Rule2022-07118
Acquisition Regulations; Buy Indian Act; Procedures for Contracting
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 8, 2022
Effective
May 9, 2022
Issuing agencies
Interior Department
Abstract
This final rule revises the Department of the Interior's regulations implementing the Buy Indian Act, which provides the Department of Interior (DOI) with authority to set aside procurement contracts for Indian-owned and controlled businesses. These revisions eliminate barriers to Indian Economic Enterprises from competing on certain construction contracts, expand Indian Economic Enterprises' ability to subcontract construction work consistent with other socio- economic set-aside programs, and give greater preference to Indian Economic Enterprises when a deviation from the Buy Indian Act is necessary, among other updates.
Full Text
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<title>Federal Register, Volume 87 Issue 68 (Friday, April 8, 2022)</title>
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[Federal Register Volume 87, Number 68 (Friday, April 8, 2022)]
[Rules and Regulations]
[Pages 20761-20770]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-07118]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
48 CFR Parts 1426, 1452, and 1480
[DOI-2019-0012; 212D0102DM DS62500000 DLSN00000.000000 DX62501]
RIN 1090-AB21
Acquisition Regulations; Buy Indian Act; Procedures for
Contracting
AGENCY: Assistant Secretary for Policy, Management and Budget,
Interior.
ACTION: Final rule.
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SUMMARY: This final rule revises the Department of the Interior's
regulations implementing the Buy Indian Act, which provides the
Department of Interior (DOI) with authority to set aside procurement
contracts for Indian-owned and controlled businesses. These revisions
eliminate barriers to Indian Economic Enterprises from competing on
certain construction contracts, expand Indian Economic Enterprises'
ability to subcontract construction work consistent with other socio-
economic set-aside programs, and give greater preference to Indian
Economic Enterprises when a deviation from the Buy Indian Act is
necessary, among other updates.
DATES: This rule is effective May 9, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Christopher Bell, Senior Small
Business Specialist, Office of Small and Disadvantaged Small Business,
Department of the Interior, 1849 C Street NW, Mail Stop 4214 MIB,
Washington, DC 20240; telephone (202) 208-3458 or email
<a href="/cdn-cgi/l/email-protection#5c3f342e352f28332c34392e033e3930301c35332f72383335723b332a"><span class="__cf_email__" data-cfemail="503338223923243f203835220f32353c3c10393f237e343f397e373f26">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of the Interior Acquisition Regulations (DIAR) are
in title 48, chapter 14 of the Code of Federal Regulations (48 CFR
parts 1401-1499) and include regulations implementing the Buy Indian
Act (25 U.S.C. 47, as amended). The Department recently reviewed the
DIAR consistent with Executive Order (E.O.) 13985, Advancing Racial
Equity and Support for Underserved Communities Through the Federal
Government. Interior has identified various aspects of parts 1426,
1452, and 1480 that are barriers to equal opportunity for Indians and
Indian Tribes in the Interior procurement process. These barriers
inhibit job creation, are ineffective at promoting maximum economic
development in Indian Country, and limit Indian country from fully
participating in Interior procurements subject to the Buy Indian Act.
This rule supplements the Federal Acquisition Regulation (FAR) and
revises the DIAR. For this reason, the rule is issued by the Assistant
Secretary for Policy, Management and Budget and follows the numbering
system established by the FAR and DIAR. The DIAR was last revised in
2013 and included the addition of a new part 1480 to address
acquisitions under the Buy Indian Act. See 78 FR 34266 (June 7, 2013).
II. Description of Final Rule
This rule revises the DIAR in the following ways, as explained
below: Eliminate the restriction on Indian Economic Enterprises (IEE)
from competing on ``covered'' construction contracts issued under the
Buy Indian Act; expand IEEs' ability to subcontract work subject to the
Buy Indian Act consistent with other government socio-economic set-
aside programs; give greater preference to IEEs; update the process and
thresholds for deviations; and clarify applicability.
A. Elimination of Restriction for ``Covered'' Construction Contracts
Interior's review of DIAR parts 1426, 1480, and 1452 identified
changes in law that affect how Interior applies the Andrus v. Glover
Construction Co. Supreme Court decision, 446 U.S. 608 (1980). The case
has underpinned the current language of the DIAR part 1480, which
restricts IEE set-asides to ``covered'' construction. Interior has
determined that the underlying law upon which the case was decided has
significantly changed since the case was decided in 1980. The decision
references 41 U.S.C. 252, which was amended by The Deficit Reduction
Act of 1984 (Pub. L. 98-369) and moved to 41 U.S.C. 253. Interior has
reviewed 41 U.S.C 253 as currently codified (and now reclassified to 41
U.S.C. 3301 et seq. per Pub. L. 111-315) and has determined that the
``covered'' construction language in the regulation is no longer
required by law. Interior has removed all references to ``covered''
construction throughout the regulation. Removal of this language allows
for the set-aside of construction contracts to IEEs.
B. Expansion of Indian Economic Enterprises' Ability To Subcontract
Since Interior proposes to remove references to ``covered''
construction and allow IEEs to compete for all construction contracts,
Interior has identified restrictions on IEEs that exceed restrictions
in other government socio-economic set-aside programs. Currently, 48
CFR 1452.280-3 restricts the ability of IEEs from subcontracting more
than 50% of the work to firms other than IEEs. This rule does not
change the 50% subcontract limitation for supplies and services.
However, the 50% limitation is currently not consistent with FAR clause
52.219-14 Limitation on Subcontracting which has different limitations
for construction awards. This rule ensures that the 48 CFR 1452.280-3
clause is consistent with the FAR 52.219-14 clause. The change will
allow IEEs to subcontract up to 75% for construction by special trade
contractors and 85% for general construction. Consistency with FAR
clause 52.219-14 ensures equal treatment of IEEs in Federal procurement
and removes subcontracting barriers for IEEs.
C. Preference for Indian Small Business Economic Enterprises
The rule revises 48 CFR 1480.4 to clarify and simplify the
preferences granted to IEEs under the Buy Indian Act. The current
language of section 1480.403(b) directs Contracting Officers (CO) to
solicit purchases as an unrestricted small business set-aside open to
firms that are not Indian Small Business Economic Enterprises (ISBEE)
when the CO determines two or more ISBEEs would not provide competitive
offers and the CO has an approved deviation. This final rule deletes
the existing language, because Interior has determined it is not fully
compliant with the Buy Indian Act.
