Chapter 9.05 TERO CODE

The Tulalip Tribes Board of Directors finds that employment discrimination against Native Americans (hereafter Natives) persists despite a large number of Native and non-Native owned businesses employing skilled and nonskilled workers. The Tulalip Tribes Board of Directors further finds that jobs in businesses and other economic opportunities on or near the Tulalip Indian Reservation are important resources to which Natives have unique preferential rights and therefore, to implement the unique employment rights of Natives, established a Tribal Employment Rights Commission and Tulalip Tribal Employment Rights Office to achieve its goals and policies.

The Tulalip Tribes (hereafter the “Tribes”) enacts this chapter (hereafter the “code”) pursuant to its inherent sovereign powers to create laws that promote unique employment and contracting preferences that provide Native American and Tulalip Tribal member preference on Indian lands within the jurisdiction of the Tulalip Tribes.

Under this code, the Tulalip Tribal Employment Rights Office (hereafter “TERO”) operates as an employment hiring agency. TERO provides preferential employee dispatch, referral services and skills training. TERO also has the authority to regulate and enforce preference in employment, contracting, and economic development opportunities under this code.

This code is separated into the following sections in order to provide comprehensive application of the employment and contracting laws as they apply within the TERO jurisdiction, as listed below:

(1) Article I – General Provisions. Purpose and authority of TERO and general requirements of this code.

(2) Article II – Contractor Requirements. Provides preference in contracting/employment.

(3) Article III – Contractor Procurement Requirements. Provides preference in contracting and procurement in all Tribal entities and divisions.

(4) Article IV – Certification of Native American Owned Businesses (NAOB). All aspects of certification of Native American Owned Businesses.

(5) Article V – Enforcement. Allows enforcement of provisions of this code and outlines due process requirements.

This code repeals and replaces Tulalip Tribal Employment Rights Ordinance Nos. 60 and 89. Amendments to this code will be reviewed and approved first by the TERO Commission prior to approval and adoption by the Tulalip Tribes Board of Directors. [Res. 2024-091; Res. 2022-458].

9.05.020 Glossary.

This glossary has the definitions of the terms as they apply to the provisions of this code. Any word or term not defined in this section shall be used with the meaning of common or standard use as determined by a current edition of Webster’s Dictionary.

(1) “Agency” shall mean the main business organization; that may or may not have subdivisions or subsidiaries.

(2) “Aggregated” shall mean the total amount of money required to create a product, provide a service or implement a project. Aggregated cost is also referred to as “total cost” because it encompasses all costs associated with the totality of a project or production.

(3) “Board of Directors” means the governing body of the Tulalip Tribes that consists of seven elected Tribal member officials.

(4) “Business” means a company or other organization that buys and sells goods, makes products, or provides services.

(5) “Business necessity” means necessary job duties pertaining to industry standards or a legitimate business requirement that is necessary to perform certain work or complete a job.

(6) “Certification,” as it pertains in this code, means certifying that a business has a minimum percentage of Native American ownership to qualify as a NAOB.

(7) “Change order” means proposed changes in a contract outside the scope of work.

(8) “Civil Rights Commission” means a state organization that protects civil rights.

(9) “Commission” means the Tulalip TERO Commission, which consists of five elected Tribal members; that is the judicial body that oversees the TERO program.

(10) “Commissioner” means a member of the Tulalip Tribal Employment Rights Commission.

(11) “Company” shall mean business, corporation, or firm that is engaged in business.

(12) “Compliance plan” means a binding agreement between the contractor and TERO.

(13) “Compliance Officer” means a TERO representative who enforces TERO codes, rules and regulations.

(14) “Conduit” means a certified business which agrees to be named as a subcontractor on a contract in which such certified business does not perform the work but, rather, the work is performed by the prime contractor, prime consultant, material supplier, purchasing contractor, or any other noncertified business.

(15) “Contract” means a formal legal binding agreement between two parties outlining deliverables and responsibilities.

(16) “Contracting agency” means the main organization or owner that is offering a contract and is responsible for compliance with the provisions of this code.

(17) “Contractor” means organization or individual that contracts with another organization to perform work.

(18) “Court” means the Tulalip Tribes Tribal Court.

(19) “Decertification” means the un-certifying of a NAOB by the Commission; removing the business off the NAOB registry, and denying preference.

(20) “Director” means the Director of TERO Department.

(21) “Dispatch” means a TERO document that is given to an individual when they are sent out for employment at a job site or company.

(22) “Due process” means the right to defend yourself against allegations through a fair non-biased process.

(23) “EEOC” means the Equal Employment Opportunities Commission.

(24) “Employee” means a person who works for another for payment or other compensation. For the purposes of this code, an employee is not an independent contractor. An employee may also be referred to as a “worker” in this code.

(25) “Employer” means any individual, business, company, entity, contractor or subcontractor employing one or more persons.

(26) “Employment discrimination” means discrimination on the basis of protected category that affects the terms, conditions and privileges of employment.

(27) “Entities” shall mean subsidiaries or subdivisions of an organization or agency.

(28) “Front” means a business that claims to be eligible for certification but is not in fact legitimately owned and controlled by a Native American.

(29) “General contractor” means an organization or individual that contracts with another for the construction of a building, road or other facility.

(30) “Immediate family member” means spouse, parents, children, grandparents, grandchildren, brothers and/or sisters, or any member of the immediate household.

(31) “Injunctive order” means a Commission order to require a person to do or cease doing a specific action.

(32) “Jurisdiction of TERO” means the power, right, or authority to interpret, apply and enforce the provisions of this code within the boundaries of the Tulalip Reservation and on Tribal projects that are located off Reservation.

(33) “NAHASDA” means Native American Housing Assistance and Self-Determination Act that is a Federal law.

(34) “NAOB” means (a) Native American owned business that has been certified by Tulalip TERO; or (b) any business that is owned by the Tulalip Tribes in which the Tulalip Tribes exercises majority control of the business and is substantially involved in the day-to-day management and operations.

(35) “NAOB registry” means list of (a) Native American owned businesses that have been certified by TERO and (b) any Tulalip Tribally owned NAOB.

(36) “Native American” means any person who is a member of a Federally recognized Indian tribe, nation, or band, including members of Federally recognized Alaskan Native villages, communities or corporations.

(37) “OFCCP” means the Office of Federal Contract Compliance Programs.

(38) “Pass-through,” for the purpose of this code, means a business that does not have the expertise to self-perform any of the work, does not receive the benefit of mentoring or gaining knowledge, and subcontracts all the work out. This includes vendors that buy goods and resell them, that do not have their own stock, inventory or expertise on the products they sell.

(39) “Personnel or human resource (HR) policies” means policies that govern the internal personnel policies of its employees.

(40) “Preferred or preference employees” means employees who receive preference under the tier categories.

(41) “Preference tier” means a list of the order in which preference is assigned.

(42) “Qualified/technically qualified” means a company or person who, by possession of a recognized degree, certificate, or professional standing, or who has sufficient knowledge, training, experience, and has successfully demonstrated his ability to perform or complete the work, or the project.

(43) “Recusal/recuse” means voluntarily stepping aside due to conflict of interest.

(44) “Reservation” means all lands and waters within the exterior boundaries of the Tulalip Indian Reservation or within the jurisdiction of the Tulalip Tribes.

(45) “Responsible bid” means a bid at the price at or below which the agency will accept a bid or proposal to contract. An agency may use any lawful process it chooses to determine the reasonable bid, including but not limited to: competitive, open, or closed bidding. An agency may reject bids by qualified NAOBs on the basis of price or if the bid does not include all specifications or qualifications.

(46) “Responsive bid” means that the bid will comply with all bid requirements stated in writing and shall be within the price range of a responsible bid.

(47) “Retaliation” means to hurt somebody in return or deliberately harm somebody in response or revenge or reciprocate for a harm or perceived harm that another person has done. Retaliation occurs when an employer or individual takes an adverse action against another individual.

(48) “RFB” means request for bid.

(49) “RFP” means request for proposal.

(50) “Skills bank” means a database which holds applicants’ information for employment opportunities.

(51) “Spouse” means a legally married husband or wife, or a legal domestic partner, but does not include a person separate or apart and who has filed in an appropriate court a petition for legal separation or dissolution of marriage or domestic partnership.

