Iiná Bá, Inc. v. Navajo Business Regulatory

11 Am. Tribal Law 447
CourtNavajo Nation Supreme Court
DecidedMay 15, 2014
DocketNo. SC-CV-60-10
StatusPublished
Cited by1 cases

This text of 11 Am. Tribal Law 447 (Iiná Bá, Inc. v. Navajo Business Regulatory) is published on Counsel Stack Legal Research, covering Navajo Nation Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Iiná Bá, Inc. v. Navajo Business Regulatory, 11 Am. Tribal Law 447 (navajo 2014).

Opinion

OPINION

A Navajo-owned corporation appeals a decision of the Office of Hearings and Appeals (OHA) upholding the Navajo Nation’s award of a contract for engineering design services to a non-Indian corporation, on the grounds that the contract was awarded in violation of Navajo business preference laws. The Court finds a violation and reverses the OHA’s decision.

BACKGROUND

Appellant Iiná Bá, Inc. (Iiná Bá) was one of several firms that responded to a Request for Proposals (RFP) for Design Professional Services issued by the Department of Water Resources (DWR) of the Navajo Nation Water Management Branch for the $20 million phases 3, 5 and 6 of the Cutter Lateral Project to provide indoor running water to 10,000 homes in the Eastern Navajo Agency. The RFP was issued under 12 N.N.C. § 346 of the Navajo Nation Procurement Act (NNPA) pertaining to “architect-engineer and land surveying services.” Iiná Bá is a certified Priority # 1 100% Navajo-owned and controlled business established in 1994, whose engineering services include hydrology, environmental science, surveying and mapping, and construction management, administration and inspection, and with a record of successful past contract performance on various previous projects on the Navajo Nation, including projects for the DWR. Findings of Fact and Conclusions of Law, OHA-NBR-001-09, p. 1 (October 18, 2010). The RFP included a scoring sheet and stated that proposals “shall be evaluated on the basis of demonstrated competence and qualifications for the type of services required, and shall be based on the evaluation factors set forth in this RFP.” Id., p. 2. The RFP further stated that the Water Management Branch would “negotiate a contract with the highest qualified business for the services contemplated” under the RFP. Appellee’s Brief, p. 4. No reference to Navajo business preference was made in the RFP.

Iiná Bá interviewed as a finalist in the selection process but finished with the second overall score. The highest scoring firm, which was non-Navajo, was selected to negotiate and ultimately awarded the contract. Iiná Bá was the highest ranking Navajo-owned business of all firms which submitted proposals. The Selection Committee consisted of the purchasing agency and a member of Navajo Design and Engineering Services.

Iiná Bá protested its non-selection to the DWR, asserting that Navajo preference in the proposal selection process is mandated by the Navajo Business Opportunity Act (NBOA), and that it should have been selected. The DWR denied Iiná Bá’s pro[450]*450test, stating that the NBOA did not apply to the procurement of architect-engineering and land surveying services because the selection must be based on “demonstrated competence and qualification” as required by the NNPA. Upon denial, Iiná Bá appealed the DWR’s decision to the OHA pursuant to 12 N.N.C. § 362, additionally asking for administrative review by the OHA of discrepancies in how Iiná Bá was scored.

Following a hearing, the OHA established its jurisdiction under the NNPA and upheld the DWR’s decision. The OHA declined to address scoring discrepancies on the basis that Iiná Bá had not previously protested its scores to the DWR. Citing 5 N.N.C. §§ 204 and 205, and 12 N.N.C. §§ 330 and 346, the OHA concluded that the RFP must comply with the NBOA and NNPA, and that the statutes are not “mutually exclusive” but must be interpreted to preserve the intent of both. The OHA further concluded that the NNPA “expressly states when the NBOA must be observed” and that contracts under 12 N.N.C. § 346, pertaining to procurement of architect-engineer and land surveying services, are to be awarded not on the basis of Navajo preference, but upon “demonstrated competence and qualification for the type of services required,” because the provision did not mention the NBOA and therefore was not subject to the NBOA. Whereupon, the OHA denied Iiná Bá’s protest. Findings of Fact and, Conclusions of Law, OHA-NBR-001-09, p. 8. This appeal by Iiná Bá followed.

JURISDICTION & STANDARD OF REVIEW

In its appeal, Iiná Bá raises the DWR’s violation of Navajo business preference under the NBOA and also asks for judicial review of how Iiná Bá was scored. Iiná Bá at first asked the Court to review the OHA’s decision under 7 N.N.C. § 302 under which no deference is given to the decision below. Appellee Business Regulatory Department objected, stating that 5 N.N.C. § 211(C) applies in which the Court “may substitute its judgment on those questions of law within its special competence but shall otherwise uphold the decision of the hearing officer where reasonable.” Appellee’s Brief, p. 3. Upon the Court’s request for supplemental briefs on the issue of jurisdiction, Iiná Bá abandoned its claim of jurisdiction under 7 N.N.C. § 302, and instead claimed jurisdiction pursuant to 5 N.N.C. § 211(C) and the Navajo Nation Bill of Rights (Bill of Rights) at 1 N.N.C. § 2, asserting that violation of Navajo business preference was also an abridgement of the economic opportunity right under Bill of Rights. In its supplemental brief, Appellee maintained that 5 N.N.C. § 211(C) is the proper basis for jurisdiction due to the claim of violation of Navajo business preference. At oral argument, appellee did not respond to Iiná Bá’s claim of a violation of the Bill of Rights, other than stating the claim was untimely.

While Iiná Bá’s claim of a Bill of Rights violation was not previously made below nor in its opening appeal brief, Iiná Bá has been consistent in its assertion that Navajo business preference has been violated. As discussed in greater detail in the next section, Navajo preference in business contracting is specifically protected against abridgement or denial in the Bill of Rights at 1 N.N.C. § 2, which addresses rights in relation to tribal membership and affirmative action. The Navajo Nation Bill of Rights is an organic law, rooted in our ancient values and principles as a people expressed in our fundamental laws, Diñé bi beenahaz’danii This Court has previously stated that the failure to raise Diñé bi beenahaz’áanii in the initial [451]*451pleading will not lead to exclusion of the claim. Judy v. White, 8 Nav. R. 510, 535-536, 5 Am. Tribal Law 418 (Nav.Sup.Ct.2004). It follows that Bill of Rights violations may be asserted at any time. In this case, as in Judy v. White, the record reflects that the appellant has placed the appellee on notice that the validity of governmental action is being challenged, even if it has failed to specifically identify the Bill of Rights violation in initial pleadings.

This Court has previously stated that a claimant must first assert a property or liberty interest that is protected by due process and which is being deprived in some way by governmental activity. Yazzie v. Jumbo, 5 Nav. R. 75, 76 (Nav.Sup.Ct.1986). The same principle applies to Navajo business preference in support of the economic opportunity right. A claim under 1 N.N.C. § 2 is stated when entitlement to Navajo business preference is first asserted followed by the claim that preference law has been violated. Iiná Bá has made these assertions from the very beginning of its administrative appeals.

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Related

Iiná Bá, Inc. v. Navajo Business Regulatory
13 Am. Tribal Law 326 (Navajo Nation Supreme Court, 2015)

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Bluebook (online)
11 Am. Tribal Law 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iina-ba-inc-v-navajo-business-regulatory-navajo-2014.