is being made, and a review of available sources of
supply, that there is only one source for the required service or good.
C. Nothing in this Code shall require a Purchasing Office to apply the preference
requirements of this Code in a manner that violates the terms of any
contractual agreements to which the Tribe or any of its subdivisions is a party,
or in a manner that violates applicable federal law and nothing in this Code
shall require a Purchasing Office to transact business with any person or
business entity which would be in violation of any other Code, law or
regulation including, without limitation, the Gaming Regulatory Act or
Federal Acquisition Regulations (i.e. concerning debarred contractors).
Sec. 3.05. Technical Qualifications. A Purchasing Office shall have the discretion to
determine if any contractor or subcontractor meets the technical, administrative and
financial qualifications it requires for any particular contract or subcontract. If the
Purchasing Office determines that a Certified Preference Business is not technically
qualified, the Purchasing Office must provide to each Certified Preference Business it
rejects, written reasons for the rejection.
A. If the Purchasing Office determines that one or more Certified Preference
Business lack the qualifications to perform all of the work or requirements
specified in an invitation to bid or RFP, the Purchasing Office may, in its
discretion, divide the work required into smaller portions so that Certified
Preference Businesses can qualify.
B. If a Certified Preference Business is disqualified on the grounds that it is
technically unqualified and believes the disqualification was the result of an
incorrect decision or an improper effort by a Purchasing Department to
circumvent its preference responsibilities under this Code, the Certified
Preference Business may file a complaint with the Officer in accordance with
the procedures described in Section 4.03.
October 8, 2013 Draft 101157v1
10
Chapter 4. Indian Preference Officer.
Section 4.01. Establishment. This Code establishes an Indian Preference Office, which
shall be overseen by a Indian Preference Officer. The duties of the Indian Preference
Officer of the Indian Preference Office shall include but are not limited to the following
topics:
A. Regulations. The Officer shall, in consultation with the NHBP Legal
Department, formulate and propose for the Council’s adoption or amendment
any regulations reasonably necessary to carry out the provisions of this Code.
B. Applications. Applicants for preference shall apply to the Office, who has
authority to evaluate and approve or reject all applications.
C. List of Certified Businesses. The Indian Preference Office shall be responsible
for keeping and distributing to each Purchasing Office of the Tribe and all
Tribal Businesses, a current list of Certified NHBP Member-Owned
Businesses, Certified NHBP Family-Owned Businesses, and Certified Native
American-Owned businesses.
D. Monitoring. The Indian Preference Office shall, in consultation with NHBP
Legal Department, monitor each Purchasing Office’s compliance with this
Code. As part of the monitoring function, this Code authorizes the Indian
Preference Office to audit records of each Purchasing Office of the NHBP
Tribal government, instrumentalities and Tribal Businesses. The Indian
Preference Office shall notify the highest management official responsible for
supervising the operations of any Purchasing Office which the Indian
Preference Office believes is not complying with this Code.
E. Enforcement. The Indian Preference Office shall have the authority to initiate
investigations and enforcement proceedings in accordance with Sections 4.02
and 4.03 of this Code. The Indian Preference Office shall have the authority
to conduct administrative hearings in connection such proceedings and
recommend or impose sanctions for violations of this Code.
F. Responsibility for undertaking the Indian Preference Office’s monitoring and
enforcement activities shall be segregated and allocated to provide due
process to all parties.
Section 4.02. Enforcement by Indian Preference Office.
A. The Indian Preference Office shall have the authority to initiate enforcement
proceedings against any Purchasing Office if monitoring activities identify
policies or practices, which violate this Code by:
October 8, 2013 Draft 101157v1
11
(1) failing to include Certified Preference Businesses in the solicitation of bids
or proposals;
(2) failing to award contracts to Certified Preference Businesses for which
such businesses were qualified under this Code, which Certified
Preference Business would have been awarded had the Purchasing Office
complied with this Code; or
(3) other policies or practices which otherwise undermine the purposes of this
Code.
by submitting a written “Notice of Possible Violation” to the appropriate
Purchasing Office detailing the alleged violation(s).
B. Informal Settlement. If the Indian Preference Office has reason to believe that
a Purchasing Office has failed to comply with any of the requirements of this
Code, the Indian Preference Office shall notify the Purchasing Office in
writing, specifying the alleged violation(s).
C. Following the completion of the investigation and informal settlement
discussions, the Indian Preference Office shall make a preliminary
determination as whether the Purchasing Office violated this Code. The
Officer’s preliminary findings shall be reduced to writing and shall contain
proposed findings of fact, conclusions of law, and recommendations as to the
appropriate sanction.