(52) “Supplier” means a person or organization that provides something needed such as a product or service.

(53) “Subcontractor” means an individual or business that signs a contract to perform part or all of the obligations of another’s contract.

(54) “Suspend” means the suspension of a NAOB by the Commission.

(55) “TERC” means Tribal Employment Rights Code.

(56) “TERO” means Tribal Employment Rights Office.

(57) “Tribal entity” means an entity, subdivision or business that is owned by or is under the direction of the Tribes.

(58) “Tribal member” means any person who is an enrolled member of the Tulalip Tribes.

(59) “Tribes” means the Tulalip Tribes.

(60) “Unions” means an organization that represents a group of individuals in a specific trade.

(61) “Vendor” means a person or company offering something for sale.

(62) “Violation” means noncompliance with requirements or violating prohibited activities in this code.

(62) “Workforce protection” means the protection of employees, contractors, or applicant’s rights and prohibition against retaliation. [Res. 2024-091; Res. 2022-458].

Article I. General Provisions

9.05.030 Purpose.

The purpose of this code is:

(1) To promulgate laws and rules for governing preference in employment and contracting within Tribal jurisdiction.

(2) To assist with compliance under this code and enforce the laws governing employment preference and contracting preference.

(3) To provide a fair, enforceable, and effective system for contracting, subcontracting and purchasing supplies, services, labor and materials, where any part of the work will be performed on the Reservation or on Tribal projects off the Reservation.

(4) To require contractors to utilize TERO dispatch in hiring within the boundaries of the Reservation or on Tribal projects off the Reservation.

(5) To require a one and three-quarters percent TERO fee on the total aggregate cost of all construction over $10,000. [Res. 2022-458].

9.05.040 Notification.

TERO shall make good faith efforts to educate all employees, employers, contractors, and the public on TERO and employment, hiring and preference laws. All contracting agencies and entities are required to notify contractors/subcontractors of their obligations under the TERO Code. Failure to receive notification, or ignorance of law, is not a defense in any enforcement action under this code. [Res. 2022-458].

9.05.050 TERO Commission members.

The TERO Commission (hereafter the “Commission”) is the administrative quasi-judicial body of five Tribal members who are elected by the Tulalip General Council, and shall serve under the guidance of the Tulalip Tribes Board of Directors (hereafter “Board of Directors”).

The Commission serves as the quasi-judicial and regulatory authority delegated with:

• Enforcement of the provisions of the TERO Code and other Native preference codes or policies (hereafter “code”) in accordance with applicable procedures.

• Implementation of the TERO quasi-judicial process.

• Overall guidance to the TERO program.

The Commissioners are subject to Chapter 1.15 TTC, Code of Ethics for Tulalip Tribal Commissioners, and other applicable policy or law.

(1) TERO Commissioner Candidate Qualifications. Every candidate seeking election to the TERO Commission must:

(a) Be an enrolled Tulalip Tribal member.

(b) Be 18 years of age or older.

(c) Not have been found guilty of any felony, or a misdemeanor involving controlled substances or dishonesty, in any Tribal, State, or Federal Court within three years prior to the election.

(2) Terms of Office. The TERO Commissioners shall be elected by the general membership of the Tulalip Tribes at the semiannual General Council meeting and shall serve staggered three-year terms.

Newly elected Commissioners shall be sworn in by the Tulalip Board of Directors at the next regular monthly Board meeting or as designated by the BOD.

(3) Election of Executive Officers. Election of Executive Officers shall take place at the next TERO Commission meeting after new Commissioners have been sworn in by the Tulalip Board of Directors. Executive Officers will be nominated and elected by the Commissioners by majority vote. The positions of the Chairperson, Vice-Chairperson and Secretary shall be held until the following year when new Commissioners are sworn in.

(4) Duties of the Executive Officers.

(a) The Chairperson shall:

(i) Call the meetings to order.

(ii) Preside over the meetings.

(iii) Sign all approved minutes and action items as needed.

(iv) In urgent situations, call for a special meeting in lieu of a scheduled meeting.

(v) Recognize speakers with their hands raised to maintain order.

(vi) Limit the time on a certain topic to stay on task.

(vii) Maintain point of order in the event the topic or speaker is out of order or inappropriate.

(b) Vice-Chairperson. In the absence of the Chairperson, the Vice-Chairperson shall proceed over the meeting.

(i) Take notes and keep minutes of all meetings.

(ii) Record motions verbatim.

(iii) Aide the Chairperson by compiling a list of the order of speakers.

(iv) Review drafted minutes for approval prior to the next Commission meeting.

(v) In the absence of the Chairperson and Vice-Chairperson, shall proceed over the meeting.

(vi) Keep Commission attendance, late arrivals and leaving early record.

(vii) Write Commission hearing decisions and order.

(5) Commissioner Vacancies. If a vacancy occurs on the Commission prior to the end of a term because of removal or resignation or for any other reason, the Board of Directors shall appoint the successor, unless the semiannual election is within four months, in which case a successor shall be elected at the next election. Candidates for such appointment and successors must meet all other qualifications for membership in the Commission.

Appointment or election to fill a vacant position shall be for the remainder of the term of the Commissioner being replaced.

(6) Resignation. A position on the TERO Commission shall be deemed vacant when a Commissioner resigns their position.

Any Commission member may resign at any time by delivering a written resignation to the Chairperson of the Commission, or if the Chair is resigning, to the Vice-Chair. The Commission shall provide notice to the Chairperson of the Tulalip Board of Directors and to the TERO Director. Such resignation shall be effective upon receipt, unless otherwise provided by the terms thereof and agreed to by the Commission.

(7) Removal. The Commission may recommend removing a Commissioner after majority vote, for the following reasons:

(a) Inefficiency, negligence or carelessness in the performance of duty.

(b) Conduct in bringing the Tribes in disrepute.

(d) The Commissioner fails to participate in three consecutive regular meetings without good cause, at the discretion of the other Commissioners.

(e) Violations of laws and regulations.

(f) Breach of confidentiality or conflict of interest.

(g) Violation of the Commissioner Code of Ethics, Chapter 1.15 TTC.

(8) Removal Appeal. If the Commission recommends removal of a Commissioner, the Commission shall forward such recommendation and the grounds thereof to the Board of Directors. The Board shall review the recommendation and, if it concurs with the recommendation, they shall send out written notice of intent to remove the Commissioner and advise the Commissioner of their right to request a due process hearing prior to the removal becoming final. The request for a hearing must be received by the Tulalip Tribes Board of Directors Chairman no later than 10 days after the date of mailing of the notice of intent to remove the Commissioner. If no request for a hearing is received within 10 days, the removal shall be deemed final. If a timely request for a hearing is received, a hearing shall be scheduled and conducted in accordance with TTC 1.15.120. [Res. 2022-458].

9.05.060 Powers of the Commission.

The Commission has the power, jurisdiction, and authority to:

(1) Take all appropriate actions necessary to implement the provisions of this code.

(2) Provide policy oversight and policy direction to the TERO Director.

(3) Review policies, rules or regulations that may be in conflict with the provisions of the code and make amendment recommendations to the Board for approval.

(4) Hold hearings and appeals in accordance with the provisions of the TERO Code.

(5) Assist in presentations to educate the public on Native American employment and business preferential requirements.

(6) Issue subpoenas, conduct hearings, order any relief or sanctions that are necessary and appropriate to enforce this code.

(7) Review and recommend the annual TERO budget for Board of Directors approval. [Res. 2022-458].

9.05.070 Recusal of Commission members.

No member of the Commission shall have contact with a complainant, witness or other interested parties regarding the specifics of an appeal prior to a Commission hearing. If a Commissioner is approached by a party, witness or any other interested person outside the formal hearing process, it shall be the duty of the Commissioner to explain they are prohibited from discussing any aspects of the complaint or appeal. If information pertaining to the appeal or matters at issue in a hearing is shared with a Commissioner, the Commissioner shall disclose the existence of such communications on the record prior to the hearing. If the communication involved sharing of evidence or argument regarding the appeal outside the hearing process, the Commissioner shall be recused from participating in the hearing.

