Attachment 4_TERO_Regulations.pdf

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TRIBAL EMPLOYMENT RIGHTS REGULATIONS

OF THE CROW TRIBE

Table of Contents

PART 1. GENERAL PROVISIONS

1.1 Purpose and Authority

1.2 Dissemination

1.3 Definitions

1.4 Coverage

(a) Employment

(b) Contracting and Subcontracting

(c) Employment Rights Fees for Contracting

(d) Employment Rights Fees for Covered Employers

(e) Exempt Employers and Entities

1.5 Compliance Plans

(a) Employment and Training Plan

(b) Contracting and Subcontracting Compliance Plans

PART 2. INDIAN PREFERENCE IN EMPLOYMENT AND TRAINING

2.1 Hiring

(a) Tribal Hall Hiring

(b) Core Crew of Permanent and Key Employees

(c) Sanctions

(d) Termination

(e) Unions

2.2 Training

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2.3 Job Qualifications, Personnel Requirements, and Religious Accommodation

2.4 Promotion

2.5 Summer Students

2.6 Retaliation

2.7 Counseling and Support Programs

PART 3. INDIAN PREFERENCE IN CONTRACTING AND SUBCONTRACTING

3.1 Entity Obligations

(a) Generally

(b) Order of Preference

(c) Notice to TERO and to Certified Firms

(d) Proviso

3.2 Responsibility for Compliance

(a) Construction

(b) Natural Resource Development (Oil, Gas, Minerals, Timber, etc.)

(c) Direct Federal and State Contracts

3.3 Requirements in Contracting

(a) Competitive Awards

(b) Negotiated Awards

(c) Sole Source Negotiations with Tribal Contracting Firms by Tribal Entities and Programs

3.4 Requirements in Subcontracting

(a) General Requirements

(b) Specific Requirements

(c) Technical and Managerial Assistance to Indian Subcontractors

3.5 Responsibility for Evaluating Technical Qualifications and Reasonable Price

(a) Technical Qualifications

(b) Reasonable Price

3.6 Operation of the Contract or Subcontract

3.7 Maintenance of Indian Preference Status

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PART 4. FEES

4.1 Provision for Collection of Fees for Contracting

4.2 Provision for Collection of Fees for Covered Employers

4.3 Employers with a Permanent Place of Business on the Lands over which the Crow

Tribe has Jurisdiction

4.4 Alternative Fee Arrangement for Covered Employers

4.5 Alternative Arrangement for Significant Long-Term Projects

4.6 Exempt Employers and Entities

PART 5. ADMINISTRATIVE PROCEDURES

5.1 Reports and Monitoring

5.2 Individual Complaint Procedures

(a) Non-Compliance by an Entity

(b) Non-Compliance by the TERO

5.3 Compliance and Hearing Procedures

(a) Informal Settlement

(b) Procedures for Hearing

5.4 Sanctions

5.5 Appeals

5.6 Bonds

5.7 Attachment

5.8 Irreparable Harm

PART 6. DUE PROCESS HEARING PROCEDURES

6.1 Pre-Hearing Procedures

(a) Review of TERO Files

(b) List of Witnesses

(c) Pre-Hearing Interviews of Witnesses

(d) Subpoenas of Documents and Other Items iv

(e) Postponement

6.2 Conduct of the Hearing

(a) Presiding Officer

(b) TERO Director

(c) Respondent

(d) Attorneys and Lay Advocates

(e) Recording of the Hearing

(f) Prohibition of Retaliation

(g) Starting Time

(h) Opening Statements

(i) Order of Proceeding

(j) Examination and Cross Examination of Witnesses

(k) Irrelevant Testimony

(l) Written Testimony

(m) Closing Statement

(n) Audience

6.3 The Decision

PART 7. CRITERIA AND PROCEDURES FOR CERTIFYING FIRMS AS INDIAN

PREFERENCE ELIGIBLE

7.1 General Statement of Policy

7.2 Criteria for Indian Contract Preference Certification

(a) Ownership

(b) Management Control

(c) Integrity of Structure

(d) Brokers

(e) Manufacturing Companies

7.3 Certification Procedures

(a) Application for Certification

(b) Probationary Certification v

(c)

(d)

(e)

(f)

Final Certification

Withdrawal of Certification

Firms Certified Prior to the Adoption of These Criteria

Change in Status and Annual Reports

APPENDIX:

APPLICATION FOR CERTIFICATION AS AN INDIAN

1.

PREFERENCE FIRM

Firm Identification

2. Ownership

3. Management

4. Capital and Equipment

5. Certification

Crow TERO Regulations

Adopted June 2011

PART 1.

GENERAL PROVISIONS

1.1 Purpose and Authority

The following Regulations are issued pursuant to the authority granted to the Crow Nation

Tribal Employment Rights Office (hereinafter "TERO") and the Crow Tribal Employment Rights

Commission ("Commission") by the Crow Nation Workforce Protection Act ("Crow WPA"). The

Crow WPA requires Indian preference (or tribal preference where allowed) in employment by all employers subject to the Crow WPA and preference in contracting and subcontracting to Indian-certified firms by all contract-awarding entities operating on lands over which the Crow Tribe has jurisdiction.

