Navajo Supreme Court Broadens Protection for Preference in Professional Services Contracts

In a recent opinion by the Navajo Supreme Court regarding Navajo preference in business contracting, a majority Navajo-owned corporation, Iiná Bá, Inc., was held to have been entitled to Navajo business preference under the Navajo Bill of Rights, and its civil rights were hence violated when preference was not applied in scoring a multi-million dollar engineering Request for Proposal (RFP) by the Navajo Nation Water Management Branch to provide indoor running water to 10,000 homes in the Eastern Navajo Agency.

The Navajo Department of Water Resources (DWR), and the Navajo Design and Engineering Services, which is under the Navajo Division of Community Development, had solicited the RFP and had taken the position that the Navajo Business Opportunity Act (NBOA) is not required to be followed by exempt services, such as engineering, through the Navajo Nation Procurement Act (NNPA); that procurement of such services are to be awarded not on the basis of Navajo preference, but upon “demonstrated competence and qualification for the type of services required.”

However, the Navajo Supreme Court held otherwise, citing the “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, Diné bi beenahaz’áanii.” The court also affirmed its longstanding position that the failure to raise Diné bi beenahaz’áanii in an initial pleading will not lead to later exclusion of the claim. The high court also noted that Navajo preference in business contracting “has been given permanent protections against being ‘abridged’ or ‘denied’ by subsequent legislation or other governmental action, and would require a citizen referendum vote to change.”

For the full opinion visit here.