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The purpose of this Article is to set forth uniform policies and standards for the acquisition of goods and services by the San Juan Southern Paiute Tribal government in order to preserve the Tribe’s integrity, save money and conform to the requirements of various funding sources.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
§ 702 General Policy on Efficient Use of Resources; Fair Business Practices
A. All Directors shall take all due care to ensure that all costs incurred are reasonable and necessary, that Tribal resources are efficiently utilized, and that all procurement actions are taken in compliance with this Article.
B. All procurement actions shall be made consistent with appropriate and accepted business practices and shall ensure that all suppliers of goods and services are treated fairly and professionally in each transaction.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. In general, Tribal policies and procedures adopted pursuant to this Chapter shall conform to applicable federal regulations.
B. The provisions of 2 CFR Chapter II, Part 200 as it pertains to procurement activities, except those provisions which are not applicable to Indian tribes, are hereby adopted and incorporated into this Chapter by reference.
C. Any Tribal Director responsible for authorizing procurements utilizing federal funds shall be responsible for compliance with any other applicable rules and regulations that are a condition of the funding source.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. The Tribal Council shall appoint a "Procurement Officer" who shall be responsible to acquire for use of the organization such goods and services as are needed on an ongoing basis and are common to the organization. The Procurement Officer shall be capable and expected to coordinate procurement actions with the Tribal Administration and all departments and programs of the Tribe.
B. The Procurement Officer shall maintain a requisition process that shall enable Tribal departments and programs to access goods and services. Requisitions shall be the instrument by which budget spending authority for assigned budgets is passed from the departments and programs to the Procurement Officer.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. In the acquisition of goods and services, preference shall be afforded first to businesses owned and controlled by enrolled San Juan Southern Paiute Tribal members, second to businesses owned by spouses of enrolled San Juan Southern Paiute Tribal members who are also members of a federally recognized Indian Tribe, and then to enrolled members of other Indian tribes who are otherwise qualified.
B. Preference requirements prescribed by a funding source which are not otherwise eligible to be superseded by this Article, shall be followed.
C. For purposes of this Section, the definition of “businesses” shall include sole proprietorships, partnerships, limited liability companies, corporations and not-for-profit corporations whose members or directors and management consist of 51% or more of the eligible individuals as identified in Subsection A above.
D. Goods and services to be acquired shall, when practical, be specified in sufficient detail to make price the deciding factor in selection of the successful bidder. All prospective bidders shall be put on notice of the bidding preference policy in accordance with Subsection E below.
E. Contracts shall be awarded under preference to a qualified business when its bid is responsive to all other conditions and does not exceed the lowest bid by the following percentages, when the lowest bid is:
1. $0 to $10,000: 15%
2. $10,001 to $50,000: 10%
3. $50,001 to $100,000: 5%
4. Over $100,000: 2%
F. Preference is not required to be afforded to contractors who do not have the ability to perform successfully under the terms and conditions of the proposed procurement as determined in accordance with Section 707 of this Chapter.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
Directors shall, wherever practicable and to the extent consistent with Tribal preference requirements, make positive efforts to use small, minority and women owned business sources of supplies and services. Outreach efforts shall include, where practical:
A. Placing qualified small, minority and women owned businesses on solicitation lists;
B. Assuring that small, minority and women owned businesses are solicited whenever they are potential sources;
C. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small, minority and women owned businesses;
D. Establishing delivery schedules, where the requirement permits, which encourage participation by small, minority and women owned businesses;
E. Using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the U.S. Department of Commerce;
F. Requiring a prime contractor, if subcontracts are to be let, to make the same or similar outreach efforts when securing subcontracts for goods or services.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
Contracts shall not be awarded to contractors who do not have the ability to perform successfully under the terms and conditions of a proposed procurement. In the making this judgment, such matters as the contractor’s integrity, its compliance with public policy, its record of past performance, and its financial and technical resources shall be considered.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. Procurement authority vested with the Tribal Council is hereby delegated to the President or his or her duly authorized representative, for all procurement actions not exceeding $5,000 for which budget authority has been provided, with exception of the following items for which the Tribal Council reserves approval authority to itself:
1. Selection and engagement of Legal Counsel.
2. Selection and engagement of Independent Auditors.
3. Selection and engagement of other professional advisors to the Tribal Council for which an ongoing relationship is anticipated.