1.2 Dissemination

The obligation and legal requirement that all covered employers and entities comply with the tribal employment and contract rights requirements of the Crow WPA shall be made known to all existing and future entities by the TERO. All bid announcements issued by any tribal, Federal, State or other private or public entity shall contain a statement that the successful bidder will be obligated to comply with the Crow WPA and these Regulations, and that a bidder may contact the TERO to obtain additional information. Those tribal and other offices responsible for issuing business permits for the lands over which the Crow Tribe has jurisdiction or otherwise engaged in activities involving contact with prospective employers on the lands over which the

Crow Tribe has jurisdiction shall also inform such prospective employers of their obligations under the WPA and these Regulations.

1.3 Definitions

(a) "Certified Firm" or "Indian-certified firm" means a firm that is certified by the

TERO Director as an Indian-owned and controlled firm pursuant to the terms and procedures provided for in these Regulations.

(b) "Commercial Enterprise" means any activity by any government, including the

Federal, State, tribal, or local governments (including any activity of the Crow

Tribe) that is not a traditional governmental function and any non-governmental economic activity involving the provision of goods or services.

(c) "Commission" means the Crow Tribal Employment Rights Commission

(d) "Covered Employer" or "Employer" means any entity, company, contractor, subcontractor, corporation or other business entity doing business on the Crow

Reservation, including the Crow Tribe and its commercial enterprises, that employs for wages or other remuneration two (2) or more employees for eight (8) or more hours per employee in any calendar week on lands over which the Crow Tribe has jurisdiction.

(e) "Employee" means any person employed for wages or other remuneration. No immediate relative within the 2nd degree of consanguinity or the spouse of any such immediate relative shall be included if such person is employed by an employer whose principal business activity is farming or ranching.

(f) "Entity" or "Covered Entity" means any person, firm, partnership, corporation, joint venture, government, commercial enterprise, or any other natural or artificial person, organization, or association of persons or entities. The term is intended to be as broad and encompassing as possible to ensure maximum coverage of these

Regulations and the Crow Nation Workforce Protection Act over all employment and contract activities within the Tribe's jurisdiction.

(g) "Indian" means an enrolled member of a Federally-recognized Indian tribe.

(h) "Indian living on or near the reservation" means an Indian who is an enrolled member of a Federally-recognized Indian tribe who is living on or near the Crow

Indian Reservation. No person shall be considered an Indian living on or near the reservation unless he or she has a permanent residence on or near the Crow

Reservation and has lived on or near the Crow Reservation for at least six (6) months prior to employment on the Crow Reservation. "On or near the reservation" means a location that is within a reasonable daily commuting distance of the job site at issue.

(i) "Qualified" means those job-related qualifications that are essential for performing the basic responsibilities of a position, including any essential qualifications concerning education, training, and job-related experience.

(j) "Qualifications" with respect to contracting means a demonstrated ability to perform the terms of a contract and may include evaluation of prior performance, safety records, prior or pending litigation or complaints regarding performance, financial stability, or similar factors which are directly relevant to a bidder's ability to perform satisfactorily.

(k) "Reservation" means the Crow Indian Reservation and includes all land within the exterior boundaries of the Crow Indian Reservation and/or trust land under the jurisdiction of the Crow Tribe, wherever located.

(l) "TERO" means the Tribal Employment Rights Office of the Crow Tribe.

(m) "Tribal Court" means the Crow Tribal Court.

(n) "Tribe" means the Crow Tribe of Indians.

(o) "WPA" means the Crow Nation Workforce Protection Act.

1.4 Coverage

(a) Employment

These employment preference Regulations shall apply to any employer who in a calendar week, employs two (2) or more employees for eight (8) or more hours, where the employees perform work on lands over which the Crow Tribe has jurisdiction, including employment by the Crow Tribe and all contractors or grantees of the Crow Tribe and all commercial enterprises owned by the Crow Tribe. It shall not apply to direct employment by the

Federal government, state governments, or the subdivisions of such governments; however, it shall apply to all contractors or grantees of such governments and to all commercial enterprises operated by such governments.

(b) Contracting and Subcontracting

The contract and subcontract preference requirements of these Regulations shall apply to any covered entity that awards one or more contracts and/or subcontracts for supplies, services, labor, or materials, where the majority of the work occurs on the Reservation or the majority of the supplies or materials shall be used on the Reservation. These requirements shall not apply to the award of any contract where the award is made directly by the State, a subdivision of the State, or the Federal government. However, the Regulations shall apply in the award of subcontracts by entities which have received such direct contracts from the State or Federal government. They shall also apply to the award of any contract by the Crow Tribe, its subdivisions, commercial enterprises, and other entities of the Tribe.

(c) Employment Rights Fees for Contracting

Every covered entity with a contract totaling $5,000.00 or more shall pay a one-time project fee of four percent (4%) of the total amount of the contract. Such fee shall be paid by the entity prior to commencing work on the Reservation. However, where good cause is shown, the TERO Director may authorize the fee to be paid in installments over the course of the contract.

