BUDGET AND FINANCE COMMITTEE OF

Tribal code

Ask Donna

What actually matters in this document.

Text

RESOLUTION OF THE

BUDGET AND FINANCE COMMITTEE OF

THE NAVAJO NATION COUNCIL

Approving and Accepting the Navajo Nation ProcurementRules

,arid Regulations as Described Within the Procurement Code·

WHEREAS:

Pursuant to 2 N.N.C. § 374 (B)(16), as amended by Navajo Nation

Council Re$olution C0-81-90, the Budget and Finance Committf!e of the Navajo

Nation Council has oversight authority over the Office ofthe Controller; and

Pursuant to 2 N.N.C~ § 372, the Budget and Finance Committee is a

standing committee of the Navajo Nation Council established for the purpose of

recommen~ing to the Navajo Nation Council the adoption of legisi$-tion de~igned

to strengthen the fiscal and financial position .of the Navajo Nation and to

promote the efficient use of the fiscal and financial resources of the Na,vajo

Nation; and

The Navajo Nation Office of the Attorney General, Office of

Legislative Counsel, Business Regulatory .Office and Division of Finance,

Purchasing Services Department recommend the adoption of the Navajo. Nation

Procurement Rules and Regulations; and

The Navajo Nation Office of Legislative Counsel and the Office of the

Attorney General, Business Regulatory and Division of Finance, Purchasing

Services Department have developed a proposed comprehensive Navajo Nation

Procurement Rules and Regulations; attached hereto as Exhibit ''A''; and

Pursuant to 12 N.N.C. § 320 (as amended by CJY~S-01), the Navajo

Nation Office of Legislative Counsel, Office of Attorney General, Business

Regulatory and the Office of the Controller have been authorized to develop

Navajo Nation Procurement Rules and Regulations; and

Pursuant to 12 N.N.C. §320 (as amended by CJY-68-01), the Budget

and Finance Committee of the Navajo Nation Council has final authority to adopt

the newly developed Navajo Nation Procurement Rules and Regulations; and

The Navajo Nation Procurement Rules and Regulations will establish

rules, procedures, and guidelines relating to the procurement of all Goods,

including supplies and services, including, but not limited to, the procurement of

information technology, and construction. These Regulations are designed to

achieve maximum practicable uniformity in purchasing throughout the Navajo

BFD·192·03

Nation government and to increase the effectiveness and efficiency ofthe Navajo

Nation purchasing system and to minimize the administrative cost impact of the

purchasing function on indirect costs while maintaining a controlled and efficient

purchasing system providing full and open completion.

NOW THEREFORE BE IT RESOLVED THAT:

The Budget and Finance Committee of the Navajo Nation Council hereby

approves and accepts the newly developed Navajo Nation Procurement Rules

and Regulations (attached hereto as Exhibit "A").

CERTIFICATION

I hereby certify that the foregoing resolution was duly considered by the

Budget and Finance Committee of the Navajo Nation Council at a duly called

meeting In Window Rock (Navajo Nation}, Arizona, at which a quorum was

present and that same was passed by a vote of 5 in favor, 0 opposed, and 0

abstained, this 16th day of December, 2003.

Raymond Maxx

Chairperson

Motion : Bennie Shelly

Second: Ernest Hubbell

· EXHIBIT"A"

NAVAJO NATION PROCUREMENT RULES AND REGULATIONS

GENERAL;AUTHORITY; APPLICATION

A. These Navajo Nation Procurement Rules and RegJJlations (hereinafter

"RegUlations") are promulgated under the statutory authority of the

Navajo Nation Procurement Code, 12 N.N.C. §§301-371 (as amended by

CAU-68•01).

B. These Regulations, establish rules, procedures, and guidelines relating to

the· procurement of all Goods, including supplies, and Services, including

the procurement of information technology and construction. These

Regulations are designed to achieve maximum practicable uniformity in

purchasing throughout the Navajo Nation government and to increase the

effectiveness and efficiency of the Navajo Nation purchasing system and

to minimize the administrative cost impact of the purchasing function on

indirect costs while maintaining a controlled and efficient purchasing

system providing appropriate competition.

C. These Regulations shall apply to the procurement of Goods, including

supplies, and Services, including the procurement of information

technology and construction by any division, department, office, program

or uncertified political subdivision of the Navajo Nation, as defined by

Section II ofthese Regulations and 12 N.N.C. §308 (o).

D. These Regulations shall be adhered to by the Navajo Nation Purchasing

Services Department personnel and non.;Purchasing Services Department

personnel.

E. The foundation of an efficient and cost-effective procurement process

begins with proper planning by the procuring parties. Nothing in these

Regulations is intended to or shall negate the procuring party's

responsibility to allow sufficient time for the procurement process.

F. Nothing contained in these Regulations shall be construed to waive any

rights, remedies or defenses the Navajo Nation might have under any laws

of the Navajo Nation.

G. These Regulations are not intended to and shall not create any rights for,

or in any third party, to any particular application or interpretation of these

Regulations in any contract, bid, proposal, Invitation for Bids, Request for

Proposals, or Request for Statement of Qualifications.

H. While these Regulations are intended to apply to procurement using

general, state, and/or federal funds, nothing in these Regulations sh~l, or

is intended to, prevent any division, department, office or program or

uncertified political subdivision of the Navajo Nation, from complying

with the terms and conditions ofany federal or SUite contract, grant, gift,

bequest, or intergovernmental joint powers or cooperative agreement.

I. While these Regulations are intended to apply to procurements using

Navajo N~tion general, state and/or feQeral funds, the procedures set forth

in these Regulations supplement, but do not replace, federal regulations

conditioning the receipt and use of federal funds, such as, but not limited

to, Pl.lhlic Law 93-638 Funding Agreements, the Office of Management

and Budget Circulars A-87, A-102, A-123 and the Federal Acquisition

Regulations ("FAR") and when applicable, prior approval from· a Federal

Awarding Agency

J. These Regulations are intended to comply with and supplement the

Navajo Nation Procurement Code, 12 N.N.C. §§301-371 (as amended by

CAU-68-01), the Navajo Business and Procurement Act, 12 N.N.C.

§§1501-1516, and the Navajo Nation Business Opportunity Act, 5 N.N.C.

§§201-216 (as amended by CAP-37-02), and any underlying rules and

regulations.

K. Procurements under these Regulations shall comply with all applicable

Conditions of Appropriations as enacted by the Navajo Nation Council. If

not inconsistent or contrary with laws of the Navajo Nation and the federal

government.

DEFINITIONS

A. "CERTIFIED SMALL PURCHASING AUTHORITY" shall mean a

division, department, program or office which has been formally certified

and granted enumerated purchasing authority by the Director of the

Purchasing Services Department.

B. "CONTRACT LETTING ENTITY" shall mean the division,

department, program, office, or uncertified political subdivision that is

awarding a contract.

C. "CONSTRUCTION" or "CONSTRUCTION RELATED" shall mean

related to the process of building, altering, repairing, improving,

renovating or demolishing any building, or real property. ALL

Construction or Construction Related procurement, with the exception of

materials, shall be classified as Services procurement.

Coqstrqction or CQnstruction Related proctirenient falling withiri the Small

Purchase limitations shaH comply with the contract, bonding, insurance,

retainage, etc .• reql!it'ements falling within the Small P!Jichase iin1itation

D. "ESTABLISHED CATALOGuE PRIC:E" ~hall mean the price

in~luded in a c.(atalog, price list, schedl!le or ()ther fomi th~t:

1. is regularly maintained by a manufactllrer, distributor, or

contractor; and

2. is either published or·otherwise available fot: inspection by

customers; and

3. states current prices or bids last made to a significant

number of any category of buyers, or the general buying

public for the Goods or Services inv()lyed.

E. ~'GOODS" shall me~ moveable tangible items, ~uch as materi~s,

supplies and cotnmodities, and may include delivery, setup, installation~

and/or warranty, etc., costing not more than the lesser of (a) ten percent

(10%) of the total cost of the Gopds; or (b) $5,000.00.

For the purposes of these Regulations, the procure~ent of Goods with

delivery, set~up, installation, and warranty, etc., costing more than the

lesser of (a) ten percent (10%) of the total cost of the Goods; or (b)

$5,000.00 shall be processed as the procurement of Services.

F. "INVITATION FOR BIDS" shall mean the written documents (s) issued

by the Navajo Nation for the purposes of soliciting bids on specified

Goods.

G. "LEASES" shall include rentals and lease arrangements and shall mean

any procurement of Goods or property (real and/or personal) that does not

result in title passing to the Navajo Nation. All leases and lease-like

arrangements shall be treated as the procurement of Services, including

those leases and lease-like arrangements procuring Goods where title does

not pass to the Navajo Nation.

H. "MAXIMUM FEASIBLE PRICE/COST" shall me~n the estimated cost

of the Goods and/or Services being solicited and shall restrict the

maximum price under which a procurement will be made, i.e., the

maximum amount of money the Procuring Party is willing to spend on the

procurement. The establishment of a Maximum Feasible Price/Cost may

take into account, but is not limited to, current market price, the unit price

froin a previous purchase order or contract, a vendor's catalog or other

published advertisement, budgetary constraints, or prototype costs.

The Procuring Party shall establish ·a Maximum Feasible Price/Cost for

each procurement. However, the Maximum Feasible Price/Cost may not

be revealed to the public, including bidders· artd offerors, until the flnal

award is made.

For the ·purposes of these Regulations, a purchase meeting the federal

General Services Administration (GSA) price shall satisfy the Maximum

Feasible Price/Cost.

I. "PROCURING PARTY" shall mean the Purchasing Agency as defined

in the Navajo Nation Procurement Code and shall mean the Navajo Nation

program, department, division or uncertffied political subdivision seeking

the. procurement of Goods and/or Services.

J. "PURCHASE ORDER" shall mean the contract executed f.or Goods with

.Services to be procured and shall be completed in its entirety before

inssuance.

Only Purchase Order forms approved by the Navajo

Department of Justice and contained in the Appendix of these Regulations

shall be used in Navajo Nation procurements.

K. "PURCHASE REQUISITION" shall mean the initiatit}g document for

the. procurement of Goods or Services and shall be completed in its

entirety by the Procuring Party. Only Purchase Requisition forms

approved by the Purchasing Services Department and contained in the

Appendix of these Regulations shall be used in Navajo. Nation

procurements.

L. "REQUEST FOR PROPOSAL" shall mean the written document (s)

issued by the Navajo Nation for the purpose of soliciting offers

(proposals) on specified Services.

M. "REQUEST FOR STATEMENT OF QUALIFICATIONS" shall mean

the written document (s) issued by the Navajo Nation for the purpose of

soliciting information from vendors as to their qualifications and

capability to provide Goods or Services to the Navajo Nation in a

specified area or for a specified purpose.

N. "RESPONSIVE" shall mean a bid or offer (proposal) which conforms in

all material requests to an Invitation for Bids, Request for Proposal or

Request for Statement of Qualifications.

0. "SERVICES" shall mean non-tangible items, such as, furnishing and/or

performance of labor, time or the provision of expertise (consultants, etc.)

that does not involve the delivery of a specific tangible product other than

required reports, calculations, and or performance.

For the p:urpos~s of these Regulations, Services shall also include the

procurement of Goods and accompanying Services separately costing

more than the lesser of (a) ten percent (10%) of the total cost of the

Goods; or (b)$5,000.00

P. "$MALL PURCHASE" shall mean Goods .or Services with a total

estimated cost of$50,000 or less.

Q. "UNCERTIFIED POLITICAL SUBDIVISION" shall include Navajo

Nation Chapters not certified under the Navajo Nation Local Governance

Act, 26 N.N.C. §§1-2008.

PROCUREMENT OF GOODS

This Section Ill shall apply to the procurement of Goods as defined in Section II.

When a prOC\lfement ~involves both Goods and Services as defined in Section II,

the Purchasing Services Director, in consultation with the Navajo Nation

Department of Justice (or Office of Legislative Counsel for procurements

involving the Legislative Branch), shall make the final determination of whether

to classify the procurement as a procurement of Goods ot a procurement of

Services.

