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to Table of Contents Colville
Tribal Law and Order Code 2001 edition with 2002, 2003 and 2004 supplements TITLE 10 - EMPLOYMENT AND CONTRACTING
CHAPTER 10-1 TRIBAL EMPLOYMENT RIGHTS10-1-1 Legislative findings Tribal members and other Indians have suffered discrimination in employment on and near the Colville Reservation. As a result, tribal members and other Indians continue to be excluded from the employment market and when employed by private employers experience discrimination; continue to suffer poverty and high unemployment rates; have lost the opportunity to learn needed skills; participate in job training programs; find employment to support tribal families; receive equal wages for equal work; to name but a few of the consequences of the failure of tribal members and other Indians to be treated fairly in employment. To insure that discrimination does not continue and that tribal members and other Indians on the Colville Reservation have an opportunity to participate in the work opportunities that arise on and near the Colville Reservation and may benefit from the unique rights that flow to tribal members and other Indians, it is necessary for the Confederated Tribes of the Colville Reservation (Tribes) to establish this Employment Rights Chapter.
It is the intention of this Chapter to accomplish the following purposes:
(a) “Business Council” means the Business Council of the Confederated Tribes of the Colville Reservation. (b) “Certified firm” means a firm certified under Chapter 10-3 as either a 100% Colville Business Enterprises, Colville Family Business Enterprise, Colville Business Enterprise, or an Indian Business Enterprise. (c) “Colville Family Business Enterprise” means an enterprise or organization which is 100% owned and controlled by a Colville member and their non-Colville spouse, parents or children, and which meets all criteria for certification under Chapter 10-3. (Amended 11/19/98, Resolution 1998-852) (d) “Colville Business Enterprise” means an enterprise or organization which is at least 60% owned and controlled by Colville tribal members and which meets all criteria for certification under Chapter 10-3. (Amended 11/19/98, Resolution 1998-852) (e) “Colville tribal member” means an enrolled member of the Confederated Tribes of the Colville Reservation. (f) “Commission” means the Colville Tribal Employment Rights Commission established by this Chapter. (g) “Contract” and subcontract" are intended to be interpreted broadly and shall apply to all contracts, whether written or oral, including, but not limited to, contracts for construction, supplies, materials, services, and equipment regardless of tie, unless exempted under this Chapter. (h) “Covered employer” means any employer employing two or more employees who during any twenty (20) day period spend, cumulatively, 16 or more hours performing work within the Colville Reservation lands and territories, unless such employer is specifically exempted by this Chapter. (i) “Descendent” means an individual whose either parent is a member of the Confederated Tribes of the Colville Reservation. (j) “Director” means the director of the Tribal Employment Rights Office (TERO). (k) “Employee” means any person employed for remuneration. (l) “Employer” means any person, partnership, corporation, or other entity that employs, for wages, two or more employees. (m) “Entity” means any person, partnership, corporation, joint venture, government, governmental enterprise, or any other natural or artificial person or organization. The term “entity” is intended to be interpreted broadly to provide for maximum coverage of this Chapter. (n) “Indian” means any member of a federally recognized Indian tribe, band, or nation. It also includes members of Canadian Indian tribes, bands or nations. (Amended 11/19/98, Resolution 1998-852) (o) “Indian Business Enterprise” means an enterprise or organization which is at least 60% Indian owned and controlled and which meets all criteria for certification under Chapter 10-3. (Amended 11/19/98, Resolution 1998-852) (p) “Indian Preference Eligible” refers to any person recognized as one of the following:
(q) “Local Indian” means any Indian who resides within the lands and territories of the Colville Reservation, or within thirty-five miles of said lands and territories. (r) “Non-local Indian” means any Indian who does not live in a location which would qualify such Indian as a local Indian. (s) “Reservation-Based Employer” means:
(t) “Sole Support” means an individual who provides the primary source of income, support, or residence for a member of the Confederated Tribes of the Colville Reservation. (u) “Spouse” means a legally married husband or wife of a member of the Confederated Tribes of the Colville Reservation. This does not include common law relationships. (v) “TERO” means the Tribal Employment Rights Office. (w) “Tribal affiliation preference policy” means a policy which may be adopted by employers or contracting entities to provide for preference in employment or contracting to descendants, spouses, or sole supporters of Colville tribal members in cases where it is properly determined that no Indian preference eligible individual or Indian Business Enterprise is available. (x) “100% Colville Indian Business Enterprise” means an enterprise or organization which is 100% owned and controlled by Colville tribal members and which meets all requirements for certification under Chapter 10-3. (Amended 11/19/98, Resolution 1998-852)
(a) There is created a Colville Tribal Employment Rights Commission. (b) The commission shall be composed of four (4) regular members, one residing in each reservation district, and one (1) alternate member. Commission members shall be appointed by the Business Council. The commission shall designate one of such commissioners as commission chairman. To ensure continuity, the commissioners' term shall be staggered. The Business Council shall, in 1996, appoint two regular members and one alternate member to four-year terms, and the remaining two regular members to three year terms. Thereafter, all commissioners shall be appointed to four-year terms. (c) For carrying out their duties members of the commission shall be entitled to receive, upon presentation of proper vouchers, such mileage and per diem payments as are in effect for members of the Business Council. Such payments shall be funded by a budget approved by the Business Council. (d) Three commissioners shall constitute a quorum to transact business. When a vacancy occurs in the commission, the remaining members may exercise all the powers of the commission until the vacancy is filled.
The commission has the full power, jurisdiction, and authority:
(a) The Business Council shall have exclusive authority to appoint, direct, suspend, or remove the director of the TERO. The Business Council shall consider Commission recommendations concerning appointment, direction, suspension, or removal of the director. The commission shall on an annual basis provide the Business Council with a written performance evaluation of the director. (b) The director shall have such administrative ability, education, and training as the Business Council determines, with advice from the commission. (c) The TERO shall report to the Business Council through the Employment and Education Committee.
The Director shall have the authority to carry out the day-to-day operations of the TERO, to enforce this Chapter, to employ and supervise staff for the TERO pursuant to the tribal plan of operations, and such other authority as is convenient or necessary to the efficient administration of this Chapter. The director’s authority and duties include, but are not limited to, the following:
TERO shall make good faith efforts, through direct contact and general public media information dissemination, to inform all covered employers, contractors, and local Indians on or near the reservation of the requirements of the Colville Tribal Employment Rights Chapter. All bid announcements issued by any tribal, federal, state, or other private or public entity for work within the jurisdiction of the Tribes shall contain a statement that the successful bidder will be obligated to comply with this Chapter and that a bidder may contact the TERO to obtain additional information. The Tribal Planning Department and other offices responsible for issuing business permits for the reservation or otherwise engaged in activities involving contact with prospective employers on the reservation shall provide information to such prospective employers of their obligations under this Chapter. Notwithstanding the above, it shall not be a defense in any enforcement action for an employer to allege that the Tribes failed to directly notify the employer of the requirements of this Chapter.
The TERO director, with approval from the Business Council, is authorized to enter into cooperative relationships with federal employment rights agencies, such as Equal Employment Opportunity Commission (EEOC), and Office of Federal Contract Compliance Program (OFCCP), in order to eliminate discrimination against Indians on and off the Colville Reservation. Pursuant to this authority, the commission, or the TERO Director, may act to enforce applicable federal employment laws pursuant to the terms of agreements entered into with federal employment rights agencies, and approved by the Business Council, provided such activity is not inconsistent with the provisions of this Chapter or the civil regulatory jurisdiction of the Tribes. In the absence of specific agreements, the TERO director and staff shall have no authority to investigate or act on employment or personnel complaints that are not related to alleged violations of the Indian preference provisions contained in this Chapter or Chapter 10-3. The TERO director and staff may, however, provide appropriate information and referrals to employees with employment complaints not related to Indian preference complaints.
