4-90-030 Methods of Procurement to Be Followed

(a) The intent of the micro purchases is to reduce the burden of complying with the Federal procurement process for supplies or services where the aggregate dollar amount of the purchase does not exceed $10,000.

(b) To the extent practicable, purchases must be distributed equitably among qualified suppliers.

(c) Micro purchases may be awarded without soliciting competitive quotations if the Nation considers the price to be reasonable.

(d) In order to expedite the completion of its transactions and minimize the associated administrative burden and cost, micro purchases are encouraged, but not required, to search for Indian-owned or disadvantaged, minority, or women-owned businesses.

(e) This procurement method does not include formal procurement solicitations.

(f) Under no circumstances will a purchase be broken down into more than one action so as to not exceed the micro purchase threshold.

(g) In all micro purchases procurement transaction support will be retained.

(h) As applicable, the Davis Bacon Act of 1934’s (Act) threshold for construction, remodels, or repairs of assets requires that any expenditure of Federal funds of $2,000 or more, even if a micro purchase, must comply with the Act.

(a) Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the simplified acquisition threshold, which is for purchases greater than $10,000 but less than $250,000 (adjusted for inflation from time to time).

(b) If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources (defined as at least three).

(c) Solicit price quotations by phone, letter, email, internet, or other informal procedure that allows participation by at least three competitive sources. Inform sources solicited of the specific item being procured, the time by which quotations must be submitted, and the information required to be submitted with each quotation.

(d) Small purchases must apply Indian preference as required under this policy (see STP 4-90-020(6)). This procurement method does not include formal procurement solicitations.

(e) Under no circumstances will contract requirements be artificially divided so as to constitute a micro purchase.

(f) In all small purchases relevant procurement documents and correspondence must be retained, for example: comparison of price or rate quotations and rationale for item or vendor chosen (also see STP 4-90-010(8)).

(a) Large purchases are defined as procurements for property or services that exceed $250,000. Formal procurement methods, including public advertising, are required for all large purchases.

(i) The advertisement for bids shall be in accord with applicable laws. Generally, the advertisement for bids should appear in publication(s) of general circulation a minimum of four times within a 10-day period prior to the opening of bids.

(ii) Bid documents should include Davis Bacon Act requirements, if required for the contract. All bids must include a labor and wage breakdown, if applicable.

(b) Large purchases must apply Indian preference as required under this policy (see STP 4-90-020(6)).

(c) In order to comply with STP 4-90-020(5), large purchases must at a minimum advertise with the Washington State Office of Minority and Women’s Business Enterprises.

(d) The Nation must perform a cost or price analysis in connection with every large purchase procurement, including contract modifications.

(i) The method and degree of analysis is dependent on the facts surrounding the particular procurement situation, but at a minimum must include making independent estimates before receiving bids or proposals.

(ii) The Nation must negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed. To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor’s investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work.

(iii) Costs or prices based on estimated costs for contracts under the Federal award are allowable only to the extent that costs incurred or cost estimates included in negotiated prices would otherwise be allowable under applicable cost principles.

(iv) The cost plus a percentage of cost and percentage of construction cost methods of contracting must not be used.

(e) Retainage requirements for large purchases:

(i) Contracts for large procurements are subject to a 10 percent retainer for 30 days after final invoicing date;

(ii) Contracts that have a progress payment schedule will be subject to a 10 percent retainer on each progress payment and will be held for 30 days after the final invoicing of the project;

(iii) Retainage requirements will be included in the compensation clauses of the contract.

(f) The Nation shall utilize either a sealed bid method or a competitive proposal method of procurement, depending on the nature of the contract, for large purchase procurements.

(g) Sealed Bids. A procurement method in which bids are publicly solicited and a firm fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bids method is the preferred method for procuring construction.

(i) In order for sealed bidding to be feasible, the following conditions should be present:

(A) A complete, adequate, and realistic specification or purchase description is available;

(B) Two or more responsible bidders are willing and able to compete effectively for the business;

(C) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price.

