This chapter establishes an Indian Preference Office, which shall be overseen by an 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 chapter.
B. 
Applications. Applicants for preference shall apply to the Office, which 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 the NHBP Legal Department, monitor each Purchasing Office's compliance with this chapter. As part of the monitoring function, this chapter 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 chapter.
E. 
Enforcement. The Indian Preference Office shall have the authority to initiate investigations and enforcement proceedings in accordance with §§ 5.4-12 and 5.4-13 of this chapter. The Indian Preference Office shall have the authority to conduct administrative hearings in connection with such proceedings and recommend or impose sanctions for violations of this chapter.
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.
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 chapter by failing to include certified preference businesses in the solicitation of bids or proposals; failing to award contracts to certified preference businesses for which such businesses were qualified under this chapter, which certified preference business would have been awarded had the Purchasing Office complied with this chapter; or other policies or practices which otherwise undermine the purposes of this chapter, 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 chapter, 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 to whether the Purchasing Office violated this chapter. 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 § 5.4-14, infra.
A. 
Any certified preference business, which believes that a Purchasing Department has violated this chapter either by failing to include the certified preference business in the solicitation of bids or proposals; or failing to award the certified preference business a contract for which it was qualified under this chapter and which the business would have been awarded had the Purchasing Office complied with this chapter, 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 a designated representative of the Purchasing Office.
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 chapter. 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 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 (5) 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 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 § 5.4-14.
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.
A. 
If the certified preference business is not satisfied with the resolution or response provided by the purchasing office representative, as provided in § 5.4-12, the complaining business may request review of its complaint by the Indian Preference Office. When requesting review by the Indian Preference Office, the 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;
(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 chapter 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 chapter. 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 chapter be suspended pending completion of the investigation and resolution of the complaint.
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 chapter. 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 nor more than $5,000;
(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 chapter, 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 chapter; 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 chapter or to compensate the Indian preference business for the violation(s).
J. 
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.
K. 
The Indian Preference Office shall make every effort to hold the hearing within fourteen (14) calendar days after the hearing request is received.
L. 
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.
M. 
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.
N. 
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 chapter 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 thirty (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.
O. 
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 chapter, 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 chapter. All discipline shall be carried out pursuant to the applicable personnel procedure.