The revised section 1480.401(c) adds language that the CO will give
priority to ISBEEs for all purchases subject to the Buy Indian Act. The
current language of 1480.4 only gives preference to ISBEEs when the
purchase is commercial or a simplified acquisition. Section 1480.401(d)
adds language that if a CO determines that there is not a reasonable
expectation of obtaining competitive offers, then the CO will give
priority to IEEs. The updated language also allows sole source awards
to an ISBEE or IEE authorized under the FAR to be compliant with the
Buy Indian Act.
[[Page 20762]]
D. Updates to Thresholds and Process for Deviations
Interior has determined the existing deviation process at 48 CFR
1480.403 to be burdensome in implementation and not fully compliant
with the Buy Indian Act. This final rule clarifies the deviation
process by identifying acquisitions that do not require a deviation and
streamlining the actions taken after a deviation is approved. As stated
in section 1480.403(b) of the final rule, if a contract follows the
requirements of FAR 6.3 or is subject to a previously approved
deviation, the contract no longer requires an approved deviation. As
stated in section 1480.403(f) of the final rule, acquisitions made
under an authorized deviation from the Buy Indian Act must follow the
FAR and DIAR unless specified otherwise.
Other changes to the deviation process include:
<bullet> Adding section 1480.403(a) which ensures sole source
awards made to IEEs or ISBEEs comply with the requirements of the Buy
Indian Act and do not require a deviation;
<bullet> Adding COs as authorized to approve deviations under
$25,000 at section 1480.403(c);
<bullet> Updating deviation approval thresholds in section
1480.403(c) from $550,000 to $700,000 to be consistent with changes in
FAR 6.304; and
<bullet> Adding ``one level above the CO'' to officials authorized
to approve deviations for actions exceeding $25,000 but not exceeding
$700,000 in section 1480.403(c).
E. Inapplicability to ISDEAA Contracts
The final rule removes language referencing the Indian Self
Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638) in
48 CFR 1426.70 and 1480.504(b). Contracts issued under the authority of
ISDEAA are not covered under the FAR and are codified separately under
25 CFR part 900. Since the contracts under ISDEAA are not a procurement
action subject to the FAR and are separately codified, there is no need
to address contracts subject to ISDEAA in the DIAR. This rule
specifically removes 48 CFR 1426.70, 1452.226-70, 1452.226-71, and
1480.504(b) in their entirety and removes all other references to those
sections.
III. Comments Received on the Proposed Rule
The Department published a proposed rule on October 27, 2021 (86 FR
59338), hosted a Tribal consultation session on December 1, 2021, and
received 10 comments prior to the comment deadline on December 27,
2021. A substantial number of comments supported Interior's efforts to
update these rules. A summary of the comments received, and Interior's
responses and changes made to the rule as a result of those comments
are provided here:
A. Summary and Analysis of Comments
1. Strong Support for the Rule
Comment: Most of the respondents strongly supported the proposed
rule. Multiple respondents noted positive factors regarding this rule
as follows:
<bullet> Removing the ``covered construction'' language in the
rule;
<bullet> Decreasing subcontract limitations for construction
contracts that conform to Small Business Administration (SBA)
regulations for small and socio-economic businesses;
<bullet> Enhancing the preferences for Indian Small Business
Economic Enterprises; and
<bullet> Streamlining and clarifying the process when deviation
from the Buy Indian Act is necessary.
2. Comments and Responses
2A. Definitions
Comment 1: A commentor proposed that the definition of IEE at DIAR
1480.201 and 1452.280-2 be clarified to be consistent with the SBA
regulation covering management and control of the business.
Response: Interior agrees that the definition of IEE at DIAR
1480.201 and 1452.280-2 covering management and control of the business
should be revised to ensure consistency with SBA regulation.
Consistency with SBA regulations ensures equal and consistent treatment
of IEEs in Federal procurement and removes barriers for IEEs seeking
SBA 8a program participation. Interior has revised the definition of
IEE at DIAR 1480.201 and 1452.280-2 to be consistent with SBA's
regulation at 13 CFR 124.109(c)(4).
Comment 2: A commenter suggested that to ensure control of the IEE
that an Indian individual must possess both management and technical
capabilities directly related to the primary industry in which the
enterprise conducts business.
Response: This rule does not change the requirement that individual
owners of an IEE possess the requisite management or technical
capabilities to control the enterprise. Interior views the possession
of either management capabilities or technical capabilities in the
industry of the enterprise to be sufficient to control the management
and daily business operations of the enterprise. This rule does add
clarification on the requirement for management and control for
Tribally owned Indian Economic Enterprises. See comment 3.
Comment 3: A commenter suggested adding Tribally owned entities not
organized for profit into the definition of IEEs at DIAR 1480.201.
Response: The proposed rule removed ``that is established for the
purpose of profit'' from the definition of IEE. This final rule also
removes ``that is established for the purpose of profit'' from the
definitions at DIAR 1452.280-2 and 1452.280-3. This final rule retains
the definition of ISBEE at DIAR 1480.201. This rule language ensures
consistency with Small Business Administration regulations concerning
the definition of a small business at 13 CFR 121.105.
Comment 4: A commenter suggested that State recognized Tribes
should be eligible as IEEs.
Response: This rule only covers Federally Recognized Tribes as
listed on the Federally Recognized Tribe List most recent published
February 1, 2019, in the Federal Register at 84 FR 1200 and as required
by 25 U.S.C. 5131. The Federally Recognized Tribe List is list of all
Indian Tribes which the Secretary recognizes to be eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians.
2B. Preferences for IEEs and ISBEEs
Comment 1: During the Tribal Consultation a commenter asked if
General Services Administration (GSA) schedule purchases would fall
under the proposed rule's deviation process.
Response: The rule states at 1480.401(a) that ``IA must use the
negotiation authority of the Buy Indian Act, 25 U.S.C. 47, to give
preference to Indians whenever the use of that authority is authorized
and practicable.'' Since GSA Schedules do not allow for a set-aside for
IEE or ISBEEs, Interior COs purchasing under the Buy Indian Act may
only utilize GSA Schedules when there is an approved deviation.
Comment 2: During the Tribal Consultation a commentor asked if the
removal of covered construction language in the rule also applies to
architect-engineering services and if Interior COs must still follow
the procedures of FAR Part 36.6 Architect Engineering Services.
Response: Yes, the rule clarifies that Architect Engineering
services are covered under the Buy Indian Act. This rule does not
propose any changes to FAR 36.6 and Interior COs must still
[[Page 20763]]
follow the procedures for purchasing Architect Engineering services
under the FAR.
Comment 3: A commentor suggested that the Department should
consider expanding scope of acquisitions under Buy Indian Act to the
maximum extent possible, including with respect to the definitions of
``supplies'' and ``general services''. The commentor specifically
mentions adding printing.
