CHAPTER 10-3 INDIAN PREFERENCE IN CONTRACTING
(a) This Chapter specifies the methods and procedures all agencies and instrumentalities of the Confederated Tribes of the Colville Reservation (Tribes) must follow to provide preference to qualified Indian-owned enterprises or organizations when contracting; and all contractors with the Tribes, or a tribal agency, when subcontracting. For purposes of this section "tribal governing body" means the Colville Business Council. This Chapter, except as provided herein, shall apply to all oral or written contracts to provide goods or services entered into, or proposed to be entered into, by any agency or instrumentality of the Tribes or any person or entity contracting with an agency of the Tribes. This Chapter shall supersede all prior conflicting tribal statutes or resolutions.
(b) This Chapter shall not be interpreted to in any way prevent any agency from rejecting any bid or proposal on the ground that the bid or proposal is unresponsive or for any other reason which is not inconsistent with this Chapter.
(c) Definitions and Requirements
- 1. "Agency" shall mean the party offering the contract, and the party responsible for compliance with this Chapter.
An "agency" may be a natural person, a legal person, an artificial person, or a political subdivision. In addition, "agency" for purposes of this Chapter shall mean any and all arms, agencies, departments, enterprises, organizations, instrumentalities, corporations, or other entities of the Tribes. Where the contracting party is the Colville Business Council or the Colville Tribal Courts, this Chapter shall apply only to contracts for construction, physical repair or upkeep of buildings, or physical work on tribally owned or managed real or personal property.
- 2. "Certified firm" shall mean a firm certified as Indian owned according to the criteria and procedures in this
- 3. "Commission" shall mean the Colville Employment Rights Commission as defined in the Tribal Employment
Rights Ordinance of the Confederated Tribes of the Colville Reservation.
- 4. "Indian" shall mean an enrolled member of an Indian tribe recognized as a tribal government by the United States. Applicant(s) for Indian preference will be required to provide certification from a tribe or BIA agency for the tribe for which enrollment is claimed.
- 5. "Indian Tribe" shall mean an Indian Tribe, band, or nation or other organized group or community; including any Alaska Native village or regional or village corporation as defined in or established according to the Alaska Native
Claims Settlement Act; recognized as such by the United States.
- 6. "Joint Venture" shall mean an association of two or more persons or firms to carry out a single or limited number of business enterprises for profit, for which purpose they combine their property, money, effects, skills and
- 7. "Preference" shall mean the process of providing advantage, or limiting bidding or requests for proposals, to
certified Indian firms to provide a means by which certified firms receive contracts.
- 8. "Qualified Indian-owned enterprise or organization" shall mean an enterprise or organization which: (a) is certified as Indian owned under this Chapter; and (b) is, as determined under criteria established and published to the public by the agency or contractor, technically, administratively, and financially capable, and/or possesses the necessary license, and/or is bondable to perform work of the size and type involved, and within the time provided, under the proposed contract or subcontract.
- 9. "Reasonable price" shall mean the price at or below which the agency will accept a bid or proposal to contract. An agency may use any lawful process it chooses for determining what constitutes a reasonable price including, but not limited to: competitive, open or closed bidding; or the establishment of a prototype cost ceiling before bidding or
negotiations commence. An agency may reject bids by qualified Indian-owned enterprises or organizations and other
firms on the basis of price. No agency may reject a bid or proposal for a specific project or contract by a qualified Indian-owned enterprise or organization on the grounds that the price is not reasonable and subsequently contract with a non-Indian owned firm at a price the same or higher than that contained in the rejected bid.
- 10. "Responsive bid" shall mean at a minimum that the bid shall comply with all bid requirements stated in writing and shall be at a reasonable price.
- 11. "Technically qualified" shall mean the practical, technical, administrative and financial ability of a firm to perform or provide by itself; or, if permitted, through subcontracts, the services or goods specifically set out in the bid
or request for proposal package. An agency shall have the discretion to determine technical, administrative and financial qualifications of contractors and subcontractors. If an agency or contractor determines that a certified firm is
not technically qualified, the agency must provide to each certified firm it rejects, written reasons for the rejection.