A Commissioner shall not participate in any action, hearing, or decision where that Commissioner or their immediate family member has a financial or business interest (contractual or otherwise) in the transaction or entity involved in the hearing or is an employee of such entity. However, in appeals involving the Tulalip Tribes or its entities, Commissioners who are Tribal employees may participate unless they are an employee of the department or division of the Tribes that is involved in the contract or complaint at issue, or had other involvement in the actions that are the subject of the appeal, in which case recusal is required.

Commissioners may participate but must disclose on the record if any person with an interest in the hearing is, by blood or marriage, related by consanguinity in the third or fourth degree (uncles, aunts, nephews, great grandparents, cousins, great uncles and aunts and great-great grandparents).

In situations where recusal is not required, a Commissioner should nonetheless recuse themselves if the Commissioner believes that:

(1) They cannot act fairly or without bias; or

(2) There is an appearance that they cannot act fairly or without bias.

A Commissioner, the Commission, or other interested parties may request recusal of a Com-missioner if they believe that a Commissioner is unable to act impartial and fair due to a relationship of any kind. In this circumstance, the other Commissioners may hear arguments and review evidence, including testimony, and make a determination on recusal by majority vote. The decision of the Commission shall be final and not subject to appeal.

Nothing in this code shall exclude a Commissioner from participating in or conducting business with the Tulalip Tribes, so long as the Commissioner is in compliance with Chapter 1.15 TTC, Code of Ethics for Tulalip Tribal Commissioners, or other applicable law and policy. [Res. 2022-458].

9.05.080 Authority and responsibilities of TERO.

The TERO Department shall carry out the day-to-day administrative operations to enforce this code. The authority and duties shall include, but are not limited to, the following:

(1) Implement and enforce the provisions of this code.

(2) Administer the TERO program and budget.

(3) Recommend regulations, amendments and agreements.

(4) Develop, implement and enforce policies and procedures.

(5) Investigate and process complaints alleging violations of this code to provide due process.

(6) The Director shall represent TERO at Tulalip Board meetings, TERO Commission hearings and Tulalip Court proceedings.

(7) Coordinate and provide reports for the Commission meetings.

(8) Negotiate with contractors regarding their workforce requirements and TERO fee payment schedule.

(9) Provide education and training options, eliminate barriers to employment, and enhance employment opportunities for Native Americans.

(10) The TERO staff shall report administratively in accordance with the organizational chart, as approved by the Tulalip Board of Directors. [Res. 2022-458].

9.05.090 Inter-governmental relationships.

(1) EEOC/OFCCP. The TERO Director, with approval from the Tulalip Board of Directors, is authorized to enter into cooperative relationships with Federal employment rights agencies, such as, but not limited to, Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Program (OFCCP). The purpose of entering into these agreements is to prevent discrimination in the workplace. Nothing in these agreements supersedes the authority of the TERO Director and/or staff to investigate, act, or refer complaints to the appropriate agency.

(2) Federal Requirements. Agencies shall ensure compliance with Federal preference or other preference regulations for projects using Federal funds. Such Federal requirements may restrict agencies from utilizing the TERO preference bidding process in certain circumstances, or utilizing other TERO processes that give specific Tribal preference under this code.

(3) NAHASDA Tribal Housing. Native American Housing Assistance and Self-Determination Act (NAHASDA) project wages shall not be paid less than those required by the U.S. Secretary of Labor under the Davis-Bacon Act (40 U.S.C.) for the locality in which the work is to be performed, or as per the Tribal wage scale rates approved by the Tulalip Tribes. [Res. 2022-458].

9.05.100 Native American preference – Employment.

All contractors, businesses and employers operating within the boundaries of the Reservation, or on Tribal projects off the Reservation, shall give preference in hiring, promotion, training, layoffs, recall, and all other aspects of employment, unless other contractual agreements or Federal requirements restrict the preference specified below.

Preference shall be given in the order listed below:

(1) Enrolled Tulalip Tribal members.

(2) Spouses, parent of a Tribal member child, biological child born to an enrolled Tulalip Tribal member, current legal guardian of a Tribal member dependent child (with a proper letter of temporary or permanent legal guardianship from a court), or a Tribal member in a domestic partner relationship (with documentation).

(3) Other Natives/Indians, which shall mean any member of a Federally recognized Indian tribe, nation or band, including members of Federally recognized Alaskan Native villages or communities.

(4) Spouse of Federally recognized Native American.

(5) Other. [Res. 2022-458].

9.05.110 Native American preference – Contracting and procurement.

(1) All entities, businesses, companies, and contractors shall give preference to certified businesses on the TERO NAOB registry for procurement of goods and services and construction projects, and in compliance with applicable laws and policies as referred to in TTC 9.05.140. Preference is further restricted by the following:

When 100 percent of Tulalip Tribal funds are used for contracting or purchasing goods or services, so long as the bid is responsive, responsible and within budget, bids shall be awarded to a NAOB or TERO certified Tulalip Tribal member NAOB.

(2) Preference in bidding may also be given to certified businesses on the TERO NAOB registry by restricting bidding, limiting competition and/or other bid preference provisions as specified in this code.

(3) This code shall not be interpreted to prevent a contracting agency from utilizing its discretion to determine which bid type is appropriate for the project within the code.

(4) This code shall not be interpreted to prevent a contracting agency from rejecting any bid or proposal on the grounds that the bid or proposal is not a reasonable bid or not a responsive bid or for another reason, if the contracting agency gives proper justification and documentation as required by the code. [Res. 2024-091; Res. 2022-458].

9.05.120 Exclusions.

(1) Homeowners that are building their own home are excluded from the construction contracting requirement. The definition of “home” as it applies in this section is defined as the main residence of an individual. Homeowners building secondary or multiple homes will not be eligible for the exclusion.

(2) Tribal, Federal and State projects where the work is performed by their regular permanent workforce are exempt from TERO requirements. However, TERO requirements shall apply to any work within these contracts that is contracted out. [Res. 2022-458].

9.05.130 Conflict of interest.

Any individuals shall be disqualified from any actions involving the decision process of employment or contracting where they have a personal interest or ownership in or involve an immediate family member. This may include personal relationships where there is a perception or appearance that they cannot act fair and without bias. [Res. 2022-458].

9.05.140 Application of other law and policy.

All persons, entities, agencies, contractors, and businesses under the jurisdiction of this code shall comply with all applicable Tribal laws and policies, including the Tribal Procurement Policies, and policies/SOPs that pertain to preference in employment, the workforce, workforce protection, contracting, and the purchase of goods and services. TERO shall have enforcement authority over all preference provisions and workforce protection rights outlined in all Human Resource policies and any other addendum. [Res. 2022-458].

Article II. Contractor Requirements

9.05.150 Preference provisions.

All businesses that advertise or solicit bids for projects, contracts, subcontracts, including written contracts to provide material, goods or services (procurement) shall give preference to qualified businesses listed on the TERO NAOB registry. Preference may be restricted or limited as required and/or allowed under this code.

The NAOB must be on the current TERO NAOB registry at or before the date the contract bid or proposal is announced in order to qualify for preference on the contract.

The entity or contractor shall be prohibited from using excessive or unnecessary qualification criteria that exclude NAOBs.

This code shall not prevent the rejection of any bid or proposal on the grounds that the bid is nonresponsive or nonresponsible. [Res. 2022-458].

9.05.160 Compliance responsibility.

All entities and/or persons engaged directly or indirectly in contracting are responsible to ensure that their contractors and subcontractors are in compliance with this code. [Res. 2022-458].

9.05.170 Compliance plan.

(1) All owners or contracting agencies and contractors, regardless of tier, shall be required to submit a TERO compliance plan within a minimum of 72 hours prior to commencing any work on the Reservation or on Tribal projects off the Reservation. No work shall commence until the compliance plan is completed and approved by TERO. A compliance plan shall be used to monitor compliance with this code. Compliance plan requirements and goals may be tailored to the individual circumstances of the project or contractor in order to maximize TERO employment and NAOB contracting.

All contracting agencies/owners will be required to submit a contracting agency/owner compliance plan that will provide the TERO Department information regarding the project outline and total estimated project cost.

A compliance plan shall constitute a binding agreement, the terms of which shall be fully enforceable by TERO. Failure to obtain or adhere to the terms of an approved compliance plan, or supplying false information to TERO, shall subject the noncomplying party to monetary penalties of up to $1,000 per violation per day. Penalties assessed may be appealed to the TERO Commission.