Response: This rulemaking supplements the FAR and does not
supersede the requirements of FAR 8.002 or 8.003 which specifies
mandatory sources for certain supplies and services. DIAR 1480.401(a)
states that supplies include ``printing, notwithstanding any other law
specifically includes printing''. However, Interior must follow FAR
8.802(a) which states that ``Government printing must be done by or
through the Government Printing Office'' unless an exception applies.
FAR 8.802(a) implements the law as codified at 44 U.S.C 501. If an
exception applied to a Interior printing acquisition covered by the by
Buy Indian Act then the acquisition shall follow the procedures of DIAR
1480.
Comment 4: A commenter suggests establishing a certification
program to verify that a company is Indian owned and controlled.
Response: This rule maintains the requirement that IEEs certify
that the enterprise meets the definition at 1480.201. The provision at
DIAR 1452.280-5 must be certified by the Enterprise prior to any award
under the Buy Indian Act. No additional certification program is
planned at this time. To strengthen oversight and reduce the potential
for fraud and abuse this final rule updates the language at DIAR
1452.280-2(f)(2). The updated language requires a contractor to update
the representations and certifications in the System for Award
Management if the contractor no longer meets the requirements to be
certified as an IEE.
Comment 5: A commentor suggesting eliminating the ``rule of two''
requirement or mandate that Contracting Officers extensively document
their efforts to search for Indian vendors.
The proposed and final rule does not contain a ``rule of two''
requirement, see DIAR 1480.401(d).
Comment 6: A commenter suggests that the Secretary of Interior
delegate Buy Indian procurement authority to other Interior bureaus and
offices beyond the Department of Interior and Indian Health Service.
Response: Per DIAR 1480.402(b) ``The Secretary may delegate
authority under the Buy Indian Act to a bureau or office within the
Department of the Interior other than IA.'' The Secretary has already
delegated authority through the Department Manual to allow Interior COs
to utilize the Buy Indian Act procedures of DIAR 1480. This rulemaking
only covers Department of Interior and Interior does not have authority
to change the FAR.
2C Subcontract Limitations
Comment 1: A commentor suggested removing all subcontract
limitations and allow subcontracting up to 100% of the value of the
contract.
Response: This rule retains consistency with Small Business
Administration limitations on subcontracting. The expansion of
subcontracting to firms other than IEEs beyond the SBA limitations
would not support development of competitive IEEs or maximize the
employment of Indian Labor.
Comment 2: A commentor recommended that the Department consider
providing technical assistance to ISBEEs when requested.
Response: Interior currently provides small business assistance to
all small businesses as requested through the Office of Small and
Disadvantaged Business Utilization.
2D Reporting and Transparency
Comment 1: Multiple commenters requested greater transparency and
reporting on the use of Buy Indian contracting procedures at Interior
and adherence to the requirements of the Indian Community Economic
Enhancement Act (ICEEA).
Our Response: Indian Affairs is committed to giving preference to
IEEs to the maximum extent practicable and continuously monitor the
marketplace to identify IEEs that can perform Indian Affairs
requirements. In Fiscal Year 2021 Indian Affairs has awarded over 59%
to IEEs. Indian Affairs (IA) already reports on Buy Indian Act
performance to Congress and will comply with all reporting requirements
of the Indian Community Economic Enhancement Act. IA is committed to
faithfully implementing the ICEEA requirement to harmonize the
regulations implementing the Buy Indian Act. This final rule is one
step in implementing ICEEA and IA will continue to coordinate with IHS.
IA is interested in collaborating with the Tribes to provide more data
and insight on how IA is meeting the requirements of the Buy Indian
Act.
3. Comments Outside the Scope of the Rule
Comment 1: A commenter stated that the Indian Health Service's
(IHS) proposed rulemaking did not engage in meaningful Tribal
consultation.
Response: This rulemaking only covers the Department of Interior
and is separate from the IHS rulemaking. As part of this rule-making we
have followed Interior's Tribal consultation policy.
Comment 2: A commentor encouraged Interior to review Interior's
surety bond guarantee authority and policies under 25 U.S.C 1497a and
expand the use of the authority.
Response: This final rule does not change how surety bond
guarantees are treated under DIAR 1480.602 nor does this rule alter or
expand the authority under 25 U.S.C.1497a. However, the commentor noted
the updated authority of the Indian Financing Act. The outdated
reference to the Indian Financing Act at DIAR 1480.602 was corrected to
25 U.S.C. 1497a.
Comment 3: A commenter suggested that Interior should give
preference to Tribal owned enterprises in Federal green products and
Federal energy acquisitions.
Response: This rulemaking only covers Department of Interior and
Interior does not have authority to change the FAR.
B. Final Rule Corrections
Correction 1: The final rule removes references to Bureau
Procurement Chief at 1480.505 and Table 1 at 1480.403(c). Bureau
Procurement Chief is no longer a term or position that exists at
Interior. The IA Competition Advocate was added in place of the Bureau
Procurement Chief to the Table 1 at 1480.403(c) as an official that may
authorize a deviation when the Chief of the Contracting Office is
absent.
Correction 2: Replaced the word ``investigate'' with ``review'' at
DIAR 1480.802(d) to avoid confusion with legal proceedings.
Correction 3: Identified the Director as the official in the Office
of Acquisition and Property Management that is responsible for
challenges to representation under 1480.902 and appeals under DIAR
1480.903.
Correction 4: Updated notification delivery options at 1480.902(f)
to be consistent with 1480.902(c)(2).
Correction 5: Updated various language at DIAR 1480.903 for
clarity.
III. Required Determinations
1. Regulatory Planning and Review (Executive Orders 12866 and
13563).
[[Page 20764]]
Executive Order (E.O.) 12866 provides that the Office of Information
and Regulatory Affairs (OIRA) will review all significant rules. OIRA
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public, where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
2. Regulatory Flexibility Act. The Secretary certifies that the
adoption of this rule will not have a significant economic impact on a
substantial number of small entities as they are defined in the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Therefore, under 5
U.S.C. 605(b), this rulemaking is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
3. Small Business Regulatory Enforcement Fairness Act. This rule is
not a major rule under the Small Business Regulatory Enforcement
Fairness Act (5 U.S.C. 804(2)). This rule does not have an annual
effect on the economy of $100 million or more. This rule will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions. This rule does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises.