- A. If an agency or contractor determines that certified Indian-owned firms lack the qualifications to perform all of the work required under a contract or subcontract; the agency or contractor may, at the discretion of the agency, divide the work required into smaller portions so that certified Indian-owned firms can qualify for a portion of the work.
- B. If a certified Indian-owned firm is disqualified on the ground that it is technically unqualified and believes that the disqualification was the result of an incorrect decision or an improper effort by an agency or contractor to circumvent its preference responsibilities under this Chapter, the certified Indian-owned firm may file a complaint with the TERO Commission.
- C. Any complaint shall be filed under 10-3-7 within 20 days after the firm was notified of its disqualification. The burden shall be on the complaining, certified Indian-owned firm to demonstrate that it is technically qualified, and that its disqualification was the result of an effort to circumvent obligations established by this Chapter.
- 12. "TERO" or "TERO Commission" shall mean the Colville Employment Rights Commission as defined in the
Tribal Employment Rights Ordinance of the Confederated Tribes of the Colville Reservation.
- 13. "TERO office" shall mean the administrative office which enforces the Tribal Employment Rights Ordinance.
- 14. "Tribal Court" shall mean the Colville Tribal Courts.
(d) Responsibility For Compliance
- 1. Agencies, except as set out in this Chapter, are responsible for compliance with this Chapter. In addition to the
agencies, all entities and persons engaged directly or indirectly in contracting with a agency shall be responsible for
compliance with this Chapter when subcontracting.
- 2. Agencies shall be responsible for compliance by all of their contractors. No contractor shall be permitted to
commence work on the Reservation until it has demonstrated compliance with the subcontract preference requirements.
- 3. The agency awarding a contract shall comply with the requirement that preference be given in the award of such contract and shall be responsible for insuring that the contractor complies with the requirement that preference be
given in the selection of subcontractors.
- 4. When the agency is an Indian Housing Authority it shall comply only with the Department of Housing and Urban Development's Indian preference regulations.
- 5. The Tribes shall not be liable for any losses incurred by a contractor who is not permitted to commence work on the Reservation because the contractor has entered into a subcontract and has failed to comply with the subcontracting preference requirement.
(a) An applicant seeking to qualify for preference in contracting and/or subcontracting shall submit proof of the applicant's Indian ownership to the TERO office of the Tribes. The TERO office shall provide written certification of Indian ownership to applicants who qualify under this Chapter. Proof of Indian ownership shall include, but shall not be limited to:
- 1. Certification by a federally recognized Indian tribe or the U.S. Bureau of Indian Affairs that the applicant is a
member of a federally recognized Indian tribe and therefore eligible to receive preference. The Tribes shall accept an
original certification (not a copy) of a federally recognized tribal government or the U.S. BIA that an individual is a tribal member. Such tribal or federal certification shall be the only acceptable evidence of Indian status. Applicants, contractors or subcontractors found to have negligently or wilfully misrepresented their Indian status to a tribal agency or contractor shall not be allowed to contract with any tribal agency or contractor for 60 months after a finding of such misrepresentation. The TERO office shall give written notice to all tribal agencies of the fact and duration of such a disbarment from contracting.
- 2. Evidence (including but not limited to stock ownership, structure, management, control, financing and salary or profit sharing arrangements of the enterprise) that the applicant enterprise or organization is at least 60 per cent Indian owned and that at least 60 percent of all profits will flow to the Indian owner(s) during all portions of the contract or subcontract term.
(b) No Indian/non-Indian joint venture shall be provided a preference under this Chapter in contracting or subcontracting unless the Indian portion of the joint venture can successfully demonstrate that it has the capability to manage all the work on the project on its own and has entered into the joint venture because the non-Indian firm provides only limited backup capability such as bonding, specialized expertise, or capital. A unitary firm that is less than 100% Indian owned shall be provided a preference only if the Indian owners of the firm can demonstrate that they have the capability to manage all the work on the project by themselves and that the non-Indian joint owner provides only limited backup capability such as bonding, capital or specialized expertise.