A. Purchase Requisition

I. Form

a. The procurement process for each procurement of Goods

shall begin with a Purchase Requisition form completed

by the Procuring Party;

b. A Purchase Requisition form shall not be considered

complete unless it contains all requested. information and

such information is correct and complete, e;g. subaccount number. When ordering equipment, the generic

name shall be listed first with specifications named

thereafter.

c. The Purchase Requisition shall not be considered

complete unless it includes the following:

A complete specification; including the intended

purpose or use of the required item, quantity desired

of each item, expected unit price for each item, and

a written description of the item desired including,

as applicable, Tribal stock number, manufacturer's

or vendor's name and stock number, teclmical or

physical requiremen15,

performance requirements.

·2.

and

functional

The name of at least one suggested Vendor

however, Procuring Parties are enco11raged to

submit the names of thi.ee (3) suggested Vendors.

111.

A Maximum Feasible Price/Cost ~ defined in

Sectionll.

IV.

The time betWeen the date on which the Purchase

Requisition is submitted to the proc\ll'ement process

to the expectecl d¢livery date shall not be so short as

to impede adherence to these Regulations.

Signature of the Department .Head or other

authorized Division or Chapter. representative.

Specifications

a. The purpose of a Specification is to serve as a basis in

obtaining goods that are adequate and suitable for the

Navajo Nation's needs in a cost effective manner, taking

into account and to the extent practicable, the cost of

ownership and operation. It is the policy of the Navajo

Nation that specifications permit maximum practicable

competition consistent with this purpose.

b. "Specification" means the description of the physical,

technical, functional, and/or performance characteristics

of Goods to be procured. A complete specification

includes, when applicable, requirements for set-up,

delivery, inspection, testing, etc. Specifications shall be

drafted with the objective of clearly and fully describing

the Procuring Party's requirements.

c. The purch~sing process is unduly del~yed by incomplete,

inaccurate or otherwise erroneous product specifications.

Tribal resources, both time and money, are wasted when

procurements are made with erroneous product

specifications. While the Purchasing Services Department

is available, upon request, to assist, it is the responsibility

of the Procuring Party to obtain complete,

comprehensive, and accurate specifications for the

product they wish to procure an~ to include those

specifications on the Purchase Requisition form.

d. It is the general policy ·Of the Navajo Nation to procure

standard commercially available Goods \\-ilenever

practicable. In developing specifications, commercially

accepted standards shall be utilized. Non-commercial

requirements shall be avoided to the extent practicable.

e. "Brand Name Specification" means a specification

limited to one or more items by manufacturers' name or

catalogue number. Brand Name Specifications are to be

avoided and shall be acceptable only with justification

and approval of the Director of the Purchasing Services

Department.

"Brand Name or Equal Specification" means a

specification which uses one or more manufacturers'

names or catalogue numbers to describe the standard of

quality and/or performance that characterizes the needed

features of the procured good (s). Brand Name or equal

Specification provides for the procurement of equivalent

products and is an acceptable form of Specification.

g. "Qualified Products List" means an approved list of

Goods described by model or catalogue number, which,

prior to competitive solicitation, the Purchasing Services

Department has determined will meet procurement

requirements; Qualified Product Lists shall be available

from the Purchasing services Department. Reference to a

Qualified Products List is an acceptable form of

Specification.

The procedures for the inclusion ·of a good on the

Qualified Products List shall be made available to

prospective vendors on request.

h. "Specification for a Common or General Use Item"

means a specification. which has been developed and

approved by the Purchasing Services Department for

repeated use in procurement and is an acceptable form. of

Specification.

B. Property and Supply Clearance

It is the responsibility of the Procuring Party to check the

availability of the needed Goods in the Procuring Party's area

warehouse or storage facility before initiating the procurement

process.

If the desired Good (s) is a supply or an item of property, the

Procuring Party shall submit the completed Purchase Requisition

to the Property Management Department who will detennine if

the Navajo Nation has stock or surplus items which·might satisfy

the Procuring Party's needs. Ifthe Procuring. Party agrees that the

surplus itern satisfies its needs, the Property Management

Department shall arrange for transfer of the surplus item to the

Procuring Party.

The Property Management Department shall sign the Purchase

Requisition to signizy or clear that it has no stock or surplus items

satisfying the required procurement.

C. Encumbrance

1. After clearance by the Property Management Department, the

Procuring Party shall submit the Purchase Requisition to the

appropriate encumbrance section of the Division of Finance for

verification of allowable costs, funds availability, and funds

encumbrance.

2. If the cost (s) is not allowable, funds are not available or there are

other apparent deficiencies in the Purchase Requisition, the

Division of Finance will return the Purchase Requisition to the

Procuring Party with appropriate comments.

3. If costs are allowable, funds are available and there are no other

apparent deficiencies, the Division of Finance will signify approval

and funds encumbrance.

4. Goods shall not be procured prior to funds encumbrance.

D. Invitation to Bid

Unless otherwise excepted by these Regulations and/or other

Navajo Nation law, Competitive Sealed Bidding, with public bid

opening, shall be the preferred method of vendor selection.

The Invitation for Bid shall be used to initiate a Competitive

Sealed Bid procurement of Goods and shall include the following,

as applicable:

a. Instruction and information to bidders concerning the bid

submission requirements, including:

procurement specifications;

ii.

supplier qualifications;

iii.

time and date deadline for submission of bids;

iv.

individual to whom the bid is to be submitted and

the address of the office to which bids are to be

delivered;

form in which bids are to b~ submitted;

vi.

date, time and location of the bid opening;

vu.

the date and time of any pre-bid conference (s) and

whether such conference (s) is mandatory or

voluntary; and

viii.

any other special information necessary for the

particular procurement.

b. The purchase description, evaluation factors, delivery or

performance schedule, and such inspection and

acceptance requirements as are not included in the

specifications;

c. Contract tenns and conditions, including warranty ·and

bonding or other securitY requirements, as applicable; and

d. Instructions to bidders to visibly mark th~ir status as a

vendor certified under the Navajo Nation Business

Opportunity Act on the outside of the bid package,

including their Priority ranking. It is the responsibility of

the bidder to identify themselves as certified under the

Navajo Nation Business Opportunity-Act.

e. Instructions to bidders to visibly mark as ..Proprietary"

each part of their bid which they cqnsider to be

proprietary information.

f. Notification to bidders that:

the Navajo Nation is hot bound to enter a contract

under the Invit3tion for Bids and ·may issu~ a

subsequent Invitation for Bids for the sall1e·Goods;

and

the Navajo Nation is a sovereign gpvernment and

all contracts ent~red into as a.res\llt of the Invi~tion

for Bids shall comply with Navajo Nation Law,

rules and regulations, inch1ding but not limited to

the Navajo Preference in Employment Act and

applicable federal laws, rules, and regulations.

An Invitation to Bid will be issued in a fashion designed to

provide bidders a reasonable time to prepare their bids. An

average of five (5) days shall be provided unless a shorter or

longer time is deemed necessary for a particular procurement as

determined by the Director of the Purchasing Services

Department

lnvitatiori.s to Bid shall be publiCized in a newspaper of general

circulation for a reasonable time prior to the deadline for ·bid

submission. Publication of the Invitation to Bid in a newspaper of

general ·circulation shall satisfy any requirements, unless

otherwise excepted under these Regulations or other Navajo

Nation law, to notify vendors certified under the Navajo Nation

Business Opportunity Act.

The Business Regulatory Department shall maintain a listing of

newspapers satisfying general circulation requirements.

Unless otherwise specifically excepted under these Regulations,

only the Purchasing Services Department shall issue an Invitation

to Bid.

E. Notice to Business Regulatory Department

Prior to bid opening, the Purchasing Services Department shall provide the

Business Regulatory Department with:

a copy of the Invitation for Bids; and

a copy of the notice published in the newspaper; and

a list of all businesses directly notified, including· the dates and

manner of such notices.

F. Bi4 Opening

Bids shall be opened publicly in the prt~sence of one or mote

witnesses at the time and place designated in the Invitation for

Bids.

The Procurement Officer shall decide when the time set for bid

opening has arrived and shall then personally and publicly open;

in accordance with subsections (4)-' (7) below, all bids received

prior to the bid submissioJ;J. deadline and reaq aloud the naJ11e ·of

the· vendor and the·dollar amount for each bid. The Procurement

Officer shall not read aloud any information marked as

.proprietary.

3. The Procurement Officer shall call for the name of the vendor and

the dollar amount for each bid to be recorded in the Register of

Bids. The Register ofBids (BidSununary) shall be open to public

inspection, to the extent not prohibited by. the Navajo Nation

Privacy and Access to Information Act.

Only the information disclosed in the Register of Bids is

considered to be public information upder the Navajo. Nation

Privacy and Access to Information Acttmtil the Notice of Intent to

Award is issued.

The Procurement Officer shall first open .all bids marked as

submitted by Priority No. 1 vendors under the Navajo Nation

Business Opportunity Act received prior to the proposal

submission deadline. The Procurement officer shall then evaluate

the bids of all Priority No. 1 vendors pursuant to subsection (G)

(Bid Evaluation) below and award the solicitation to the lowest

responsible and responsive Priority No. 1 vendor within the

Maximum Feasible Cost/ Price pursuant to subsection (H) (Bid

Award) below.

If there are no bids marked as submitted by Priority No. 1 vendors

under the Navajo Nation Business Opportunity Act or if no

Priority No. 1 vendors are deemed responsible and responsive

after evaluation, the Procurement Officer shall then follow

subsection (4) above in opening all bids marked as Priority No.2

vendors under the Navajo Nation Business Opportunity Act.

If there are no bids marked as Priority No. 1 or Priority No. 2

vendors or if no Priority No. 1 or Priority No. 2 vendors are

deemed responsible and responsive after evaluation, the

Procurement Officer shall then follow subsections (4) and (5) in

opening. all bids.

If it becomes necessary to postpone a Bid Opening; in whole or in

part, the Purchasing Services Department shall issue the

appropriate amendments to the Invitation to· Bids postponing or

rescheduling the bid opening. When the procuring ~gency is

closed due to force majeure {Acts of God), bid opening will be

postponed to the same time on the next official business day.

G. Bid Evaluation

The goal of Bid Evaluation is to select a responsible vendor that is

the most responsive and .best serves the needs of the N~vajo

Nation which include adherence to the Nav~:~.jo Nation Business

Opportunity Act and providing the Procuring Party with a

reasonable price that is equal to or below the Mrudmum feasit>Ie

Cost for the Goods requested with such Goods delivered to the

specified location by the ·specified delivery date. The lowest cost

alone may not always best serve the needs of the Navajo Nation.

Bids shall be evaluated by the Procuring Party, in conjunction

with the Purchasing Services Department, oil the requirements set

forth in the Invitation for Bids, including criteria to determine

acceptability such as inspection, testing, quality, workmanship,

delivery, and suitability for a particular purpose. Those criteria

that will affect the bid price and be considered in evaluation for

award shall be measurable costs to include, but not be limited to,

discounts, transportation costs, total or life cycle costs.

Any bid which does not conform to the essential requirements of

the Invitation for Bids shall be rejected and considered nonresponsive.

Any bid which does not conform to the Specifications contained

or referenced in the Invitation for Bids shall be rejected as nonresponsive unless the Invitation for Bids authorized the

submission of alternate bids and the Goods offered as alternates

meet the requirements specified in the Invitation for Bids.

Any bid which does not conform to the delivery schedule or to

other material requirements of the Invitation for Bids shall be

rejected as non-responsive.

A bid in which the bidder attempts to impose conditions which

would modify requirements of the Invitation for Bids or limit the

bidder's liability to the Navajo Nation shall' be rejected as nonresponsive.