4. Unfunded Mandates Reform Act. This rule does not impose an
unfunded mandate on State, local, or Tribal governments or the private
sector of more than $100 million per year. The rule does not have a
significant or unique effect on State, local, or Tribal governments, or
the private sector nor does the rule impose requirements on State,
local, or Tribal governments. A statement containing the information
required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is
not required.
5. Takings (E.O. 12630). This rule does not affect a taking of
private property or otherwise have taking implications under Executive
Order 12630. A takings implication assessment is not required.
6. Federalism (E.O. 13132). Under the criteria in section 1 of E.O.
13132, this rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement. It
does not substantially and directly affect the relationship between the
Federal and State governments. A federalism summary impact statement is
not required.
7. Civil Justice Reform (E.O. 12988). This rule complies with the
requirements of E.O. 12988. Specifically, this rule (1) meets the
criteria of section 3(a) of this E.O. requiring that all regulations be
reviewed to eliminate errors and ambiguity and be written to minimize
litigation; and (2) meets the criteria of section 3(b)(2) of this E.O.
requiring that all regulations be written in clear language and contain
clear legal standards.
8. Consultation with Indian Tribes (E.O. 13175). The Department of
the Interior strives to strengthen its government-to-government
relationship with Indian Tribes through a commitment to consultation
with Indian Tribes and recognition of their right to self-governance
and Tribal sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in E.O. 13175
and have determined there may be substantial direct effects on
federally recognized Indian Tribes that will result from this
rulemaking. The Department hosted Tribal consultation and has addressed
the input received in Section II, above.
9. Paperwork Reduction Act, 44 U.S.C. 3501, et seq. This rule
requires offerors to certify whether they met the definition of an
``Indian Economic Enterprise''. These statements are considered simple
representations that an offeror submitted to support its claim for
eligibility to participate in contract awards under the authority of
the Buy Indian Act (25 U.S.C. 47, as amended). Because these statements
are a simple certification or acknowledgment related to a transaction,
they do not qualify as a collection of information under the Paperwork
Reduction Act. See 5 CFR 1320.3(h).
10. National Environmental Policy Act. This rule does not
constitute a major Federal action significantly affecting the quality
of the human environment. A detailed statement under the National
Environmental Policy Act of 1969 (NEPA) is not required because the
rule is covered by the categorical exclusion listed in 43 CFR
46.210(c). We have also determined that the rule does not involve any
of the extraordinary circumstances listed in 43 CFR 46.215 that would
require further analysis under NEPA.
11. Effects on the Energy Supply (E.O. 13211). This rule is not a
significant energy action under the definition in E.O. 13211. A
Statement of Energy Effects is not required.
This action is taken pursuant to delegated authority.
List of Subjects in 48 CFR Parts 1426, 1452, and 1480
Government procurement, Indians, Indians--business and finance,
Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Interior amends
chapter 14 of title 48 CFR as follows:
PART 1426--OTHER SOCIOECONOMIC PROGRAMS
0
1. The authority citation for part 1426 continues to read as follows:
Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5
U.S.C. 301.
Subpart 1426.70--[Removed and Reserved]
0
2. Remove and reserve subpart 1426.70, consisting of sections 1426.7000
through 1426.7005.
PART 1452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. The authority citation for part 1452 continues to read as follows:
Authority: Sec. 205(c), 63 Stat. 390, 40 U.S.C. 486(c); and 5
U.S.C. 301.
Subpart 1452.2--Text of Provisions and Clauses
1452.226-70 and 1452.226-71 [Removed and Reserved]
0
4. Remove and reserve sections 1452.226-70 and 1452.226-71.
0
5. Revise sections 1452.280-1 through 1452.280-4 to read as follows:
1452.280-1 Notice of Indian Small Business Economic Enterprise set-
aside.
As prescribed in 1480.503(e)(1), and in lieu of the requirements of
FAR 19.508, insert the following provision in each written solicitation
of offers to provide supplies, general services, A-E services, or
construction. If the
[[Page 20765]]
solicitation is oral, information substantially identical to that
contained in the provision must be given to potential offerors.
Notice of Indian Small Business Economic Enterprise Set-Aside (FEB
2021)
Under the Buy Indian Act, 25 U.S.C. 47, offers are solicited
only from Indian Economic Enterprises (Subpart 1480.8) that are also
small business concerns. Any acquisition resulting from this
solicitation will be from such a concern. Offers received from
enterprises that are not both Indian Economic Enterprises and small
business concerns will not be considered and will be rejected.
(End of provision)
1452.280-2 Notice of Indian Economic Enterprise set-aside.
As prescribed in 1480.503(e)(2), insert the following clause in
solicitations and contracts involving Indian Economic Enterprise set-
asides. If the solicitation is oral, information substantially
identical to that contained in the provision must be given to potential
offerors.
Notice of Indian Economic Enterprise Set-Aside (FEB 2021)
(a) Definitions as used in this clause.
Alaska Native Claims Settlement Act (ANCSA) means Public Law 92-
203 (December 18, 1971), 85 Stat. 688, codified at 43 U.S.C. 1601-
1629h.
Indian means a person who is an enrolled member of a Federally
Recognized Indian Tribe.
Indian Economic Enterprise means any business activity owned by
one or more Indians or Federally Recognized Indian Tribes, provided
that:
(i) The combined Indian or Federally Recognized Indian Tribe
ownership of the enterprise shall constitute not less than 51
percent;
(ii) The Indians or Federally Recognized Indian Tribes shall,
together, receive at least 51 percent of the earnings from the
contract; and
(iii) The management and daily business operations of an Indian
Economic Enterprise must be controlled by one or more individuals
who are Indians. To ensure actual control over the enterprise, the
individuals must possess requisite management or technical
capabilities directly related to the primary industry in which the
enterprise conducts business. Management of Tribally owned Indian
Economic Enterprises may be provided by:
(A) Committees, teams, or Boards of Directors which are
controlled by one or more members of Tribe, or;
(B) Non-Tribal members if the enterprise can demonstrate that
the Tribe can hire and fire those individuals, that it will retain
control of all management decisions common to Committees, teams, or
Boards of Directors. Common management decisions, include strategic
planning, budget approval, and the employment and compensation of
officers. A written management development plan must also exist
which shows how Tribal members will develop managerial skills
sufficient to manage the enterprise or similar enterprises in the
future.
The enterprise must meet the requirements of (i) through (iii)
throughout the following time periods:
(1) At the time an offer is made in response to a written
solicitation;
(2) At the time of contract award; and,
(3) During the full term of the contract.
Federally Recognized Indian Tribe means an Indian Tribe, band,
nation, or other Federally recognized group or community on the List
of Federally Recognized Tribes. This definition includes any Alaska
Native regional or village corporation under the Alaska Native
Claims Settlement Act (ANCSA).
