# BUDGET AND FINANCE COMMITTEE OF > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Anavajo_nation%3Acdc376c0d46623cd ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## 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: 1. Pursuant to 2 N.N.C. § 374 (B)(16), as amended by Navajo Nation Council Re$olution C0-81-90, the Budget and Finance Committf!e of the Navajo Nation Council has oversight authority over the Office ofthe Controller; and 2. Pursuant to 2 N.N.C~ § 372, the Budget and Finance Committee is a standing committee of the Navajo Nation Council established for the purpose of recommen~ing to the Navajo Nation Council the adoption of legisi$-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 3. 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 4. 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 5. 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 6. 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 7. 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 I. 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. D. 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. 2 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. 3 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. 4 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. m. 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: i. 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 5 physical requiremen15, performance requirements. ·2. and functional or u. 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. v. 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. 6 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. f. "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 1. It is the responsibility of the Procuring Party to check the availability of the needed Goods in the Procuring Party's area 7 warehouse or storage facility before initiating the procurement process. 2. 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. 3. 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 I. 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. 2. The Invitation for Bid shall be used to initiate a Competitive Sealed Bid procurement of Goods and shall include the following, as applicable: 8 a. Instruction and information to bidders concerning the bid submission requirements, including: i. 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; v. 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: 9 i. 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 n. 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. 3. 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 4. 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. 5. 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: 1. a copy of the Invitation for Bids; and 2. a copy of the notice published in the newspaper; and 3. a list of all businesses directly notified, including· the dates and manner of such notices. 10 F. Bi4 Opening 1. 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. 2. 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. 4. 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. 5. 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. 6. 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 11 Procurement Officer shall then follow subsections (4) and (5) in opening. all bids. 7. 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 1. 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. 2. 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. 3. Any bid which does not conform to the essential requirements of the Invitation for Bids shall be rejected and considered nonresponsive. 4. 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. 5. 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. 6. A bid in which the bidder attempts to impose conditions which would modify requirements of the Invitation for Bids or limit the 12 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. 7. 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. 8. 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. 9. A bid submined before the publication of the Invitation for Bids shall be considered non-responsive and rejected. 13 ·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 1. 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. 2. 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 14 announcing it at the Bid Opening or posting the notice at the location announced at the Bid Opening. . . 3. 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. 4. Written Notice of Award or Purchase Order shall be delivered by hand or by first class mail to the successful bidder. 5. 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. 6. 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 1. The receipt and acceptance of Goods shall adhere to the Navajo Uniform Commercial Code. 2. 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. 3. 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. 4. 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. 15 5. 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. 6. 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. 7. 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 1. Pursuant to 12 N.N.C. §332 (a) and (b), Competitive Sealed Proposals and public proposal opening are not required for the 16 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. 2. 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. 3. The RFP and RSQ shall include the following, as applicable: a. Instruction ·and information to offerors concerning the proposal submission requirements, including: 1. 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; u. 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; v. the form or format in which proposals are to be submitted; 17 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~ Jnn 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. 5. 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: 1. '(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 2. 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 3. The liability of the Navajo Nation under such contract is contingent upon the availability of appropriations by the Nayajo Nation Council; and 51 4. NQthing llllder the contract expressly or impliedly watves the Sovereign Immunity of the Navajo .Nation; and 5. The vendor shall comply with all applicable Navajo Nation laws and . regulations; and 6. 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. 52 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: 1. has previously failed to properly perform or to complete on time contracts of a similar nature; 2. is not in a position to perform the contract; 3. 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: 1. whether the vendor has available the appropriate financial, material, equipment, facility, and personnel resources and expertise, or the 53 ability to obtain them, necessary to .J11~t all procurements requirements;· and 2. whether the vendor has a satisfactory· record of performance With the Navajo Nation; and 3. whether the vendor has a satisfactory record of integrity with the Navajo Nation; and · · · 4. whether the vendor is legally qualified to.contractwith the Navajo - Nation; and 5. 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~