(a) All covered employers operating within the lands and territories of the Colville Reservation shall give preference in all aspects of employment to Indian preference eligible individuals. Covered employers shall give preference in the following order:
(b) All entities awarding contracts covered by the terms of section 10-1-20 shall give preference to certified Indian Business Enterprises. Contract awarding entities shall give preference in the following order:
(Amended 11/19/98, Resolution 1998-852) (c) Where either: (1) federal or state funding requirements, or (2) federal laws applying to non-Indian covered employers preclude full implementation of the preference categories in (a) and (b) of this section, preference shall be given first to local Indians or local Indian Business Enterprises, and second to non-local Indians or non-local Indian Business Enterprises. (d) Nothing in this Chapter is intended to prohibit covered employers and contract awarding entities from establishing a tribal affiliation preference policy, which is limited to situations where no Indian preference eligible individuals or Indian Business Enterprises are available. However, such policies shall in no way conflict with the requirements of this Chapter and TERO shall require work permits for all tribal affiliation preference eligible individuals. The TERO shall have no role in enforcing tribal affiliation policies.
(a) Contractors: Each contractor or subcontractor intending to engage in business activity on the reservation, prior to the time it commences work on the reservation, must submit a contracting, subcontracting, employment, and/or training plan to the TERO. Contractors or subcontractors shall not commence or continue work on the reservation until an acceptable plan for implementing their obligations under this Chapter has been approved by the TERO.
(b) Reservation-Based Employers: All compliance and utilization plan requirements applying to contractors shall also apply to reservation-based employers. Reservation based employers shall also be required to submit yearly compliance and utilization plan updates. All reservation-based employers who are actively engaged in business without an approved compliance and utilization plan shall submit a plan by no later than forty-five (45) days after receiving written notification from the director that they are out of compliance with this Chapter. All new employers who qualify as reservation-based employers shall submit a compliance and utilization plan within one month of commencing business on the reservation. All employer yearly plan updates shall be due on January 31 beginning after the first full calendar following submission of the initial plan. TERO shall make efforts to notify all existing and new reservation-based employers of the requirements of this Chapter and to provide such employers with compliance and utilization plan forms. All existing reservation-based employers who have been notified by the TERO of these requirements, and who have not submitted an approved compliance and utilization within forty-five (45) days of notification, shall be subject to penalties of up to $250 for every day that it is not in compliance with this section. Failure of the TERO to directly notify a reservation-based employer of the requirements of this section shall not excuse the employer from complying with the compliance and utilization plan requirements. (c) Plan Goals and Requirements: All compliance and utilization plans shall be used to monitor compliance with this Chapter, and as a tool to help maximize Indian employment and contracting. Compliance and utilization plan requirements and goals may be tailored to the individual circumstances of the contractor or reservation-based employer in order to reasonably maximize Indian employment and meet the requirements of this Chapter. Plans may contain hiring goals or state the minimum number of Indians the employer must employ on his workforce during the year or term of the contract and provide for incentives to meet Indian preference goals. Compliance and utilization plan employment goals shall be reviewed at least annually and shall be revised as necessary to reflect changes in the number of Indians available or changes in employer hiring plans. The director shall have discretion to develop compliance and utilization plans that may differ from the strict requirements of this Chapter, provided they are intended to maximize employment, training and contracting opportunities for Indian preference eligible individuals. A compliance and utilization plan shall constitute a binding agreement, the terms of which shall be fully enforceable by the TERO. Failure to adhere to the terms of an approved compliance and utilization plan, or knowingly supplying false information to the TERO, shall subject the noncomplying entity to monetary penalties of up to $1,000.00 per violation. Employers or entities have the right to appeal all penalties assessed under this section to the commission in accordance with section 10-1-31. (d) Reports and Monitoring: All entities engaged in any aspect of business activity on the reservation shall submit reports and such other information, including but not limited to certified payroll records, personnel records and contract documents, as is requested by the TERO. Employees of the TERO shall have the right to make on-site inspections during regular working hours in order to monitor an entity’s compliance with plan requirements and this
All covered employers, for all employment occurring within the lands and territories of the Colville Reservation, shall give preference to Indian preference eligible individuals, in all hiring, promotion, training, layoffs, recall, and all other aspects of employment. Covered employers shall not hire any non-Indian preference eligible individual if an Indian preference eligible individual meeting the minimum threshold requirements of the job has applied for the position. The director may approve exemptions from this requirement based on:
Such employers shall comply with this Chapter and the rules, regulations, guidelines, and orders duly and lawfully adopted pursuant to it which set forth the specific obligations of employers in regard to Indian preference. The Tribes, its agencies and subdivisions shall be exempt from the Indian preference in employment sections of this Chapter. The Indian preference categories and order of preference as provided for in the Tribes’ plan of operations shall apply to all employment by the Colville Tribes, its subdivisions and agencies. However, the TERO shall handle all complaints, investigations, and enforcement actions regarding alleged violations of the Indian preference in employment provisions of the plan of operations in accordance with the procedures contained in CTC sections 10-1-27 through 10-1-34. TERO shall have no authority to enforce plan of operations provisions not directly related to Indian preference. All tribal entities and instrumentalities not subject to the Tribes’ plan of operations shall be subject to the Indian preference categories and all other provisions of this Chapter. Nothing in this paragraph shall be construed as altering the tribal or sovereign status of the Tribes, its agencies or entities, or as a waiver of sovereign immunity except to the limited extent necessary to provide for enforcement of this Chapter or the Indian preference provisions of the Colville Tribes’ plan of operations pursuant to the administrative procedures set forth herein.