D. If the Purchasing Office disagrees with the findings and/or sanction
recommended by the Indian Preference Officer, the Purchasing Office may
request a hearing consistent with Section 4.04(__), infra.
Section 4.03. Complaints by Certified Preference Businesses.
A. Any Certified Preference Business, which believes that a Purchasing Department
has violated this Code either by:
(1) failing to include the Certified Preference Business in the solicitation of bids
or proposals, or
(2) failing to award the Certified Preference Business a contract for which it was
qualified under this Code and which the Business would have been awarded
had the Purchasing Office complied with this Code;
may submit a written complaint detailing the violation. Each complaint shall be
in writing, signed by an authorized representative of the Certified Preference
Business, and filed with designated representative of the Purchasing Office.
October 8, 2013 Draft 101157v1
12
B. Each Purchasing Office shall designate an independent Purchasing Office
Representative, who shall have responsibility for resolving protests and
complaints submitted by Certified Preference Businesses under this Code. The
name(s) and contact information for such designated person(s) shall be included
in each solicitation and/or request for proposal.
C. A complaint initiated by a Certified Preference Business must be filed with the
Purchasing Office Representative no later than twenty (20) days from the date of
the action (or omission) upon which the complaint is based.
D. Upon receipt of a complaint under this sub-section, the Purchasing Office
Representative shall promptly stamp the date and time of receipt upon the
complaint, acknowledge its receipt in writing to the complainant Business within
five days and shall either meet, or communicate by mail or telephone, with the
complaining Business’s representative in an effort to resolve the matter. In all
cases, but especially where the complaint indicates that expeditious action is
required to preserve the rights of the complaining Business, the Purchasing Office
shall endeavor to resolve the matter as expeditiously as possible, but in no event
not longer than twenty (20) days after the complaint was received.
E. The Purchasing Office Representative shall notify the complaining Business, in
writing, of its findings and proposed resolution, if any. The Purchasing Office
Representative shall also notify the complaining Business of its right to request
review of the complaint by the Indian Preference Office as provided in Section
4.04.
F. If noncompliance with Indian preference requirements is found to exist, the
Purchasing Office shall take appropriate steps to remedy the noncompliance and
to amend its procedures so as to be in compliance.
Section 4.04. Request for Review by Indian Preference Office.
A. If the Certified Preference Business is not satisfied with the resolution or response
provided by the Purchasing Office Representative, as provided in Section 4.02,
the complaining Business may request review of its complaint by the Indian
Preference Office. When requesting review by the Indian Preference Office,
complaining Business shall submit the following documents to the Indian
Preference Office:
(1) a copy of the complaint initially submitted to the Purchasing Office,
(2) the response or resolution (if any) proposed by the Purchasing Office,
October 8, 2013 Draft 101157v1
13
(3) a statement of the reason(s) the Business disagrees with the resolution
proposed by the Purchasing office, and
(4) any documentation the complaining Business believes is relevant to the
Indian Preference Officer’s consideration/investigation.
B. The complaining Certified Preference Business must request review by the Indian
Preference Officer within fifteen (15) days following the date the Purchasing
Office provides its proposed resolution to the complaint and in no event later than
sixty (60) days after the action (or omission) on which the complaint is based
occurred.
C. A Notice of receipt of the request for review shall also be delivered to the
designated representative of the Purchasing Office by the Indian Preference
Officer.
D. Within ten (10) days after receiving notice of request for review by the Indian
Preference Office, the Purchasing Office shall provide a written report to the
Indian Preference Officer and the complaining Certified Preference Business
setting forth all relevant facts, including, but not limited to, the name of the
complainant, the nature of the complaint, including the manner in which Indian
preference under this Code was or was not provided, a copy of the relevant
solicitation/request for bid/request for proposal (if any), and actions taken by the
agency in addressing or resolving the complaint. The Purchasing Office shall
provide its report and all relevant documents concerning the complaint to the
Indian Preference Officer within ten (10) days after receipt of the complaint has
been filed.
E. Investigation by the Indian Preference Officer. Within ten (10) calendar days
after receiving a Request for Review, the Indian Preference Officer will review
the documentation submitted by the complaining Business and Purchasing Office
and initiate an investigation of the complaint to determine whether the actions
taken by the Purchasing Office complied with Indian preference requirements
under this Code. The Indian Preference Officer shall be provided access to all
documentation maintained by the Purchasing Office, which may be relevant to the
investigation of the complaint.