4. Any contract or procurement, including a purchase order that is made by or on behalf of a subordinate organization which may be authorized by Tribal law, provided that the Council may adopt laws delegating such authority to the applicable board of directors or employees of such subordinate organization.
B. The President may delegate a portion of his or her procurement authority to Directors and other officials under his or her direction, provided that such delegation shall:
1. Be in writing and shall specify the specific authority and limits of authority which are individually delegated;
2. Be applicable only to procurements undertaken in acquiring needed goods and services for the San Juan Southern Paiute Tribe, in conjunction with the assigned employee’s duties;
3. Be made only to individuals who meet necessary educational and experience requirements for such delegation, are fully advised as to Tribal policies, and are fully trained and aware of the Tribe’s policies;
4. Be made only to employees of the Tribe, and shall expire upon termination of employment;
5. Be withdrawn based on failure of the employee to follow established policies and procedures; and
6. Put the employee on notice that failure to follow established procedures shall result in withdrawal of such authority and/or other disciplinary action dependent upon the severity
of the issue.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. The Tribal Council reserves to itself authorization for procurements exceeding $5,000 except as otherwise provided by resolution for a specific procurement.
B. All procurements exceeding $5,000 shall be authorized by resolution of the Tribal Council.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
Procurement contracts and other obligating procurement documents shall be executed by the President, or Vice President as the President may delegate, or as otherwise authorized by the Tribal Council and reflected in meeting minutes or resolution of the Tribal Council.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
The Procurement Officer shall provide a monthly written report to the Tribal Council regarding the procurement actions taken during the prior month for any amounts of $5,000 or more, which includes a list of contracts, agreements, and/or purchase orders made by or on behalf of the Tribe’s operations with their respective amounts and term of agreement.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. Micro-Purchases: Procurements not exceeding $3,000, or the amount set forth in any applicable federal procurement standards, may be awarded on the basis of documented verbal, written or online quotations with appropriate competition.
B. Small Purchases: Procurements not exceeding $10,000, or the amount set forth in any applicable federal procurement standards, do not require competitive (sealed) bids and competitive proposal procurement methods shall not be applied to small purchases; provided that, competition shall be obtained in small purchase procurements to the maximum extent practicable. To ascertain whether competition is adequate, informal price or rate quotations shall be obtained from at least three qualified sources, if available, including a qualified Tribal preference source.
C. Simplified Procurement: Simplified purchasing procedures as set forth within federal procurement standards, shall apply to procurements up to $150,000 or other amount set forth by the federal standards.
D. Major Procurement: Procurements in excess of $150,000 shall require formal bidding procedures or formal proposals provided in writing to the Procurement Officer or other awarding official, as appropriate.
E. Purchasing policies and procedures adopted to implement this Chapter shall provide specific guidance for different types of goods and services as appropriate to each procurement.
F. Lowest price is not required to be the only deciding factor in the selection of procurements. Any other factors may be considered, including preference.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. Sole source procurement is authorized in the following situations:
1. The goods and/or services are available only from one responsible source or firm and no other type of property or service will satisfy the needs of the Tribe.
2. The public urgency or emergency for the goods and/or services will not permit a delay resulting from competitive solicitation.
3. After solicitation from a number of sources, competition is determined to be inadequate.
4. It is necessary to award the contract to a particular source:
a. To maintain a facility, producer, manufacturer, or other supplier available for furnishing property or services in case of an emergency or to achieve industrial mobilization.
b. To procure the services of an attorney or expert for use, in any litigation or dispute involving the Tribe, in any trial, hearing, or proceedings before a court, administrative tribunal, or agency.
5. The awarding agency, where grant funds are used, has authorized a non-competitive proposal.
B. The President shall have the authority to approve sole source awards not exceeding $5,000 when the circumstances dictate and it is in the best economic interest of the Tribe to do so, except when applicable laws or regulations dictate a lower level. The Tribal Council shall otherwise have the authority to approve sole source awards.
C. Where procurement is from a sole source, a written justification shall be included in the purchase documentation justifying the reason and/or necessity for procuring the goods and/or services from a sole source. A lack of advanced planning resulting in an urgent need for the goods or services is not adequate justification for procuring from a sole source.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. No employee of the Tribe’s subordinate organizations shall be delegated procurement authority or the power to execute any contract except in accordance with this Section.
B. For purposes of this Section, a contract or procurement includes an expenditure of any kind by the subordinate organization, including but not limited to leases, purchases of supplies or materials, or contracts for services.