List of Federally Recognized Tribes means an entity appearing on
the United States Department of the Interior's List of federally
recognized Indian Tribes published annually in the Federal Register
pursuant to Section 104 of Public Law 103-454, codified at 25 U.S.C.
5131.
Representation means the positive statement by an enterprise of
its eligibility for preferential consideration and participation for
acquisitions conducted under the Buy Indian Act, 25 U.S.C. 47, in
accordance with the procedures in Subpart 1480.8.
(b) General.
(1) Under the Buy Indian Act, offers are solicited only from
Indian Economic Enterprises.
(2) The Contracting Officer (CO) will reject all offers received
from ineligible enterprises.
(3) Any award resulting from this solicitation will be made to
an Indian Economic Enterprise, as defined in paragraph (a) of this
clause.
(c) Required Submissions. In response to this solicitation, an
offeror must also provide the following:
(1) A description of the required percentage of the work/costs
to be provided by the offeror over the contract term as required by
section 1452.280-3, Subcontracting Limitations clause; and
(2) Qualifications of the key personnel (if any) that will be
assigned to the contract.
(d) Required Assurance. The offeror must provide written
assurance to the CO that the offeror is and will remain in
compliance with the requirements of this clause. It must do this
before the CO awards the Buy Indian contract and upon successful and
timely completion of the contract, but before the CO accepts the
work or product.
(e) Non-responsiveness. Failure to provide the information
required by paragraphs (c) and (d) of this clause may cause the CO
to find an offer non-responsive and reject it.
(f) Eligibility.
(1) Participation in the Mentor-Prot[eacute]g[eacute] Program
established under section 831 of the National Defense Authorization
Act for Fiscal Year 1991 (25 U.S.C. 47 note) does not render an
Indian Economic Enterprise ineligible for contracts awarded under
the Buy Indian Act.
(2) If a contractor no longer meets the definition of an Indian
Economic Enterprise after award, the contractor must notify the CO
immediately and in writing. The notification must include full
disclosure of circumstances causing the contractor to lose
eligibility status and a description of any actions that the
contractor will take to regain eligibility. If the contract is
unable to regain eligibility, then the contractor must revise its
the representations and certifications in the System for Award
Management. Failure to give the CO immediate written notification
means that:
(i) The economic enterprise may be declared ineligible as an IEE
for future contract awards under this part; and
(ii) The CO may consider termination for default if it is in the
best interest of the government.
(End of clause)
1452.280-3 Indian Economic Enterprise subcontracting limitations.
A contractor shall not subcontract more than the subcontract
limitations specified under FAR 52.219-14 to other than responsible
Indian Economic Enterprises when receiving an award under the Buy
Indian Act. For this purpose, work to be performed does not include the
provision of materials, supplies, or equipment. As prescribed in
1480.503(e)(3), insert the following clause in each written
solicitation or contract to provide supplies, general services, A-E
services, or construction:
Indian Economic Enterprise Subcontracting Limitations (FEB 2021)
(a) Definitions as used in this clause.
(1) Concern means any business entity with a place of business
located in the United States or its outlying areas and that makes a
significant contribution to the U.S. economy through payment of
taxes and/or use of American products, materials and/or labor, etc.
It includes but is not limited to an individual, partnership,
corporation, joint venture, association, or cooperative. For the
purpose of making affiliation findings (see FAR 19.101), it includes
any business entity, whether or not it is organized for profit or
located in the United States or its outlying areas.
(2) Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a government prime
contractor or subcontractor calling for supplies and/or services
required for performance of the contract, contract modification, or
subcontract.
(3) Subcontractor means a concern to which a contractor
subcontracts any work under the contract. It includes subcontractors
at any tier who perform work on the contract.
(b) Required Percentages of work by the concern. The contractor
must comply with FAR 52.219-14 Limitations on Subcontracting clause
in allocating what percentage of work to subcontract. The contractor
shall not subcontract work exceeding the subcontract limitations in
FAR 52.219-14 to a concern other than a responsible Indian Economic
Enterprise.
[[Page 20766]]
(c) Any work that an IEE subcontractor does not perform with its
own employees shall be considered subcontracted work for the purpose
of calculating percentages of subcontract work in accordance with
FAR 52.219-14 Limitations on Subcontracting.
(d) Cooperation. The contractor must:
(1) Carry out the requirements of this clause to the fullest
extent; and
(2) Cooperate in any study or survey that the CO, Indian
Affairs, or its agents may conduct to verify the contractor's
compliance with this clause.
(e) Incorporation in Subcontracts. The contractor must
incorporate the substance of this clause, including this paragraph
(e), in all subcontracts for supplies, general services, A-E
services, and construction awarded under this contract.
1452.280-4 Indian Economic Enterprise representation.
As prescribed in 1480.503(e)(4), insert the following provision in
each written solicitation for supplies, services, A-E, or construction:
Indian Economic Enterprise Representation (FEB 2021)
(a) The offeror represents as part of its offer that it [ ] does
[ ] does not meet the definition of Indian Economic Enterprise (IEE)
as defined in DIAR 1480.201 and that it intends to meet the
definition of an IEE throughout the performance of the contract. The
offeror must notify the contracting officer immediately in writing
if there is any ownership change affecting compliance with this
representation.
(b) Any false or misleading information submitted by an
enterprise when submitting an offer in consideration for an award
set aside under the Buy Indian Act is a violation of the law
punishable under 18 U.S.C. 1001. False claims submitted as part of
contract performance are subject to the penalties enumerated in 31
U.S.C. 3729 to 3731 and 18 U.S.C. 287.
(End of provision)
0
6. Under the authority of 25 U.S.C. 9, revise subchapter H to read as
follows:
Subchapter H--Buy Indian Act
PART 1480--ACQUISITIONS UNDER THE BUY INDIAN ACT
Subpart 1480.1--General
1480.101 Scope of part.
1480.102 Buy Indian Act acquisition regulations.
Subpart 1480.2--Definitions
1480.201 Definitions.
Subpart 1480.3--Applicability
1480.301 Scope of part.
1480.302 Restrictions on the use of the Buy Indian Act.
Subpart 1480.4--Policy
1480.401 Requirement to give preference to Indian Economic
Enterprises.
1480.402 Delegations and responsibility.
1480.403 Deviations.
Subpart 1480.5--Procedures
1480.501 General.
1480.502 [Reserved]
1480.503 Procedures for acquisitions under the Buy Indian Act.
1480.504 Other circumstances for use of other than full and open
competition.
