4-90-020 Competition
(1) All procurement transactions must be conducted in a manner providing full and open competition consistent with the standards of this section. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurement. Some of the situations considered to be restrictive of competition include but are not limited to:
(a) Placing unreasonable requirements on firms in order for them to qualify to do business;
(b) Requiring unnecessary experience and excessive bonding;
(c) Noncompetitive pricing practices between firms or between affiliated companies;
(d) Noncompetitive contracts to consultants that are on retainer contracts;
(e) Organizational conflicts of interest;
(f) Specifying only “brand name” product instead of allowing “an equal” product to be offered and describing the performance or other relevant requirements of the procurement; and
(g) Any arbitrary action in the procurement process.
(2) The Nation must conduct procurements in a manner that prohibits the use of statutorily or administratively imposed State, local, or Tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts State licensing laws. When contracting for architectural, engineering, accounting and auditing (A/E/A) services, geographic location may be a selection criterion provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
(3) Procurement transactions paid in full using Tyee and/or indirect funding may give preference to Samish-owned enterprises if it is in the best interest of the Nation. Procurement transactions paid in part and/or in whole using Federal funding must apply Indian preference under this policy to Samish-owned enterprises.
(4) Procedures for procurement transactions must ensure that all solicitations:
(a) Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description must not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured and, when necessary, must set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a “brand name or equivalent” description may be used as a means to define the performance or other salient requirements of procurement. The specific features of the named brand which must be met by offers must be clearly stated; and
(b) Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals.
(5) The Samish Indian Nation will ensure that all prequalified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition and are updated periodically.
(6) The Nation will take all necessary affirmative steps to assure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.
(a) In order to expedite the completion of its transactions and minimize the associated administrative burden and cost, procurements below the micro purchase threshold are encouraged but not required to take affirmative steps in this section.
(b) Affirmative steps must include:
(i) Placing known, qualified small and minority businesses and women’s business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women’s business enterprises, are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women’s business enterprises;
(iv) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises;
(v) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in subsections (6)(b)(i) through (6)(b)(v) of this section.
(7) The Nation will provide preference to Indian-owned organizations and economic enterprises to the greatest extent feasible in awarding contracts and subcontracts.
(a) In order to expedite the completion of its transactions and minimize the associated administrative burden and cost, procurements below the micro purchase threshold are encouraged but not required to apply Indian preference.
(b) All procurements funded under NAHASDA IHBG, and both micro purchase and small purchase procurement funded under ICDBG, shall adhere to the terms of this section.
(c) Prior to solicitation, the Nation shall decide on the method it will use in applying Indian preference for the procurement:
(i) Issue an unrestricted solicitation allowing both non-Indian and qualified Indian-owned economic enterprises or organizations to submit proposals. In the evaluation of proposals, if an Indian-owned contractor is within 10 percent of the lowest bid received, then they will be offered the opportunity to match the lowest bid and be awarded the contract;
(ii) Issue an unrestricted solicitation allowing both non-Indian and qualified Indian-owned economic enterprises or organizations to submit proposals that includes an evaluation rating system which reserves 10 percent of the evaluation points for applying Indian preference; or
(iii) Restrict the solicitation to only qualified Indian-owned economic enterprises or organizations.
(d) Solicitation for competitive bids or proposals will state “Samish Indian Nation will apply Indian Preferences set forth under its Finance Policy.”
(e) The Nation will require prospective contractors to include the following information in their bid to establish eligibility for Indian preference:
(i) Evidence establishing eligibility as Indian-owned.
(A) “Indian” means any person who is a member of any Indian tribe, band, group, pueblo, or community which is recognized by the Federal government as eligible for services from the Bureau of Indian Affairs and any “Native” as defined in the Alaska Native Claims Settlement Act.
(B) Indian ownership must constitute not less than 51 percent ownership of the economic enterprise or Indian Organization as defined by the Indian Financing Act of 1974.
(C) Evidence showing the that Indian owner(s) are actively involved in the management of the firm and participate proportionately in the profits;
(ii) Evidence of structure, management and financing affecting the Indian character of the enterprise, including major subcontracts and purchase agreements; materials or equipment supply arrangements; and management salary or profit-sharing arrangements; and evidence showing the effect of these on the extent of Indian ownership and interest; and
(iii) Evidence sufficient to demonstrate to the satisfaction of the Nation that the prospective contractor has the technical, administrative, and financial capability to perform contract work of the size and type involved.
(iv) The Nation will notify in writing any contractor seeking Indian preference that the Nation has found not to qualify as Indian-owned under this section specifying the rationale for the determination.
(f) The Nation will require awarded contractors to provide Indian preference in subcontracting, training, and employment under the terms of the contract. All efforts in providing Indian preference shall be documented and retained, and the contractors must be prepared to furnish evidence of their efforts to the Nation upon request.
(g) Whenever possible, the Nation will maintain and/or refer to lists of qualified Indian procurement sources.
(h) For procurements by large purchase funded under ICDBG, the Nation shall apply Indian preference as follows:
(i) Prior to solicitation, the Nation shall decide on the method it will use in applying Indian preference for the procurement:
(A) Restrict the solicitation to qualified Indian-owned economic enterprises or organizations; or
(B) Use a two-stage preference procedure as follows:
(1) Stage 1. Invite or otherwise solicit Indian-owned economic enterprises to submit a statement of intent to respond to the bid announcement limited to Indian-owned economic enterprises.
(2) Stage 2. If responses are received from more than one qualified Indian-owned economic enterprise, advertise for bids limited to Indian-owned economic enterprises; or
(C) Develop, subject to Area ONAP one-time approval, the grantee’s own method of providing preference.
(ii) If procurement results in fewer than two responsible qualified organizations or enterprises submitting a statement of intent, a bid, or a proposal to perform the contract at a reasonable cost, then the Nation shall:
(A) Readvertise the contract, using any of the methods described in subsection (7)(h)(i) of this section; or
(B) Readvertise the contract without limiting the advertisement for bids or proposals to Indian organizations and Indian-owned economic enterprises; or
(C) If one approvable bid or proposal is received, request Area ONAP review and approval of the proposed contract and related procurement documents, in accordance with 2 CFR 200.320, in order to award the contract to the single bidder or offeror. [Res. 2021-02-015 § 2 (Att. 1), 2021.]