(a) Tribal Hiring Hall: An employer may recruit and hire workers from whatever sources are available to him and by whatever process the employer so chooses, except the employer may not employ any non-Indian until five working days, or forty-eight (48) hours for logging and construction positions, have elapsed since the employer has provided the TERO with notice to locate and refer a qualified Indian preference eligible applicant. (Amended 11/19/98, Resolution 1998-852) (b) Job Announcements: All job announcements or advertisements for employment positions covered by this Chapter shall conspicuously state that Indian preference applies. (c) Permanent and Key Employees: All covered employers, reservation-based employers, contractors and subcontractors shall identify permanent and key employees in their compliance and utilization plan. Permanent employees whose employment is covered by this Chapter may continue to be employed for work on the reservation whether or not they are Indian preference eligible. A permanent employee is one who is and has been on the employer’s or contractor’s annual payroll for a period of at least one year continuously, or is an owner of the firm. An employee who is hired on a project-by-project basis shall not be considered a permanent employee. A key employee is one who is in a top supervisory position or performs a critical function such that an employer would risk likely financial damage or loss if that task were assigned to a person unknown to the employer. Key employees who are also permanent employees may be employed for work on the reservation whether or not they are Indian preference eligible. Employers wishing to employ non-preference eligible key employees who are not permanent employees, or non-preference eligible permanent employees who are not key, must obtain approval in a compliance and utilization plan or through issuance of a work permit. In filling vacancies for key positions, all covered employers shall provide Indian preference, provided that exceptions for superintendents and other key personnel who are not permanent employees may be granted by the director on a case-by-case basis, upon a showing of good cause or business necessity by the employer. Any employer or contractor filling vacant employment positions in its organization immediately prior to undertaking work pursuant to a contract to take place on the Colville Reservation shall set forth evidence acceptable to the director that its actions were not intended to circumvent these requirements. Upon its approval of each key or permanent employee requested by the employer, the TERO shall issue a permit to that worker, or approve such designation in a compliance and utilization plan. (d) Work Permits:
(e) Termination/Layoffs: Where non-Indian preference individuals remain employed, no Indian preference eligible employee shall be terminated except for disciplinary, job abandonment, or serious, documented poor job performance that the employee has had an opportunity to correct, but has failed to do within a reasonable time. Furthermore, if the employer lays off by crews, classifications or other categories, Indian preference eligible employees, in the order prescribed in section 10-1-10, shall be transferred to crews or positions that will be retained, so long as there are non-Indian preference eligible individuals in the same general craft employed on the crews that are to be retained and the preference eligible employees transferred are qualified to fill their positions. (f) Unions: An employer, contractor, or subcontractor having a collective bargaining agreement with one or more labor unions must obtain written agreement from said unions indicating that they will comply with Indian preference requirements of this Chapter while working within the lands and territories of the Colville Reservation. Such agreement shall be subject to approval by the director. Specifically, the contractor may make initial job referral requests to the union. However, if the union does not have an Indian preference eligible applicant on any of its out-of-work lists, the union shall contact the TERO. If the TERO can identify an Indian preference eligible applicant, he/she will be referred through the union hiring hall to the job site. The union may not refer a non- Indian-preference eligible applicant until it has contacted the TERO. Before referring the non-Indian preference eligible applicant to the job site, the union shall request a work permit for that worker. No Indian preference eligible applicant shall be required to travel to a site off the reservation to be processed by the union hiring hall. Such processing shall be done on the reservation by telephone, mail, fax, or e-mail. Any Indian preference eligible applicant who does not wish to become a member of the union shall be granted a temporary permit for the duration of the project. Said worker but shall not be required to pay union dues, an initiation fee or contribute to standard benefits or programs from which they would derive no benefit, but shall be paid union scale wages.
(a) As part of a compliance and utilization plan, or pursuant to requests or orders from the director to help bring an employer into compliance with the provisions or goals of this Chapter, TERO may require covered employers to participate in training programs to assist Indian preference eligible individuals to become qualified in the various job classifications used by the employer. Employers engaged in construction shall participate in the Tribes' Apprenticeship Training, Employer and Labor Services (ATELS) certified training program or a union apprenticeship program, the Tribes shall make a best effort to share the costs of such training programs but employers may also be required to share part or all of the cost. Employers with collective bargaining agreements with unions may use apprenticeship programs, so long as they obtain agreement from the unions to use only Indian preference applicant as apprentices on the project. If no Indian preference apprentices are available, unions shall make available apprenticeship positions for Indian preference applicants. (b) Both the Tribes and the employer shall share the responsibility and cost of providing cultural synergy training for employers and employees. Employers may be required to integrate culturally appropriate employee assistance programs as necessary for the employer to retain Indian preference eligible employees. The director and covered employers may agree to initiate specialized programs designed to optimize opportunities for Indian preference individuals. (Amended
2/5/04, Resolution 2004-94)
An employer may not use any job qualification criteria or personnel requirements which serve as barriers to the employment of Indian preference applicants and which are not required by business necessity. The burden shall be on the employer to demonstrate that such criterion or requirement is required by business necessity. If the employer fails to meet this burden, it will be required to eliminate or waive the criterion or personnel requirement at issue. Employers shall also make reasonable accommodation to the religious beliefs and cultural traditions of Indian workers. In implementing these requirements, the TERO shall be guided by the principles established by relevant EEOC guidelines, but may also apply culturally appropriate principles not addressed by EEOC guidelines. Where the director and employer are unable to reach agreement on the matters covered in this section, the director is authorized to immediately request a hearing before the TERO commission to decide the dispute prior to hiring taking place under the disputed job requirements. However, nothing in this section shall preclude an applicant or TERO from challenging job requirements or criteria after hiring has taken place, provided such complaint is initiated within the time limitations imposed by section 10-1-27.
All covered employers shall give Indian preference eligible employees preferential consideration for all promotion opportunities and shall encourage Indian preference eligible employees to seek such opportunities.
Indian preference eligible applicants shall be given preference in the hiring of summer student help. Local Indians shall include students whose permanent residence is within the land of the Tribes but who are temporarily away from the reservation attending school, for this section only.
No employer shall retaliate against any employee or person who has exercised his or her rights under this Chapter or has assisted another to do so, by means of harassment, unjustified discipline or termination. Furthermore, any employer who harasses or abuses an employee of the TERO who is carrying on official duties under this Chapter may be subject to removal from the reservation pursuant to the procedures of Chapter 3-2. An employer shall be responsible for the actions of all of its employees, supervisory or otherwise, and for the action of its subcontractors and their employees in regard to prohibitions in this section. If the director finds that an employer retaliated against an employee or person who has exercised his or her rights under this Chapter, the director is authorized to order punitive damages in addition to any other penalty or remedy authorized by this Chapter.
The TERO, in conjunction with other tribal and federal offices, may provide or refer employees to counseling and other support services to Indians employed by covered employers to assist such Indians in retaining employment and assisting the employers in retaining Indians. Employers shall be required to cooperate with such counseling and support services.
(a) All entities awarding contracts or subcontracts for supplies, services, labor and/or materials in an amount of $5,000.00 or more, where the majority of the work on the contract or subcontract will occur within the lands and territories of the Colville Reservation, shall give preference in contracting and subcontracting to qualified entities in the following order:
(b) These requirements shall not apply to the award of contracts awarded directly by the Business Council or by the federal or state government or their subdivisions and shall not apply to entities subject to the provisions of Chapter 10-3. These requirements shall apply to all subcontracts awarded by a tribal, federal, or state direct contractor or grantee, whether or not the prime contract was subject to these requirements unless the subcontract is subject to the provisions of Chapter 10-3. (c) All covered entities shall comply with this Chapter and the rules, regulations, guidelines, and orders of the commission which set forth the specific obligations of such entities in regard to Indian preference in contracting and subcontracting. The TERO shall certify firms according to the requirements of this Chapter and Chapter 10-3. (Amended 11/19/98, Resolution 1998-852)
The entity engaged in business activity shall be responsible for the compliance of all its contractors and subcontractors with this Chapter, specifically:
The procedures and requirements to obtain certification as a 100% Colville Indian Business Enterprise, Colville Family Business Enterprise, Colville Business Enterprise or other Indian Business Enterprise are set forth in CTC, Chapter 10-3. All entities obtaining certification under Chapter 10-3 shall be deemed certified under this Chapter. All other issues regarding certification, such as yearly updates of certification status, withdrawal of certification or appealing a denial of certification shall be governed by the procedures in section 10-3-5(d). (Amended
2/5/04, Resolution 2004-94)
Preference shall be given to certified firms in the award of all contracts and subcontracts. An entity may select its contractor or subcontractor in any manner or procedure it so chooses, provided that:
(a) Technical Qualifications: The entity and its contractors and subcontractors shall have the discretion to determine technical qualifications. However, if the entity determines that there are no certified firms that are technically qualified, the director may require the entity to provide to each certified firm it rejects a description, in writing, of areas in which it believes the firm is weak and steps it could take to upgrade its qualifications. If a certified firm that was disqualified on the grounds of technical qualifications believes that the disqualification was the result of an improper effort by an entity, contractor, or subcontractor, to circumvent its preference responsibilities under this Chapter, it may file a complaint with the TERO under the provisions of section 10-1-27. (b) Reasonable Price: An entity may use any process it so chooses for determining what constitutes a reasonable price including, but not limited to, competitive bidding (open or closed), or the establishment of a prototype cost ceiling before bidding commences. No entity may reject a certified firm and then contract with a non-certified firm at the same or higher price. Any contract modification in price that is justified is not a circumvention of this section. Any entity found to have violated this requirement by such circumvention shall be liable for treble damages for any losses suffered by a certified firm as a result of the entity’s actions.