1480.505 Debarment and suspension.
Subpart 1480.6--Contract Requirements
1480.601 Subcontracting limitations.
1480.602 Performance and payment bonds.
Subpart 1480.7--[Reserved]
Subpart 1480.8--Representation by an Indian Economic Enterprise Offeror
1480.801 General.
1480.802 Representation provision.
1480.803 Representation process.
Subpart 1480.9--Challenges to Representation
1480.901 General.
1480.902 Receipt of challenge.
1480.903 Award in the face of challenge.
1480.904 Challenge not timely.
Authority: 25 U.S.C. 47, as amended, 41 U.S.C. 253(c)(5), and 5
U.S.C. 301.
PART 1480--ACQUISITIONS UNDER THE BUY INDIAN ACT
Subpart 1480.1--General
1480.101 Scope of part.
This part implements policies and procedures for the procurement of
supplies, general services, architect and engineering (A&E) services,
or construction while giving preference to Indian Economic Enterprises
under authority of the Buy Indian Act (25 U.S.C. 47).
1480.102 Buy Indian Act acquisition regulations.
(a) This part supplements Federal Acquisition Regulation (FAR) and
Department of the Interior Acquisition Regulation (DIAR) requirements
in this chapter to meet the needs of the Department of Interior in
implementing the Buy Indian Act.
(b) This part is under the direct oversight and control of the
Chief Financial Officer, within the Office of the Assistant Secretary--
Indian Affairs, Department of the Interior (CFO). The CFO is
responsible for issuing and implementing this part.
(c) Acquisitions conducted under this part are subject to all
applicable requirements of the FAR and DIAR, as well as internal
policies, procedures, or instructions issued by Indian Affairs. After
the FAR, this part would take precedence over any inconsistent Indian
Affairs policies, procedures, or instructions.
Subpart 1480.2--Definitions
1480.201 Definitions.
Alaska Native Claims Settlement Act (ANCSA) means Public Law 92-203
(December 18, 1971), 85 Stat. 688, codified at 43 U.S.C. 1601-1629h.
Buy Indian Act means section 23 of the Act of June 25, 1910,
codified at 25 U.S.C. 47.
Contracting Officer (CO) means a person with the authority to enter
into, administer, or terminate contracts and make related
determinations and findings on behalf of the U.S. Government.
Deviation means an exception to the requirement to use the Buy
Indian Act in fulfilling an acquisition requirement subject to the Buy
Indian Act.
Fair market price means a price based on reasonable costs under
normal competitive conditions and not on lowest possible cost, as
determined in accordance with FAR 15.404-1(b).
Federally Recognized Indian Tribe means an Indian Tribe, band,
nation, or other Federally recognized group or community on the List of
Federally Recognized Tribes. This definition includes any Alaska Native
regional or village corporation under the Alaska Native Claims
Settlement Act (ANSCA).
Governing Body means the recognized entity empowered to exercise
governmental authority over a Federally Recognized Indian Tribe.
Indian means a person who is an enrolled member of a Federally
Recognized Indian Tribe.
Indian Affairs (IA) means all bureaus and offices under the
Assistant Secretary--Indian Affairs.
Indian Economic Enterprise (IEE) means any business activity owned
by one or more Indians or Federally Recognized Indian Tribes provided
that:
(1) The combined Indian or Federally Recognized Indian Tribe
ownership of the enterprise constitutes not less than 51 percent;
(2) The Indians or Federally Recognized Indian Tribes must,
together, receive at least 51 percent of the earnings from the
contract; and
(3) The management and daily business operations of an enterprise
must be controlled by one or more individuals who are Indians. The
Indian individual(s) must possess requisite management or technical
capabilities directly related to the primary industry in which the
enterprise conducts business. Management may be provided by:
(i) Committees, teams, or Boards of Directors which are controlled
by one or more members of Tribe, or;
(ii) Non-Tribal members if the enterprise can demonstrate that the
[[Page 20767]]
Tribe can hire and fire those individuals, that it will retain control
of all management decisions common to boards of directors, including
strategic planning, budget approval, and the employment and
compensation of officers, and that a written management development
plan exists which shows how Tribal members will develop managerial
skills sufficient to manage the enterprise or similar enterprises in
the future.
Indian Small Business Economic Enterprise (ISBEE) means an IEE that
is also a small business concern established in accordance with the
criteria and size standards of 13 CFR part 121.
Interested Party means an IEE that is an actual or prospective
offeror whose direct economic interest would be affected by the
proposed or actual award of a particular contract set-aside pursuant
the Buy Indian Act.
List of Federally Recognized Tribes means an entity appearing on
the United States Department of the Interior's List of federally
recognized Indian Tribes published annually in the Federal Register
pursuant to Section 104 of Public Law 103-454, codified at 25 U.S.C.
5131.
Subpart 1480.3--Applicability
1480.301 Scope of part.
Except as provided in 1480.302, this part applies to all
acquisitions, including simplified acquisitions, made by IA and by any
other bureau or office of the Department of the Interior conducting
acquisitions on behalf of IA or otherwise delegated the authority to
conduct acquisitions under the Buy Indian Act.
1480.302 Restrictions on the use of the Buy Indian Act.
IA must not use the authority of the Buy Indian Act and the
procedures contained in this part to award intergovernmental contracts
to Tribal organizations to plan, operate, or administer authorized IA
programs (or parts thereof) that are within the scope and intent of the
Indian Self-Determination and Education Assistance Act (ISDEAA) (Pub.
L. 93-638). IA must use the Buy Indian Act solely to award procurement
contracts to IEEs. Contracts subject to ISDEAA must follow 25 CFR part
900.
Subpart 1480.4--Policy
1480.401 Requirement to give preference to Indian Economic
Enterprises.
(a) IA must use the negotiation authority of the Buy Indian Act to
give preference to Indians or Federally Recognized Tribes whenever the
use of that authority is practicable. The Buy Indian Act provides that
so far as may be practicable, Indian labor shall be employed, and
purchases of the products (including, but not limited to printing,
notwithstanding any other law) of Indian industry may be made in open
market at the discretion of the Secretary of the Interior. Thus, IA may
use the Buy Indian Act to give preference to IEEs through set-asides
when acquiring supplies, general services, A&E services, or
construction to meet IA needs and requirements. All other FAR and DIAR
requirements that do not conflict with this part, such as requirements
applicable to the acquisition of A&E and construction services, remain
applicable.
(b) The Buy Indian Act does not apply when a supply requirement can
be met by existing inventories of the requiring agency or excess from
other agencies.