F. The Indian Preference Office may, in its discretion, and after consulting with the
NHBP Legal Department and representatives of the appropriate Purchasing
Office, direct that any procurement affected by the alleged violations of the Code,
be suspended pending completion of the investigation and resolution of the
complaint.
October 8, 2013 Draft 101157v1
14
G. The burden shall be on the complaining business to demonstrate that it is
technically qualified, and that its disqualification from receiving the bid or
contract award violated the preference purchasing procedures established in this
Code. The Indian Preference Officer shall give deference to the Purchasing
Office’s determination as to whether a complainant possesses the necessary
experience or technical ability in the case of complaints arising out of
qualifications-based procurements with specific performance requirements.
H. The Indian Preference Office shall prepare a written report of his/her investigative
findings, together with a preliminary decision and, if warranted, recommend an
appropriate remedy or sanction for any violation(s) found.
I. Sanctions. Permissible sanctions may include one or more of the following:
(1) Imposition of monetary civil penalties and fines in an amount not less than
$250.00 nor more than $5,000.00);
(2) An order mandating that the contract or bid in question be offered to the
Qualified Indian Preference Business, provided the complaining business
would have been awarded the contract or bid had the Purchasing Office
complied with its obligations under this Code, assuming the contract or bid
which is the subject of the complaint has been awarded;
(3) An order mandating that the Indian Preference Business be given first
preference for the next award of the same or substantially similar goods or
services for which the Indian Preference Business is otherwise qualified;
(4) An order mandating changes in procedure or policies necessary to eliminate or
correct the violation(s) of this Code; or
(5) An order directing the offending Purchasing Office to take such other actions
as may be necessary to alleviate or eliminate the harm caused by the
violation(s) of this Code or to compensate the Indian Preference Business for
the violation(s).
K. At the request of either the Purchasing Office or the aggrieved Certified Preference
Business, the Indian Preference Office shall hold a hearing for the purpose of
permitting the parties to present arguments and proofs as to why they do not
believe the Office’s findings are correct and/or that the sanction is reasonable
under the circumstances. Any party requesting a hearing shall provide written
notice to the other party. The Indian Preference Office shall designate an
appropriate official, who was not directly involved in the conduct of the
investigation, to serve as administrative hearing officer.
October 8, 2013 Draft 101157v1
15
L. The Indian Preference Office shall make every effort attempt to hold the hearing
within 14 calendar days after the hearing request is received.
M. The Certified Preference Business may, at its expense, be represented by legal
counsel and the Purchasing Office may be represented by the NHBP Legal
Department or other legal counsel representing the entity in question.
N. The hearing shall be governed by any rules of practice and procedure adopted by
the Tribal Council. The administrative hearing officer shall not be bound by
technical rules of evidence and no informality in the proceedings, including the
manner of taking testimony shall invalidate any order or decision entered by the
Indian Preference Office.
O. Immediately following the close of the hearing, the Indian Preference Office
hearing officer will enter his/her final decision, which may include any revisions
or supplements to the investigative findings, conclusions and sanction. Any
finding sustaining a violation of this Code by any person must be supported by a
preponderance of the evidence. If the rendering of the decision is postponed, all
parties shall be so notified on the record, prior to adjourning the hearing and, if
possible, notified on a date by which a final decision will be rendered. In all
cases, a copy of the final decision shall be issued in writing within 30 days after
the hearing and served on all parties via certified mail, return receipt requested, or
in person. The notice shall also notify the parties of their right to appeal the
Indian Preference Office’s decision in the Tribal Court.
P. Where a representative of a Purchasing Office or other employee of the Tribe or
Tribal Business, is found to be in willful noncompliance with the provisions of
this Code, that willful noncompliance shall be grounds for disciplinary action
against the offending personnel. The Indian Preference Officer’s decision may
make recommendations to the appropriate chief executive director, human
resource director or other proper authority regarding disciplinary action for
violations of this Code. All discipline shall be carried out pursuant to the
applicable personnel procedure.
Chapter 5. Appeal to the Tribal Court
Sec. 5.01. Appeal to Tribal Court.
A. All appeals from decisions of the Indian Preference Office shall be heard by the
Tribal Court.
B. Any Certified Preference Business or Purchasing Office which disagrees with the
decision of the Indian Preference Office may appeal that decision to the Tribal
October 8, 2013 Draft 101157v1
16
Court.