Once an entity enters into a contract with a certified firm, the TERO will not intervene in any way in the relationship between the parties unless a certified firm demonstrates that action taken against it is intended primarily to circumvent the requirements of this Chapter.
An employment rights fee, to help defer the cost of regulating and providing services under this Chapter, will be assessed on all covered employers, including all contractors and reservation-based employers.
(a) Noncompliance by Covered Employers: Any person, group of persons, organization, or entity that believes any covered employer or entity has violated any requirements imposed by this Chapter or regulations adopted under it may file a complaint with the TERO. The director shall also have authority to independently initiate a complaint investigation if he or she has reason to believe a violation has occurred. The complaint must be filed with the TERO no later than sixty (60) calendar days from the date of the action (or omission) upon which the complaint is based. The complaint shall be in writing, shall be signed by the complainant, shall list the alleged violations, and shall provide such information as is necessary to enable the Director to carry out an investigation. Each complaint shall be assigned a lineal number and referred to as such throughout the investigation process. The director shall cause every complaint over which TERO has jurisdiction to be investigated. If after investigation, the director has reason to believe a violation of this Chapter or regulations adopted under it has occurred, and the TERO has jurisdiction over the complaint, the director shall proceed pursuant to the provisions of section 10-1-30. If the director or his designee makes a determination that the complaint does not allege a violation of this Chapter, the complaint shall be immediately dismissed. The complainant may seek review of this jurisdictional determination by the commission by filing a written request for review within five (5) days of the date of the dismissal of the complaint. The complainant shall state in writing the nature of the complaint and the reasons they believe TERO has jurisdiction. The commission shall review the dismissal for lack of jurisdiction without a hearing. The commission’s decision shall be final and not subject to further appeal. (b) Noncompliance by the TERO: Any person, group of persons, organization, or entity who believes that an action by the director or TERO staff is in excess of the authority granted under this Chapter or is otherwise in violation of the Colville Tribal Code or the Colville Constitution, may file a complaint with the commission. The complaint must be filed no later than 20 calendar days from the date of the action (or omission) upon which the complaint is based. A hearing on such complaint shall be heard pursuant to Chapter 2-4, at which the complainant shall have the burden of proof by a preponderance of the evidence. (Amended 11/19/98, Resolution 1998-852)
The director, or any field compliance officer employed by the director, shall make such investigations as the director or the commission deems necessary to determine whether any covered employer or other covered entity has violated any provision of this Chapter or any rule or order hereunder, or to aid in prescribing rules, regulations, and guidelines hereunder. The director or a field compliance officer may enter, during business hours, the place of business or employment of any covered employer for the purpose complaint investigation or as the director deems necessary to monitor compliance with the requirements of this Chapter or any rule of order hereunder. When a bona fide investigation is underway based on a complaint, employees of the TERO shall have the authority to inspect and copy all relevant records of an entity, of the entity's signatory unions or subcontracts, to speak with workers on the job site, and to engage in similar investigatory activities. Workers shall not be compelled to speak with or not speak with TERO investigators. All information collected by the TERO shall be kept confidential, unless disclosure is required for further investigation, or during a hearing or appeal as provided for in this Chapter. TERO staff shall conduct all investigations in a professional manner which does not unduly interfere with the business activities of the entity under investigation. TERO staff may obtain relevant information and documents through written requests for production. All on-site inspection and copying of documents shall be pursuant to reasonable advance notice to the employer. If a covered employer or other entity refuses to permit TERO staff from entering onto business premises during business hours or from reasonably inspecting or copying documents, the director may petition the commission for a subpoena duces tecum to compel the employer to produce documents for inspection and copying. If the TERO director is forced to seek enforcement of a commission subpoena in Tribal Court, the court shall order, in addition to the penalties authorized by this Chapter, the assessment of attorneys fees and costs against the party found in violation of the commission subpoena.
At the conclusion of the TERO’s investigation, the director or compliance officer shall notify the complainant and responding entity of the TERO’s findings and the basis for such findings. If the TERO finds insufficient evidence to establish that a violation occurred, the complaint shall be closed, with notice provided to the complainant and responding party. If the TERO finds that the a violation did occur the director, or the compliance officer handling the case, shall notify both the complainant and noncomplying entity in writing stating the specific violations found, and the basis for the findings. Upon a showing of mistake or other good cause, any person may petition the director to reopen a closed investigation. The decision whether to reopen shall be in the director’s sole discretion. The director shall not be required to issue a complaint determination notice prior to issuing a noncompliance order for violations of TERO fee or compliance and utilization plan requirements. The TERO shall, however, contact the employer or entity in an attempt to achieve voluntary compliance of fee and compliance plan requirements prior to issuing a noncompliance order. (a) Conciliation: Upon issuance of an initial complaint determination which contains a finding of a TERO violation, the director shall attempt to bring the entity into compliance and remedy the violation by settlement conference or conciliation. Conciliation conferences shall be considered confidential and the contents of these discussions shall not be used as evidence in any subsequent hearing unless agreed to by the parties. If settlement is reached, the agreement shall be reduced to writing and signed by the respondent, and an order shall be entered by the commission setting forth the terms of said agreement. Conciliation agreements may be made public if the complainant and respondent agree. (b) Noncompliance Order: If voluntary conciliation cannot be achieved and the complainant has not elected to sue privately, the director shall issue a formal noncompliance order, which shall also advise the noncomplying entity of all rights to appeal the order. The noncompliance order shall set out in writing the nature of the violation(s), the fact that conciliation was attempted but was unsuccessful, the penalties, sanctions and back pay or lost profit amount assessed to remedy the violation, if any, and any other steps that must be taken to bring the entity into compliance. The order shall provide that the entity shall either comply or appeal the order to the commission within twenty (20) days of issuance of the order. If the director has reason to believe irreparable harm will occur during the twenty (20) day period, the director may require that compliance occur within fewer than twenty (20) days. The order shall provide a clear statement of the entity’s rights to appeal the noncompliance order, and the consequences of failing to comply with or appeal the order. (c) Enforcement, Failure to Appeal: If the noncomplying entity fails or refuses to comply, and has not appealed the noncompliance order to the commission within the twenty (20) day appeal period, the non-complying entity shall loose all rights to challenge or appeal the order and such order shall be immediately enforceable. The director shall have authority to seek enforcement in Tribal Court, if necessary. If the noncomplying entity fails to comply after its appeal period has run, and the director is forced to enforce the order in Tribal Court, the court shall assess attorneys fees and costs, and such other sanctions in addition to those contained in the director’s order, that the court deems just and reasonable. (d) Temporary Injunctive Relief: Where the director believes that immediate action is necessary to carry out the purposes of this Chapter, the director may at any time request an expedited hearing before the commission to seek a temporary order for immediate interim injunctive relief to prevent irreparable harm resulting from an alleged violation of this Chapter. The director shall attempt to give notice of the hearing to the noncomplying entity, but the hearing may be held ex parte. Any interim injunctive relief granted by the commission shall be for a period not to exceed ten (10) days. (e) Bonds: The director may request that an entity post a bond with the commission pending a hearing before the commission, upon making a written finding that any of the conditions set out below exists, the entity:
(Amended 11/19/98, Resolution 1998-852)
Any covered employer, entity, or individual that is aggrieved by an order of the director may appeal the order to the commission. The aggrieved party shall have twenty (20) days from the date the order is issued, to file a notice of appeal of such order. The appealing party’s notice of appeal shall be submitted in writing to the commission, shall state the order appealed and have attached a copy of the order or decision appealed. The procedures and conduct of the hearing shall be governed by the following provisions and the contested case provisions of Chapter 2-4.