(c) A firm denied certification by the TERO office may appeal the denial, within 20 days thereof, to the TERO Commission, pursuant to 10-3-7(d), (e), and (f).
(d) A firm seeking a contracting or a subcontracting preference under this Chapter shall submit evidence sufficient to demonstrate to the satisfaction of the agency and/or the contractor, as appropriate; that the applicant has the technical, administrative, and financial capability; and/or the necessary license(s) and bondability; to perform contract work of the size and type involved, and within the time provided, under the proposed contract or subcontract.
(e) A tribal agency may state in its solicitation that bidders or persons and entities submitting proposals, must submit evidence of certification as an Indian contractor and entitlement to the preferences provided for in this Chapter, within a specified time period before a scheduled bid opening.
(f) The TERO office shall review the status of all certified Indian contractors on at least an annual basis. If TERO office, an agency, or a contractor determines that an applicant is ineligible for Indian preference, TERO office, the agency, or the contractor shall so notify the applicant in writing as set out in this Chapter.
(g) No contractor or subcontractor shall qualify for preference if Indian ownership in, or control of, the business is less than 60% at any time during the bidding stage, the proposal stage, or the performance of the contract.
10-3-3 Indian Preference
As described in this Chapter, the Tribes requires that a preference in contracting and subcontracting with agencies and tribal contractors must be given to qualified Indian-owned enterprises and organizations as defined in this Chapter.
10-3-4 Indian Preference in the Award of Contracts and Subcontracts
(a) Preference in the award of contracts and subcontracts that are let under an Invitation for Bids (IFB) process (e.g., conventional bid construction contracts, material supply contracts) shall be provided as follows:
- 1. The IFB may be restricted to qualified Indian-owned enterprises and organizations. The IFB should, however, not be so restricted unless the agency has a reasonable expectation that two or more qualified Indian-owned enterprises or organizations are likely to submit responsive bids. If two or more qualified Indian-owned enterprises or
organizations submit responsive bids, award shall be made to the qualified enterprise or organization with the lowest
responsive bid. If fewer than the minimum required number of qualified Indian enterprises or organizations submit responsive bids, the agency shall reject all bids, and shall readvertise the IFB in accordance with paragraph 10-3-4(a)(1) or 10-3-4(a)(2) of this Chapter. In unusual circumstances and where only a single qualified Indian-owned enterprise bidder has submitted a bid, agencies may accept that one bid or negotiate a reasonable price with the single qualified Indian-owned enterprise bidder; e.g., the agency determines that the single bid received is at an unusually favorable price, or the agency determines that delays caused by readvertising would subject the project to
- 2. If the tribal agency prefers not to restrict the IFB as described in paragraph 10-3-4 (a)(1) above, or if an insufficient number of qualified Indian-owned enterprises or organizations submit responsive bids in response to an
IFB under paragraph 10-3-4 (a)(1), the agency or contractor may advertise for bids inviting responses from technically qualified non-Indian enterprises as well as qualified Indian-owned enterprises. Award shall be made to the qualified Indian-owned enterprise with the lowest responsive bid if that bid is within budgetary limits established for the specific project or activity for which bids are being taken and no more than "X" higher than the total bid price of the lowest responsive bid from any qualified bidder. "X" is determined as follows:
X=lesser of --
When the lowest responsive bid is less than $100,000
10% of that bid, or $9,000
When the lowest responsive bid is:
At least $100,000, but less than $200,000
9% of that bid, or $16,000
At least $200,000, but less than $300,000
8% of that bid, or $21,000
At least $300,000, but less than $400,000
7% of that bid, or $24,000
At least $400,000, but less than $500,000
6% of that bid, or $25,000
At least $500,000, but less than $1 million
5% of that bid, or $40,000
At least $1 million, but less than $2 million
4% of that bid, or $60,000
At least $2 million, but less than $4 million
3% of that bid, or $80,000
At least $4 million, but less than $7 million
2% of that bid, or $105,000
$7 million or more ...............
1.5% of the lowest responsive
bid, with no dollar limit
- 3. The offer of a price or bid below a contractor's cost of performing the contract, producing the product, or providing the services shall not be considered the lowest bid.
