Nottawaseppi Huron Band of the Potawatomi Indian ...nhbpi.com/wp-content/uploads/2013/10/100813-Draft-Preference-in... · Nottawaseppi Huron Band of the Potawatomi Indian Preference

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.


2

B. Certified NHBP Family-Owned Business means any business, entity,



60% NHBP family-owned.

C. Certified Native American-Owned Business means any business, entity,



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.


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.


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.


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


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


7


bid


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


bid


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


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;


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.


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:


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.


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,


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.


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.


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


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


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.


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.


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;


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


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:


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.

Nottawaseppi Huron Band of the Potawatomi Indian ...nhbpi.com/wp-content/uploads/2013/10/100813-Draft-Preference-in... · Nottawaseppi Huron Band of the Potawatomi Indian Preference

Documents