Sec. 5.02. Request for Appeal; Deadline to Appeal.
A. All appeals shall be made in writing to the Tribal Court. A Request for Appeal
must identify the grounds upon which the appeal is based, which may include one
or more of the following reasons:
(1) The decision, including the sanction, is clearly erroneous and contrary to the
weight of the evidence presented.
(2) A prejudicial error was committed in the course of the proceedings.
(3) The decision relies on an incorrect application of law or rule.
A copy of the decision of the Indian Preference Officer’s decision, which is being
appealed, must be attached to the Request for Appeal.
B. The Request for Appeal must be in writing and signed by the individual or
authorized representative of the Indian Preference Business or legal counsel for
the Purchasing Office.
C. The request must be received by the Tribal Court within fifteen (15) calendar days
from the date the decision being appealed was issued by the Indian Preference
Officer.
Sec. 5.03. Record on Appeal. The administrative decision by the Indian Preference
Office, together with all requests, documents, and correspondence filed in the proceeding,
shall constitute the exclusive administrative appeal hearing record. The record shall be
compiled, certified and maintained by the Indian Preference Office in accordance with
applicable record retention requirements prescribed by the Government Records
Manager. Both parties shall be afforded access to the record; however, the Indian
Preference Business shall not be provided any documents, which include any proprietary
information of other companies or bidders, such as pricing, statement of qualification or
bid/cost proposals submitted by such other bidders.
Sec. 5.04. Stay. The filing of an appeal request will not automatically stay
implementation of the Indian Preference Officer’s decision, except as to any monetary
sanction. However, the Tribal Court may enter an order delaying implementation of a
decision when requested by a party, when the appeal appears to be meritorious and when
the appeal cannot be processed to completion in time to prevent irreparable harm to either
the Indian Preference Business or the Purchasing Office. Before entering any order
which stays a Purchasing Office from completing any procurement process, the Tribal
Court shall give the Purchasing Office an opportunity to present arguments as to how a
October 8, 2013 Draft 101157v1
17
stay will cause irreparable harm or disruption to the business operations. If the
Purchasing Officer meets its burden of proof, any Certified Preference Business
requesting a stay shall have the burden of demonstrating, by clear and convincing
evidence, that the granting of a stay will not result in irreparable harm or disruption to
important business operations. In ruling on a any request to stay a procurement decision,
the Tribal Court shall issue a written directive to the Purchasing Office, with a copy to
the Certified Preference Business. Any interim order, either to stay implementation of a
procurement or to deny a stay, shall not constitute a decision on the merits of the appeal,
but only serves to preserve the status quo until a decision on the merits can be made.
Sec. 5.05. Tribal Court Decision.
A. The Tribal Court shall have jurisdiction to decide:
(1) To uphold the decision of the Indian Preference Officer,
(2) To modify a sanction imposed by the Indian Preference Officer, or
(3) To reverse the decision and remand the matter back to the Indian Preference
Officer for proceedings consistent with the Court’s findings if the Tribal Court
determines that the Indian Preference Officer incorrectly interpreted or
applied this Code, the Constitution, or that the decision of the Indian
Preference Officer was clearly erroneous or not supported by the record.
Sec. 5.06. Finality.
A. An appeal decision that affirms or reverses the initial decision being appealed
shall constitute the final and binding decision on the issue(s) involved and no
further appeals shall be permitted.
B. An appeal decision that vacates the original decision and remands the case to the
Indian Preference Officer does not constitute a final resolution, since the
supplemental decision issued on remand shall be subject to further appeal.
October 8, 2013 Draft 101157v1
18
Chapter 6. Indian Business Certification
Sec. 6.01. Application Process for Certification as an Indian-Owned Business. Any
business seeking certification for preference under this Code must present its application
on forms provided by the Indian Preference Office and the required documentation to the
Indian Preference Office whose decision on the application shall constitute a final
decision for the purpose of satisfying administrative process. Nothing in this Code shall
prohibit any person or entity from re-applying for certification upon proof of cure of the
reason for denial of certification. The Indian Preference Office in its sole discretion may
reject any application which is oppressive, repetitive, or vexatious. For purposes of this
chapter, a Certified NHBP Member-Owned Business, a Certified NHBP Family-Owned
Business and a Certified Native American Owned Business will collectively be referred
to as a “Certified Preference Business”.