- 4. If no responsive bid by a qualified Indian-owned enterprise or organization is within the stated range of the total bid price of the lowest responsive bid, award shall be made to the bidder with the lowest bid.
(b) Preference in the award of contracts and subcontracts that are let under a Request for Proposals (RFP) process shall be provided as follows:
- 1. The RFP may be restricted to qualified Indian-owned economic enterprises and organizations. The RFP should, however, not be so restricted unless the agency has a reasonable expectation that the required minimum number of qualified Indian-owned enterprises or organizations are likely to submit responsive proposals. If two or more qualified Indian-owned enterprises or organizations submit responsive proposals at a reasonable price as determined by the agency, award shall be made to the qualified enterprise or organization with the best proposal based on a rating system as set out below. If fewer than the minimum required number of qualified Indian-owned enterprises or organizations submit responsive proposals, the tribal agency shall reject all proposals and shall readvertise the RFP in accordance with paragraph 10-3-4 (b)(1) or 10-3-4 (b)(2) of this Chapter. The agency shall develop the particulars concerning the RFP, including a rating system that provides for the assignment of points for 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 agency places on each evaluation factor and subfactor.
- 2. If the agency prefers not to restrict the RFP solicitation as described in paragraph 10-3-4 (b)(1), or if an insufficient number of qualified, Indian-owned enterprises or organizations satisfactorily respond under that procedure, the agency or contractor may issue an RFP inviting responses from technically qualified non-Indian as well as qualified Indian-owned enterprises. The agency shall develop the particulars concerning the RFP, including a rating system that provides for the assignment of points for the relative merits of submitted proposals. The RFP shall identify all factors, including price or cost, and any significant subfactors that will be considered in awarding the contract, and shall state the relative importance the tribal agency places on each evaluation factor and subfactor. Notification that Indian preference is applicable to this procurement shall be included in the RFP solicitation.
- 3. If the RFP invites responses from technically qualified non-Indian enterprises, an agency shall set aside a minimum of 15% of the total number of available rating points for the provision of Indian preference to qualified Indian owned enterprises or organizations in the award of contracts and subcontracts. The percentage or number of points set aside for preference and the method for allocating these points shall be specified in the RFP.
- 4. An agency shall require that contractors responding to an RFP solicit subcontractors for the RFP by using the same point system, and that contractors set aside a minimum of 15% of the available rating points for the provision of Indian preference to qualified Indian owned enterprises or organizations in subcontracting. The RFP shall explain the criteria to be used by the contractor in evaluating proposals submitted by subcontractors.
(c) Precertification of Firms: Any firm or person wishing to bid or submit a proposal for any contract to be awarded by an agency or contractor may submit its proof of qualifications for Indian preference to the TERO office. Any firm or person may submit its qualifications to the TERO office in order to be precertified as a Certified Firm at any time, even if there is no IFB or IFP in which it is interested, outstanding. The prequalification application shall be reviewed by the TERO office and if the firm qualifies as Indian owned a certification shall be granted by the TERO office. An agency or contractor may request that the TERO office review the qualifications of any certified firm at any time.
10-3-5 Preference Not Feasible
Agencies shall, in the conduct of their own operations, adhere to the preference requirements in this Chapter. Where the provision of preference is determined by an agency not to be feasible, the agency shall: (1) document in writing its determination and the basis for its findings; (2) shall maintain for three years the documentation in its files for TERO's review; and (3) provide TERO office with a copy of the determination within 20 days of its issuance. The written determination shall be public information. The TERO office, or an Indian contractor, or subcontractor affected by the determination may oppose or contest the determination under this Chapter.
10-3-6 Other preference provisions
(a) When both tribal and federal funds are used for a project, the work to be accomplished with the funds should be separately identified, and federal Indian preference regulations, if any, must be applied to the work financed by federal funds. If the funds cannot be separated, federal Indian preference regulations, if any, will apply to the total project.
