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.
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.