(a) Review of TERO Files: Any party to an appeal shall have the right to review the case file of the director by scheduling a visit to the TERO office during regular working hours at any point after receiving notice of a hearing. However, the director shall have the right to excise proprietary information, the identity of confidential informants or other confidential information from the file which will not be relied upon in the presentation of TERO’s case. Nonrelevant, confidential information shall be excised in a manner that causes the loss of the least amount of information from the files. (b) List of Witnesses: Ten (10) days prior to the hearing (or as soon as possible if the hearing is to be held within ten (10) days after notice), the respondent and the Director shall submit to the commission chairperson, a list of witnesses each intends to call at the hearing, the approximate length of their testimony, and the subject matter and relevance of their testimony. The witness list shall also contain any requests for subpoenas to compel attendance of witnesses. The commission may, in its discretion, deny subpoena requests where the party has failed to establish the relevance of the testimony. (c) Pre-Hearing Interviews of Witnesses: The respondent and the director shall have the right to interview the witnesses of the other party, prior to the hearing. The director's witnesses shall be interviewed in the presence of the director or his delegate. The respondent's witnesses shall be interviewed under such reasonable conditions as are established by the respondent. Either party may appeal to the chairman of the commission if cooperation is not forthcoming on this matter and the chairman is empowered to require such steps as are necessary to resolve the problem. (d) Subpoenas of Documents and Things: The director and respondent shall, no later than ten (10) days prior to the hearing provide the chairman of the commission with a list of items they wish to have subpoenaed and the relevance of each. The parties shall only request a subpoena duces tecum for documents and items that are not reasonably accessible through less formal means of production. The commission may, in its discretion, deny subpoena requests where the party has failed to establish the relevance or need for the subpoena duces tecum. (e) Postponements: Any request for a postponement of the hearing must be submitted in writing to the chairperson of the commission no fewer that three (3) days prior to the hearing. However, if the director and respondent mutually submit a request for a postponement because there is a possibility of settling the matter, the request for a postponement may be submitted at any time.
(a) Presiding Officer: As presiding official, the chairperson of the commission will control the proceedings. He or she will take whatever action is necessary to insure an equitable, orderly, and expeditious hearing. The conduct of the commission hearing shall be governed by Chapter 2-4, the Colville Administrative Procedures Act. (b) Director: The director or the director’s attorney shall represent the TERO in all commission hearings even if the hearing was initiated by a complaint filed by a private individual. Provided, the complainant may retain independent counsel and submit testimony and be fully heard. (c) Respondent: The respondent shall be present for the entire hearing and he/she and his/her representative shall represent him during the proceedings. (d) Attorneys: Either party may have an attorney present as an advisor, or a spokesman. (e) Prohibition Against Reprisals: All parties shall have a right to testify on their own behalf, without fear of reprisal. (f) Burden of Proof: The covered employer or other party aggrieved by the director’s order, shall have the burden of proof by a preponderance of the evidence that the director was incorrect in finding the employer in violation of this Chapter or the regulations adopted under it, or that any proposed penalty, sanction, award, or required action ordered by the director is incorrect or unwarranted.
If after the appeal hearing the commission determines the director was correct in finding the entity violated the Chapter, and that the penalties and other remedies ordered are appropriate for the violations found the commission shall enter an order affirming all or all parts of the director’s order which the commission finds to be correct. The decision shall be in writing and issued within thirty (30) days after the hearing.
(a) An appeal to the Colville Tribal Court may be taken from any final order of the commission by any party adversely affected thereby, including the complainant. The director, however, shall not have authority to appeal an adverse decision by the commission. Said appeal must be filed no later than twenty (20) days after the party receives a copy of the commission's decision. The appeal shall be conducted pursuant to the provisions of Chapter 2-4-20 governing Colville Tribal Court appeals of the orders of an administrative body; provided, that where this Chapter applies a specific rule or procedure, the specific rule or procedure shall govern over the general rules set out in Chapter 2-4. The parties to an appeal shall be the parties of record in the proceedings before the commission. (b) Any appeal must:
(c) The order of the commission shall not be held in abeyance pending the determination of the Colville Tribal Court. However, all monetary awards appealed shall be paid and held in an escrow account or covered through posting of a bond with the director pending a determination on appeal. For good cause shown, any party to an order of the commission may petition the Court for an order requesting a stay of enforcement of all or part of the commission’s order pending the appeal.
(a) Confiscation and Sale: If a party has failed to pay monetary damages imposed on it or otherwise failed to comply with an order of the commission or the Court, the director may petition the Court to hold such party in default, and to order the Tribal Police to seize, and hold for sale, such property of the defaulting party as is necessary to ensure payment of said monetary damages or to otherwise achieve compliance. Said petition shall be accompanied by a list of property belonging to the party which the director has reason to believe is within the jurisdiction of the Colville Tribal Court. If the Court finds a party in default, it shall order the Tribal Police to confiscate and hold said property or as much of it as is available and necessary to satisfy the order or judgment. The Tribal Police shall deliver in person or by certified mail, return receipts requested, a notice to the party informing it of the confiscation and of its right to redeem said property by coming into compliance with the order outstanding against it. If thirty (30) days after confiscation the party has not come into compliance, the Court shall order the chief of police to sell said property and use the proceeds to pay any outstanding monetary damages imposed by the commission and all costs incurred by the Court and police in the confiscation and sale. Any proceeds remaining shall be returned to the party from whom the property was confiscated. Where a covered employer or other entity has failed to pay monetary damages imposed on it as set out in this Chapter, and the covered employer is owed funds by any entity within the jurisdiction of the Tribes, the director may petition the Colville Tribal Court to order that the above described funds be paid over to the registry of the Court and a hearing held to determine whether the above described funds may be paid to the TERO. Provided, that this section shall not be construed as a waiver of the sovereign immunity of any Colville tribal entity. (b) Attachment: The director may petition the court for attachment of property of an entity, pursuant to this Chapter, when it finds that any one of the conditions set out below exists:
(c) Irreparable Harm: A finding of irreparable harm, such that the director or the commission may petition the Court for injunctive relief, shall be made only upon a showing that damage will occur that cannot be adequately remedied through the payment of monetary damages. Such a showing shall include but is not limited to the following:
(Chapter
10-1 Amended 2/5/04, Resolution 2004-94) (February 2004 version of Chapter 10-1) 10-2-1 Policy It is the policy of the Confederated Tribes of the Colville Reservation that all records relating to an individual when employed by the Confederated Tribes as a full-time, part-time or temporary employee shall be confidential and not disclosed to any person, entity, or governmental agency without the consent of the employee involved, or unless specifically allowed by tribal law. It is the purpose of this Chapter to implement this policy by providing specific procedures for the disclosure of information relating to tribal employees and penalties for the violation of this Chapter and the privacy rights of affected employees.