Contractors engaged in work without an approved compliance plan will be required to stop work until an acceptable plan for implementing their obligations has been submitted to TERO and has been approved.

If a contractor or subcontractor has failed to comply with the preference requirements, TERO and/or the Tribes shall not be liable for any losses incurred when a contractor is not permitted to commence work.

(2) Notwithstanding any other provisions to the contrary in this code, project specific compliance plan agreements may be executed between the Board and contractor or employer, to govern employment and contracting. A project specific compliance agreement approved by the Board (a) may establish and govern the permanent or long term employment or contracting rights, responsibilities, liabilities, and obligations of the contractor or employer and subleases, contractors, subcontractors, vendors, and third party contracts of such contractor or employer under this code, (b) ensure due process for the contractor or employer, or (c) exempt the employer and any subleases, contractors, subcontractors, vendors, and third party contracts of such employer from other requirements, liabilities, and obligations of this code. [Res. 2022-458].

9.05.180 Contractor job qualifications and requirements.

A contractor/subcontractor shall not create excessive and unnecessary job skill qualifications on TERO preference applicants, unless required by business necessity as determined by TERO. In this circumstance, the contractor/subcontractor shall submit a justification to TERO if requested by TERO. Nothing in this section shall preclude an applicant or TERO from challenging job requirements or criteria. TERO shall make a final determination on excessive and unnecessary job skill qualification, and require changes if necessary. Employers shall make reasonable accommodation in the workplace upon a request for religious beliefs, practices or cultural traditions of an employee, unless doing so would create undue hardship on the operations of the business. [Res. 2022-458].

9.05.190 Workforce.

(1) Hiring Requirements. In accordance with the construction compliance plan, each contractor/subcontractor shall negotiate TERO preference hiring goals to maximize preference for positions outlined in the compliance plan.

Contractors/subcontractors shall not create unnecessary or excessive job skill requirements.

Employers shall give preference at all times so long as the worker is qualified. TERO may require a non-TERO worker be replaced if there is a qualified TERO worker available.

TERO reserves the right to negotiate up to 100 percent TERO hiring goals specifying the number of TERO workers the employer shall hire by craft and skill level.

Employers must contact TERO for employee dispatch 72 hours prior to commencing work to negotiate the workforce and to find qualified workers. If no TERO workers are available, the business may recruit from other resources. After receiving adequate justification, TERO will review and make a determination on a case-by-case basis to either approve or deny any exception from this requirement.

TERO is authorized in accordance with Article V of this chapter, Enforcement, to order removal and/or issue sanctions if any non-Native preference employees are not listed on the employer’s approved compliance plan. In deciding whether the employee should be removed, the TERO shall consider whether any qualified Natives applied or were available for hire at the time the position was filled.

Apprenticeship programs and/or positions may be considered in meeting employment preference goals.

All construction contractors/employers shall compensate their employees at a rate not less than the approved Tulalip construction wage scale specified for their trade or the prevailing wage scale per contract requirements. If the company is signatory to a construction trade union, the current pay scale with benefits of that trade will be paid, unless otherwise specified through any other compliance plan or contract; provided, that it is not less than the Tulalip construction wage scale.

(2) Permanent and Key Employee. Prior to commencing work on the Tulalip Indian Reservation, a prospective employer and all contractors and subcontractors shall identify permanent and key employees.

(a) A permanent employee is one who is and has been on the employer’s or contractor’s annual payroll for a period of one year continuously, working in a regular position for the employer, 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.

(b) 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. An employee who is hired on a project by project basis may be considered a key employee so long as they are in a top supervisory position or perform a critical function.

(c) TERO will review permanent and key employees on a case-by-case basis to ensure no actions were taken to circumvent the requirements of this section.

(d) Nonpreferred permanent and key employee(s) shall not exceed 20 percent of the workforce. Permanent and key employees are subject to TERO approval and TERO may require a position to be opened up to all preference workers.

(3) Counseling and Support Programs. TERO will work with the employer to provide referrals for TERO preference employees for counseling and other support services to assist in retaining employment when determined necessary.

(4) Layoffs. TERO preference employees shall not be laid off where non-TERO preference employees are still working. If the employer lays off employees by crews, classifications or other categories, qualified TERO preference employees shall be transferred to crews or positions that will be retained. This section does not apply to key or permanent employees. [Res. 2022-458].

9.05.200 Compliance monitoring.

All entities engaged in any aspect of business within the TERO jurisdiction shall submit reports and other information, including but not limited to contract documents, exit evaluations of all contractors, vendors or suppliers, TERO approved certified payroll and personnel records, if requested by TERO. TERO shall have the right to make on-site inspections in order to monitor an entity’s compliance. [Res. 2022-458].

9.05.210 Prohibited activities.

Contractors/subcontractors shall not:

(1) Submit false or fraudulent information to TERO or a Tribal agency.

(2) Knowingly make a false statement, whether by affidavit, verified statement, report, or other representation to a Tribal official or employee as it relates to contracting under this code.

(3) Operate as a front or pass through company.

(4) Prevent or interfere with a contractor’s or subcontractor’s compliance with this code.

This list is not exhaustive and violations of any other provision in this code shall be deemed a prohibited activity, and contractors/subcontractors who engage in prohibited activities, or commit any other violation in this code, shall be subject to penalties in accordance with Article V of this chapter. TERO may request any and all documentation deemed necessary by TERO, and determine whether or not a violation has occurred. [Res. 2022-458].

9.05.220 TERO fee.

(1) The TERO fee is assessed for the privilege of conducting business on the Reservation or on Tribal projects off the Reservation and for the cost of assistance and enforcement under this code.

(2) Every project or contract with total aggregate price of $10,000 or more will be assessed a TERO fee of one and three-quarters percent of the total gross contract price.

(3) The contracting agency or general contractor shall be the responsible party for paying the entire TERO fee for the project.

(4) Upon completion of the compliance plan, the TERO Department may invoice the general contractor or contracting agency for the TERO fee with payment due within 14 days of the invoice. Lack of an invoice shall not relieve any obligation to pay the required fee. The TERO fee shall be paid in full, prior to commencement of any work when the TERO fee is under $1,000. However, where good cause is shown, TERO may authorize installment payments to be paid over the course of the contract when the TERO fee is over $5,000.

(5) Fee collection enforcement and property seizure provisions shall be pursuant to enforcement provisions in Article V of this chapter. [Res. 2022-458].

9.05.230 Change order fee assessment.

If for any reason the cost of the project increases or decreases, the contracting agency or general contractor shall notify TERO of this change and any additional TERO fee shall be assessed and paid or refunded. [Res. 2022-458].

9.05.240 Construction trade unions.

Nothing herein shall constitute Tulalip Tribes recognition of any union or endorsement of any union activity, and unions have no jurisdiction or authority over any activities operated pursuant to the sovereign authority of the Tulalip Tribal Government. 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 this code, and the rules, regulations and orders of the TERO Representative. Until such agreement is filed with the TERO Representative, the employer shall not commence work on the Tulalip Reservation.

(1) Contents of Union Agreements. Every union agreement with a contractor must be filed with the TERO Representative and must provide:

(a) Preferred Employee Preference. The union shall give absolute preference to preferred employees in job referrals regardless of which union referral list they are on.

(b) Cooperation with the TERO Representative. The union shall cooperate with the TERO Representative in all respects.

(c) Registration. The union shall establish a mechanism allowing preferred employees to register for job referral list by telephone or mail or in person, coordinating efforts through the TERO Representative.

(d) Training Programs. The union shall establish entry apprenticeship programs, advanced apprenticeship program and a journey level upgrade.

(e) The union shall provide direct entry into the union for all preferred employees who wish to join the union at a skill level (i.e., apprentice, journey, etc.) commensurate with their ability and skill.

(f) Temporary Work Permits. The union shall grant temporary work permits to preferred employees who do not wish to join the union.

(g) Special Provisions. The union shall provide special provisions for TERO clients through negotiations with the TERO Representative. [Res. 2022-458].

Article III. Contractor Procurement Requirements

9.05.250 Preference requirements.

All Tribal agencies, entities, divisions, departments, contractors, subcontractors and vendors that advertise or solicit bids for projects, contracts, and subcontracts, including purchase orders to provide material, goods or services shall give preference to a qualified NAOB on the TERO NAOB registry.