For example, bids shall be rejected in which the bidder:

a. Attempts to protect himself against futl,1re changes in

conditions, such as increased costs, if total possible cost

to the Navajo Nation cannot be determined;

b. Fails to state a price and in lieu thereof states that price

shall be "price in effect at time of delivery;''

c. States a price but qualifies such price as being subject to

"price in effect attime of delivery;,

d. When not authorized by the Invitation for Bids, the

bidder conditions or qualifies his bid by stipulating that

his bid is to be considered only if, prior to date of award,

bidder receives (or does not receive) award under a

separate procurement:

e. Requires the Navajo Nation to determine that the bidder's

product meets specifications; or

f. Limits the rights of the Navajo Nation under any contract

clause.

At the discretion of the Director of the Purchasing Services

Department, bidders may be requested to delete objectionable

conditions from their bid provided that these conditions do not

go to substance, as distinguished from the form, of the bid or

work an injustice on other bidders.

When a bid guarantee, such as a bond, is required and a bidder

fails to furnish it in accordance with the requirements of the

Invitation for Bids, the bid shall be rejected as non-responsive.

Unsigned bids shall be rejected as non-responsive unless a

representative of the company who has the authority to sign is

present at the bid opening and if discovery is made prior to the

reading of any bids for that procurement, the representative shall

be allowed to sign the bid.

A bid submined before the publication of the Invitation for Bids

shall be considered non-responsive and rejected.

·to. Bids a\)ove the Maximum Feasible Price/Cost shall be rejected as

non..responsive. Notwithstanding the above, if all responsive bids

from Navajo Certified Priority No. 1 vendors are above the

Maximum Feasible Price/Cost, such Priority No. 1 vendors,

starting with the responsive vendor with the lowest bid, may be

given one (1) opportunity to negotiate or submit a bid that is equal

to or below the Maximum Feasible Price/Cost. lf negotiations are

unsuccessful with the lowest PrioritY No. 1 vendor, the next

lowest responsive Priority No. 1 vendor shall be given one

opportl1nity to negotiate or submit .l:l bid below the Maxinnntl

Feasible Price/Cost. This process shall continue until a responsive

Priority No. 1 vendor has negotiated or subinitted a price below

the Maximt1Ill Fe~ible Price/Cpst.

Neither the Navajo Nation Procurement Code nor the Navajo

Nation Business Opportunity Act require that Priority No. 1

vendors be given the oppoqunity to negotiate. The de~ision to

negotiate with Priority No. 1 vendors on a specific procurement

shall be at the discretion ofthe Director of the Purchasing Services

Department.

11. Unless tlte Invitation for Bids so provides, a bid is not rendered

Iion.;responsive by the fact that the bidder specifies that award will

be accepted only on all, or a specified group, of the itell)sincluded

in the Invitation for Bids. However, bidders shall not be permitted

to withdraw or modify "all or none' qualifications after Bid

Opening since such qualifications is subst~tive and affects the

rights of other bidders.

H. BidAward

Awards shall only be made to responsible bidders. The Procuring

Party with delegation or concurrence by the Purchasing Services

Department shall award the procurement contra.ct, in adherence to

the Navajo Nation Business Opportunity Ac~, to the responsible

and responsive bidder (s) with the bid amount equal to or below

the Maximum Feasible Cost/Price whose bid meets the

requirements and criteria set fourth in the Invitation for Bids.

The Procurement Officer shall issue either a Notice of Intent to

Award or a Notice of A ward, which may be in the form of the

Purchase Order, on the date announced at the bid opening, unless

the Procurement Officer determines, and gives notice, that a

longer review time is necessary. The Procurement Officer shall

give notice of a time extension to each bidder by either

announcing it at the Bid Opening or posting the notice at the

location announced at the Bid Opening.

Should administrative difficulties be encountered after Bid

Opening which may delay award beyond bidders' aeceptance

periods, the several lowest bidders should be requested; before

expiration of their bids,. to extend the bid acceptance period (With

consent of sureties, if any) in order to avoid the need for readyertisement or re-bid.

Written Notice of Award or Purchase Order shall be delivered by

hand or by first class mail to the successful bidder.

Notice of Intent to Award or Purchase Order shaH be made

available to the public on request and shall be posted at the

location announced at the Bid Opening.

Copies of the Notice of Intent to Award or Purchase Order shall

be forwarded to the selected Vendor, the Accounts Payable

Section of the Division of Finance, the Procuring Party and its

Division or Chapter, the Purchasing Services Department and the

Property Department.

I. Receipt and Acceptance of Goods

The receipt and acceptance of Goods shall adhere to the Navajo

Uniform Commercial Code.

In general, receipt is when the Goods are physically delivered to

the address specified in the Purchase Order. The employee

receiving the delivery is to verify that the Goods describe on the

carrier's Bill of Lading and vendor's packing slip are in an

acceptable condition and accounted for. Such employee is to

complete a Receiving Report noting any defects or exceptions,

such as, but not limited to, damage or defective items, wrong item

received, or wrong quantities received.

A copy of the Receiving Report, with defects and exceptions

noted, shall be forwarded to the Accounts Payable Section of the

Division of Finance, Purchasing Services Department, and

Procuring Party.

If exceptions are noted on the Receiving Report, the Procuring

Party shall notify the vendor and allow them a reasonable

opportunity to cure the defects and exceptions.

If the Goods are delivered to the Property Management

Department, the Property Management· .Department will

immediately arrange inspection by or delivery .to the Procuring

Party.

The Procuring Party shall immediately inspect the Goods to

determine if the Goods meet specifications. If the Goods do not

me:et specifications, the Procuring Party is to notify the vendor

and either reject the delivery for non-compliance or allow the

vendor a reasonable opponunity to cure the defect. The Procuring

Party shall immediately notify the Accounts Payable Section of

the Division of Finance and Purchasing Services Department in

writing that the Goods did not meet specifications and the actions

taken.

The Procuring Party is to complete the Receiving Report by

reporting what exactly was delivered. If the delivery was in total,

then the original Receiving Report should be ·used to indicate that

the delivery was complete. If the delivery was only partial, a copy

of the Receiving Report should be used to indicate a partial order

and forwarded to Accounts Payable for payment. Once the

remaining items are delivered, constituting a complete delivery,·

the original Receiving Report can be filled out and forwarded to

Accounts Payable for processing of final payment. It is the

responsibility of the Procuring Party to make sure the vendor is

paid in a reasonable time period.

J. Processing of Payments

The payment procedures established by the Division of Finance shall be

adhered to and are to begin whenever Goods are delivered and accepted.

IV.

PROCUREMENT OF SERVICES

This Section IV shall apply to the Procurement of Services as defined in

Section ll. When a procurement involves both Services and Goods as

defined in Section 11, the Purchasing Services Director, in consultation

with the Navajo Nation Department of Justice (or Office of Legislative

Counsel for procurements involving the Legislative Branch), shall make

the final determination of whether to classify the procurement as a

procurement of Services or a procurement of Goods.

A. Request for Proposals and Request for Statements of Qualifications

Pursuant to 12 N.N.C. §332 (a) and (b), Competitive Sealed

Proposals and public proposal opening are not required for the

procurement of Services. However, Competitive Sealed Proposals

shall be used when advantageous to the Navajo Nation.

Notwithstanding the above, public advertisement and competition

is required for all procurements of Services, unless otherwise

excepted by these Regulations and/or other Navajo Nation law.

The procurement process for each procurement of Services shall

begin with either a Request for Proposals ("RFP") prepared and

issued by the Procuring Party or a Request for Statements of

Qualifications ("RSQ") prepared and issued by the Procuring

Party.

The purpose of the RFP is to solicit offers for the provision of

defined Services from vendors wishing to contract for the

provision of those Services. The purpose of the RSQ is to identify

those vendors capable of providing Services for a specific purpose,

or in a specific area, who may wish to contract for provision of

defmed Services for that purpose or in that area at a later date. All

solicitations shall clearly indicate whether they are an RFP or

RSQ.

The RFP and RSQ shall include the following, as applicable:

a. Instruction ·and information to offerors concerning the

proposal submission requirements, including:

a complete description of the Services desired,

including experience and/or education requirements

of the vendor, performance standards, performance

schedule, and evaluation factors and process;

if Goods are included with the Services,

specifications for the Goods meeting the criteria of

Section III (A) (2) (Specifications);

111.

the deadline set for submission of proposals;

1v.

the individual to whom the proposals are to be

submitted and the address of the office to which

proposals are to be delivered;

the form or format in which proposals are to be

submitted;

vi.

the dat~ and time of any pre-proposal conference(s)

and whether ·such conference(s) are mandatory or

voluntary;

vii.

the date(s) and titne frame for Proposal Opening

and evaluation and whether Proposal Opening shall

be public; and

viii.

any other special information, such unique contract

terms ancl conditions~ Jn<;htding warranty, bonding

ot other security requirements.

b. Instructions to offerors to visibly mark as "Proprietary"

each part of their proposal which they conSider to be

proprietary information and to submit proposed Cost

Schedules in.aseparate attached sealed envelope.

c. If the solicitation is an RSQ; instructions to offerors that

only those vendors responding to the RSQ will be

allowed the opportunity to offer on any·RFP issued under

the RSQ.

d. Instructions to offerors to visibly mark on the outside of

the proposal package, if e1pplicable, the offeror's priority

~tatus under the Navajo Nation Business Opportunity

Act. It is the responsibility of the offeror to identify

themselves as certified under the Navajo Nation Business

Opportunity Act.

e. Notification to offerors that:

the Navajo Nation is not bound to enter a contract

under the RFP or RSQ and may issue a subsequent

RFP or RSQ for the same services; and

the Navajo Nation is a sovereign government and

all contracts entered into as a result for the RFP or

RSQ shall comply with the NavcYo Nation law,

rules and regulations, including the Navajo

Preference in Employment Act, and applicable

federal law, rules, and regulations.

The purpose of the description of Services contained within the

RFP or RSQ is to serve as a basis for the Navajo Nation obtaining

Services that are adequate and suitable for its needs in a cost

effective manner. It is the policy of the NavcYO Nation that

description of Services permit maximum practicable competition

consistent with this purpose.

At a minimum, the description of Services should contain the

following:

a. The actual Services desired, e.g., consulting Services in a

specific area, design Services for a specific project,

collection Services for a specific group of acCO\UltS, etc~;

b. If Goods.are included with the Services, the actual Goods

desired, i.e., specifications for the Goods meeting the

criteria of Section III (A) (2) (Specifications);

c. The minimum qualifications of the vendor, e.g., level of

education, specific licensing, experience in a specific

area, length of time in business, etc.;

d. Any bonding, security, and insurance requirements; and

e. Performance schedule and/or length of contract.

The procurement process is unduly delayed by incomplete,

inaccurate or otherwise erroneous descriptions of Services. Tribal

resources, both time and money, are wasted when procurement are

made with erroneous descriptions of Services.

While the

Purchasing Services Department is available, upon request, to

assist in the development of description of Services, it is the

responsibility of the Procuring Party to obtain complete,

comprehensive, and accurate descriptions for the Services they

wish to procure and to include those descriptions in the RFP or

RSQ.

An RFP or RSQ will be issued in a fashion designed to ·provide

offerors a reasonable time to prepare their proposals and shall be

publicized in a newspaper of general circulation for a reasonable

time prior to the deadline for proposal acceptance. Publication of

the RFP or RSQ in a newspaper of general circulation shall satisfy

any requirements, unless otherwise excepted under these

Regulations or other Navajo Nation law, to notify vendors

certified under the Navajo Business Opportunity Act.

The Business Regulatory Department shall maintain a listing of

newspapers satisfying general circulation requirements.

The issuance of an RFP or RSQ is the responsibility of the

Procuring Party, with assistance of the Purchasing Services

Department, pursuant to the procedures and protocol duty

established for their division, department or Chapter. Upon

written request, the Director of the Purchasing Services

Department shall review and comment on an RFP or RsQ before

publication.

The Purchasing Services Department may issue an RFP or RSQ

instead of an Invitation for Bids in the procurement of Goods

when a Specification cannot be determined after diligent efforts,

an ongoing need is identified for the desired Goods, or for any

other reason in the best interests of the Navajo Nation. In such a

situation, the Purchasing Services Department shall adhere to

Section IV of these Regulations except that Proposal Opening in

such situations shall be public.