Sec. 6.02. Documentation Required. A complete application for certification as a
Certified Preference Business in any category shall include:
A. Proof that the applicant business owner(s) are enrolled with the NHBP, are NHBP
Family, or enrolled with another federally recognized Indian tribe (i.e. articles of
incorporation; articles of organizations; tribal identification cards for Indian
owners; marriage certificates; etc.);
B. Documentation that verifies that the business ownership and management,
including management of the business operations related to transactions with the
Tribe or its subdivision are controlled, in whole or substantial party, by one or
more NHBP Members, NHBP Family or other Native American(s);
C. Documentation of the business’s profit arrangement (i.e. operating agreement;
partnership; tax returns);
D. Documentation verifying that the extent to which the applicant business has the
ability to directly perform contractual obligations of the business for which it
seeks certification (i.e. number of employees; statement of assets/liabilities; major
subcontractors and responsibilities of major subcontractors); and
E. Documentation detailing the applicant’s business’ operations (i.e. type of goods
produced/sold or services provided).
Sec. 6.03. Joint Ventures. All joint ventures seeking certification for preference priority
as a Certified Preference Business shall submit documentation of the business
arrangements of the joint venture in addition to the required documentation for
certification.
October 8, 2013 Draft 101157v1
19
Sec. 6.04. Standards for Certification as a Preference Qualified Business. To become
a Certified Preference Business, an applicant shall meet the following criteria:
A. Ownership. The business is 60% or more owned by NHBP Members, Family, or
other Native Americans, as established by:
(1) Financial Ownership. At least 60% ownership is vested in one or more
persons who are NHBP Members, NHBP Family, or other Native Americans.
A business that is owned by a combination of NHBP Members or Family and
other Native Americans will qualify for preference as a Native American-
Owned Business if the NHBP Members or Family owners can demonstrate
ownership of at least 60% of the business.
(2) Value provided. The NHBP Member, NHBP Family or Native American
owner(s) provide real value commensurate with the value of their ownership
share by providing capital, equipment, real property or similar assets, or
engineering or professional services.
(3) When NHBP Member, NHBP Family or Native American participants
demonstrate that they were unable to borrow from traditional capital sources
and therefore were unable to pay real value for their 60% or more Indian
ownership, they may satisfy the ownership requirement by demonstrating
further that they extended their capital-raising capability as far as possible,
such that the preference participants are clearly at risk in the business. It will
not be considered real value if the preference owner(s) purchased the
ownership share, directly or indirectly, when the ultimate creditor is the non-
Indian owner of the firm or an immediate relation thereof.
B. Profit Distribution. In any profit distribution, the NHBP Member, NHBP Family
or Native American owner(s) receive profits proportional to their ownership
interest. If any provision in the organizational agreement of the business gives
non-Indian owner(s) a greater share of the profits, in whatever form and under
whatever name, such as through management fees, equipment rental fees, or
bonuses tied to profits, certification will be denied. The Indian Preference Office
shall review salary scales to ensure that salaries are not being used to circumvent
the requirement that owners receive salaries proportional to ownership interest.
C. Management Control. The business must be able to demonstrate to the Indian
Preference Office’s satisfaction that:
(1) The NHBP Member or other Native Americans upon whose Tribal
membership the preference is based control daily operations and have the
majority of voting rights and other decisional authority;
October 8, 2013 Draft 101157v1
20
(2) All significant decisions of the business are made by a majority vote, unless
made entirely by the Native American owners except where otherwise
required by law;
(3) The NHBP Member, NHBP Family or Native American owner(s) through
prior experience or training have substantial ties to the area of business in
which the firm is engaged such that they are competent to serve in the senior
position;
(4) The NHBP Members, NHBP Family or Native American owner(s) are
sufficiently knowledgeable about the firm’s activities to be accountable to the
Tribe or the subdivision proposing to contract for goods or services for those
activities; and
(5) The Indian Preference Office shall not consider the management of the business to
be Indian if the business subcontracts 65% or more of its work to non-Indian-
owned companies, unless subcontracting substantial portions of the work is a
normal practice in that particular field of business (i.e. construction). In the case
of contracts for construction services, the business seeking Indian preference must
provide evidence that it can and will perform not less than 15% of the work with
its own employees. In the absence of a determination by the Indian Preference
Officer that the subcontracting arrangement disclosed is typical for that field of
business, an entity operating thus shall be considered a front that does not qualify
for certification as an NHBP Member, NHBP Family or Native American Owned
Business and is ineligible for preference.