(d) Employment Rights Fees for Covered Employers

Every covered employer, other than contractors covered under subsection (c) above, with five (5) or more employees working on the Reservation or with gross sales on the

Reservation of $100,000 or more, shall pay a quarterly fee of four percent (4%) of the quarterly payroll of its employees working on the Reservation. This fee shall be paid within 30 days after the end of each calendar quarter.

(e) Exempt Employers and Entities

The fees under subsections (c) and (d) above shall not apply to education, health, religious, or non-profit entities or employers. However, a reduced contracting fee of 1.5% shall apply to contractors hired by such employers.

1.5 Compliance Plans

Each covered employer or covered entity intending to engage in business activity on the lands on which the Crow Tribe has jurisdiction, prior to the time it commences work on the

Reservation, must submit a contracting, subcontracting, employment, and/or training plan to the

TERO. No new employer or entity may commence work on the lands on which the Crow Tribe has jurisdiction until it has met with the TERO Director and developed an acceptable plan for meeting its obligations under the Crow WPA and these Regulations. A covered employer or entity that fails to submit an acceptable plan in a timely manner shall be in violation of the Crow WPA and subject to fines and other sanctions pursuant to Chapter 13 of the Crow WPA.

(a) Employment and Training Plan

The employment and training plan shall show the number of man-hours, by craft and skill category, needed on the project. The employer or entity shall also identify those persons it wishes to have approved as permanent and key employees (see section 2.1(b)) and shall provide all data needed by the TERO to verify the status of those employees. As provided in

Section 2.1, all non-permanent key positions shall be filled with Indians living on or near the Crow

Reservation unless the TERO has determined that there is no qualified Indian available for that position. The plan shall also describe how the employer will participate in the Tribe's training programs.

(b) Contracting and Subcontracting Compliance Plans

Each covered entity intending to engage in business activity on the Crow

Reservation, prior to the time it commences work on the Reservation, must submit a contracting and subcontracting compliance plan to the TERO. No new entity may commence work on the lands over which the Crow Tribe has jurisdiction until it has met with the TERO and developed an acceptable plan for meeting its obligations under the Crow WPA and these Regulations. A covered entity that fails to submit an acceptable plan in a timely manner shall be in violation of the Crow

WPA and is subject to fines and other sanctions pursuant to Chapter 13 of the Crow WPA.

The contracting and subcontracting plan shall indicate all contracts and subcontracts that will be entered into by such entity on said project and the projected dollar amounts thereof. If the entity has already selected a firm to perform any contract or subcontract work, it shall list the name of that firm and indicate whether or not it has been designated as an

Indian-certified firm by the TERO. If it is not an Indian-certified firm, the entity shall further indicate why any technically qualified and Indian-certified firm, if any, that is registered with the

TERO was not selected. The plan shall also indicate how the entity intends to comply with

Part 3 of these Regulations when awarding all contracts and subcontracts not yet awarded at the time the plan is submitted.

PART 2.

INDIAN PREFERENCE IN EMPLOYMENT AND TRAINING

2.1 Hiring

(a) Tribal Hiring Hall

No covered employer shall hire a non-Indian without first providing the TERO with not less than 72 hours to locate and refer a qualified Indian living on or near the Crow Reservation.

However, in cases where a worker is needed in a shorter period of time, the employer may so request from the TERO and said request shall be granted so long as the employer can demonstrate that a bona fide need exists. The TERO Director may enter into agreements with contractors providing that all hiring shall be done through the TERO.

Where an employer or the TERO cannot locate a qualified Indian living on or near the Crow Reservation, they shall make a best faith effort to locate, refer and hire a non-local Indian who is a member of a Federally-recognized tribe.

(b) Core Crew of Permanent and Key Employees

Prior to commencing work on the lands over which the Crow Tribe has jurisdiction, a prospective employer and all subcontractors shall identify key regular, permanent employees that constitute the employer's "core crew." Covered employers, may, if necessary, have a core crew, which is exempt from the Indian preference requirements. A core crew is considered necessary if

(1) there are unique or specialized qualifications that are essential for the operation of the business, and (2) it would place an unreasonable burden or cost on the employer to hire individuals other than its core crew. If a core crew is necessary, such core crew shall not exceed five percent (5%) of the total employees of the employer working on the reservation and ten percent (10%) of the total hours of payroll of the employees working on the reservation. The TERO Director may, at his or her discretion, grant an employer a larger core crew upon a satisfactory demonstration by the employer that a larger core crew is bona fide and necessary due to unique or specialized positions that are essential for the operation of the business. Any employer or subcontractor which fills vacant employment positions in its organization immediately prior to undertaking work pursuant to a contract to take place on the lands over which the Crow Tribe has jurisdiction shall set forth evidence acceptable to the TERO Director that its actions were not intended to circumvent these requirements. Upon approval of each key regular, permanent employee requested by the employer, the TERO shall issue permits for those workers.