B. Notice to Business Regulatory Department

Prior to Proposal Opening, the Procuring Party shall provide the Business

Regulatory Department with:

a copy of the RFP or RSQ; and

a copy of the notice published in the newspaper; or

a list of all business directly notified, including the dates and

manner of such notification.

C. Proposal Opening

Proposals shall be opened publicly only if so identified in the RFP

or RSQ. If proposals are opened publicly, they shall be opened in

the presence of one or more witnesses at the time and place

designated in the RFP or RSQ.

The Procuring Party shall decide when the time set for Proposal

Opening has arrived and shall then open all proposals marked as

Priority No. 1 vendors under the Navajo Nation Business

Opportunity Act received prior to the proposal submission

deadline and have the proposals recorded in a Register of

Proposals. The name of the offeror and such other relevant

information, as determined by the Procuring Party, shall be

recorded. The Procuring Party shall not disclose any information

marked as proprietary.

The Register of Proposals shall be open to public inspection, to

the extent not prohibited by the Navajo Nation Privacy and

Access to Infonnation Act.

Only the infonnation disclosed by the Procuring Party is

considered to be ·public infonnation Uilder the Navajo Nation

Privacy and Access to Information Act until. the Notice of Intent

to Award is issued.

The Procuring Party shall then evaluate the proposals of all

Priority No. 1 vendors pursuant to subsection (D) (Proposal

Evaluation) below and award the solicitation to a responsible. and

responsive Priority No. 1 vendor pursuant to subsection (E)

(Proposal Award) below.

If there are no proposals marked as submitted by Priority No. l

vendors under the Navajo Nation Business Opportunity Act or if

no Priority No. 1 vendors are deemed responsible and responsive

after evaluation, the Procuring Party shall then follow subsections

(2) and (3) above in opening all proposals marked as Priority No.

2 vendors under the Navajo Nation Business Opportunity Act.

If there are no proposals marked as Priority No. 1 or Priority No. 2

vendors or if no Priority No. 1 or Priority No. 2 vendors are

deemed responsible and responsive after evaluation, the Procuring

Party shall then follow subsections (2) and (3) in opening all

proposals.

Due to the necessity to thoroughly evaluate the proposals of

higher priority vendors before opening the proposals of lower and

no priority vendors, the Procuring Party may schedule a

subsequent public Proposal Opening, if necessary. The Procuring

Party will announce the date, time and location of any subsequent

public Proposal Openings during the initial Proposal Opening.

If it becomes necessary to postpone a Proposal Opening, the

Procuring Party shall notify each offeror submitting a proposal.

When the procuring agency is closed due to force majeure (Acts

of God), Proposal Opening will be postponed· to the same time on

the next official business day.

D. Proposal Evaluation

The goal of proposal evaluation is to select a responsible vendor

that is the most responsive and best serves the needs of the Navajo

Nation which includes adherence to the Navajo Nation Business

Opport~ty Act and provides the Procuring Party with the lowest

responsive price for the best Services.

The RFP or RSQ shall state all of the evaluation factors, which

may jnclude price, and their relative importance. The evilri11tion

and evaluation process shall be based only on the evaluation

factors set forth in the RFP or RSQ ~d the best interest of the

Navajo Nation. Nwneric rating systems may be used.

Any proposal which fruls to conform to the esse11tial recp.rirements

ofthe RFP or RSQ shall be rejected as non-responsive.

Any proposal which does not confonil to the description of

Services(and specificationsfor Goods, as applicable) contained or

referenced in the RFP or RSQ shall be rejected as non-responsive

unless the RFP or RSQ authorized the submission of alternate

proposals and the Services offered as alternates meet the

requirements Specified in the RFP or RSQ.

A proposal in which the offeror attempts to impose co11diticms

which would modify requirements of the RFP or RSQ or limit the

offeror's liability to the Navajo Nation shall be rejected as nonresponsive.

At the discretion of the Procuring Party, upon consultation with

the Department of Justice (or Office of Legislative Counsel for

procurements of the Legislative Branch)~ offerors may be

requested to delete objectionable conditions from their offer

provided that these conditions do not go to substance, as

distinguished from the form of the offer ot work an injustice on

other offerors.

Unsigned proposals shall be rejected as non-responsive unless a

representative of the company who has the authority to sign is

present at the Proposal Opening and if discovery is made prior to

the reading of any proposals for that procurement, the

representative shall be allowed to sign the offer.

Unless the RFP or RSQ so provides, an offer is not rendered nonresponsive by the fact that the offeror specifies that award will be

accepted only on all, or a specified group, of the Services included

in the RFP or RSQ. However, offerors shall not be permitted to

withdraw or modify an "all or none" qualification.

Discussions may be conducted with responsible offerors who the

Procuring Party has determined, after initial evaluation, are

reasonably susceptible of being selected for award for the purpose

of clarification to. assure full understanding of and responsiveness

to the RFP or RSQ and the ·needs of the Navajo Nation.

In conducting discussions, there shall be no disclosure of any

information from proposals submitted by competing offerors.

After preliminary evaluation and discussion and at the invitation

of the. Procuring Party and for the purposes of obtaining best and

final offers, offerors may be permitted to submit revised proposals

prior to award. All offerors, even those not deemed reasonably

susceptible of being selected for award, shall be permitted to

submit such revised proposals.

The Procuring Party shall notify each efferor in writing of the

opportunity to submit revised proposals; the due date, required

format for such revised proposals, and the specific issues to be

addressed·in the revised proposals.

E. Proposal~lfard

Awards shall only be made to responsible offerors.

The

procurement shall be awarded to the responsible and responsive

offeror (s) whose proposal is most advantageous to and best

serves the needs of the Procuring Party and the Navajo Nation

taking into consideration price and the evaluation factors set forth

in the RFP.

All awards shall be contingent on the execution of a written

contract that is acceptable to the Procuring Party and awardee.

Such contract shall comply with Navajo Nation law.

The Procuring Party shall issue a Notice oflntent to Award on the

date announced at the offer opening, unless the Procuring Party

determines, and gives notice, that a longer review time is

necessary. The Procuring Party shall give notice of a time

extension to each offeror by posting it at the location announced at

the offer opening.

Should administrative difficulties be encountered after offer

opening which may delay award beyond offerors' acceptance

periods, the several most responsive offerors should be requested,

before expiration of their offers, to extend the offer acceptance

period (with consent of sureties, if any,) in order to avoid the need

for re-advertisement.

Written Ngtice of Intent to Award shall be hand-delivered or sent

. by first class mail to the selected offeror.

Notice of Intent to Award shall be made available to the public on

request and shall be available from $-e Procuring Party.

Business Regulatory Department Clearance

Prior to conli;'act formation under subsection (G) below, the Business

Regulatory D~partment s1tall certify that the Navajo Nation Business

Opportunity Act was adhered to in the soliCitation and award.

Contract Document

The Pr()cuting Party shall develop a written contract covering the

procurement of Services identified in the RFP that is acceptable to

the awardee and complying with Navajo Nation law, mcluding

but not limited to 2 N.N.C. §223 (as amended by CAU-48-03) and

Section XIV (Types of Contracts) of these Regulations.

Purchase Orders shall not be used for the contracting of Services.

Encumbrance

The. Procuring Party shall submit the proposed contract and

review packet to the appropriate encumbrance section of the

Division of Finance for verification of allowable costs, funds

availability, and funds encumbrance.

·2.

If the costs are not allowable; funds are not available or there are

other apparent deficiencies in the contract, the Division of Finance

will return the contract to the Procuring Party with appropriate

comments.

If costs are allowable, funds are available and there are not other

apparent deficiencies, the Division of Fmance will signify

approval and funds encumbrance.

Contract Review/Execution

All contracts for Services, unless otherwise excepted by Navajo

Nation law or these Regulations, shall be submitted through the 2

N.N.C. §164 (B) (as amended by CAU-48-03) review process for

signature and comment.

All contracts for Services shall be executed pursuant to 2 N.N.C.

§222 (as amended by CAU-48-03).

Copies of all executed contracts shall be forwarded to: the

Division of Finance Financial Services, Procuring Party, Office of

Contracts and Grants (Office of Contracts and Grants require four

original copies).

Processing of Payments

The payment procedures established by the Division of Finance shall be

adhered to and shall not begin until Services have been performed

pursuant to the contract and completed to the satisfaction of the Procuring

Party~ The Procuring Party is resportsible for filling out a Receiving

Record form (forms may be obtained from the Office of Management and

Budget) by stating exactly what Services were performed and completed

and that the completed Services are satisfactory to the Procuring Party.

The completed Receiving Record form and the Vendor's Invoices are to

be submitted to Accounts Payable for processing of payment. It is the

responsibility of the Procuring Party to insure that vendors are paid within

a reasonable time period.

Construction and Construction Related Senices

General; Application

Solicitations for Construction and Construction Related Services

shall adhere to these Regulations for Services. Solicitations for

Construction or Construction Related projects costing more than

$50,000.00 shall adhere to Section IV (Procurement of Services)

of these Regulations.

Solicitations for Construction or

Construction Related projects costing $50,000.00 oi less adhere to

Section V (Small Purchases) and subsection V (D) (Small

Purchase of Services) of these Regulations.

All solicitations for Construction or Construction Related

contracts shall identify the amount and form of bid security,

payment and performance bonds, and insurance.

The method of construction management for a Construction or

Construction Related procurement shall be determined under

regulations established pursuant to 12 N.N. C. §340 (as amended

by CAU-:68-01). If no such regulations are in place, the Procuring

Party shall use a general contractor as the method of construction

management. except if another method serves the best interests of

the Navajo Nation, such as, but not limited to, Design and

Engineering Department or multiple contractors managed by a

designated general contractor, construction manager, or

procurement agent. The Director of the Purclulsing Services

Department and the head of the Procuring Party's ·department or a

designated chapter official shall concur on the method of

construction management and such method shall be identified in

the solicitation.

A written statement justifying the choice of construction

management, signed by the Director of the Purchasing Services

Department and the head of the Procuring Party's. department or

a designated Chapter official, shall be included in the contract

file.

Contracts for Construction or Construction Related Services shall

use standard forms approved by the Navajo Nation Department of

Justice.

Bid Security

· 1.

Bid security shall be required for all Construction or Construction

Related contracts when the price is estimated to be greater than

$50,000.00. Nothing herein prevents the _requirement of bid

security on Construction or Construction Related contracts under

$50,000.00 when the circumstances warrant.

Bid security shall be in an amount equal to at least ten percent

( 10%) of the amount of the bid.

Acceptable bid security shall be limited to:

a. an annual or one~time bond in a form satisfactory to the

Controller of the Navajo Nation underwritten by a surety

company authorized to do business within the Navajo

Nation; or

b. the equivalent in cash, a bank certified check, or cashiers

check payable to the Navajo Nation.

If an offer does not comply with the bid security requirements

identified in the solicitation, the offer shall be rejected as nonresponsive unless the failure to comply is determined by the

Procuring Party to be non-substantial where:

a. only one offer is received and there is not sufficient time

tore- solicit the contract; or

b. the amount of the bid security submitted~ though less than

the amount required by the solicitation, is equal to or

greater than the difference in the price stated in· the next

highest acceptable bid; or

c. the bid security becomes inadequate as a result of the

correction of a mistake in the offer or offer modification

if the offeror increases the amount of guarantee to

required limits within forty-eight (48) hours after the

Proposal Opening.

Contract Performan~e and Payment Bonds

. 1.

When a Construction or Construction Related contract is awarded

in an amount of $50,000.00 or greater, the folloWing bonds shall

be delivered to the Procuring Party and shall become binding on

the parties upon the execution of the contract:·

a. a perfonnance bond in a fonn satisfactory to the

Controller of the Navajo Nation underwritten by a surety

company authorized to do business within the Navajo

Nation in an amount equal to one hundred percent

(100%) of the price specified in the contract; and

b. a payment bond in a fonn satisfactory to the Controller of

the Navajo Nation underwritten by a surety company

authorized to do business Within the Navajo Nation for

the protection of all persons supplying labor and material

to the contractor or its subcontractor· for the perfonnance

of the work provided in the contract in an amount equal

to one hundred percent (1 00%) of the price specified in

the current.