(a) "Employee" means any person working for the Confederated Tribes in any capacity which is covered by the Tribes' plan of operations including as a volunteer, whether full time, part time or temporary, and Tribal Council members. (b) "Employment records" mean any writing, tape, copy, or other memorialization of whatever kind or nature maintained, obtained or generated while an employee is working for the Confederated Tribes and that relates to the employment of the employee and which includes but is not limited to resumes, health records, warning notices, disciplinary actions, evaluations, recommendations, retirement records, per capita holds, garnishments, vacation and sick leave, hours, wages, withholding, earnings, dependents, marital status, employment applications, previous tribal employment and terminations. (c) "Custodian" means the employee's supervisor, the personnel, and accounting (including payroll) departments. (d) "Colville Tribes" or "Confederated Tribes" means the Confederated Tribes of the Colville Reservation. (e) "Disclosure" or "to disclose" means the intentional transmittal of any employment record or part thereof to any individual, entity or governmental entity, or the intentional leaving of any employment record or part thereof in such a manner or place that it is likely to be obtained by an individual, entity or governmental agency.
No employee of the Confederated Tribes shall disclose any employment record relating to a present or past employee of the Confederated Tribes without the prior written consent of the employee to whom the record applies, unless otherwise allowed under this Chapter.
It shall be lawful for an employee of the Confederated Tribes to disclose an employment record to the following:
(Amended 12/07/89, Resolution 1989-514)
(a) Except as provided in subsection (b) of this section, any time that disclosure is made pursuant to section 10-2-4 the person making the disclosure shall within five (5) working days notify the employee whose records were disclosed of the disclosure, identifying the person to whom the disclosure was made, and the justification for the disclosure. (b) The notification requirement set out in subsection (a) of this section shall not apply to certain disclosures made in the regular course of business in order to facilitate the preparation of payroll, the computation of employee benefits, or routinely required by the Internal Revenue Service.
(a) The knowing and intentional disclosure of any employment record in violation of this Chapter by an employee other than a Tribal Council person shall be considered a serious offense under the tribal plan of operations, subjecting the offending employee to those sanctions set out therein. (b) The knowing and intentional disclosure of any employment record by a member of the Colville Business Council shall be deemed to be a major violation of the Council Code of Professional Responsibility and gross misconduct under Section 2 of Article IV of the Colville Tribal Constitution, and shall subject the offending Council person to the sanctions and procedures set out in the Code of Professional Responsibility.
(a) Any current or past employee of the Confederated Tribes who believes that employment records relating to him or her were disclosed in violation of this Chapter may request that the executive director investigate the allegation of improper disclosure. At the close of the investigation the executive director shall report in writing to the employee, or former employee, any conclusion with respect to the alleged improper disclosure, and what action, if any, is to be taken. Provided, when the alleged improper disclosure is against the executive director, the Office of the Reservation Attorney shall undertake this investigation. (b) There shall be no appeal from the decision of the executive director or the Office of the Reservation Attorney, as the case may be. Provided, nothing herein shall affect whatever legal or equitable rights might be available under tribal law, if any, to the person who alleges the improper disclosure. (c) The procedures set out in this section shall not apply to allegations of improper disclosure by Tribal Council persons. Such allegations shall be referred for investigation to the Council Ethics Committee to be resolved pursuant to the Council Code of Professional Responsibility.
(a) When not otherwise allowed under section 10-2-4 of this Chapter an employee may be required to disclose employment records in conjunction with a grievance, or disciplinary action filed by or against an employee, new employment at the Confederated Tribes, or promotion. (b) To the extent that an employee fails to consent to the disclosure of employment records, the Confederated Tribes may deny the grievance, affirm the disciplinary action, or refuse to hire, promote or transfer the employee. Provided, the employee shall retain all rights otherwise available, if any, to challenge the action of the Confederated Tribes under tribal law, and may there prove by clear and convincing evidence that the required disclosure was not reasonably related to the action then being considered by the Confederated Tribes.
Nothing in this Chapter shall waive the sovereign immunity of the Confederated Tribes, or the immunity of any employee, agent, attorney or council person from suit or the imposition of any judgment. Provided, that to the extent any separate Tribal law has, or may in the future waive the sovereign immunity of the Confederated Tribes or any of its employees, agents, or attorneys, nothing in this section shall modify or limit any waiver found in such separate tribal law. (Chapter
10-2 Adopted 7/7/88, Resolution 1987-364)
CHAPTER 10-3 INDIAN PREFERENCE IN CONTRACTING10-3-1 General (a) This Chapter specifies the methods and procedures all agencies and instrumentalities of the Confederated Tribes of the Colville Reservation (Tribes) must follow to provide preference to qualified Colville and other Indian business enterprises when contracting and all contractors with the Tribes, or a tribal agency, when subcontracting. For purposes of this section tribal governing body means the Colville Business Council. This Chapter, except as provided herein, shall apply to all oral or written contracts to provide goods or services entered into, or proposed to be entered into, by any agency or instrumentality of the Tribes or any person or entity contracting with an agency of the Tribes. This Chapter shall supersede all prior conflicting tribal statutes or resolutions. (b) This Chapter shall not be interpreted to, in any way, prevent any agency from rejecting any bid or proposal on the ground that the bid or proposal is unresponsive or for any other reason which is not inconsistent with this Chapter. (Amended 11/19/98, Resolution 1998-852)
(a) “Agency” means the party offering the contract, and the party responsible for compliance with this Chapter. An Agency may be a natural person, a legal person, an artificial person, or a political subdivision. In addition, Agency, for the purposes of this Chapter shall mean any and all arms, agencies, departments, enterprises, organizations, instrumentalities, Corporations, 638 contract programs, or other entities of the Tribes. Where the contracting party is the Colville Business Council or the Tribal Court, this Chapter shall apply only to contracts for construction, physical repair, upkeep of buildings, or physical work on tribally owned or managed real or personal property. (b) “Certified firm” means a firm certified as a 100% Colville business enterprise, Colville family business enterprise, Colville business enterprise or other Indian business enterprise according to the criteria and procedures in this Chapter. (c) “100% Colville business enterprise” means an enterprise or organization which is 100% owned and controlled by Colville tribal members and which meets all criteria for certification under this Chapter. (Amended 11/19/98, Resolution 1998-852) (d) “Colville business enterprise” means an enterprise or organization which is at least 60% owned and controlled by Colville tribal members and which meets all criteria for certification under this Chapter. (Amended 11/19/98, Resolution 1998-852) (e) “Colville family business enterprise” means an enterprise or organization which is 100% owned and controlled by a Colville member and their non-Colville spouse, parent or children, and which meets all requirements for certification under this Chapter. (Amended 11/19/98, Resolution 1998-852) (f) “Commission” means the Colville Tribal Employment Rights Commission as defined in the Tribal Employment Rights Chapter (CTC § 10-1-1 et seq.) of the Confederated Tribes of the Colville Reservation. (Amended
12/20/01, Resolution 2001-700) (g) “Indian” means any member of a federally recognized Indian tribe, band or nation. It shall also include members of Canadian Indian tribes, bands or nations. Applicant(s) for Indian preference will be required to provide certification from a tribe or BIA agency for the tribe for which membership is claimed. (Amended 11/19/98, Resolution 1998-852) (h) “Indian business enterprise” means an enterprise or organization which is at least 60% Indian owned and controlled and which meets all criteria for certification under this Chapter. (Amended 11/19/98, Resolution 1998-852) (i) “Indian tribe” means an Indian tribe, band, or nation or other organized group or community; including any Alaska Native village or regional or village corporation as defined in or established according to the Alaska Native Claims Settlement Act; recognized as such by the United States or Canada. (j) “Joint venture” means an association of two or more persons or firms to carry out a single or limited number of business enterprises for profit, for which purpose they combine their property, money, effects, skills and knowledge. (k) “Key employee” means an employee who is in a supervisory position or who is authorized to perform management functions including, but not limited to, bidding, contracting, financially obligating the firm, financial management, business planning, hiring, disciplining and firing employees. (l) “Preference” means the process of providing advantage, or limiting bidding or requests for proposals, to certified Indian business enterprises to provide a means by which certified firms receive contracts. (m) “Responsive bid” means at a minimum that the bid shall comply with all bid requirements stated in writing and shall be a reasonable price. (n) “Technically qualified” means the practical, technical, administrative and financial ability of a firm to perform or provide by itself, if permitted, through subcontracts, the services or goods specifically set out in the bid or request for proposal package. (o) “TERO” means the Tribal Employment Rights Office. (p) “Tribal Court” means the Colville Tribal Courts.