(c) The CO will give priority to ISBEEs for all purchases,
regardless of dollar value. COs when prioritizing ISBEEs may consider
either:
(1) A set-aside for ISBEEs; or
(2) A sole source award to an ISBEE, as authorized under the FAR.
(d) If the CO determines after market research that there is no
reasonable expectation of obtaining offers that will be competitive in
terms of market price, quality, and delivery, the CO may consider
either:
(1) A set-aside for IEEs; or
(2) A sole source award to an IEE, as authorized under the FAR.
(e) If the CO determines after market research that there is no
reasonable expectation of obtaining offers that will be competitive in
terms of market price, quality, and delivery from ISBEEs or IEEs, then
the CO must follow the Deviation process under 1480.403.
(f) When only one offer is received from a responsible IEE in
response to an acquisition set-aside or direct negotiation under
paragraph (c)(1) or (d)(1) of this section:
(1) If the offer is not at a reasonable and fair market price, then
the CO may negotiate with that enterprise for a reasonable and fair
market price.
(2) If the offer is at a reasonable and fair market price, then the
CO must:
(i) Make an award to that enterprise;
(ii) Document the reason only one offer was considered; and
(iii) Initiate action to increase competition in future
solicitations.
(g) If the offers received from one or more responsible IEEs in
response to an acquisition set-aside under paragraph (c)(1) or (d)(1)
of this section are not reasonable or otherwise unacceptable, then the
CO must follow the deviation process under 1480.403. The CO must
document in the deviation determination the reasons why the IEE
offeror(s) were not reasonable or otherwise unacceptable.
(1) If a deviation determination is approved, the CO must cancel
the set-aside solicitation and inform all offerors in writing.
(2) When the solicitation of the same requirement is posted, the CO
must inform all previous offerors in writing of the solicitation
number.
1480.402 Delegations and responsibility.
(a) The Secretary has delegated authority under the Buy Indian Act
to the Assistant Secretary--Indian Affairs. IA exercises this authority
in support of its mission and program activities and as a means of
fostering Indian employment and economic development.
(b) The Secretary may delegate authority under the Buy Indian Act
to a bureau or office within the Department of the Interior other than
IA.
(c) The Chief Financial Officer of The Office of the Assistant
Secretary--Indian Affairs is responsible for ensuring that all IA
acquisitions under the Buy Indian Act comply with the requirements of
this part.
1480.403 Deviations.
There are certain instances where the application of the Buy Indian
Act to an acquisition may not be appropriate. In these instances, the
Contracting Officer must detail the reasons in writing and make a
deviation determination.
(a) Sole source acquisitions awarded to an ISBEE or IEE under
1480.401(c)(2) or (d)(2) do not require a deviation determination and
comply with the requirements of the Buy Indian Act.
(b) Some acquisitions by their very nature would make such a
written determination unnecessary. The following acquisitions do not
require a written deviation from the requirements of the Buy Indian
Act:
(1) Any sole source acquisition justified and approved in
accordance with FAR 6.3 and DIAR 1406.3 constitutes an authorized
deviation from the requirements of the Buy Indian Act.
(2) Any order or call placed against an indefinite delivery vehicle
that already has an approved deviation from the requirements of the Buy
Indian Act.
(c) Deviation determinations are required for all other
acquisitions where the Buy Indian Act is applicable and must be
approved as follows:
[[Page 20768]]
Table 1 to Paragraph (c)
------------------------------------------------------------------------
The following official may authorize
For a proposed contract action a deviation
------------------------------------------------------------------------
Up to $25,000..................... CO.
Exceeding $25,000 but not One level above the CO or Chief of
exceeding $700,000. the Contracting Office (CCO) (or
the IA Competition Advocate, absent
a CCO).
Exceeding $700,000 but not IA Competition Advocate.
exceeding $13.5 million.
Exceeding $13.5 million but not The Head of the Contracting Activity
exceeding $57 million. or a designee who is a civilian
serving in a position in a grade
above GS-15 under the General
Schedule or in a comparable or
higher position under another
schedule.
Exceeding $57 million............. Department of the Interior Senior
Procurement Executive.
------------------------------------------------------------------------
(d) Deviations may be authorized prior to issuing the solicitation
when the CO makes the following determinations and takes the following
actions:
(1) The CO determines after market research that there is no
reasonable expectation of obtaining offers that will be competitive in
terms of market price, quality, and delivery from two or more
responsible ISBEE, IEEs, or direct negotiation with an IEE that is a
certified 8a business.
(2) The deviation determination is authorized by the official
listed at 1480.403(c) for the applicable contract action.
(e) If a deviation determination has been approved, the CO must
follow the FAR and DIAR unless specified otherwise.
(f) Acquisitions made under an authorized deviation from the
requirements of the Buy Indian Act must be made in conformance with the
order of precedence required by FAR 8.002.
Subpart 1480.5--Procedures
1480.501 General.
All acquisitions made in accordance with this part, including
simplified or commercial item acquisitions, must conform to all
applicable requirements of the FAR and DIAR.
1480.502 [Reserved]
1480.503 Procedures for acquisitions under the Buy Indian Act.
(a) Commercial items or simplified acquisitions under this section
must conform to the competition and price reasonableness documentation
requirements of FAR 12.209 for commercial item acquisitions and FAR
13.106 for simplified acquisitions.
(b) When acquiring construction services, solicit proposals and
evaluate potential contractors in accordance with FAR part 36 and DIAR
subpart 1436.2.
(c) When acquiring A&E services, solicit proposals and evaluate
potential contractors in accordance with FAR part 36 and DIAR subpart
1436.6.
(d) This paragraph (d) applies to solicitations that are not
restricted to participation of IEEs.
(1) If an interested IEE is identified after a solicitation has
been issued, but before the date established for receipt of offers, the
contracting office must provide a copy of the solicitation to this
enterprise. In this case, the CO:
(i) Will not give preference under the Buy Indian Act to the IEE;
and
(ii) May extend the date for receipt of offers when practical.
(2) If more than one IEE is identified subsequent to the
solicitation, but prior to the date established for receipt of offers,
the CO may cancel the solicitation and re-compete it as an IEE set-
aside.
(e) This paragraph (e) lists the clauses and provisions that must
be inserted.
(1) Insert the clause at 1452.280-1, Notice of Indian Small
Business Economic Enterprise set-aside, in accordance with 1480.401(c).
(2) Insert the clause at 1452.280-2, Notice of Indian Economic
Enterprise set-aside, in accordance with 1480.401(d).
(3) Insert the clause at 1452.280-3, Indian Economic Enterprise
subcontracting limitations, in accordance with 1480.601(b).