The head of the Procuring Party's department or designated

Chapter official, with the concurrence of the Controller of the

Navajo Nation or his designee, may reduce the amount of the

performance and payment bonds to fifty percent (50%) of the

contract price for each bond when:

a. retention on the contract is set at fifty percent (50%) or

above; or

b. the contractor provides an irrevocable letter of credit

equal to at least fifty percent (50%) of the contract price.

All solicitations for Construction or Construction Related services

shall.identify the amount of bid security required.

The bead of the Procuring Party's department or a designated

Chapter official, with the concurrence of the Controller of the

Navajo Nation or his designee, may reduce the amount of the

performance bond as work is completed if such reduction is in the

best interests of the Navajo Nation.

Nothing in these regulations shall be construed to limit the

authority of the Navajo Nation to require a performance bond of

other security in addition to those bonds specifically provided for

in this subsection or in circumstances other than those specified in

this subsection.

The Controller of the Navajo Nation shall promulgate the fonn of

the bonds required by this Section, which shall be reviewed and

approved by the Navajo Nation Department of Justice.

INSURANCE

Construction and Construction Related contracts shall contain

requirements for the protection of the Navajo Nation through

sufficient insurance as specified by the Risk· Management

Department of the Insurance Services Department. The. form and

adequate proof of all such insurance shall be established by the

Directors of the Risk Management Department or his designee

prior to the execution of the contract.

INDEMNIFICATION

All Construction and Construction Related contractors shall

indemnify and hold harmless the Navajo Nation, its agents and

employees from any damages, losses and liabilities arising out of

or resulting from any operations connected with the construction

project, by the use of any improper materials, or by any act or

omission of the contractor or its subcontractors, agents, servants,

or employees.

MODIFICATION AND CHANGE ORDERS

1. All construction or construction Related contracts shall contain

provisions giving the Procuring Party the right to require changes

in quantities, additions or deletions of work or other changes

within the original intent of the contract. Contractors, in

accordance with contract provisions, for such things as

unforesee11 field, regulatory, or. market conditions and ·other

emergencies, acts of God, and justifiable delays, may request

C:h.ange orders. All f.:hange or<iers shall adhere to section XV

(Modifications and Change Orders) ..

2. All changes to Constn1ction or Constructit?n Relateci contracts

that alter the terms and conditions of the contract or provide for a

change in ~cope of the project beyond the original intent and

costing more than twenty percent (20%) of the original cost of

the contract must be contained in · a foon.al ·amendment to the

contract subject to the applicable Section 1M or Achninistrative

review process.

SMALL PURCHASES

General; Application

In order to mmmuze the administrative cost impact of the

purchasing function on i11direct costs, a need was recognized to

procure Goods or Services of low dollar value under simplified

procedures. To address this need, the Navajo Nation Council at 12

N.N.C. 333 (as amended by CAU-68-01), enacted a Small Purchase

exception to the general Navajo Nation purchasing rules for Goods

and/or Services with a cost of $50,000.00 or less.

The procedures set forth in this Small Purchases' section shall apply

to the purchase of Goods or Services by any division, departmen:t;

office or program or uncertified political subdivision of the Navajo

Nation, as defined in 12 N.N.C. §308 (o) (as amended by CAU-680 1) and shall apply to all purchase of Goods and Services, including

modification and change,-orders, with a cost of $50,000.00 or less.

The comprehensive Regulations (the Navajo Nation Procurement

Rules and Regulations) shall apply to the procurement of Goods and

Services, .including modification and change-orders, with a cost of

$50,000~00 or less unless excepted or specifically contradicted by

this Small Purchases' Section.

The procedures set forth for the procurement of Small Purchases

shall not be used in the acquisition of Goods and Services initially

estimated to exceed $50,000.00 even though resulting-awards do not

exceed that limit. Requirements which may in total add up to more

than $50,000.00 shall not be split into several purchase actions that

are less than those limits merely to permit the use of these Small

Purchases' procedures.

Small Purchase can be separated into two main categories: (1)

Goods and (2) Services. The purchase of Goods is further divided

into two subcategories: (1) Goods costing $5,000.00 or less and (2)

Goods costing between $5,000.01 and $50,000.00.· Each Small

Purchase category and subcategory requires adherence to distinct

procedures. These procedures are to be adhered to by Purchasing

Service Department and non-Purchasing Service Department

personnel at all times.

Pursuant to 2 N.N.C §223 (as amended by CAU-68-01), public

advertisement and bidding is not required for the procurement of

Goods and Services costing less than $50,000.00 and pursuant to 12

N.N.C. S330 (as amended by CAU-68-01), Competitive Sealed

Bidding or Proposals are not required for the procurement of Goods

or Services costing less than $50,000.00.

Notwithstanding the above, all vendors certified under the Navajo

Nation Business Opportunity Act and listed as providing the Goods

and Services required by the small p1lrchases procurement shall be

given the opportunity to submit bids or proposal for the

procurement.

Notwithstanding subsection (6) above, there may be situations

where the procurement of Goods or Services meeting the Small

Purchasing limitation would be enhanced by public advertisement

and/or competitive sealed bidding. In such a situation, the

Purchasing Services Department and/or the Procuring Party shall

adhere to the Regulations for procurement above $50,000.00 as

applicable.

The Purchasing Services Department shall maintain a record,

confonning to the requirements of 12 N.N.C. S336, listing all

purchases made under this Small Purchase section for a minimum of

five years.

All Procuring Parties shall provide the Purchasing

Services Department with the following infonnation for each

procurement under this Small Purchase section:

a. the awardee's name'

b. the amount and type of each contract, and

c. a listing of the Goods and Services procured under each

contract.

Procurements made under this Small Purchase section shall onlybe

awarded to responsible bidders and offerors.

10.

Bids and offers received under this Small Purchases section shall be

evaluated for responsiveness under the criteria listed in .Section III

(G) (Bid Evaluation) and Section IV (D) (Proposal Evaluation) of

these Regulations, as applicable.

B. Small Purchase of Goods

The following procedures shall apply to the .procurement of Goods under this

Small Purchase Section.

Goods Costing $5,000.00 or less

a. The purchase of Goods with a total cost of$5,000.00 or less may

be procured by the Procuring Party's division or Chapter and

shall not require Purchasing Services Department direct

involvement except where specifically indicated or requested.

b. Notwithstanding subsection (a) above, all Divisions and Chapters

wishing to procure Goods with a total cost of $5,000.00 or less

without Purchasing Services Department involvement must

attend annual training offered by the Purchasing Services

Department. Fallure to attend. annual training wiil result in the

revocation of the procurement privilege identified above.

When practicable, the business community will be allowed to

attend such training for a reasonable cost. ·

c. For the procurement of Goods costing less than $5,000.00, the

Procuring Party will complete the purchasing process by

sequentially adhering to the following steps:

The Procuring Party will complete, in full, a Purchase

Requisition form in adherence to Section III (A)

(Purchase Requisition) of these Regulations.

The Procuring Party will forward the completed

Purchase Requisition form to his(her Division

Director or other authorized Division representative

or Chapter official for approval who will check for

allowable costs and the availability of funds by

referring to the latest budget reports and sign the form

in the space provided to indicated approval.

iii.

The Procuring Party shall then comply with Section

III (B) of these Regulations (Property and Supply

Clearance).

IV.

After clearance by the Property Management

Department, the Procuring Party shall then check to

see if the Goods required are available under a current

Purchase Agreement. Ifthe Goods are available, the

Procuring Party shall procure the Goods through

Section Vlll (Blanket Purchase Agreements) of these

Regulations. The Purchasing Services Department

shall publish a listing of all active Blanket Purchase

Agreements and the Goods available under each.

The Procuring Party shall forward the Purchases

Requisition form to the appropriate encumbrance

sectiort of the Division of Finance for cmnpliance

with Section ill(c) (Encumbrance) of these

Regulations.

vi.

Once the Division of Finance has signified funds

encumbrance, the Procuring Party shall prepare a bid

solicitation conforming to the criteria enumerated in

Section III (D) (2) (Invitation for Bids).

vii.

The Procuring Party shall then obtain (solicit) bids

from vendors in the order specified in subsections

(xii) through (xvii) below. Identical bid solicitations

shall be submitted to all vendors.

viii.

Bids may be solicited through any reasonable means,

including telephone, telefax, and catalog. The vendor

must submit written confirmation of bids solicited

through telephone.

ix.

A log shall be kept for bids solicited over the

telephone identifying the time of the call and the

name of the vendor's representative contacted. Such

log must be attached to the Purchase Requisition

form.

All quotations from vendors must be confirmed in

An Established Catalog Price is an

writing.

acceptable quotation and shall fulfill the writing

requirement.

xi.

The Procuring Party must attach copies of all

quotations to the Purchase Requisition form.

xii.

The Procuring Party shall solicit bids from all Priority

No. 1 status Navajo Certified vendors claiming

qualification to meet the Procuring Party's

requirements as identified on the current Source List

maintained by the Business Regulatory Department.

xiii.

The Procuring Party shall select for award the lowest

responsible and responsive Priority No. 1 vendor

within the Maximum Feasible Price/Cost

If there are no responsive and responsible Priority No.

I vendors within the Maximum Feasible Price/Cost,

the Procuring party shall allow all responsive Priority

No. 1 vendors one opport~ity to resubmit

prices/costs within the Maximum Feasible Cost/Price

and shall then select for award the Priority No. 1

vendor submitting the lowest bid Within the

Maximum Feasible Cost/Price.

xiv.

If there are no Priority No.1 status vendors claiming

qualification to meet the Procuring Party's

requirement as identified on the. current Source List

maintained by the Business Regulatory Department or

there are no responsive and responsible Priority No. 1

vendors within the Maximum Feasible Price/C()st, the

Procuring Party shall solicit quotations from all

Priority No. 2 status Navajo Certified Vendors

claiming qualification to meet the Procuring Party's

requirements as identified on the current Source List

maintained by the Business Regulatory Department.

xv.

The Procuring Party shall then select for award the

Priority No. 2 vendor submitting the lowest

responsive bid within the Maximum Feasible

Price/Cost.

xvi.

If no Priority No. 1 or No. 2 vendors submit

quotations in a timely fashion or there are no Priority

No. I or No. 2 vendor qualified and responsive to

meet the Procuring Party's requirements, the

Procuring Party shall obtain certification from the

Business Regulatory Department that the Navajo

Nation Business Opportunity Act has been compiled

with.

The Procuring Party shall provide the Business

Regulatory Department with:

a. a copy of the bid solicitation; and

b. a list of all Navajo Priority No. ·1 and Priority

No. 2 vendor notified, including the date and

manner of such notification.

xv11.

After Business Regulatory Department certification,

the Procuring party may obtain quotations from noncertified vendors claiming qualification to meet the

Procuring Party's reqUirements.

The Procuring Party shall then award the procurement

to the lowest responsive and reasonable vendor within

the Maximwn Feasible Price/Cost.

xviii. Once a vendor has been selected, the Procuring Party

will prepare. a Purchase Order. The Purchase Order

shaH be approved by the Procuring Party's

department head or other authorized Division

representative or Chapter official.

xix.

The Procuring Party will award the bid to the selected

vendor by telefaxing; if possible, a copy of the

Purchase Order to the selected vendor and then

mailing the original Purchase Order to the vendor.

xx.

The Procuring Party will forward a copy of the

Purchase Order along with the Purchase Requisition

and bid solicitation package to the Purchasing

Services Department for inclusion in the Small

Purchase record.