All businesses on the TERO NAOB registry must be given the opportunity to bid on the work in which they are qualified. The agency or contractor shall be prohibited from using excessive or unnecessary qualification criteria. [Res. 2022-458].

9.05.260 Federal funding – Preference.

When Federal funding is utilized in a project, the agencies shall comply with Federal and other preference requirements if applicable. [Res. 2022-458].

9.05.270 Restrictive bidding.

The Tulalip Tribes finds that small business is historically underutilized within the jurisdiction of the Tulalip Tribes. The primary objective of this section is to promote and grow these businesses by providing additional opportunity within the jurisdiction of the TERO program.

(1) An agency, entity, department, contractor, or other business has discretion and may limit or restrict bidding to Tulalip Tribal member small business on identified projects. If the agency identifies a project that can be limited to small business and there are two or more certified, qualified Tulalip Tribal member small businesses on the TERO registry that are likely to submit responsive and responsible bids, then the agency shall restrict bidding to only Tulalip Tribal member small businesses as defined below.

“Small business” is defined by a Tulalip Tribal member NAOB with gross revenue less than $1,000,000 as reported annually on its Federal income tax return or its return filed with the Department of Revenue over the previous year. Owners with interest in two or more businesses on the TERO NAOB registry do not qualify for small business category unless the combined gross revenues for the businesses do not exceed $1,000,000. In order to qualify under this category, the business must provide the necessary documents for TERO determination, and certify, under penalty of perjury, that it is owned and operated independently from all other businesses.

(2) When there are two or more certified, qualified Tulalip Tribal member owned NAOBs on the TERO registry that are likely to submit responsive and responsible bids and there are no bidding requirements that would preclude such a restriction, the agency shall restrict bidding to only Tulalip Tribal member owned NAOBs.

(3) When there are two or more certified, qualified NAOBs on the TERO registry that are likely to submit responsive and responsible bids, then the agency may restrict bidding to only NAOBs. [Res. 2022-458].

9.05.280 Maximizing NAOB involvement.

The Tribal contracting entity shall evaluate each project on a case-by-case basis to divide the scope of work to achieve maximum involvement of contracting/subcontracting with NAOBs on the TERO registry. [Res. 2022-458].

9.05.290 Self-performance and contractor restrictions.

(1) Tribal entities may require and ensure that a contractor/subcontractor is able to perform, and is actually performing, a minimum percentage of the work outlined in the bid documents. The minimum percentage, if any, shall be defined and determined by the entity letting the bid.

(2) No NAOB shall receive preference provisions or preference points offered by this code as both a general contractor and subcontractor, regardless of tier, on the same project. Additionally, no NAOB shall be counted twice in determining if a bidder meets the specified minimum requirements for the project. If a NAOB has interest or partnership with other NAOBs, only one of the NAOBs will be counted in determining if a bidder meets the specified minimum requirements for the project, regardless of tier. All provisions in this section shall be applied together and in their entirety. [Res. 2022-458].

9.05.300 Monitoring responsibilities.

Each contracting agency shall be responsible for monitoring and enforcing preference implementation in contracting, employment, and training by its contractors and subcontractors. Monitoring under this section shall include but is not limited to monitoring and requiring performance in conformity with NAOB or non-NAOB bid submission information. Should incidents of noncompliance be found to exist, the agency and contractor shall take appropriate remedial action.

If the agency or contractor has not provided adequate monitoring or enforcement of preference they may be found in noncompliance and are subject to remedial actions and/or sanctions. Multiple violations will be reported to the appropriate authority to implement corrective action in accordance with their respective personnel policy or ordinance.

If there is a contract performance issue with the quality of work of a NAOB, the relevant documentation must be submitted to TERO. In this circumstance, TERO may determine or direct one or all of the following:

(1) The performance issue is “unfounded.”

(2) Approve an exclusion from accepting bids from the same contractor on future projects.

(3) Provide the contractor with recommendations in training to remedy the performance issue.

(4) Decertification of the NAOB if the NAOB refuses or fails to remedy the performance issue. [Res. 2022-458].

9.05.310 Conflict of interest.

Tribal employees or other Tribal officials shall be disqualified from any actions involving the decision process of awarding bids, contracts or purchases that they have a personal interest or ownership in or if the decision involves an immediate family member. Any conflict of interest violation may render a contract null and void. [Res. 2022-458].

9.05.320 Bid award process.

Some of the determining factors of awarding a bid that may be considered are, but not limited to: the contractor’s capability, qualifications, scheduling, pricing and preference. All entities shall be required to utilize competitive bids or proposals as follows:

(1) TTC 9.05.330, Competitive bid award.

(2) TTC 9.05.340, Competitive “weight of award” bid process.

(3) TTC 9.05.350, Requests for proposal (RFP).

(4) TTC 9.05.360, Imminent need and emergency award process. [Res. 2022-458].

9.05.330 Competitive bid award.

Preference in the award of contracts and subcontracts that are let under a competitive bidding or proposal process shall be provided as follows:

(1) If the agency or contractor has restricted bidding or limited competition to only qualified NAOB firms in accordance with TTC 9.05.270, then the bid award shall be made to the NAOB firm with the lowest responsive and responsible bid.

(2) If only one qualified NAOB submits a responsive bid or proposal, the agency or contractor shall proceed as follows with justification:

(a) Accept the one responsive bid or proposal should the agency determine the one NAOB responsive bid or proposal is at an unusually favorable price; or

(b) Negotiate a reasonable price with the single qualified NAOB should the agency determine that delays caused by re-advertising the work would subject the project to higher costs; or

(c) Reject all bids and re-advertise for bids or proposals. The agency will determine whether to restrict or limit competition to NAOBs. If bidding is not restricted to NAOBs then the agency or contractor shall comply with the requirements in subsection (3) of this section.

(3) If the agency or contractor has not restricted bidding or limited competition to only qualified NAOB firms in accordance with TTC 9.05.270, then the award shall be made to the certified, qualified NAOB with the lowest responsive bid if that bid is within budgetary limits established for the specific project or activity for which bids are being taken and no more than “X” higher than the bid prices of the lowest responsive bid from any qualified non-NAOB bidder. “X” is determined as follows: When the lowest responsive bid is:

	X = lesser of
Less than $100,000	10% of that bid, or a maximum of $9,000
At least $100,000 but less than $200,000	9% of that bid, or a maximum of $16,000
At least $200,000 but less than $300,000	8% of that bid, or a maximum of $21,500
At least $300,000 but less than $400,000	7% of that bid, or a maximum of $25,000
At least $400,000 but less than $500,000	6% of that bid, or a maximum of $27,000
At least $500,000 but less than $1 million	5% of that bid, or a maximum of $45,000
At least $1 million but less than $2 million	4% of that bid, or a maximum of $72,000
At least $2 million but less than $4 million	3% of that bid, or a maximum of $108,000
At least $4 million but less than $7 million	2% of that bid, or a maximum of $126,000
$7 million or more	1.5% of the lowest bid, with no dollar limit

If a certified, qualified NAOB firm does not submit a responsive bid within the stated range of the total bid price of the lowest non-NAOB responsive bid, award shall be made to the non-NAOB bidder with the lowest responsive bid. [Res. 2022-458].

9.05.340 Competitive “weight of award” bid process.

If the agency or contractor determines that it is appropriate to base award of the work upon a competitive “weight of award” bid process, award shall be made to the most responsive bidder with the highest total points awarded to them after taking all bid items into consideration. The agency or contractor shall clearly define the particulars of the “weight of award” rating system that provides for assignment of points for the relative merits of submitted bids. The bid documents shall identify all rated factors, including price or costs, or significant subfactors that will be considered in awarding the contract, and shall state the relative importance the agency or contractor places on each evaluation factor and/or subfactor. Prior to the award of contract an agency or contractor shall require that the most responsive bidder provide supportive documentation verifying submitted bid information. Should the bidder be unable to substantiate the stated bid information, then the agency or contractor shall disqualify the bidder and require the next most responsive bidder to submit this information for their bid.

(1) If the agency or contractor has restricted bidding or limited competition to only qualified NAOBs in accordance with TTC 9.05.270, then the bid award shall be made to the certified, qualified NAOB with the highest total points awarded.