(a) Agencies, except as set out in this Chapter, are responsible for compliance with this Chapter. In addition to the agencies, all entities and persons engaged directly or indirectly in contracting with an agency shall be responsible for compliance with this Chapter when subcontracting. (b) Agencies shall be responsible for compliance with all of their contractors. No contractor shall be permitted to commence work on the Reservation until it has demonstrated compliance with the subcontract preference requirements. (c) The agency awarding a contract shall comply with the requirement that preference be given in the award of such contract and shall be responsible, together with the TERO and the contractor, for insuring that the contractor complies with Chapter 10-1 requirements. (d) When the agency is an Indian housing authority it shall comply only with the Department of Housing and Urban Development's Indian preference in contracting regulations. (e) The Tribes shall not be liable for any losses incurred by a contractor who is not permitted to commence work on the Reservation because the contractor has entered into a subcontract and has failed to comply with the subcontracting preference requirement.
(a) General Requirements: An applicant seeking to qualify for preference in contracting and/or subcontracting as a 100% Colville business enterprise, Colville family business enterprise, Colville business enterprise, or other Indian business enterprise shall submit proof of the applicant's Indian or Indian family ownership and control to the TERO of the Tribes. The TERO shall certify applicant firms who meet the minimum ownership and control requirements for the applicable preference category. The following ownership and control requirements applicable to each preference category are as follows:
(Amended 11/19/98, Resolution 1998-852)
(Amended 11/19/98, Resolution 1998-852)
(Amended 11/19/98, Resolution 1998-852)
(Amended 11/19/98, Resolution 1998-852) (b) Ownership Requirements: The following factors will be applied in determining whether the firm meets the minimum ownership requirements for the applicable certification category:
(c) Control Requirements:
(Amended
7/6/2000, Resolution 2000-433)
(Amended 11/19/98, Resolution 1998-852)
(Amended 11/19/98, Resolution 1998-852) (d) Brokers: Brokers will be certified only if they are dealers who own, operate, or maintain a store, warehouse, or other establishment in which the commodities being supplied are bought, kept in stock, and sold to the public in the usual course of business; Provided, that this requirement shall not apply where the applicant demonstrates that it is customary and usual in the establishment and to keep the commodities in stock. (e) Joint Ventures: No Indian/non-Indian joint venture shall be provided a preference under this Chapter in contracting or subcontracting unless the Indian portion of the joint venture can successfully demonstrate that it has the capability to manage all the work on the project on its own and has entered into the joint venture because the non-Indian firm provides only limited backup capability such as bonding, specialized expertise, or capital. (f) A firm seeking a contracting or a subcontracting preference under this Chapter shall submit evidence sufficient to demonstrate to the satisfaction of the agency and/or the contractor, as appropriate, that the applicant has the technical, administrative, and financial capability and/or the necessary license(s) and bondability; to perform contract work of the size and type involved, and within the time provided, under the proposed contract or subcontract. (g) A tribal agency may state in its solicitation that bidders or persons and entities submitting proposals, must submit evidence of certification as an Indian contractor and entitlement to the preferences provided for in this Chapter, within a specified time period before a scheduled bid opening. (h) No contractor or subcontractor shall qualify for preference if Indian ownership in, or control of, the business is less than the required minimum percent at any time during the bidding stage, the proposal stage, or the performance of the contract. (i) No Indian firm shall represent that it is exercising management control of a project in order to qualify for Indian preference in the award of said contract or subcontract when in fact such management control is exercised by a non-Indian entity such that the Indian entity is acting as a front or brokering out services.
(a) Application for Certification: A firm seeking certification as a Colville Indian or Indian business enterprise shall submit a completed application to the TERO on a form provided by TERO. TERO staff will be available to assist a firm in filling out the application, request such additional information as it believes appropriate (computation of the twenty-one (21) day period shall be stayed during the time any request for additional information is outstanding), conduct such investigations as it deems appropriate, and make a final written finding to certify or not to certify. The TERO may extend the processing period by an additional twenty-one (21) days, by sending notification of the extension to the applicant by registered mail. Within fifteen (15) days of receipt of the TERO’s analysis and finding, the applicant may request a hearing before the commission on the application to appeal any part of the certification finding. The Indian principal(s) of the firm shall be present at the hearing. In addition, any person wishing to present information to the commission shall be entitled to do so, by requesting, no less than one day prior to the hearing, an opportunity to participate. Hearings shall be conducted as provided for in Chapter 2-4. (b) Probationary Certification: An applicant granted certification shall be issued a one-year probationary certificate. During that period, the TERO staff and the commission shall monitor the firm’s activities to ensure that the firm is operating in the manner described in its application. During the probationary period, the TERO and the commission shall have the right to request and receive such information and documents as they deem appropriate. (c) Final Certification: At the end of any probationary period the TERO, after receiving recommendations from the TERO Staff, shall either:
(d) Withdrawal of Certification: From the information provided in any required reports, on the basis of a written grievance filed by any other firm or person, or on its own initiative, the TERO may initiate proceedings to withdraw or suspend the certification of any firm. The TERO shall prepare an analysis and finding and prior to making a finding shall send the firm notice, by registered mail, that its certification is being examined, along with the grounds therefore. A firm may appeal any finding of withdrawal or suspension of certification to the commission which will hold a hearing, at which the TERO shall have the burden of proof by the preponderance of the evidence, to determine whether the withdrawal or suspension is justified. At the hearing, the TERO staff shall present the case for suspension or withdrawal, and the firm shall have the opportunity to present evidence in support of their case. After the hearing, the commission may:
A firm that has had its certification withdrawn may not reapply for a period of one (1) year. (e) Firms Certified Prior to the Adoption of these Criteria: Each firm holding Indian preference Certification from the Tribes prior to the effective date of this Chapter shall submit an application required under these criteria to the TERO within thirty (30) days after the effective date of this Chapter. If the TERO determines that the firm qualifies under these new criteria, it shall, within forty-five (45) days of receipt of the application, so find. Should the TERO require additional information from the firm, computation of the forty-five (45) day period shall be stayed by written notice from the TERO for a reasonable time to permit such information to be provided. If the TERO finds that certification is denied, the firm may appeal to the commission as set out above. (f) Change in Status and Annual Reports: Each certified firm shall report to the TERO, in writing, any changes in its ownership or control status within thirty (30) days after such changes have occurred. Each certified firm, on the anniversary of its receipt of permanent certification, shall update the information provided in this initial application on an annual report form provided by the TERO. Failure to provide information pursuant to these requirements shall constitute grounds for TERO to move for withdrawal of certification.