Goods Costing Between $5,000.00 and $50,000.00

a. With the exception of procurements by Certified Small Purchase

Authorities, all procurements of Goods having total cost between

$5,000.01 and $50,000.00 shall be processed through the

Purchasing Services Department.

b. The procedures set forth in this subsection (2) shall not be used

in the acquisition of Goods initially ~stimated to exceed

$50,000.00.

c. The procurement of Goods under this subsection (2) shall

comply with. the Regulations applicable to Goods costing more

than $50,000.00 except for the followings:

For Goods procured under this sub$ection (2), the

Procuring Party and the Purchasing Services

Department shall satisfy notice and competition

requirements through either:

a. adherence to Section III (D) (3) of these

Regulations; or

b. Mailing or telefaxing of the InviUltion to Bid to

all Navajo Certified Vendors claiming

qualification to fulfill the procurement as listed

on the Navajo Nation Business Source List.

d. Pursuant to 12 N.N.C. §330, the procurement ofSmall Purchases

under this subsection (2) does not require .Public Bid Opening

unless expressly stated in the Invitation for Bids. If the

Invitation for Bids requires Public Bid Opening, bids shall be

opened and evaluated in accordance with Section III (F) (Bid

Opening) and Section III (G) (Bid Evaluation).

If the Invitation for Bids does not require public Bid opening,

bids shall still be opened and evaluated in accordance with

Section III (F) (Bid Opening) and Section (G) (Bid Evaluation)

except that public presence and· announcement requirements shall

be excused.

e. The Purchasing Services Department shall include a copy of the

Purchase Order along with the Purchase Requisition and bid

solicitation package in the Small Purchase record.

C. Certified Small Purchase Authority

The Director of the Purchasing Services Department may certify

departments or program that repeatedly procure a high volume of

Goods used or consumed by, or on behalf of other divisions and/or

Chapters as a Certified Small Purchasing Authority able to make

enumerated direct Goods procurements ofless than $50,000.00.

Upon certification by the Director of the Purchasing Servi~es

Department, the Certified Small Purchase Authority may make

direct procurements of under $50,000.00 for enumerated items or

classes of items.

Certification as a Certified Small Purchase Authority shall be in

writing, signed by the Director of the Purchasing Services

Department and shall specify:

the name of the government body certified ·as a Certified Small

Purchase Authority; and

b. the specific Goods or classes of Goods, including, but not limited

to, cost/price limitations, of which the governmental body may

make direct procurement; and

c. any other limits or restrictions on the exercise of the certification;

and

d. ·the duration of the certification.

Certified Small Purchase Authorities shall be authorized to issue

Invitation for Bids, RFPs and RSQs and shall assume the role and

responsibilities of the Purchasing Services Department under this

Small Purchases section.

The requirements for initial certification as a Certified Small

Purchase Authority are as follows:

Written request for certification to the Director of the Purchasing

Services Department demonstrating the need for certification and

the volume of annual procurement used or consumed by or

procured on behalf of other Divisions and/or Chapters; and

b. Successful completion of annual Small Purchase Authority

training offered by the Purchasing Services Department.

The requirements for continuing certification as a Certified Small

Purchase Authority are as follows:

Demonstrated adherence to the certification agreement, these

Regulations, the Navajo Nation Procurement Code, the

Navajo Nation Procurement Act, and the Navajo Nation

Business Opportunity Act.

ii.

Complete file documentation of procurements,.including, but

not litnited to:

Complete solicitation package for eacll

procurement; and

b. Complete Purchase Order register; and

c. Adequate audit trails.

Certification as a Certified Small Purchase Authority may be

revoked by the Director of the Purchasing Services Department at

any time and for any reason that fUrthers the .best interests of the

Navajo Nation, including to, but not limited to, acting outside the

scope of the certification agreement.

D. Small Purchase of Services

The following procedures apply only to· the procurement of Services

costing $50,000.00 or less.

The procurement of Services costing $50,000.00 or less shall be

initiated by an RFP or RSQ meeting the requirements of Section IV

(A) of these Regulations.

After approval by the department head or designated chapter

official, the Procuring Party shall give notice of the RFP or RSQ to

all Navajo Certified Vendors claiming qualification to meet the

Procuring Party's requirement as identified on the current Source

List maintained by the Business Regulatory Department.

The Procuring Party shall

requirements through either:

satisfy notice

and

competition

a adherence to Section IV (A) (6) of these Regulations; or

b. mailing or telefaxing of the RFP or RSQ to all Navajo

Certified Vendors claiming qualification to fulfill the

procurement as listed on the Navajo Nation Business Source

List.

After the deadline date for the submission of proposals and before

the deadline date for the selection of the vendor, the Procuring Party

will evaluate the proposals by Navajo Certified Vendors, in order of

Priority status under the Navajo Nation Business Opportunity Act,

for conformance with the RFP and select the proposal of the highest

Priority Navajo Certified Vendor that 1s, after opportuni~y for

negotiation, the most responsive.

lfthere are no proposals from Navajo Certified Vendors qualified to

meet the Procuring Party's requirements, the Procuring Party will

then evaluate the proposals from non..Certified Vendors for

conformance with the RFP and select the quotation of the nonCertified Vendor that is the most responsive.

After a vendor has been selected, the Procuring Party shall obtain

clearance from the Business Regulatory Departmentthat vendor

selection adhered t() the Navajo Business Opportunity Act and that

the vendor is eligible to contract under the Navajo Nation

Procurement Code.

After Business Regulatory Department clearance, the Procuring

Party shall send the selected vendor written notification of tbejr

selection. This written notincation shall be signed by the Procuring

Party and the program director or department head or chapter

official.

The Procuring Party shall then adhere to Sections IV (G)

(Contractor Document) and IV {H) (Encumbrances) of these

Regulations.

After the Procuring Party has adhered to subsection (8) above, the

Procuring Party shall submit the contract for administrative review

and approval to the following entities:

a. The Program Director or Department Head; and

b. The Division Director or Chapter Official; and

c. The Division of Finance; and

d. The Navajo Nation Department of Justice (or Office of

Legislative Counsel for contracts of the Legislative Branch)

10.

After any concerns raised by the reviewers identified in subsection

(9) above have been addressed, the Procuring Party shall submit the

administrative review packet along with four (4) final copies of the

contract, signed by the vendor, to the Office of the President/VicePresident or Office of the Speaker for contracts of the Legislative

Branch or Chapter President for execution.

11.

After execution, the Procuring Party shall return signed copies of the

final contract to the vendor, to the Offi~e of Contracts 8lld Grants~

and to the Division of Finance. ·The Procuring Party shall· retain a

signed copy of the final contract

The Procuring Party will also. forward a signed copy of the contract

to the Purchasing Services Department for inclusion in the Small

Purchases record.

VI.

SOLE SOURCE PROCUREMENTS

A. General; Application

A need was recognized, under very limited circumstances, to allow

the procurement of Goods and/or·Services from a Sole Source under

simplified procedures. This need arises when, after the application

of proper competitive procedures, only one vendor qualified to

fulfill a procurement request can be located within a geographically

feasible area and no other Goods or· Services will satisfy the

procurement request and the expense attendant·to locating vendors

outside the geographically feasible area is an inefficient ll5e of

Navajo Nation resources. To address this need, the Navajo Nation

Council, at 12 N.N.C. §335 (as amended by CJY.;68-0l), enacted a

Sole Source Procurement exception to the comprehensive Navajo

Nation Procurement Regulations.

The procedures set forth in these Sole Source Procurement

Regulations shall apply to the purchase of Goods or Services,

regardless of the cost of the Goods or Services, by any division,

department, office or program or uncertified political subdivision of

the Navajo Nation, as defined in 12 N.N.C. §308(o) (as amended by

CAU-68-0 1).

The Regulations (the Navajo Nation Procurement Rules and

Regulations) shall apply to the procurement of Goods and Services,

including modifications and change-orders, unless excepted or

specificalJy contradicted by this Sole Source Procurement section.

The procedures set forth in these Sole Source Procurement

Regulations shall not be used in the acquisition of Goods or Services

available from more than one geographically feasible vendor,

regardless of whether those vendors are certified or non-certified.

Procurement and/or contract r~quirements shall not be narrowed or

manipulated merely to permit the use of these Regulations. The lack

of advanced planning on the part of the Procurirlg PartY shall not

j-ustify the use of this Sole Source Procurement section.

Administrative Review, as identified in subsection (C) {4) below is

required for all Sole Source Procurements.

The Purchasing Services Department .shall maintain a record,

conforming to the requirements of 12 N.N.c;. §336 .(as amended }Jy

CAU~68-01), listing all purchases made under these Sole Source

Procurement Regulations for a minimum of five years.

B. Definitions

"GEOGRAPIDCALLY FEASIBLE'' shall mean a geographic

area, surrounding the delivery local of the required Goods and/or

Services, that is broad enough to . allow sufficient vendor

competition, but narrow enough to minimize publications cost

during the procurement process.

'~SOLE SOURCE PROCUREMENT" shall mean a procurement

where the Procuring Party has determined., . after adherence to

applicable.procedures, that only one vendor is available to fulfill the

procurement request and no other Goods or Services will satisfy the

procurement request and the expenses attendant to locating vendors

outside a geographically feasible area is an inefficient use of Navajo

Nation resources.

C. Procedures for Sole Source Procurements

The Director of the Procuring Division or President of the Procuring

Chapter, the Purchasing Services Department Director, and a

representative from the Office of the Attorney General (or the Office

of Legislative Counsel for procurement by the Legislative Branch)

must determine and concur in writing that there is only one

geographically feasible qualified source for the desired Goods or

Services. Such written determination shall be included in the

subsequent contract file.

To qualify as a Sole Source Procurement and to gain the

determination and concurrence required in subsection ( 1) above, the

Procuring Party must, at a minimum, provide written documentation

of the following:

a. Justification that there is only one geographically feasible

qualified source for the desired Goods · or Services. Such

justification may be demonstrated by the following:

Public notice o£ the Invitation. for Bids or an RFP or RSQ

published for a reasonaple time prjor to the 4ate s~t for the

·submission of bids or proposal in a newspaper of general

:eirculati()n; and

ii.

A list of all entities submitting bids or proposals

demollS!fciting that only one or none qualified or

responsible vendors responded.

b. Justification as to why the expense attendant to locating vendors

outside the geographically feasible area is an ineffiCient .use .of

Navajo Nation Resources.

c. Justification as to why no other Goods or Services will satisfy

the procurement·request.

d. A cost price analysis justifying why the Sole Source Vendor's

price for the Goods or Services is reasonable.

e. Clearance by the Business Regulatory Department that the

Navajo Nation Business Opportunity Act has been adhered to in

the solicitation.

After securing .the detennination and concurrence required by

subsection (2) above, the Procuring Party shall proceed to enter a

contract pursuant to these Regulations.

Before issuance of a Purchase Order or execution of a contract, the

Procuring Party shall submit all Sole Source Procurement contracts,

including Purchase Orders, for Administrative ~eview and signature

by:

a. The Program Director or Department Head; and

b. The Division Director or Chapter President; and

c. The Division of Finance; and

d. The Office of the Attorney General (or Office of Legislative

Counsel for contracts of the Legislative Branch).

VII.

EMERGENCY PROCUREMENT

A. General; Application

In order to protect the public health, welfare and/or safety of the

residents of the Navajo Nation during emerg~ncy situations with

exigent . circumstances through t11e · expedited procurement of

necessary Goods or Services while still niaintainirtg a centrally

controlled and efficient purchasing system, a ne~ was ['ecognized to

allow the procurement of Goods and/or services under simplified

procedures during Emergency Conditions. This need arises only

when Emergency Qonditions exist. To address this need, the. Navajo

Nation Council, at 12 N.N;C.§ 334 (as amended by CAU~68-0l),

enacted an Emergency Procurement excepti()n tp the comprehensive

Navajo Nation Procurement Regulations. ·

The procedures set forth in this Emergency Proctirement section

shall apply to the purchase of Goods or Services, regardless of the

cost of the Goods or Services, by any division,. department, office or

program or uncertified political subdivision of the Navajo Nation, as

defined in 12 N.N. C.§ 308(o).

The Regulations (the Navajo Nation Procurement Rules and

Regulations) for non-Emergency procurements shall not apply to

Emergency Procurements unless specifically made applicable under

subsection (C) below.