(2) If only one qualified NAOB submits a responsive bid or proposal, the agency or contractor shall proceed as follows with justification:

(a) Accept the one responsive bid or proposal should the agency determine the NAOB responsive bid or proposal is at an unusually favorable price; or

(b) Negotiate a reasonable price with the single qualified NAOB should the agency determine that delays caused by re-advertising the work would subject the project to higher costs; or

(c) Reject all bids and re-advertise for bids or proposals without restricting or limiting competition to NAOBs. The agency will determine whether to restrict or limit competition to NAOBs. If bidding is not restricted to NAOBs then the agency or contractor shall comply with the requirements of subsection (3) of this section.

(3) If the agency or contractor has not restricted bidding or limited competition to only qualified NAOB firms in accordance with TTC 9.05.270, then the NAOB shall be given a bid preference. Such preference “Y” shall be given to certified, qualified NAOBs provided their bid is no more than “X” higher than the bid prices of the lowest responsive bid from any qualified non-NAOB bidder. “X” and “Y” shall be determined as follows:

When the lowest responsive bid is:

	X = lesser of
Less than $100,000	10% of that bid, or a maximum of $9,000
At least $100,000 but less than $200,000	9% of that bid, or a maximum of $16,000
At least $200,000 but less than $300,000	8% of that bid, or a maximum of $21,500
At least $300,000 but less than $400,000	7% of that bid, or a maximum of $25,000
At least $400,000 but less than $500,000	6% of that bid, or a maximum of $27,000
At least $500,000 but less than $1 million	5% of that bid, or a maximum of $45,000
At least $1 million but less than $2 million	4% of that bid, or a maximum of $72,000
At least $2 million but less than $4 million	3% of that bid, or a maximum of $108,000
At least $4 million but less than $7 million	2% of that bid, or a maximum of $126,000
$7 million or more	1.5% of the lowest bid, with no dollar limit

Provided the requirements for “X” have been met, “Y” shall be determined as follows:

When the lowest responsive bid is:

	Y = additional points awarded to Bidder calculated as
Less than $100,000	10% of the points awarded to Bidder for Price
At least $100,000 but less than $200,000	9% of the points awarded to Bidder for Price
At least $200,000 but less than $300,000	8% of the points awarded to Bidder for Price
At least $300,000 but less than $400,000	7% of the points awarded to Bidder for Price
At least $400,000 but less than $500,000	6% of the points awarded to Bidder for Price
At least $500,000 but less than $1 million	5% of the points awarded to Bidder for Price
At least $1 million but less than $2 million	4% of the points awarded to Bidder for Price
At least $2 million but less than $4 million	3% of the points awarded to Bidder for Price
At least $4 million but less than $7 million	2% of the points awarded to Bidder for Price
$7 million or more	1.5% of the points awarded to Bidder for Price

After the preference provisions have been added to the NAOBs’ proposals the bid award shall be made to the bidder with the highest total points awarded, provided the proposals are within the projected budget amount.

If a qualified NAOB does not submit a responsive bid satisfying the preference provision requirements, then the bid award shall be made to the bidder with the highest total points awarded. [Res. 2022-458].

9.05.350 Requests for proposal (RFP).

Preference in the award of contracts and subcontracts that are let under a request for proposal (RFP) shall be provided as follows:

If the agency or contractor selects its contractor(s) or subcontractor(s) through a request for proposal (RFP) process and has restricted bidding or limited competition to only qualified NAOBs in accordance with TTC 9.05.270, then the contract award shall be made to the qualified NAOB with the highest total points awarded for their proposal based upon the rating system as established in the RFP after taking all proposal items into consideration.

If only one qualified NAOB submits a responsive bid or proposal the agency or contractor may re-advertise the RFP without restricting or limiting competition to the NAOBs.

The agency or contractor shall clearly define the particulars concerning the RFP, including the rating system that provides for assignment of points for the relative merits of submitted proposals. The RFP documents shall identify all rated factors, including price or costs, or any significant subfactors that will be considered in awarding the contract, and shall state the relative importance the agency or contractor places on each evaluation factor and/or subfactor.

(1) If the RFP invites responses from qualified non-NAOBs, the agency or contractor shall set aside a minimum of 15 percent of the total number of available rating points for the provision of Native preference in the award of contracts and subcontracts. The percentage or number of points set aside for preference and the method for allocating these points shall be clearly defined in the RFP.

(2) An agency shall require contractors responding to an RFP issued as a part of this section to use the same point system as stated in the RFP when considering procurement of subcontracted work. The contractor shall set aside a minimum of 15 percent of the available rating points for the provision of Native preference in subcontracting. The RFP shall explain the criteria to be used by the contractor in evaluating proposals submitted by subcontractors. [Res. 2022-458].

9.05.360 Imminent need and emergency award process.

Tribal entities may contract for imminent need and/or emergency repair or work on a time and materials basis. An “imminent need and/or emergency” shall be defined as repair or work that must be started within 24 hours of the time the entity first learned of the need for the repair or work; agency shall notify TERO of the imminent need or emergency. Each entity shall maintain a list of qualified contractors to utilize under these circumstances, and shall make a good faith effort to rotate qualified contractors used in an imminent need and/or emergency circumstance. [Res. 2022-458].

9.05.370 Bid collusion.

Bid collusion is strictly prohibited for contracts awarded under this code and subject to penalty and enforcement by TERO. Bid collusion shall include, but is not limited, to price fixing, bid rigging, allocation schemes, or any other action or inaction that restricts competition or impacts project pricing. Furthermore, any practice involving or comparable to informing a competitor of the amount of the bid or offering them an opportunity to underbid will be considered bid collusion.

If a Tribal entity determines that a contractor has engaged in bid collusion, the entity shall disqualify the bid and refer the matter to TERO. The Tribal entity shall provide TERO with all documentation supporting its determination. If TERO makes a finding that bid collusion did occur, penalties may be issued accordingly.

TERO reserves the right to exercise all available equitable and legal remedies, including withholding of contract payment. Additionally, the following specific penalties in accordance with Article V of this chapter, Enforcement, shall be followed:

(1) Cancellation of the contract and debarment from contracting or decertification with the Tribes for up to one year, debarment for up to three years may be imposed for willful repeated violations. Individuals debarred from contracting may not bid or participate in any Tribal contracts as owners or key employees of other companies during the period of debarment. In the event a contractor is engaged in work on the Reservation or on Tribal funded projects off the Reservation at the time they are found to have engaged in bid collusion, the contracting agency in its discretion may require that the contractor complete their current contracted work, and during this period, the contractor shall be suspended from bidding and/or performing any other work. The debarment period imposed shall commence when the current work is completed.

(2) Any contractor found to have engaged in bid collusion may be liable for damages for any losses suffered by another firm as determined and assessed by the TERO Commission.

Any contractor disputing a TERO determination on bid collusion may appeal in accordance with the procedures in Article V of this chapter. [Res. 2022-458].

Article IV. Certification of Native American Owned Business (NAOB)

9.05.380 TERO NAOB certification.

An applicant seeking to be TERO certified for preference in contracting shall submit a complete certification application, along with the following documents:

(1) Documentation of membership by a U.S. Federally recognized Native American tribe, nation or band, including members of Federally recognized Alaskan Native villages, communities and corporations and proof of at least 51 percent Native ownership.

(2) Business license certifications, business structure documents (sole proprietor, partnerships, incorporations, LLC), insurance and bonding capabilities.

(3) TERO shall require all other necessary licensing documentation specific for the service provided as determined by TERO.

(4) TERO reserves the right to exempt certain requirements if deemed not necessary for the type of service provided.

(5) Industry standards portfolio that includes proof of the experience and staff expertise in the specific field listed, resume of jobs completed, and references.

(6) Business plan that includes proof of the experience and staff expertise in the specific field, projected financials and references.

(7) Any other documentation or pertinent information required by TERO. TERO shall have sole discretion in determining licensing requirements under this section.

For compliance and enforcement purposes, TERO shall require that each NAOB maintain and provide a Federal tax ID number to TERO and separate Tulalip business licenses for each separate business as required by TERO. TERO shall require each separate business to meet all NAOB certification requirements in this section.

(8) NAOB Ownership Requirements. The following factors shall be applied in identifying 100 percent Tulalip Tribal member owned business and minimum ownership requirements for the applicable certification categories. The purpose of this identification is for awarding contracts under TTC 9.05.110 and other restrictive bidding opportunities in this code.