(c) Sanctions

Any person found to be employed by a covered employer who was hired in violation of the requirements of these Regulations shall be summarily removed from the job and the employer shall be subject to such additional sanctions as the TERO Director may impose. In imposing sanctions under this section, the TERO Director shall consider such factors as:

1. Was the violation intentional?

2. Did the employer act quickly to remove the employee at issue?

3. Has the employer been cited for other work permit violations in the past?

(d) Termination

Indian workers living on or near the Crow Reservation shall have seniority for retention with respect to terminations. An Indian worker shall not be terminated so long as a non-local Indian or non-Indian worker in the same craft is still employed. The non-Indians shall be terminated first, and then non-local Indians, so long as the Indian living on or near the Crow

Reservation meets the threshold qualifications for the job. Further, if the employer lays off by crews, qualified Indians living on or near the Crow Reservation shall be transferred to crews that will be retained, so long as there are non-local Indians or non-Indians in the same craft employed on the crews that are to be retained.

(e) Unions

An employer or subcontractor who has a collective bargaining agreement with one or more labor unions must obtain written agreements from said unions indicating that they will comply with these Indian preference requirements. Specifically, the contractor may make initial job referral requests to the union. However, if the union does not have a qualified Indian worker who lives on or near the Crow Reservation on any of its out-of-work lists, the union shall contact the TERO. If the TERO can identify a qualified Indian worker, that worker shall be referred through the union hiring hall to the job site. The union may not refer a non-local Indian or a non-Indian until it has contacted the TERO. Before referring the non-local Indian or non-

Indian to the job site, the union shall request and the TERO shall issue a work permit for that worker.

No Indian worker 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 lands over which the

Crow Tribe has jurisdiction or by telephone or mail.

Any Indian worker 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 shall pay all union dues but shall not be required to pay an initiation fee.

2.2 Training

All employers, as requested by the TERO, shall participate in training programs to assist

Indians to become qualified in the various job classifications used by the employer. Employers engaged in construction may participate in the Tribe's BAT certified training program or a union apprenticeship program. All trainees or apprentices shall be Indians living on or near the Crow

Reservation. Where an employer is not presently participating in a union apprenticeship program, the Crow Tribe shall make a best effort to bear the costs of such training programs, but employers may also be required to bear part of the cost. Employers with collective bargaining agreements with unions may use union apprenticeship programs so long as they obtain agreement from the unions to use only Indian apprentices on the project.

2.3 Job Qualifications, Personnel Requirements and Religious Accommodations

An employer may not use any job qualification criteria or personnel requirements which serve as barriers to the employment of Indians and which are not required by business necessity.

The burden shall be on the TERO to demonstrate that the criterion or personnel requirement is a barrier to Indian employment. The burden will then 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 the criterion or personnel requirement at issue. Employers shall also make reasonable accommodation for the religious beliefs of Indian workers. In implementing these requirements, the TERO shall be guided by the principles established by the U.S. Equal Employment Opportunity Commission ("EEOC"). For example, factors that may be considered include, but are not limited to: the nature of the business, the requirements of the specific job in question, and whether the requirement or practice is necessary for preserving the normal operation of the business. The TERO reserves the right to go beyond

EEOC guidance in order to address employment barriers that are unique to Indians.

Where the TERO and employer are unable to reach agreement on the matters covered in this section, the TERO Director shall make a determination on the issues and shall order such actions as he deems necessary to bring the employer into compliance with this section. The employer may appeal the decision of the TERO Director to the TERO Commission under the procedures provided for in Part 5 of these Regulations.

2.4 Promotion

The employer shall give qualified Indians living on or near the Crow Reservation preferential consideration for all promotion opportunities and shall encourage Indians to seek such opportunities. For all supervisory positions filled by non-local Indians or non-Indians, the employer shall file a report with the TERO stating which Indians living on or near the Crow

Reservation, if any, applied for the job, the reasons why they were not given the job, and what efforts were made to inform Indian workers about the job opportunity.

2.5 Summer Students

Indians living on or near the Crow Reservation shall be given preference in the hiring of summer student help. The employer shall make every effort to promote after-school, summer, and vacation employment for Indian youth.

2.6 Retaliation

No employer shall punish, terminate, harass, or otherwise retaliate against any employee or other person who has exercised his or her rights under the Crow WPA or these Regulations or has assisted another to do so. Further, any employer who harasses or abuses an employee of the

TERO who is carrying out official duties under the Crow WPA or these Regulations may be summarily removed from the lands over which the Crow Tribe has jurisdiction. An employer shall be responsible for the actions of all of its employees, supervisory or otherwise, and for the actions of its subcontractors and their employees in regard to the prohibitions in this section.

2.7 Counseling and Support Programs

The TERO, in conjunction with other tribal and Federal offices, may provide counseling and other support services to Indians employed by covered employers to assist such Indians in retaining employment. Employers shall be required to cooperate with such counseling and support services.

PART 3.