(ii) If sealed bids are used, the following requirements apply:

(A) Bids must be solicited from an adequate number of qualified sources, providing them sufficient response time prior to the date set for opening the bids, for local and tribal governments, the invitation for bids must be publicly advertised;

(B) The invitation for bids, which will include any specifications and pertinent attachments, must define the items or services in order for the bidder to properly respond;

(C) The Nation will require all bidders submitting sealed bids to itemize cost to facilitate reductions in scope if necessary due to budget constraints so as to mitigate further procurement and ensure fairness is maintained;

(D) All bids will be opened publicly at the time and place prescribed in the invitation for bids;

(E) Pursuant to the application of Indian preference, a firm fixed price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs must be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of;

(F) Any or all bids may be rejected if there is a sound documented reason; and

(G) After bid opening, no changes in bid prices or other provisions of bids prejudicial to the interest of the Nation or fair competition shall be permitted. Substantive changes that would be prejudicial or unfair will require rejection of all bids and a new procurement must be undertaken. If a budget constraint renders all bids over-budget and all bids included itemized costs to allow for uniform reduction of scope fairly, then a reduction in scope may proceed without the need for new procurement.

(h) Competitive Proposals. A procurement method in which either a fixed price or cost-reimbursement-type contract is awarded. Proposals are generally used when conditions are not appropriate for the use of sealed bids. They are awarded in accordance with the following requirements:

(i) Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Proposals must be solicited from an adequate number of qualified offerors. Any response to publicized requests for proposals must be considered to the maximum extent practical;

(ii) The Nation must have a written method for conducting the technical evaluations of the proposals received and making selections;

(iii) Pursuant to the application of Indian preference, contracts must be awarded to the responsible offeror whose proposal is most advantageous to the non-Federal entity, with price and other factors considered; and

(iv) The Nation may use competitive proposal procedures for qualifications-based procurement of architectural, engineering, audit and accounting (A/E/A) professional services whereby offeror’s qualifications are evaluated and the most qualified offeror is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services though A/E firms that are a potential source to perform the proposed effort.

(v) Negotiations. In those situations where deemed necessary, negotiations shall be conducted with offerors who submit proposals determined to have a reasonable chance of being selected for award, based on evaluation against the technical and price factors as specified in the RFP.

(A) Such offerors shall be accorded fair and equal treatment with respect to any opportunity for negotiation and revision of proposals.

(B) The purpose of negotiations shall be to seek clarification with regard to and advise offerors of the deficiencies in both the technical and price aspects of their proposals so as to assure full understanding of and conformance to the solicitation requirements.

(C) No offeror shall be provided information about any other offeror’s proposal, and no offeror shall be assisted in bringing its proposal up to the level of any other proposal. Offerors shall not be directed to reduce their proposed prices to a specific amount in order to be considered for award.

(D) A common deadline shall be established for receipt of proposal revisions based on negotiations.

(a) There are specific circumstances in which noncompetitive procurement can be used. Noncompetitive procurement can only be awarded if one or more of the following circumstances apply:

(i) The acquisition of property or services, the aggregate dollar amount of which does not exceed the micro purchase threshold (see subsection (1) of this section);

(ii) The item is available only from a single source;

(iii) The public exigency or emergency for the requirement will not permit a delay resulting from publicizing a competitive solicitation;

(iv) The Federal awarding agency or pass-through entity expressly authorizes a noncompetitive procurement in response to a written request from the non-Federal entity; or

(v) After solicitation of a number of sources, competition is determined inadequate.

(vi) No further solicitation is required if procurement will be conducted under a current General Services Administration (GSA) program available to tribes and tribal organizations.

(A) The GSA program utilized and vendor’s GSA contract number need to be noted on all invoices utilizing this procurement option.

(5) Preferred Contractors. The Nation may utilize preferred contractors to ensure the availability and continuity of service. Gathering small services needed over the course of a year will provide the Nation an advantage in having responsive bidders participate and ensures that timely service can be obtained for work that would otherwise not result in enough qualified bidders participating.

(a) Preferred contracts will only be used for small scopes of work whose total aggregate cost will not exceed $50,000.

(b) Under no circumstances will scopes of work be artificially divided to qualify under a preferred contract.

(c) Preferred contractors will be selected annually using small purchase procurement that conforms to the small purchase procurement requirements under this policy.

(d) Annual preferred contracts can be extended up to two additional years, for a maximum of three years, without changes to the scope of work or to the costs for services.

(e) Changes to scope of work or costs of services will require a new procurement be completed. [Res. 2021-02-015 § 2 (Att. 1), 2021.]