(a) Percentage and Control.

(i) One Hundred Percent Tulalip Tribal Member NAOB. Must be 100 percent owned by a Tulalip Tribal member or members. The owner(s) must exercise majority control of the business and be substantially involved in the day-to-day management and operations.

(ii) NAOB. Must be 51 percent Native American owned and the majority owner must exercise majority control of the business and be substantially involved in the day-to-day management and operations.

(b) Value. The Native owner(s) must establish that they provide real value for their stated ownership interests by providing legal documents such as stock ownership, capital, assets, structure, management, control, financing and salary commensurate with the value of their ownership share.

(c) Profits. The Native owner(s) will receive a percentage of all profits equal to their ownership interest. Any provision that gives a non-Native owner a greater share of the profits, such as but not limited to management fees, equipment rental fees or bonuses, will result in decertification. Salary scales are subject to review by TERO to ensure the relative salaries being paid to Native and non-Native owners are consistent with the skills of the parties and are not being used to circumvent the requirements of this code.

(d) Technical Qualifications. The NAOB will be required to submit sufficient documentation to verify that it has the technical and administrative qualifications to be certified in the specific category requested including the Native owner(s) having the skill and expertise to perform the work.

All NAOBs shall report any changes of ownership or control status within 14 days after such changes have occurred. If at any time Native American ownership drops below 51 percent TERO reserves the right to decertify the company.

The TERO Department shall review the status of all certified NAOBs on an annual basis. Each NAOB and Tulalip Tribal owned NAOB shall have the responsibility to update TERO with any changes. Failure to provide information pursuant to these requirements shall constitute grounds to be decertified and taken off the NAOB registry. [Res. 2022-458].

9.05.390 Appeal of denied certification.

Denial of NAOB certification by the TERO Department may be appealed to the TERO Commission. The written appeal must be received by TERO within 14 days of the denial notice. The Commission’s decision is final and cannot be further appealed.

A firm that has been denied certification may not reapply for a period of time as determined by the TERO Commission on a case-by-case basis. [Res. 2022-458].

9.05.400 Brokers, vendors, suppliers and distributors.

In order to obtain certification under this code, brokers, vendors, suppliers and distributors must own, operate or maintain a store, warehouse, or other establishment in which the materials, supplies, articles or equipment being provided are kept in stock and regularly sold or leased to the public in the usual course of business. Relevant documentation, as determined by TERO, shall be provided to TERO upon request. This requirement shall not apply where the applicant demonstrates proof that it is not customary and usual in the particular business industry to keep the materials, supplies, articles or equipment in stock. [Res. 2022-458].

9.05.410 Joint ventures.

Joint venture documents between certified NAOBs will be submitted and processed through the TERO Department for review. Joint ventures between a NAOB and a non-NAOB will be certified on a project by project basis if the NAOB can successfully demonstrate the following:

(1) The Native American ownership and control complies with the requirements as defined in this section.

(2) The NAOB has entered into the joint venture with the non-NAOB to provide limited backup capabilities such as bonding, specialized expertise, or capital.

(3) The non-NAOB will mentor the NAOB to increase the expertise and value of the NAOB.

No joint venture shall qualify for preference if the Native American ownership in the joint venture is less than 51 percent or fails to demonstrate the majority control of the business at any time; which may result in a violation or decertification. The owners must have prior experience, training, occupational ties or sufficient knowledge in the business that the joint venture is engaged in such that they are qualified to serve in the senior level positions. [Res. 2022-458].

9.05.420 Decertification.

A NAOB is subject to decertification if the business engaged in prohibited activities or has changed its ownership and control so that it no longer meets the requirements for certification. Failure to notify TERO of changes in ownership, control, or operations shall also be grounds for decertification.

The TERO Commission may review and recommend corrective action or training for a NAOB with a multiple nonperformance contract issue or multiple violations of the TERO Code. If the NAOB refuses or does not comply with the Commission directive they may be decertified. [Res. 2022-458].

Article V. Enforcement

9.05.430 Due process.

All persons, agencies, departments, entities, and contractors shall have the rights to due process through a fair non-biased process. [Res. 2022-458].

9.05.440 Complaint.

(1) TERO Complaint. An aggrieved party (“complainant”) may file a written signed complaint stating the basis for an alleged violation of this code. The complaint must include a detailed account of the facts with supporting documentation and the remedy that they are seeking. The complaint must be filed at the TERO office within 14 days from the date of the last action or omission upon which the complaint is based. The TERO office shall serve the complaint on the respondent.

(2) Contracting Complaint. A contractor aggrieved by a decision of a contracting agency (“complainant”) must first file a written signed complaint with the contracting agency stating the basis of the alleged violation of this code. The complaint must include a detailed account of the facts with supporting documentation and the remedy that they are seeking. The complaint must be filed with the contracting agency no later than 14 days from the date of the action or omission upon which the complaint is based.

(3) Contracting Agencies Complaint Responsibilities. Upon receipt of a complaint under this section, the contracting agency shall:

(a) Immediately initial and date when a complaint is received;

(b) Communicate with the complainant within seven days to attempt to resolve the issue;

(c) The agency or contractor shall take appropriate steps to remedy any noncompliance issues or violations of the code immediately upon notification;

(d) If the matter is not resolved within 10 days of the initial complaint, the complainant may file a written complaint with TERO (see subsection (1) of this section) and shall serve the document on the contracting agency. [Res. 2022-458].

9.05.450 TERO jurisdiction determination.

Upon receipt of a complaint, TERO shall conduct a preliminary review to determine if TERO has jurisdiction over the complaint. TERO shall have enforcement authority over all preference provisions and workforce protection rights outlined in all Human Resource policies and any other addendums.

If the TERO Department makes a determination that the complaint does not allege a violation of this code, the complaint shall be immediately dismissed, and/or referred to the proper department or agency. The complainant may appeal and seek review of this jurisdictional determination by the Commission by filing a written request for review within 14 days of the date of the dismissal. The complainant shall state in writing the nature of the complaint and the reasons they believe TERO has jurisdiction. The Commission shall review the file at the next scheduled TERO Commission meeting at which the complainant may attend and be heard on the issue of jurisdiction. The Commission will make a jurisdiction determination. The decision of the Commission is final and not subject to further appeal. [Res. 2022-458].

9.05.460 Investigations.

The TERO staff shall have full investigative authority as deemed necessary to determine whether a violation of any provision of this code has occurred or to aid in prescribing rules, regulations, and guidelines hereunder.

All reported incidents shall be investigated under the following guidelines:

(1) All information shall be kept confidential to the fullest extent possible, unless disclosure is required for further investigation, or during a hearing or appeal. However, TERO shall not allow the goal of confidentiality to be a deterrent to an effective investigation.

(2) TERO will not allow retaliation against any parties that may be included in the investigation or complaint process.

(3) An employer may not be held liable for such acts of its employees, if the employer is able to establish that they took immediate and appropriate corrective action.

If a covered employer or contractor refuses to permit TERO staff from entering onto business premises during business hours or from reasonably inspecting or copying documents, the Director may impose a violation with fines.

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 code, the assessment of attorney’s fees and costs against the party found in violation of the Commission subpoena. [Res. 2022-458].

9.05.470 Complaint process and determination.

Upon determination that TERO has jurisdiction over the matter, TERO staff will meet with the complainant within seven days of receiving the complaint. TERO shall attempt to remedy the issue through mediation with both parties within 10 days of first receipt of the complaint. If the parties are unable to resolve the dispute through mediation, TERO shall begin a formal investigation within seven days of the close of mediation. During the investigation, TERO shall review all pertinent documentation and any additional information, if any, and shall gather written statements from both parties. The complainant has the burden to prove that a violation of this code did in fact occur. Both parties shall also have the responsibility to provide all relevant documentation. TERO has 21 days to complete the investigation.

Within seven days of the completion of the investigation, TERO shall notify the complainant and responding party in writing of the findings and the basis for such findings, and remedies ordered.

If TERO finds insufficient evidence to establish that a violation occurred, the file shall be closed and notice of closure shall be provided to both parties. [Res. 2022-458].

