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 subcontracting for goods and services by
the Tribe or a tribal business shall include preference criteria which
create business opportunities for qualified bidders which are certified
NHBP-owned businesses, NHBP member-owned businesses, certified NHBP
family-owned businesses, certified tribally owned businesses, and
other certified Native American-owned businesses. The contracting
preferences required by this chapter 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.
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.
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 A. Except as provided in § 5.4-10A, 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 Subsection 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 § 5.4-7, 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 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 or more qualified certified firms are likely to submit responsive bids, which comply with the bid specifications. If three or more qualified certified firms submit responsive bids which comply with the bid specifications, preference shall be given in the order stated in § 5.4-7, 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 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 Subsection 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 § 5.4-7, 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:
|
X 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
|
|
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 $1,000,000
|
5% of the lowest responsive bid
|
|
At least $1,000,000 but less than $2,000,000
|
4% of the lowest responsive bid
|
|
At least $2,000,000 but less than $4,000,000
|
3% of the lowest responsive bid
|
|
At least $4,000,000 but less than $7,000,000
|
2% of the lowest responsive bid
|
|
$7,000,000 but less than $10,000,000
|
1.5% of the lowest responsive bid
|
|
Over $10,000,000
|
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 Subsection 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 a 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 subfactors
that will be considered in awarding the contract, and shall state
the relative importance the Purchasing Office places on each evaluation
factor and subfactor.
(2)
As noted in Subsection 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) 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 total and two or more qualified certified firms submit responsive proposals, preference shall be given in the order stated in § 5.4-7, 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 readvertise the RFP in accordance with Subsection C(2) or may award the contract to a noncertified firm, in which case the basis of the determination to award the contract and not rebid 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 Subsection C(1), the Purchasing Office may issue the RFP inviting proposals from qualified noncertified 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.
A.
Each Purchasing Office shall, in the conduct of its own operations,
adhere to the preference requirements of this chapter; 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;
(2)
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 chapter 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 chapter shall require a Purchasing Office to apply
the preference requirements of this chapter 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 chapter 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).
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
businesses 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 chapter, the certified preference business may file a complaint with the Officer in accordance with the procedures described in § 5.4-13.