INDIAN PREFERENCE IN

CONTRACTING AND SUBCONTRACTING

3.1 Entity Obligations

(a) Generally

Every covered entity engaged in any business activity within the Reservation, including, but not limited to, construction, minerals development, supplies, service, and retail, shall give preference to Indian-certified firms in any contract or subcontract awarded, where at least

50% or more of the contract or subcontract is to be performed on lands over which the Tribe has jurisdiction. Firms are designated as Indian-certified by the TERO Director and TERO

Commission under Part 7 of these Regulations and Indian-certified firms must be selected if they are technically qualified and willing to perform the work at a reasonable price, as defined in section

3.5 of this Part. If a covered entity determines that the Indian-certified firms lack the qualifications to perform all of the work required under a contract or subcontract, the entity shall make a good faith effort to divide the work required into smaller portions so that the Indian- certified firms can qualify for a portion of the work.

(b) Order of Preference

The following order of preference shall apply in the award of contracts and subcontracts:

1. Competition in the award of all contracts and subcontracts shall be limited to firms that have been verified and designated as Indian-certified firms by the TERO. If only one responsive and responsible Indian-certified firm is available, the awarding entity shall negotiate with said firm and award to it if its price is reasonable and it is technically qualified to perform the work.

2. If the awarding entity determines, through a review of the list of Indian-certified firms, that there are no Indian-certified firms with the technical qualifications to perform the work, or if it sought bids through a process that limited competition to

Indian firms and received no qualified bids, it may, with the agreement of the TERO

Director, award the contract through a full and open competition.

(c) Notice to TERO and to Indian-Certified Firms

Any entity planning to issue a bid, request for proposal, or other action leading to the employment of a contractor who would be covered by the Crow WPA and these Regulations shall notify the TERO of its plans no fewer than twenty (20) days prior to issuing notice to bidders or other potential contractors. The entity shall also obtain from the TERO a list of Indian preference certified firms and shall send a copy of the bid notice or other notice setting out the contract opportunity to each Indian preference certified firm engaged in the field of commerce in which the contract work will take place. An entity that fails to comply with this requirement shall be subject to the sanctions set out in Chapter 13 of the Crow WPA.

(d) Proviso

Provided, that if any requirement of these Regulations is inconsistent with the requirements of a Federal law or regulation, the latter shall take precedence. In such case, an alternative method of Indian contracting preference may be utilized that is consistent with the applicable Federal law or regulation (e.g. percentage differential), which shall be determined on a case-by-case basis by the TERO Director. As used in these Regulations, the terms "contract" and

"subcontract" apply to all contracts, including, but not limited to, contracts for construction, supplies, services, and equipment, regardless of tier.

3.2 Responsibility for Compliance

The entity engaged in business activity shall be responsible for the compliance of all its contractors and subcontractors with these Regulations. Specifically:

(a) Construction

The entity awarding the prime construction contract shall be responsible for compliance with the requirement that preference be given in the award of the prime contract and for ensuring that the prime contractor is in compliance with the requirement that preference be given in the selection of subcontractors; provided, that when the prime contract is awarded directly by an agency of the United States Government (see subsection (c) of this section), the prime contractor shall be the responsible entity. Provided further, that where the entity is an Indian

Housing Authority (IHA), it shall not be subject to any monetary sanctions as provided in Part 5, section 5.4, and shall be exempt from any requirements of these Regulations that are inconsistent with the U.S. Department of Housing and Urban Development's Indian preference regulations.

Given that no prime contractor shall be permitted to commence work on the Reservation until it has demonstrated that it will comply with the subcontract preference requirements, it is in the interest of the funding entity to ensure its low bidder will comply with the subcontract preference requirements prior to the award of the contract. The Tribe shall not be liable for any losses incurred by the funding entity because it has entered into a contract with a prime contractor which, because of its failure to provide adequate proof that it will fully comply with the subcontract preference requirements of these Regulations (e.g., submission of an acceptable subcontractor plan

– see Part 1, section 1.5(b)), is not permitted to commence work on the Reservation.

(b) Natural Resource Development (Oil, Gas, Coal, Gravel, Hard Rock Minerals, Timber, etc.)

The entity obtaining the authorization from the Tribe to engage in development activities on the Reservation shall be responsible for compliance with these Regulations by all of its contractors and subcontractors.

(c) Direct Federal and State Contracts

Whereas the Tribe does not have authority over the United States Government, the

State of Montana, or Federal and State agency contracting policies and procedures, these

Regulations do not apply to the award of direct prime contracts by a Federal or State agency.

However, the selected contractor shall be required to comply fully with all subcontract preference requirements.

3.3 Requirements in Contracting

Preference shall be given to Indian-certified firms in the award of all contracts. An entity may select its contractor in any manner or procedure it so chooses; provided that:

(a) Competitive Awards

(1) If the entity uses competitive bidding or proposals, competition shall be limited to Indian-certified firms. If the entity is unsure if there are any qualified Indian-certified firms, it may first publish a prior invitation for Indian-certified firms to submit a Statement of Intent to respond to a limited advertisement when published and to furnish, with the Statement of Intent, evidence sufficient to establish their technical qualifications, along with a copy of its certification from TERO. Provided that, if a bid is submitted by a firm owned by a member of the Crow Tribe within 2% of the low bid that includes a copy of its certification from TERO, award shall be made to that firm if it is technically qualified to perform the work at a reasonable price, as defined in section 3.5 of this Part.