9.05.480 Penalties and remedies.

TERO shall have the authority to issue citations with a warning, assess penalties and other remedies. Upon a finding of a violation of this code, under the direction of the TERO Director, the TERO staff shall have the authority to assess the following penalties and remedies:

(1) Impose a remedial civil penalty not to exceed $5,000 per violation;

(2) Order any employer to remedy the situation;

(3) Issue a stop work or removal order;

(4) Order the payment of back pay and/or punitive damages;

(5) Order the payment of documented lost profits;

(6) Any other penalties authorized under specific sections of this code;

(7) Withhold payment until the violation is remedied;

(8) Suspension or termination of the contract;

(9) Debarment from contracting with the Tribes for up to one year; debarment for up to three years may be imposed for willful repeated violations. Individuals debarred from contracting may not bid or participate in any Tribal contracts as owners or employees of other companies during the period of debarment;

(10) Denial of certification;

(11) Suspension of certification; and/or

(12) Decertification.

If the Director believes that immediate action is necessary to prevent irreparable harm resulting from an alleged violation of this code, the Director may request the Commission to issue a temporary order for immediate interim injunctive relief not to exceed 14 days.

Penalties shall be imposed by TERO with a written notice to the person or business. The TERO orders or penalties may be appealed to the TERO Commission in accordance with TTC 9.05.520.

All monetary penalties shall be paid within 30 days from date of the citation. If a party fails to file a timely appeal or comply with a TERO order, TERO may petition the Tribal Court for an order of enforcement.

In cases involving a challenge to employment or contracting decisions or actions by the Tribes, Tribal entities or Tribal officials acting within the scope of their authority, remedies shall be limited to nonmonetary injunctive relief and payment of documented lost wages or lost profits. [Res. 2022-458].

9.05.490 Enforcement violation.

The Director shall have authority to seek enforcement in Tribal Court, if necessary. The Tribal court shall have jurisdiction over proceedings brought by the Director to enforce TERO orders, and may assess attorney fees and costs, and such other sanctions in addition to those contained in the order, that the court deems just and reasonable. [Res. 2022-458].

9.05.500 Property seizure provisions.

If at any stage in the fee assessment process there is good reason to believe there is a danger the party will remove itself or its property from the jurisdiction of the Tulalip Tribal Court, and TERO will not be able to collect monetary damages or TERO fees that are owed, the Director may petition the Court pursuant to the Court’s rules and procedures to attach property to secure compliance or for such other relief as is necessary and appropriate to protect the rights of affected parties.

If a party has failed to pay monetary damages imposed, or fails to comply with any order of the Commission or the Court, the Director may petition the Court to hold such party in default. The Tribal Court shall have authority to authorize the Tribal Police to seize property of the defaulting party to satisfy obligations under a valid TERO order. [Res. 2022-458].

9.05.510 Appeals to TERO Commission.

Any party that is dissatisfied or aggrieved by a decision from TERO may file a written appeal to the Commission within 14 days from the date of receipt of the decision. The appeal notice shall state the reasons for the appeal and shall have a copy of the decision or order attached. If the party fails to respond within the 14 days they shall lose all rights to challenge or appeal, and the decision or order shall be final and be enforced immediately.

The Commission shall review the files and determine if they will hold a hearing on the case, or if they can decide the case based on the written materials submitted by the TERO and the complainant. If the Commission determines that a hearing is unnecessary, the Commission shall issue an order stating the basis for its decision. A hearing shall be afforded in all cases when a timely appeal is filed by an individual or entity challenging a TERO noncompliance order imposing sanctions, or penalties. [Res. 2022-458].

9.05.520 Appeal of noncompliance by TERO.

Any party that believes an action by the TERO staff is in excess of the authority granted under this code may file a complaint with the Commission. The complaint must be filed no later than 14 days from the date of the action upon which the complaint is based. The complainant shall have the burden of proof. [Res. 2022-458].

9.05.530 Fee enforcement and collection.

If a required fee is not paid within one month of receipt of the invoice a citation shall be issued. If necessary a TERO Commission hearing shall be scheduled, and the TERO Department may issue a stop work or payment order. Interest will accrue from 60 days past the due date at a rate of 12 percent annually. [Res. 2022-458].

9.05.540 Pre-hearing process.

(1) Review of TERO Files. The responding party shall have the right to review the case file of the TERO Department by scheduling a visit during regular working hours at any point after receiving notice of a hearing. However, TERO shall have the right to excise proprietary information, the identity of confidential informants or confidential information from the file which will not be relied upon in the presentation of TERO’s case.

(2) Continuance. Any party can request a continuance of a TERO hearing. The party must show good cause for continuing the hearing. [Res. 2022-458].

9.05.550 Commission hearing.

When there is a TERO determination that expeditious action is required to preserve the rights of the individuals, a TERO hearing will be scheduled as soon as possible. Commission hearings will be open, unless either party can show good cause to close the procedures to the public.

The roles and responsibilities of the parties are, but not limited to, as listed below:

(1) Burden of Proof. Parties aggrieved by a TERO order shall have the burden of proof by a preponderance of the evidence that TERO was incorrect in finding a violation of this code or the regulations adopted under it, or that any proposed penalty, sanction, award, or required action ordered by TERO is incorrect or unwarranted.

(2) Presiding Officer. As presiding official, the Chairperson of the Commission will control the proceedings and shall take whatever action is necessary to ensure an equitable, orderly, and expeditious hearing.

(3) TERO Representation. TERO staff shall present the requirements of the TERO Code in all Commission hearings even if the hearing was initiated by a complaint filed by a private individual.

(4) Respondent. The respondent shall be present for the entire hearing to represent themselves.

(5) Failure to Appear. If either party fails to appear, the Commission will review all pertinent information and make their decision with the testimony presented.

(6) Commission Quorum. In the absence of a quorum at a Commission hearing, a case filed by a complainant will be postponed until a later date. In the case of a citation appeal all charges shall be dismissed.

(7) Prohibition against Reprisals. All parties shall have a right to testify, without fear of reprisal or retaliation. [Res. 2022-458].

9.05.560 Commission decision.

The Commission findings shall be in writing and issued within 14 days after the hearing. The decision shall be effective and enforceable immediately.

(1) Penalties and Remedies Authorized. If the action appealed is from a noncompliance order or decision, the Commission may uphold the TERO order or decision, overturn the TERO order or decision, or reduce the TERO recommended penalties. The TERO Commission shall not have the authority to increase the total amount of monetary penalties or damages issued under the TERO order except for justified adjustments in back pay or lost profit amounts. If the appeal is from a TERO finding that no violation occurred and the TERO Commission reverses the TERO decision and finds a violation did occur, the Commission shall have authority to issue any remedies that the TERO Director is authorized to issue under TTC 9.05.490. [Res. 2022-458].

9.05.570 Appeals to Tulalip Tribal Court.

Any party that is dissatisfied or aggrieved by a final decision of the TERO Commission may file an appeal to the Tulalip Tribal Court. Any party appealing a violation of a Tulalip Tribes Handbook must appeal to Employment Court per their entity’s handbook. The appeal shall be taken by filing a written notice of appeal with the Tribal Court and attaching the TERO Commission decision that is being appealed. The appeal must be filed within 10 days of the date of issuance of the TERO Commission decision. The notice of appeal shall be served on all parties on or before the date due for filing the appeal.

All appeals to Tribal Court shall be decided based on the record of the TERO Commission hearing or decision. Upon filing of an appeal, the TERO Commission shall transfer the Commission hearing or decision record to the Tribal Court. The appellant shall pay the costs of copying the TERO Commission record. The appellant shall have the burden of proof on appeal. The jurisdiction of the Tribal Court in appeals of TERO Commission decisions shall be limited to reversing the TERO Commission and directing a new Commission hearing with appropriate instructions where the TERO Commission decision is found to be arbitrary, capricious or clearly erroneous. There shall be no further appeal from a decision of the Tulalip Tribal Court. [Res. 2022-458].

9.05.580 Legal representation.

If any party retains an attorney they must give a 14-day notice to TERO of their intent to have legal representation. At that time TERO will request the Reservation Attorney to represent TERO in all further matters. [Res. 2022-458].

9.05.590 Sovereign immunity.

Nothing in this code is intended to waive or alter the sovereign immunity of the Tribes, Tribal departments, entities or employees acting in their official capacities. [Res. 2022-458].