C. Any contract or procurement, including a purchase order that is made by or on behalf of the subordinate organization with a value greater than $5,000 shall be in writing.
D. The General Counsel of the Tribe shall review and approve as to form any contract:
1. With a total value greater than $5,000; or
2. Which contains an indemnity provision, an obligation for the Tribe to assume the costs of defending another party, or a provision stipulating to the entry of damages against the
Tribe.
E. For purposes of this Section, the total value of any subordinate organization contract shall include all payments made, or to be made, pursuant to the contract throughout its term, including during any automatic or other renewal period.
F. The Tribe’s sovereign immunity shall not be waived except by an ordinance enacted by the Tribal Council in accordance with the laws of the Tribe. Approval of any contract which contains a waiver of sovereign immunity is exclusively reserved to the Tribal Council.
G. Procurement authority vested in a subordinate organization shall be as stipulated within the organizing document of such organization.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
The President or his or her authorized designee shall have the authority to waive the provisions of any policies and procedures established to carry out this Title to the extent that an emergency exists involving the need for protection of life, property or the reputation and integrity of the Tribe. Within 48 hours of granting a waiver, the President shall report the waiver to all Tribal Council Members in writing to explain the provision that was granted a waiver and the reason for the waiver.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
Records shall be maintained for all procurements indicating the quotations received, other factors considered and the reason for selection of the person or entity to whom the award is made. The Procurement Officer shall be responsible to ensure that the record of each procurement justifies the selection and award on the basis of fairness and efficient use of resources. All contractual and other documents concerning any procurement action shall be maintained within the records of the Tribe by the Procurement Officer.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. The Tribal Council shall determine those goods and services for which formal written contracts shall be entered into and the form of such contracts to ensure the protection of the Tribe's interests and the appropriate conduct of business.
B. The Tribe shall use instruments appropriate for the particular procurement and for promoting the best interest of the Tribe, observing standard industry practice. Acceptable instruments include fixed-price contracts, cost-reimbursable contracts, and other standard contract forms. However, the “cost-plus-a-percent-of-cost” method of contracting shall not be used.
C. The Tribe’s sovereign immunity shall not be waived except by an ordinance enacted by the Tribal Council in accordance with the laws of the Tribe. Approval of any contract that contains a waiver of sovereign immunity is exclusively reserved to the Tribal Council.
D. Contracts and subcontracts shall include all legally required clauses to make the contractor or subcontractor aware of its required duties, as applicable, including, but not limited to, Tribal preference laws, record retention and access requirements, ownership of information and materials.
E. Contracts and subcontracts associated with construction, repair and renovation shall include requirements for compliance with the Tribal Employment Rights Ordinance and any applicable provisions of the federal Davis-Bacon Act.
F. Advances of funds to contractors or subcontractors, where allowable, shall conform to substantially the same standards of timing and amounts that apply to advances made by relevant grantor agencies.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. The General Counsel shall review and approve as to form any contract with a total value greater than $5,000 or which contains an indemnity provision, an obligation for the Tribe to assure the costs of defending another party, or provision stipulating to the entry of damages against the Tribe.
B. Only the Tribal Council may authorize a decision regarding a procurement action that conflicts with the advice and recommendation of the General Counsel.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
No individual shall participate in or act upon any procurement in which he has a conflict of interest as described within 43 CFR 12.76(b)(3) or as shall be otherwise defined by any other applicable provision of the San Juan Southern Paiute Tribe Law and Order Code.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
A. In the event a prospective contractor disputes a procurement action taken by the Tribe pursuant to this Chapter, within five (5) days of the procurement action, the prospective contractor shall provide the Tribal Council with a Statement of Dispute made in writing that:
1. Identifies the procurement action taken;
2. Identifies the provision(s) of this Chapter that is/are alleged to have been violated; and
3. Identifies the alleged facts pertaining to the alleged violation that would prove a violation.
B. Upon receipt of the Statement of Dispute, the Tribal Council shall provide the prospective contractor with an opportunity to present its claim at the next regular monthly Tribal Council meeting. The Tribal Council shall ensure that disputes arising from procurement actions are resolved timely and with fairness to all parties while preserving the Tribe's interests. The decision of the Tribal Council shall be final and non-appealable with respect to whether or not the procurement action will be validated or invalidated, and the appropriate remedy or remedies to be provided to the prospective contractor, if any.
[Legislative History: Enacted by Resolution No. 2018-76, 10/19/2018]
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