(6). Exceptions to Management Control Criteria. The requirements listed above
regarding experience, training, occupation requirements, and knowledge of the
firm’s activities may be waived when the firm is modeled on a publicly held
corporation such that it is owned by 10 or more persons, of whom at least 70%
are NHBP Members, NHBP Family or Native American, the Chief Executive
Officer and the highest-salaried employee in the firm is/are NHBP Members
and/or NHBP Family or Native American, and a majority of the employees are
NHBP Members or other Native Americans.
(7). Brokers. Brokers will only be certified in two (2) instances:
(i) For purposes of RFP’s which seek to engage the services of a broker to
assist the Purchasing Department in the acquisition of certain goods and/or
services; or
(ii) The broker is a dealer or distributor, which owns, operates, or maintains a
store, warehouse, or other establishment in which the commodities being
October 8, 2013 Draft 101157v1
21
supplied are bought, kept in stock, and sold to the public in the usual
course of business, unless the applicant demonstrates that it is usual and
customary not to keep the commodities in stock.
D. Integrity of Structure. In addition to the factors described in Sections 6.04(A)-(C),
the Indian Preference Office shall consider the following criteria to determine
whether the applicant qualifies for preference:
(1) History of the Firm. Whether the firm, a portion of the firm, or key actors in
the firm were originally associated with a non-Indian owned business that
gained little except eligibility for preference priority in terms of equipment
capital or expertise, by adding Native American ownership or by merging
with an Native American-owned firm.
(2) Employees.
(i) Whether key non-Indian employees of the applicant are former
employees of the non-Indian firm with which the firm seeking preference
certification is or has been affiliated through a joint venture or other
arrangement such that there is reason to believe the non-Indian firm
controls the applicant.
(ii) Whether NHBP Members or Native Americans are employed in all of the
positions for which qualified Indians are available. A high percentage of
non-Indian employees in such positions will provide reason to believe
that the firm was established primarily to benefit non-Indians.
(3) Relative Experience and Resources. Whether the non-Indian owner’s
experience, expertise and resources are so much greater than those of the
preference owner(s) that there is little reason for the non-Indian to accept a
junior role in the firm or venture other than to be able to take advantage of the
Indian preference program.
Sec. 6.05. Renewal of certification. Certified Preference Businesses must renew its
certification annually in order to remain eligible for the business preference established
by this Code.
Chapter 7. Conflict of Interest
Section 7.01. Conflict of Interest. No employee, officer, Board or Council member, of
the Tribe shall participate directly or indirectly in the selection, award, or administration
of any contract if a conflict of interest, either real or apparent, would be involved. This
type of conflict would be when one of the persons listed below has a financial interest or
any other type of interest in a firm competing for the award:
October 8, 2013 Draft 101157v1
22
A. An employee, officer, Board member, or agent involved in making the award;
B. His/her relative (including father, mother, son, daughter, brother, sister, uncle,
aunt, nephew, niece, cousin, husband, wife, in-law, stepparent, stepchild, or
half-sibling);
C. His/her partner; or
D. An organization which employs or is negotiating to employ, or has an
arrangement concerning prospective employment of any of the above.
Sec. 7.02. Gratuities, Kickbacks, and Use of Confidential Information. No officer,
employee, Board or Council member, or agent of the Tribe shall ask for or accept
gratuities, favors, or items of more than $25 in value from any contractor, potential
contractor, or party to any subcontract, and shall not knowingly use confidential
information for actual or anticipated personal gain. In the event that an officer, employee,
Board or Council member or agent of the Tribe receives a gratuity, favor or item of more
than $25 in value and cannot return it, the item shall be turned over to the Tribal
Secretary who shall distribute such items to Tribal Members in need.
Sec._7.03. Prohibition Against Contingent Fees. Contractors wanting to do business
with the Tribe must not hire a person to solicit or secure a contract for a commission,
percentage, brokerage, or contingent fee, except for bona fide established commercial
selling agencies.
Sec. 7.04. Post-Employment Prohibition. No officer, employee, Board or Council
member or agent of the Tribe who has the authority to grant or award a contract or
determine to conduct business with vendors on behalf of a Tribal Business shall accept
employment or a position as Director or a similar position, acquire an ownership interest,
or otherwise be involved with any Certified Preference Business which has been granted
or awarded a contract or done business with the Tribal Business during the tenure of the
officer, employee, Board or Council member or agent of the Tribe for a period of twelve
(12) months following termination of the employment, term or position of the officer,
employee, Board or Council member or agent of the Tribe.
top related