(b) Each agency and contractor shall be responsible for enforcing and monitoring Indian preference implementation in subcontracting, employment, and training by its contractors and subcontractors. Should incidents of noncompliance be found to exist, the agency or contractor shall take appropriate remedial action. A finding by the TERO Commission that the agency or contractor has not provided adequate monitoring or enforcement of Indian preference may result in a determination by the TERO Commission that the agency is in breach of this Chapter. Such a finding shall constitute grounds for the TERO Commission to impose remedies or sanctions under this Chapter.
(c) Preference in contracting, subcontracting, employment, and training applies not only on-site, on the Reservation, or within the tribal territorial or agency jurisdiction, but also to contracts with firms that operate outside this jurisdiction (e.g., employment in modular or manufactured housing construction facilities) and deliver goods or services for use on the Reservation.
10-3-7 Review Procedures for Complaints Alleging Inadequate or Inappropriate Provision of Preference
(a) Each complaint shall be in writing, signed and filed with the agency or contractor.
(b) A complaint must be filed with the agency or contractor no later than 20 days from the date of the action (or omission) upon which the complaint is based.
(c) Upon receipt of a complaint, the agency or contractor shall promptly stamp the date and time of receipt upon the complaint, acknowledge its receipt in writing to the complainant within five days and shall either meet, or communicate by mail or telephone, with the complaining party 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 party, the agency or contractor shall endeavor to resolve the matter as expeditiously as possible. If noncompliance with Indian preference requirements is found to exist, the agency or contractor shall take appropriate steps to remedy the noncompliance and to amend its procedures so as to be in compliance. If the matter is not resolved to the satisfaction of the complaining party within 15 days following the agency's receipt of a complaint, the complaining party may file a written complaint with the TERO Commission. Complaints filed with TERO Commission must be received by the Commission within sixty days after the action (or omission) on which the complaint is based.
(d) Upon receipt of a written complaint, the agency or contractor shall provide a written report to the TERO Commission setting forth all relevant facts, including, but not limited to, the date the complaint was filed with the agency, the name of the complainant; the nature of the complaint, including the manner in which Indian preference was or was not provided; and actions taken by the agency in addressing or resolving the complaint. The agency or contractor shall provide its report and all relevant documents concerning the complaint to the TERO Commission within ten days after receipt of TERO's notice to the agency or contractor that a complaint has been filed.
(e) Upon receipt of the agency's or contractor's report, the TERO Commission will determine whether the actions taken by the agency or contractor comply with Indian preference requirements under this Chapter. The Commission may order a hearing on the complaint. Notification of the TERO Commission's determination shall be provided to the agency and to the Complaining party, in writing, no later than 30 days following the TERO Commission's receipt of the complaint. If the complaining party's alleged injury will occur during this 30-day period, the TERO Commission will make a good faith effort to make its determination before the occurrence of such injury (e.g., contract award). There shall be no appeal to the Tribal Court from a finding of the TERO Commission under this Chapter.
(f) Where the TERO Commission determines on the basis of the facts provided by the agency or contractor and on the basis of other available information that there has been noncompliance with Indian preference requirements, the TERO Commission shall, in addition to other penalties provided in this Chapter, instruct the agency or contractor to take appropriate steps to remedy the noncompliance and to amend its procedures so as to be in compliance.
If after a hearing, provided for in this Chapter and upon the determination that the complaint is valid, the TERO Commission shall impose such sanctions on an agency or contractor as are provided here and elsewhere in this Chapter. Such sanctions shall be money damages to be paid by the contractor or agency to the complainant up to the amount of profit the complaining contractor or subcontractor might reasonably have expected to receive under the specific circumstances of the complaint, and may include reasonable costs of filing and prosecuting the Complaint. The Commission shall assess the reasonable costs of defending the complaint against an unsuccessful complaining party. There shall be no appeal to the Tribal Court from the imposition of money damages sanctions or costs.
Where a manager of a tribal agency is found to be in wilful noncompliance with the provisions of this statute, that wilful noncompliance shall be grounds for disciplinary action against the manager.
Chapter 10-3 Adopted 02/07/91
Resolution 1991-20, Certified 02/26/91