The procedures set forth in this Emergency Procurement section

shall not be used in the acquisition of Goods or Services in nonEmergency Condition situations. Conditions and/or situations shall

not be inflated or manipulated merely to permit the use of this

Emergency Procurement section. The lack of advance planning on

the part of the Procurement Party shall not justify the use of this

Emergency Procurement·section.

To the extent practicable, vendors certified under the Navajo Nation

Business Opportunity Act shall receive preference for Emerge11;cy

Procurements.

The Purchasing Services Department shall maintain a record,

conforming to the requirements of 12 N.N.C. §336, listing all

purchases made ·under these Emergency Procurement Regulations

for a minimum if five years.

B. Definitions

"EMERGENCY CONDITION" shall mean an immediate threat,

arising suddenly out of the currents events, of compelling and

unusual urgency, to the public health, welfare, safety, and/or

property of the Navajo Nation or residents of the Navajo Nation

sufficient to warrant thtt suspension of the comprehensive Navajo

Nation Procurement Rules and Regulations.

C. Procedures and Emergency Procurement

The Procuring Party shall make Written application to the Executive

Director of the· affected division or Chapter President for an

expedited detennimuion that an Emergency Condition exists

sufficient to warrant a procurement under these Emergency

Procurement regulations. Such application shall in~lude detailed

documentation of the Emergency Condition..

The Executive Director or Chapter President shall secure the written

concurrence of the Director of the Purchasing Services Department

or authorized designee and a representative of the Office of the

Attorney General (or the Office of Legislative Counsel) that and an

Emergency Condition exists sufficient to. warrant procurement under

.these Emergency Procurement regulations.

The Director of the Purchasing. SerVices ·Department or authorized

designee and a representative of the Office of the Attorney General

(or the Office of Legislative Counsel for procurements by the

Legislative Branch) shall, in an expedited manner, provide written

concurrence as to what competition and selection procedures ate

acceptable and lawful under the circumstances.

As to the Emergency Procurement of goods, after subsections (1)(3) above, have been complied with, the Director of the Purchasing

Services Department or authorized designee shall determine whether

the ·Procuring Party or the Purchasing Services Department will

proceed to procure the needed Goods in the manner detenrtined in

subsection (3) above.

As to the emergency procurement of Services, after Sections (1)(3) above have been complied with, the Procuring Party will proceed

to procure the needed Services in the maimer determined in

subsection (3) above.

All Emergency Procurement contracts, including Purchase Orders,

shall be submitted for expedited administrative review and signature

by:

a. The program Director or Department Head; and

b. The Division Director or Chapter President; and

c. Busiriess Regulatory Dept

d. The Purchasing Services Department; and

e. The division of Finance; and

The. office of Attorney General (or office of Legislative

Courtselfor contracts of the Legislative Branch).

The. written determination that a Emergency Condition exists and

the selection of the particular vendor shall be included in the

procurement file.

VIII. BLANKET PURCHASE AGREEMENTS

A Blanket Purchase Agreement is a simplified method . of filling

anticipated repetitive needs for stnall quaJitiqes of Goods or Services

by establishing "charge accounts" with qualified sources. Blanket

Purchase Agreements are designed to reduce administrative costs in

accomplishing small purchases by eliminating the need for issuing

individual purchase documents.

Blanket Purchase Agreements for goods shall be treated as a

procurement for Goods and shall ·initially be prod\lced and

contracted in adherence to these Regulations through an Invitations

for Bids. Notwithstanding the above, the Pur~hase Order shall be

supplemented by a contractual agreement adhering to 2 N.N.C. §

222 (as amended by CAU-48-03).

Blanket Purchase agreements for Services shall be treated as

Procurement· of Services and shall ihltially be proclired and

Contracted by the Purchasing Services Department as the Procuring

Party in adherence to these Regulations through a RFP or RSQ.

To the extent practicable, Blanket Purchase Agreements for Goods

or Services of the same type should be placed concurrently with

more than one qualified vendor. All competitive sources be given an

equal opportunity to furnish Goods or Services under such

agreements.

At a minimum, Blanket Purchase Agreements shall contain the

following provisions:

1. A statement that the vendor shall furnish Goods or Services

described therein in general terms, during a specified period and

within a. stipulated aggregate ~ount, if ar1Y· Bl~et Purchase

Agreements m~y encompaSs all items that the vendor is in a

position to furnish.

2. A statement that the Navajo Nation is obligated only to the

exte11t of authorized orders actually placed ·against the Blanket

Purchase Agreement.

3. A detailed description of the required ordering, invoicing, and

··

delivery procedures;

4. A statement that notice of individuals authorized to place orders

under the agreement identified by orgallizational .component and

the dollar limitation per order for each individual shall be

furnished to the vendor by the Purch~,tsing Services Depl,\rtment

or Procuring Party.

IX.

Orders against Blanket Purchase Agreenu~11ts shall he placed only

after prices are obtained. When concurrent Blanket Purchase

Agreements for similar Goods or Services are in effect, orders shall

be equitably distributed to the extent practicable. In those instances

where there is an insufficient number of Blanket Purchase

Agreements for any given class of Goods or ·Services to assure

adequate competition, the Purchasing Services Department shall

solicit quotations from other sources.

Orders against Blanket Purchase Agreements shall only be made by

individuals formally authorized to place orders and generally will be

made orally, except that informal correspondence may be·used when

ordering against agreements outside the local. trade area. Written

orders may be executed on Purchase Orders or other forms approved

by the Purchasing Services Department. Documentation of orders

shall be limited to essential.infonnation.

The Purchasing Services Department and Division of Finance shall

review Blanket Purchase Agreement files at least semiannually to

assure that authorized procedures are being followed.

PREOUALIFICATION OF VENDORS

A. Pursuant to the Regulation governing RSQ's, prospective vendors may be

pre-qualified and distribution of solicitations identified in the RSQ may be

limited to these pre-qualified vendors.

B. Notwithstanding Section IV (A) (3), an RSQ may have an open-ended

deadline for submission of proposals. When an RSQ had an open-minded

deadlj~e for submission, vendors who submit responsive proposals and

meet the pre-qualification standards at any time be added to the prequalified list for S1lbsequent solicitations icientified in the RSQ.

C. The fact that a prospective. vendor had been pre-qualified does not

represent a finding of responsibility.

PRE•BID AND PRE-PROPOSAL CONFERENCES

Pre-Bid or pre-proposal conferences, either voluntary or JWUldatory, are

allowed and may be conducted, if so identified in the Invitation for Bids, RFP

or RSQ, including the date, time andlocation of the conference and whether

the conference is voluntary or map.datory.

XI.

RECEIPT AND SAFEGUARDS OF BIDS AND PROPOSALS

A. The p\ll'chasing Service Department for Goods procurements apd the

Proc.uring Party for Service procurements shall accept all bid or proposal

packages including those packages from vendors not certified under the

Navajo Nation Business Opportunity Act. The bid or proposal packages

shall be logged and stamped according to the. time officially received as

determined.· by the Purchasing Servic.e Department or Procuring Party, as

applicable. ·

B. As a general rule, facshnile or telegraphic 1Jids and proposals Will not be

accepted unless specifically authorized in the Invitation for Bids, RFP or

RSQ or these Regulations. When, in the judgme11t of the. Procurement

Officer or Procuring Party; as applicable, the date set for the opening of

bids or proposals will not allow bidders or offerors sufficient time to

prepare and submit bids or proposals in the prescribed manner or when

prices are subject to frequent changes, facsimile or telegraphic bids or

proposals may be authorized and Will be sealed (if required) when

received by the Procurement Officer or Procuring Party, as applicable.

C. Without exception, bid, or proposal packages submitted unsealed, without

identification, and /or after the time set for submission of bids or proposals

shall be marked and deemed non..;responsive. Such bid or proposal

packages shall not be opened.

D. All bids or proposals (including bid or proposal modifications) received

prior to the time of Bid or Proposal Opening shall be kept secure and,

except as provided in subsection (E), unopened. Necessary precautions

shall be taken to insure the security of all bids and proposals.

E, Prior to Bid or Proposal Qpening, information conce~ng the identify and

iullllbet of bids or proposals received shall be made available orily to the

NavajoNation employees, and .then (}nly .on a "needto .know" bas.is.

Prior to Notice of intent to Award, bid and proposal packages are not

public information under the Navajo Nation PriVacy and Access to

infortnation Act.

F. When bid or proposal samples are submitted, they shall be handled with

sufficient care to prevent disclosure of characteristics before bid or

Proposal Opening.

G. If a sealed bid or proposal is opened· by mistake, the person who .opens the

bid will immediately write his signature· and position on the envelope. and

deliver it to the Director of the Ptiichasing Serviee Department or his

designee or the Procuring Party who shall immediately write on the

envelope an ex;planation of the opening, the date and time opened, his

signature, and then shall immediately reseal the envelope..

XII.

CORRECTION OR WITHDRAWAL OF BIDS AND PROPOSALS

A. Bidders and offerors shall be allowed t() correct bids.and proposals before

the- bid or proposal submission deadline. Before the bid or proposal

submission deadline, the bidder or offeror must submit, to the

Procurement Officer or Procuring Party, as applicable,.a written requesno

correctthe bid or offer along with a corrected bid or proposal package.

B. Bidders and offerors shall not be allowed to correct bids or proposals after

the bid or proposal submission deadline has passed. Notwithstanding the

above; if the Procurement Officer or the Procuring Party, as applicable,

determines, after Bid or Proposal Opening, that a bid .or proposal clearly

contains an error in addition, an error in the extension of unit prices, or a

similar type error, the Procurement Officer of the .Procuring Party, as

applicable, may permit the bid or Proposal to be corrected. The

Procurement Officer or Procuring Party shall document in writing the

basis for such correction.

C. Bidders and offerors shall be allowed to withdraw bids or proposals prior

to the Bid or Proposal Opening. Before the date and time set for Bid or

Proposal Opening, the bidder or offeror must submit, to the Procurement

Officer or the Procuring Party, as applicable, a written request to withdraw

the bid or proposal.

XIII. CANCELLATION OR MODIFICATION OF INVITATION TO BID,

REQUEST FOR PROPOSAL, OR REQUEST FOR STATEMENT OF

QUALIFICATIONS

A. Every effort ,shall be made to anticipa,t~ changes in a requir~ment prior to

the deadline for bid or proposal submission and to potify prospective

bidders and offetots of ·any resulting modification; thereby pennitting

bidders and offerors to change their bids or proposals and preventing the

unnecessary .exposure of bid or proposal·prices. Such notification may

extend the bid or propos11l submission deadline and, the new Bid or

Proposal Opening date and time and shall be publicized in the same

manner as the Invitation for Bids, RFP or RSQ was publjshed.

B. Prior to an award, an Invitation for Bids, RFP or RSQ may be cancelled

when ~e Diregtor of the Purchasing Services Department 9r Procuring

Party detennines in writing that:

Inadequate or ambiguous specifications were cited in the invitation or

request; and

Specifications or descriptions have been revised; and

The Goods or Services being procuredare.no longer required; and

The Invitation to Bid, RFP or RSQ did not provide for consideration

of all factors ofcost to the Navajo Nation; and

Bids or proposals received indicate that the needs of the Navajo

Nation can be satisfied by a less expensive GoQd or Service or Good

Service differing· from that on which the bids or proposals were

invited or requested; and

All otherwise responsive bids or proposals received exceed available

fund or are at prices above the Maximum Feasible Price after

opportunity for negotiation pursuant to 12 N.N. C. §33l(f) and these

Regulations; and

The Director of the Purchasing Services Department or the Procuring

Party, upon consultation with the Navajo Nation Department of

Justice (or office of Legislative Branch for procurements of the

Legislative Branch) determines that the bids or proposals were not

independently arrived at in open competition, were collusive, or were

submitted in bad faith; and

For other reasons, cancellation is clearly in the best interest of the

Navajo Nation.

C. As a general rule, an Invitation for Bids, RFP or RSQ should not be

canceled after opening due solely to increased quantities of the Goods or

Services. being procured. The award should .be made on . the initial

Invitation for Bids or RFP and the additional quantity requited should be

treated as a modification or new procurement.