(2) If only one Indian-certified firm submits a bid or Statement of Intent along with a copy of its certification from TERO, the entity (unless otherwise prohibited by Federal law or regulation) shall enter into negotiations with that firm for a period not to exceed ten (10) days and shall award the contract to that firm so long as the firm is technically qualified and is willing to perform the work at a reasonable price, as defined in section 3.5 of this Part.

(3) If the entity fails to receive any Statement of Intent from a technically qualified

Indian-certified firm or fails to receive a bid at a reasonable price, as defined in section

3.5 of this Part, it may, after so notifying the TERO, advertise for bids or proposals without limiting competition to Indian-certified firms and may award to the low bidder.

(b) Negotiated Awards

If the entity selects its contractor through negotiations or other informal process, it may not enter into a contract with a non-certified firm unless it has contacted every Indian- certified firm in the relevant field, as listed by the TERO office, and has determined that there is no Indian-certified firm available that is technically qualified to perform the work required at a reasonable price as defined in Section 3.5. So long as an Indian-certified firm is qualified and submits a reasonable bid pursuant to Section 3.5, no non-certified firm may be selected.

(c) Sole Source Negotiations with Tribal Contracting Firms by Tribal Entities and

Programs

Notwithstanding subsections (a) and (b) of this Section, all tribal programs and tribal entities shall give a right of first refusal for the work on any project funded by Tribal or Tribal entity dollars and/or P.L. 93-638 funds to a tribally-owned or tribal-member owned contracting firm qualified to perform the work on the project. The Tribal program or entity that is letting the contract on the project shall engage in negotiations with the qualified tribally-owned or tribal- member owned contracting firm to negotiate the price and terms of a contract for the work. If good faith negotiations do not result in a contract within thirty (30) days after commencement of negotiations, the Tribal entity letting the contract may put the contract out for competitive bid in a manner consistent with subsections (a) and (b) of this section.

3.4 Requirements in Subcontracting

(a) General Requirements

Preference shall be given in the award of all subcontracts to Indian-certified firms.

The contractor may select its subcontractor in any manner it so chooses; provided that: If the contractor uses competitive bidding or proposals, competition shall be limited to Indian-certified firms and shall be awarded to the responsive and responsible firm submitting the lowest bid if its price is reasonable. If the contractor is unsure if there are any qualified Indian-certified firms, it may first publish a prior invitation for Indian-certified firms to submit a Statement of Intent to respond to a limited advertisement when published and to furnish, with the Statement of Intent, evidence sufficient to establish their technical qualifications. If the contractor fails to receive any Statement of Intent from a technically qualified firm, it may, after so notifying the TERO, advertise for bids or proposals without limiting competition to Indian-certified firms and may award to the low bid. If the contractor selects its subcontractor through negotiations or other informal processes, it may not enter into a contract with a non-certified firm unless it has contacted every Indian-certified firm in the relevant field and has determined that there is not an Indian-certified firm available that is technically qualified to perform the work required at a reasonable price as defined in section 3.5. So long as an Indian-certified firm meets the minimum threshold qualifications, no non-certified firm may be selected.

(b) Special Requirements

Entities awarding construction contracts shall comply with the following special requirements in the award of subcontracts:

(1) The bid notice shall require that each bidder submit, as part of its bid, an

Indian subcontract plan showing, for each subcontract it intends to enter into, the name of the firm, whether or not it is Indian-certified, and, if not certified, why the contractor did not select an

Indian-certified firm, and the projected subcontract price, as provided for in Part 1, section 1.5(b).

(Since, pursuant to section 1.5(b), a contractor will not be permitted to commence work on the

Reservation unless it has an approved subcontracting plan, it is in the contract awarding entity's self-interest to declare as nonresponsive or nonresponsible any bidder who fails to submit a satisfactory plan.) The subcontract price information for each bidder shall be made available to the

TERO and shall be used to ensure that a contractor has not engaged in bid shopping as a means to discourage Indian-certified firms or to force them to accept a subcontract at an unreasonably low price.

(2) It shall be illegal for any contractor or bidder to engage in bid shopping. Bid shopping is defined as any practice involving or comparable to the contacting of different subcontracting firms, informing them that a competitor has underbid them, and offering them an opportunity to underbid the competitor. Any contractor found to have engaged in bid shopping shall be prohibited from engaging in work on the Reservation or, if engaged in work, shall be liable for treble damages for any losses suffered by an Indian-certified firm as a result of the contractor's bid shopping practices. The TERO reserves the right to require any contractor to demonstrate that a reasonable relationship exists between the dollar amount of a proposed subcontract and the reasonable costs of supplies, materials, and labor.

