ARRA vs. Navajo Nation: Procurement and Indian Preference. The Navajo Nation wants and needs ARRA funds. What procurement laws, regulations, and policies will we have to follow?. Presented by: Luralene D. Tapahe, Assistant Attorney General Economic & Community Development Unit
The Navajo Nation wants and needs ARRA funds. What procurement laws, regulations, and policies will we have to follow?
Luralene D. Tapahe, Assistant Attorney General
Economic & Community Development Unit
Navajo Nation Department of Justice
June 25, 2009
- no casinos, zoos, aquariums, golf courses, swimming pools, or similar projects
- publication, transparency, reporting/accounting and registration requirements first reporting deadline is October 10, 2009 and quarterly thereafter
- prohibition on comingling of funds; segregation of costs
- reporting of false claims
- job opportunity posting requirements
- buy American-made goods requirement
- “competitive bidding” process – the Navajo Nation’s procurement laws and regulations do follow this, but not the Navajo Business Opportunity Act
- wage rate requirements – “Davis-Bacon Act” but specific exemption in ARRA for Tribes with IHS, BIA contracts for Tribes and tribal contractors (broader than PL 93-638
- whistle blower protection
- Title VI and Title VII of the Civil Rights Act of 1964
- Section 504 of the Rehabilitation Act of 1973
- Title IX of the Education Amendments of 1972,
- Age Discrimination Act of 1975
- Americans with Disabilities Act
- “non-discrimination” requirements, and other civil rights laws applicable to recipients of federal funds
- if ARRA conflicts with NN laws, then ARRA controls
Two examples of federal statutes:
1. Title VI – Title VI generally prohibits discrimination against anyone receiving benefits of a federally funded program. There is no specific inclusion or exclusion of Indian Tribes.
2. Title VII - a specific statutory provision is found in Title VII of the Civil Rights Act, which specifically exempts Tribes from the prohibition against discriminatory discharge from employment.
PL 93-638 has been found not to violate Title VI, so federal agencies granting funds to the Navajo Nation under the 638 statute routinely permit Navajo Preference. Therefore, the Navajo Nation’s Indian Preference provision under the Navajo Business Opportunity Act and the Navajo Preference in Employment Act does not conflict with federal law whenever 638 contracts are involved.
Unfortunately, when the Navajo Nation is dealing with federal agencies other than BIA, IHS, and HUD, we are not under the umbrella of PL 93-638.
Therefore, some federal agencies have adopted non-discrimination policies to help them carry out the Title VI and Title VII mandates. Some of these federal agencies have been willing to allow Indian Preference in both tribal hiring and procurement , but some have refused to do this.
Option 1:The Navajo Nation could lobby the White House Intergovt Affairs Office to direct all federal agencies to comply with the broad language in PL 93-638.
Section 7(b) of the Indian Self-Determination and Education Assistance Act, Public Law 93–638, 88 Stat. 2205, 25 U.S.C. 450e(b), requires: “Any contract, subcontract, grant, or subgrant pursuant to this Act, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall require that to the greatest extent feasible:
(1) Preferences and opportunities for training and employment in connection with the administration of such contracts or grants shall be given to Indians; and
(b) Preference in the award of subcontracts and subgrants in connection with the administration of such contracts or grants shall be given to Indian organizations and to Indian-owned economic enterprises as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 77).”
(c) Notwithstanding subsections (a) and (b) of this section, with respect to any self-determination contract, or portion of a self-determination contract, that is intended to benefit one tribe, the tribal employment or contract preference laws adopted by such tribe shall govern with respect to the administration of the contract or portion of the contract.
Option 2: federal agencies other than BIA, IHS, and HUD, we are not under the umbrella of PL 93-638.The Navajo Nation could try to deal with the administrative staff and attorneys for each federal agency that is not cooperating with the Indian Preference policy, and try to persuade the objecting federal agency to start allowing at least Indian Preference in the Navajo Nation’s procurement of contracts and in its hiring, for projects or programs using ARRA grant monies. But, this will be very time consuming and we might not be successful.
Option 3: federal agencies other than BIA, IHS, and HUD, we are not under the umbrella of PL 93-638.The Navajo Nation Council could amend Navajo Nation law to be consistent with each federal agency’s regulations and policies that govern the use of ARRA funds given to the Navajo Nation.
Note: the ARRA says that if any grant recipient’s law conflicts with the ARRA, then the ARRA controls
Are you all asleep now? the Navajo Nation and the Navajo People to waive those Navajo Nation laws pertaining to the requirements to give Indian Preference in contract procurement procedures and hiring.
For further assistance, please first contact the particular federal agency from which you are receiving ARRA funds to be sure you are in compliance with their particular rules!
. . . and, get it in writing!
I can be reached by email at: [email protected]
or by telephone at: (928) 871-6933
This presentation is intended for discussion purposes and general guidance only, and is subject to revision in accordance with other ARRA and specific federal agency rules. Additional checklists and guidance memos are planned regarding federal agency-wide ARRA procurement rules, policies, and regulations.