D. A determination to cancel an invitation for Bids, RFP or RSQ prior to the

bid or proposal submission deadlin~ shall be published in the sa.rne manner

as the Invitation for Bids, RFP ot RSQ was published. A determination to

cancel an Invitation for Bids or RFP after opening but prior to award shall

be mailed or telefaxed to bidders and offerors submitting timely bidS and

proposals.

E. If an Invitation for Bids,. an RFP, or RSQ is cancelled, bids and proposals

shall be returned to the bidders and offerors upon request.

F. A written justification for the cancellation of an Invitation for Bids,

approved by the Director of the Purchasing Services Department, or an

RFP or RSQ, approved by the Procuring Party and Navajo Nation

Department of Justice (or Office of Legislative Council for procurements

of he Legislative Branch) shall be made part ofhe procurement file.

XIV. TYPES OF CONTRACTS

A. Subject to these Regulations and the approval of· the Navajo Nation

Department of Justice (or Office of Legislative Counsel for contracts

affecting the Legislative Branch), any type ·of commercially reasonable

contract which promotes the best interest of the Navajo Nation may be

used, including, but not limited to the following:

Fixed-Price Contracts

A fixed-priced contract places responsibility on the vendor for the

delivery of the Goods or the complete performance of the Services,

including Construction, in accordance with the contract terms at a

price that may be firm or may be subject to contractually specified

adjustments. The fixed-priced contract is appropriate for use when the

extent and type of work necessary to meet the Procuring Party's

requirements can be reasonably specified and the cost can be

reasonably estimated, as is generally the case for standard commercial

Goods and Construction. A Purchase Order is a fonn of a fixed-price

contract.

a. Finn Fixed-Price Contract

A Firm Fixed-Price Contract provides a price that is not subject

to adjustments because of adjustment in the contractor's cost of

performing the work specified in the contract.

b. Fixed Price Contract with Price Adjustment '

A Fixed Price Contract with Price Adjustment provides :for

variation in the contractpri~ under special conqitiqns defined in

the contract, other than provisions authorizing. price adjustments

due to modifications to the work. The foriJ:lula or other basis by

which th..e adjustment in contract price can be made shall be

specified in the solicitation and the resulting contract.

Price adjustment may be allowed upward or downward or both.

Examples of conditions under which adjustments may be

provided in Fixed-Price Contracts with Price Adjustments are:

changes in the contractor's labor agreement t~tes as applied

to the industry, local area or the Navajo Nation; and

ii.

changes due to rapid and substantial price fluctuations,

which can relate to an accepted inqex (such as contracts for

gasoline, heating oils, etc); and

iii.

if the contract provides unilateral action .by ·the contractor

to bring out the condition under which a price increase may

occur, the contract shall reserve to the Navajo Nation the

right to reject the price increase and tenrtinate without cost

the future performance of the contract. The contract shall

also require that notice of any such price increase shall be

given within such time prior to its effective date as is

specified in the contract.

2. · Time and Materials Contracts

Time and Materials Contracts provide an agreed basis for payment for

materials supplied and labor performed. Such contracts shall, to the

extent possible, contain a stated ceiling or an estimate that shall not be

exceeded without Navajo Nation approval.

Labor Hour Contracts

A labor hour contracts provides only for the payment of labor

performed at an established rate.

Definite Quantity and Indefinite Quantity Contracts

Definite Quantity Contract

A definite quantity contract is a fixed·price contract that provides

for delivery of a specified quantity ofGoods or Services either at

specified times or when ordered.

b. Inde~nite Ql.lantity Contract

An indefinite quantity contract is .a contract for an indefinite

amountof Goods or Services to.· be fumish~d 11t specified times;

or as -ordered, that establishes fixed unit prices. ·Generally, an

approximate quantity or the best inf()rmation av;iila9le as to

q\}aritity is stated ·in the Solicitation. The contract may provide a

minimum quantity that the Procuring Party is obligated to order

and may also .provide for a maximum proVisi<>n that limits the

ProcUring Party" s obligation to order;

c. Requirement Contract

A requirement contact is an indefinite quantity contract for the

Goods or Services thatoblisates the Procuring Party to order all

the acntal requirements ofa designated user entities during a

specified period of time. As a general tule, requirements

contracts are to be avoided.

Cost•plus-a·percentage.;.of-cost Contracts are prohibited. A cost-plus·

a-percentage·of•cost contract is a contract that fixes the amount to be

· paid as the cost of the material and labor plus a percentage of the cost

ofthe material and labor.

B. Unless othe~ise excepted by Navajo Nation law, contracts shall, when

applicable, state in an appropriate form the following:

'(Jpon timely written notice, which shall be defined in th.e contra(:t, the

Navajo Nation shall have the unilateral right to order changes in the

' work within the scope of the contract; a method for calculating price

adjustments for such changes shall be defmed in the contract; and

Upon timely notice, which may be defmed in the-contract, the Navajo

Nation shall have the unilateral right to temporarily stop work on the

contract of to delay the contractor's performance under the contract; a

method for calculating a11y price adjustnl.ents for suc_h stoppage or

delay shall be defined in the contract; and

The liability of the Navajo Nation under such contract is contingent

upon the availability of appropriations by the Nayajo Nation Council;

and

NQthing llllder the contract expressly or impliedly watves the

Sovereign Immunity of the Navajo .Nation; and

The vendor shall comply with all applicable Navajo Nation laws and

. regulations; and

Any disputes under the contract shall be resolved under Navajo .

Nation law.

C. Unless otherwise prohibited by Navajo N~:~.tjQn law, .multi-term contracts

ate acceptable provided that· the term of the contract and conditions of

renewal or extensions are. included in the contract, as well as in the l,tFP,

and funds.l:lfeavailable for the first fi~cal period at the time of contracting.

Such contracts shall condition payment and performance obligations for

succeeding fiscal periods on the availability and appropriation of funds.

XV.

MODIFICATIONSAND CHANGE;.QRDERS

Contract modifications or change.-orders costing· more than twenty percent

(20%) of the total cost of the original contract and inconsistent with the

original scope of work shall requite new competition, subject to the

following:

A. Modifications or change:-orders costing more than $50,000,00 shall adhere

to the competition procedures in these Regulations fQr Goods or Services

costing more than $50, 000.00.

B. Modifications or change-orders costing less than $50,000.00 shall adhere

to .the competition procedures in Small Purchase se.ction of these

Regulations.

C. Modifications of change-orders meeting the criteria of Sole Source or

Emergency Procurements under these Regulations shall adhere to the Sole

Source Procurement and Emergency Procurement sections of these

Regulations.

XVI.

LOW TIE BIDS

Low tie bids are low responsive bids from responsible bidders that are

identical in price. If two (2) or more bidders are tied, the tie may be broken

and the successful bidder selected in accordance with the best interest of the

Navajo Nation, and the following may be given consideration:

A. Quality of the Goods or Services bid or proposed, if such quality is

ascertainable.

B. Deliyety' time;

:XVIT. RESPONSmLE VENDORS

A. The Navajo Nation shall only award procwements to re~ponsibl~

contractors.

B. It is the responsibility of the ProctJring Party to provide timely Written

notification to the Director of the Purchasing Services, the Director of the

B1.1siness Regulatory Depa.rtnlent, and the ·vend()r of any complaiJ;its

against vendors for contract :noncompliance or noncompliance with these

Regulations. The. Director of Purchasing Service~ shall investigate the

validit)' of ~uch written complaints (notificatio~), including allowing the

vendor the opportunity to respond. In determining responsibility for future

procJ.Irelilen,ts, only written complaiiJ.ts.shall be considered.

C. the Purchasing Se~ices Department or Procuring Party may make s.uch

investigations as it seems necessary to determine the ability of the vendor

to provide or perfonn, solicited Good or Services; The vendor shall

furnish to the Purchasing Services Department or Procuring Party all such

information and date requested for this purpose. The Navajo Nation

reserves the right to reject any bid or proposal, at any lin;le, if the evidtmce

submitted or investigation of such vendor fails to satisfy the Purchasing

Services .Department or Procuring Party that such vendor .is properly

qualified to provide the solicited Goods or Service and complete the work

contemplated therein or has provided false or misleading ·information.

The Purchasing Services Department or Procuring Party shall notify the

Vendor in writing of the reasons they are not properly qualified.

D. The Navajo Nation reserves the right to reject the Bid or proposal of any

bidder or offeror who:

has previously failed to properly perform or to complete on time

contracts of a similar nature;

is not in a position to perform the contract;

has habitually and without just cause neglected the payment of bills or

otherwise disregarded its obligations to subcontractors, employees,

etc.

E. Factors to be considered in determining whether a vendor or prospective

vendor is responsible are as follows:

whether the vendor has available the appropriate financial, material,

equipment, facility, and personnel resources and expertise, or the

ability to obtain them, necessary to .J11~t all procurements

requirements;· and

whether the vendor has a satisfactory· record of performance With the

Navajo Nation; and

whether the vendor has a satisfactory record of integrity with the

Navajo Nation; and

· ·

whether the vendor is legally qualified to.contractwith the Navajo

- Nation; and

whether the vendor has supplied all necessary information in

connection with the inquiry concerning responsibility.

F. The prospective vendor shall supply information requested by the

Purchasing Services Department or Procuring Party concerning the

responsibility of such vendor. If such vendor fails to supply the requested

information, the de~rmination of responsibility shall be based upon any

available information and the prospective vendor m[ly be deemed nonresponsible if the failure to provide the requested information is

unreasonable.

G. The prospective vendor may demonstrate the availability of necessary

financing, equipment, facilities, expertise~ <and personnel by submitting

upon request: .

evidence that such vendor possesses such necessary items; and

acceptable plans to subcontract for such necessary items; and

a documented commitment from, or explicit arrangement with, a

satisfactory source to provide the necessary items. .

H. Before awarding a contract, the Purchasing Services Department or

Procuring Party must be satisfied that the prospective vendor 1s

responsible.

I. If a bidder or offeror who otherwise would have been awarded a contract

is found non-responsible, a written determination of non-responsibility

setting forth the basis of the findings shall be prepared by the Purchasing

Services Department or the Procuring Party. A copy of the determination

shall be sent promptly to the bidder or offeror. The final determination

shall be made by the part of the procurement file.

XVIII. RISK MANAGEMENT

A. All contracts for Services, unless otherwise approved by the Department

of Justice (or Office of Legislative Counsel · for proclirements by the

Legislative Branch) shall require that the vendor defend, indemnify and

hold the Navajo Nation, the Navajo Nation's representative or agent, and

the officers, directors, agents, employees, and assigns of each harmless

from and against any and all claims, demands, suits, judgments, damages

to perSons or property, injuries, losses or expellSes of any nature

whatsoever (including attorney's fees at trial at appellate level) arising

directly or indirectly from or out of any negligent act or omission of the

contractor, its subcontractors or sub-consultants and their officers,

directors, agents or employees, and from any failure of the contractor to

perform .its services hereunder in accordance with generally accepted

professional standards and from any materials breach of the contractor's

representations set forth in its proposal and from any other failure of the

contractor to comply with the obligations on its part to be performed under

the contract.

B. The Navajo Nation Risk Management will review, when requested,

special conditions and instructions to bidders and offerors for the

solicitations of bids and proposals for Goods and Services, including

Construction, for insurance requirements whell the proVision of insurance

is specified in these Regulations or otherwise determined to be in the best

interest of the Navajo Nation. Prior to the awarding of a bid or offer where

insurance is required by these Regulations or the s·olicitation, the Risk

Manager will review insurance certifications and shall provide written

approval or rejection of the proof of insurance provided by the contractors.

C. Vendor shall not continue performance under a Navajo Nation contract

without proper insurance in effect after the Navajo Nation and vendor has

been notified of the lapse of the requisite insurance.

XIX. AMENDMENT .

These Regulations may be amended at any time upon recommendation of the

Purchasing Services Department and approval of the Budge~ and Finance

Committee of the Navajo Nation Council.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.