(3) The contractor shall not be prohibited from requiring that a subcontractor provide some form of security. However, if a subcontractor bonding requirement has been imposed and an Indian firm is unable to obtain a bond, the prime contractor must permit the Indian subcontractor to provide another adequate form of security. A list of acceptable bonding alternatives is provided here:

a. No bond required on amounts of $25,000 or less;

b. Surety bonds;

c. Cash bonds -- to 25% -- held in escrow by tribal attorney or bank;

d. Increased retainers -- 25% instead of normal;

e. Letter of credit -- 100%;

f. Letter of credit -- 10% -- with cash monitoring system;

g. Cash monitoring system;

h. Other options to be considered as they arise. The final decision on whether an alternative form of security is sufficient shall rest with the TERO.

(4) If it is determined that there is no qualified Indian-certified firm available to perform a particular subcontract because the subcontract is too large for the capacity of any one certified firm, the contractor shall make a good faith effort to divide that subcontract into smaller pieces so that several Indian-certified firms may qualify and perform the work.

(c) Technical and Managerial Assistance to Indian Subcontractors

The prime contractor shall develop and submit and implement a plan to assist Indian subcontractors to develop and improve their technical and managerial capabilities.

3.5 Responsibility for Evaluating Technical Qualifications and Reasonable Price

(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 Indian-certified firms that are technically qualified, the entity must provide to each Indian-certified firm it rejects, a description in writing of areas in which it believes the firm is deficient and steps it could take to upgrade its qualifications.

If an Indian-certified firm that was disqualified on the grounds of technical qualification believes that the disqualification was the result of an improper effort by an entity, contractor, or subcontractor, to circumvent its Indian preference responsibilities under these Regulations, it may file a complaint with the TERO. The complaint must be filed within twenty (20) days after the firm was notified of its non-qualification. The burden shall be on the complaining firm to demonstrate that (a) it is qualified, and (b) its disqualification was the result of an effort to circumvent these Regulations. If after a hearing, as provided for in Part 5, Section 5.3, the complaint is found to be valid, the TERO Commission shall impose such sanctions as it deems appropriate, including punitive damages.

(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), private negotiations, or the establishment of a prototype cost ceiling before bidding or negotiations commence. However, before an entity may reject all Indian-certified firms on the basis of price, it must offer one or more of the certified firms an opportunity to negotiate price. If there is only one technically qualified Indian-certified firm, the entity must enter into negotiations on price with such firm and must contract with that firm if a reasonable price can be negotiated. No entity may reject an Indian-certified firm on the grounds that the price is unreasonable and subsequently contract with a non-certified firm at the same or higher price. Any contract modification executed between an entity and a non-certified firm during the course of a project which results in a higher price to the firm will be subject to review by the TERO to ensure that the modification in price is justified and 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 an Indian-certified firm as a result of the entity's actions.

3.6 Operation of the Contract or Subcontract

Once an entity enters into a contract with an Indian-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 these

Regulations.

3.7 Maintenance of Indian Preference Status

If an Indian-certified firm receives a contract or subcontract award on the basis of Indian preference as provided for in this Part, it shall maintain its certification throughout the entire period of the contract. If, as a result of changes in the firm's ownership or control during the period of the contract, the firm no longer qualifies as an Indian-certified firm, the TERO reserves the right to take action against the firm as it deems appropriate to preserve the purposes of these

Regulations.

PART 4.

FEES

4.1 Provision for Collection of Fees for Contracting

Every covered entity with a contract totaling $5,000.00 or more shall pay a one-time project fee of four percent (4%) of the total amount of the contract. Such fee shall be paid by the entity prior to commencing work on the Reservation. However, where good cause is shown, the

TERO Director may authorize the fee to be paid in installments over the course of the contract.

4.2 Provision for Collection of Fees for Covered Employers

All fees are due and shall be paid in full by any covered entity prior to its commencing work on the Reservation, unless other arrangements are agreed to, in writing, by the TERO

Director.

Immediately upon becoming aware that a covered employer is intending to engage in work on the lands over which the Crow Tribe has jurisdiction, the TERO Director shall mail to said employer by registered mail, a notice informing him of the nature and the purpose of the fee, the percentage, the specific amount due, if known, the date due, and the possible consequences if the employer fails to comply. Said notice shall be accompanied by a formal notice of fees due.

If the employer fails to pay the fee by the day it commences work on the lands over which the Crow Tribe has jurisdiction, interest shall begin accruing on that date at the rate of

10% per annum. Further, following the day on which the employer commences work, the TERO

Director shall send a notice to the employer by registered mail, informing him that his payment is overdue and of the consequences that will result if the fee is not paid immediately.

If the fee is not paid by the 15th day after the employer commences work, the TERO

Director shall file a formal charge of non-compliance, and shall schedule a TERO Commission hearing to be held in five (5) days or as soon thereafter as the Commission can meet, and shall inform the employer of the scheduled hearing.

At the hearing, to be held whether or not the employer attends, the TERO Commission shall determine whether or not the employer has failed to comply. If it finds non-compliance, it shall impose penalties of up to 10% of the amount due, and/or the TERO Director may petition the

Crow Tribal Court to uphold the decision of the Commission and to enforce it through confiscation proceedings as provided for in Chapter 13 of the Crow WPA.