(a) All agencies and instrumentalities of the Confederated Tribes of the Colville Reservation shall give preference to qualified Indian business enterprises when awarding contracts. (b) Consistent with procedures and requirements outlined in this section, preference shall be given in the following order:
(c) All requests for proposals, invitations for bids, or other contract solicitations shall contain a statement that Indian preference applies in the award of the contract and in the work to be performed pursuant to the contract. (Amended 11/19/98, Resolution 1998-852)
(a) Preference in the award of contracts and subcontracts that are let under an invitation for bids (IFB) process (e.g., conventional bid construction contracts, material supply contracts) shall be provided as follows:
(b) Preference in the award of contracts and subcontracts that are let under a request for proposals (RFP) process shall be provided as follows:
(Amended
12/20/01, Resolution 2001-700)
Agencies shall, in the conduct of their own operations, adhere to the preference requirements in this Chapter. Where the provision of preference is determined by an agency not to be feasible, the agency shall:
(a) When both tribal and federal funds are used for a project, the work to be accomplished with the funds should be separately identified, and federal Indian preference regulations, if any, must be applied to the work financed by federal funds. If the funds cannot be separated, federal Indian preference regulations, if any, will apply to the total project. (b) Each agency and contractor shall be responsible for enforcing and monitoring Indian preference implementation, according to the requirements of Chapter 10-1, in subcontracting, employment, and training by its contractors and subcontractors. Should incidents of noncompliance be found to exist, the agency or contractor shall take appropriate remedial action. A finding by the TERO that the agency or contractor has not provided adequate monitoring or enforcement of Indian preference may result in a determination by the TERO that the agency is in breach of this Chapter. Such a finding shall constitute grounds for the commission to impose remedies or sanctions under this Chapter. (c) Preference in contracting, subcontracting, employment, and training applies not only on-site, on the Reservation, or within the tribal territorial or agency jurisdiction, but also to contracts with firms that operate outside this jurisdiction (i.e., employment in modular or manufactured housing construction facilities) and deliver goods or services for use on the Reservation. (d) Technical Qualifications: An agency shall have the discretion to determine technical, administrative and financial qualifications of contractors and subcontractors. If an agency or contractor determines that a certified firm is not technically qualified, the agency must provide to each certified firm it rejects, written reasons for the rejection.
(e) Reasonable Price: An agency may use any lawful process it chooses for determining what constitutes a reasonable price including, but not limited to: competitive, open or closed bidding; or the establishment of a prototype cost ceiling before bidding or negotiations commence. An agency may reject bids by certified enterprises and other firms on the basis of price. No agency may reject a bid or proposal for a specific project or contract by a certified enterprise on the grounds that the price is not reasonable and subsequently contract with a non-certified firm at a price the same or higher than that contained in the rejected bid.
(a) Any aggrieved party or the director may file a complaint if they believe the provisions of this Chapter have been violated. Each complaint shall be in writing, signed and filed with the agency or contractor. (b) A complaint must be filed with the agency or contractor no later than twenty (20) days from the date of the action (or omission) upon which the complaint is based. (c) Upon receipt of a complaint, the agency or contractor shall promptly stamp the date and time of receipt upon the complaint, acknowledge its receipt in writing to the complainant within five days and shall either meet, or communicate by mail or telephone, with the complaining party in an effort to resolve the matter. In all cases, but especially where the complaint indicates that expeditious action is required to preserve the rights of the complaining party, the agency or contractor shall endeavor to resolve the matter as expeditiously as possible. If noncompliance with Indian preference requirements is found to exist, the agency or contractor shall take appropriate steps to remedy the noncompliance and to amend its procedures so as to be in compliance. If the matter is not resolved to the satisfaction of the complaining party within fifteen (15) days following the agency's receipt of a complaint, the complaining party may file a written complaint with the director. Complaints filed with the director must be received by the TERO within sixty (60) days after the action (or omission) on which the complaint is based. If the TERO director initiated the complaint with the agency, the director and agency shall proceed directly to the procedure in (d) below. (d) Upon receipt of a written complaint, the agency or contractor shall provide a written report to the director setting forth all relevant facts, including, but not limited to, the date the complaint was filed with the agency, the name of the complainant, the nature of the complaint, including the manner in which Indian preference was or was not provided and actions taken by the agency in addressing or resolving the complaint. The agency or contractor shall provide its report and all relevant documents concerning the complaint to the director within ten (10) days after receipt of TERO’s notice to the agency or contractor that a complaint has been filed. (e) Upon receipt of the agency’s or contractor’s report, the director will investigate the complaint and determine whether the actions taken by the agency or contractor comply with Indian preference requirements under this Chapter. If the director finds a violation which the director is unable to resolve through negotiation and conciliation, the director shall refer the matter to the commission for a final determination on the complaint. The director shall also transfer its entire complaint file together with a written report of their investigative findings. The commission shall order a hearing on the complaint with notice of such hearing given to all affected parties. Notification of the commission’s determination shall be provided to the agency and to the complaining party, in writing, no later than thirty (30) days following the TERO commission's receipt of the complaint. If the complaining party’s alleged injury will occur during this thirty (30) day period, the commission will make a good faith effort to make its determination before the occurrence of such injury (i.e., contract award). There shall be no appeal to the Tribal Court from a finding of the commission under this Chapter. (f) Where the commission determines on the basis of the facts provided by the agency or contractor and on the basis of other available information that there has been noncompliance with Indian preference requirements, the commission shall, in addition to other penalties provided in this Chapter, instruct the agency or contractor to take appropriate steps to remedy the noncompliance and to amend its procedures so as to be in compliance.
If after a hearing, provided for in this Chapter and upon the determination that the complaint is valid, the commission shall impose such sanctions on an agency or contractor as are provided here and elsewhere in this Chapter. Such sanctions shall be money damages to be paid by the contractor or agency to the complainant up to the amount of profit the complaining contractor or subcontractor might reasonably have expected to receive under the specific circumstances of the complaint, and may include reasonable costs of filing and prosecuting the complaint. The commission shall assess the reasonable costs of defending the complaint against an unsuccessful complaining party. There shall be no appeal to the Tribal Court from the imposition of money damage, sanctions or costs. Where a manager of a tribal agency is found to be in willful noncompliance with the provisions of this statute, that willful noncompliance shall be grounds for disciplinary action against the manager. The commission may make recommendations to the executive director, CTEC personnel director or other proper authority regarding disciplinary action for violations of this Chapter. All discipline shall be carried out pursuant to the applicable personnel procedure. (Chapter
Amended 7/6/98, Resolution 1998-550) (December 2001 version of Chapter 10-3) Back to Top |