Where the TERO Director or Commission has reasonable cause to believe that an employer will flee the jurisdiction before the procedures set out above can be completed, they may apply any of the procedures provided for in Chapter 13 of the Crow WPA, notwithstanding the above procedures.

4.3 Employers with a Permanent Place of Business on the Lands over which the Crow Tribe has Jurisdiction

An employer that the TERO Director determines has or will have a permanent place of business on the Reservation shall pay the fee pursuant to the following procedures:

(a) On April 15, July 15, October 15, and January 15, the employer shall submit, on a form provided by the TERO Director, information showing his total payroll for the previous quarter, accompanied by a check for an amount equal to 1/2 of 1% of the payroll for that quarter.

(b) The TERO Director, upon receipt of a written request, may authorize, in writing, an employer to submit the information and payments on a quarterly schedule other than the one set out in subsection (a) above, when doing so would make the schedule compatible with the employer's fiscal year structure.

(c) An employer covered by this section shall be subject to the same interest, penalty and enforcement requirements and deadlines as those established in section 4.2. The TERO Director shall send said employers appropriate notices and forms.

4.4 Alternative Fee Arrangement for Covered Employers

The TERO Director, in his discretion, may, upon receipt of a written request, authorize an employer to pay the required fees in installments over the course for the year or the contract, as appropriate, when:

(a) The total annual fee exceeds $10,000, and

(b) The employer demonstrates hardship or other good cause.

The decision to authorize an alternative arrangement, which shall be in writing, shall rest solely with the TERO Director and may not be appealed to the Commission or the Tribal Court.

The employer shall pay interest, at the prime rate, on all amounts paid after the day it commences work on the Reservation when paying under an alternative arrangement.

4.5 Alternative Arrangement for Significant Long-Term Projects

Where a proposed contract, lease, or sub-contract (or combination thereof) involves a significant, long-term project that will have a sustained positive impact on the economic development of the Crow Tribe, the TERO Director may negotiate alternative fee terms consistent with the policy and purposes of the Crow WPA and these Regulations, subject to the approval of the Chairman. Negotiations may take into account the entity's training programs or other capacity building programs for Crow and Indian employees, as well as the projected payroll, the value of projected subcontracts, and other economic benefits that may be realized by the Crow Tribe and its members.

4.6 Exempt Employers and Entities

The fees in this Part shall not apply to education, health, religious, or non- profit entities or employers. However, a reduced contracting fee of 1.5% shall apply to contractors hired by such employers.

PART 5.

ADMINISTRATIVE PROCEDURES

5.1 Reports and Monitoring

All covered entities engaged in any aspect of business activity on the Reservation shall submit reports and such other information as 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 these Regulations. Employees of the TERO shall have the right 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. All information collected by the TERO shall be kept confidential, unless disclosure is required during a hearing or appeal as provided for in these Regulations.

5.2 Individual Complaint Procedures

(a) Non-Compliance by an Entity

Any Indian, group of Indians, representatives of a class of Indians, Indian- certified firm, group of Indian-certified firms, or other person or entity who believes that an entity has failed to comply with these Regulations or the Crow WPA, or who believes that they have been discriminated against by a covered entity because they are Indian may file a complaint with the

TERO. Persons may file whether or not they can show that they were personally harmed by the entity's non-compliance. The procedure for complaints shall be in accordance with section

17.13.2.2 of the WPA and the provisions of Chapter 13 of the WPA.

(b) Non-Compliance by the TERO

Any entity, group of entities, non-certified firm, group of non-certified firms, non-

Indian worker, group of non-Indian workers or other person or entity who believes that an action of the TERO is in violation of these Regulations or the Crow WPA may file a complaint with the

Chairman of the TERO Commission in accordance with section 17.13.2.2 of the WPA. Persons may file whether or not they can show they were personally harmed by the TERO's action.

5.3 Compliance and Hearing Procedures

(a) Informal Settlement

If, based on a complaint filed pursuant to Section 5.2 or on its own information, the

TERO has reason to believe that an entity covered by these Regulations has failed to comply with any of these requirements, the TERO shall so notify the entity in writing, specifying the alleged violation(s). If the party so notified is a contractor or subcontractor, notice shall also be provided to the entity holding the permit or authorization under which the contractor or subcontractor is operating, and such entity shall be a party to all further negotiations, hearings, and appeals. The

TERO shall then conduct an investigation of the charge and shall attempt to achieve an informal settlement of the matter. If voluntary conciliation cannot be achieved and the TERO Director has reasonable cause to believe a party has violated the Crow WPA or these Regulations, he shall issue a formal notice of non-compliance to the party and shall proceed with the enforcement procedures as set out in Chapter 13 of the Crow WPA.

(b) Procedures for Hearing

All hearings before the TERO Commission shall be governed by the Due Process

Hearing Procedures under Part 6 of these Regulations.

5.4 Sanctions

The TERO Commission may impose any or all of the following sanctions where it finds a violation of the Crow WPA or these Regulations, pursuant to the provisions and procedures under

Chapter 13 of the Crow WPA. If after the hearing, the Commission determines that an alleged violation occurred and…