(4) Insert the clause at 1452.280-4, Indian Economic Enterprise
representation, in accordance with 1480.801(a).
1480.504 Other circumstances for use of other than full and open
competition.
(a) Other circumstances may exist where the use of an IEE set-aside
in accordance with 1480.401(a) and FAR 6.302-5 is not feasible. In such
situations, the requirements of FAR subparts 6.3 and 13.5 and DIAR
subpart 1406.3 apply in justifying the use of the appropriate authority
for other than full and open competition.
(b) Except as provided in FAR 5.202, all proposed acquisition
actions must first be publicized in accordance with the requirements of
FAR 5.2 and DIAR 1405.2.
(c) Justifications for use of other than full and open competition
in accordance with this section must be approved in accordance with
DIAR part 1406. These approvals are required for a proposed contract or
for an out of scope modification to an existing contract.
1480.505 Debarment and suspension.
A misrepresentation by an offeror of its status as an IEE, failure
to notify the CO of any change in IEE status that would make the
contractor ineligible as an IEE, or any violation of the regulations in
this part by an offeror or an awardee may be cause for debarment or
suspension in accordance with FAR 9.406 and 9.407 and DIAR 1409.406 and
1409.407. IA must refer recommendations for debarment or suspension to
the Director, Office of Acquisition and Property Management, Department
of the Interior, in accordance with DIAR 1409.406 and 1409.407, through
the Head of the Contracting Activity.
Subpart 1480.6--Contract Requirements
1480.601 Subcontracting limitations.
(a) In contracts awarded under the Buy Indian Act and this part,
the CO must insert the clause FAR 52.219-14, Limitations on
Subcontracting.
(b) The CO must also insert the clause at 1452.280-3, Indian
Economic Enterprise subcontracting limitations, in all awards to ISBEEs
and IEEs pursuant this part.
1480.602 Performance and payment bonds.
Solicitations requiring performance and payment bonds must conform
to FAR part 28 and may authorize use of any of the types of security
acceptable in accordance with FAR subpart 28.2 or 25 U.S.C. 1497a. In
accordance with FAR 28.102 and 25 U.S.C. 47a, the CO may accept
alternative forms of security in lieu of performance and payment bonds
if a determination is made that such forms of security provide the
[[Page 20769]]
Government with adequate security for performance and payment.
Subpart 1480.7--[Reserved]
Subpart 1480.8--Representation by an Indian Economic Enterprise
Offeror
1480.801 General.
(a) The CO must insert the provision at 1452.280-4, Indian Economic
Enterprise representation, in all solicitations regardless of dollar
value solicited under 1480.401(c) or (d) and in accordance with this
part.
(b) To be considered for an award under 1480.401(c) or (d), an
offeror must certify that it meets the definition of ``Indian Economic
Enterprise'' (as defined in 1480.201) in response to a specific
solicitation set-aside in accordance with the Buy Indian Act and this
part; and
(c) The enterprise must meet the definition of ``Indian Economic
Enterprise'' throughout the following time periods:
(1) At the time an offer is made in response to a solicitation;
(2) At the time of contract award; and
(3) During the full term of the contract.
(d) If, after award, a contractor no longer meets the eligibility
requirements as it has certified and as set forth in this section, then
the contractor must provide the CO with written notification within 3
days of its failure to comply with the eligibility requirements. The
notification must include:
(1) Full disclosure of circumstances causing the contractor to lose
eligibility status; and
(2) A description of actions, if any, that must be taken to regain
eligibility.
(e) Failure to provide written notification required by paragraph
(d) of this section means that:
(1) The economic enterprise may be declared ineligible as an IEE
for future contract awards under this part; and
(2) The CO may consider termination for default if it is determined
to be in the best interest of the Government.
(f) A CO will review the representation if an interested party
challenges the IEE representation or if the CO has any other reason to
question the representation. The CO may ask the offeror for more
information to substantiate the representation. Challenges of and
questions concerning a specific representation must be referred to the
CO or CCO in accordance with subpart 1480.9.
(g) Participation in the Mentor-Prot[eacute]g[eacute] Program
established under section 831 of the National Defense Authorization Act
for Fiscal Year 1991 (25 U.S.C. 47 note) does not render an IEE
ineligible for contracts awarded under the Buy Indian Act.
1480.802 Representation provision.
(a) Contracting offices must provide copies of the IEE
representation to any interested parties upon written request.
(b) The submission of a Solicitation Mailing List Application by an
enterprise does not remove the requirement for it to provide
representation as an IEE, as required by this part, if it wishes to be
considered as an offeror for a specific solicitation. COs may determine
the validity of the contents of the applicant's representation.
(c) Any false or misleading information submitted by an enterprise
when submitting an offer in consideration for an award set aside under
the Buy Indian Act is a violation of the law punishable under 18 U.S.C.
1001. False claims submitted as part of contract performance are
subject to the penalties enumerated in 31 U.S.C. 3729 to 3731 and 18
U.S.C. 287.
(d) The CO will review and refer to the appropriate officials all
IEE misrepresentation by an offeror or failure to provide written
notification of a change in IEE eligibility.
1480.803 Representation process.
(a) Only IEEs may participate in acquisitions set aside in
accordance with the Buy Indian Act and this part. These procedures
support responsible IEEs and prevent circumvention or abuse of the Buy
Indian Act.
(b) Eligibility is based on information furnished by the enterprise
to a CO in the IEE representation at DIAR 1452.280-4 in response to a
specific solicitation under the Buy Indian Act.
(c) The CO may ask the appropriate Regional Solicitor to review the
enterprise's representation.
(d) The CO may also request the Office of the Inspector General (on
Form DI-1902 as part of a normal pre-award audit) to assist in
determining the eligibility of the low responsive and responsible
offerors on Buy Indian Act awards.
(e) The IEE representation does not relieve the CO of the
obligation for determining contractor responsibility, as required by
FAR subpart 9.1.
Subpart 1480.9--Challenges to Representation
1480.901 General.
(a) The CO can accept an offeror's written representation of being
an IEE (as defined in 1480.201) only when it is submitted with an offer
in response to a solicitation under the Buy Indian Act. Another
interested party may challenge the representation of an offeror or
contractor by filing a written challenge to the applicable CO in
accordance with the procedures in 1480.902.
(b) After receipt of offers, the CO may question the representation
of any offeror in a specific offer by filing a formal objection with
the CCO.
1480.902 Receipt of challenge.
(a) An interested party must file any challenges against an
offeror's representation with the cognizant CO.
(b) The challenge must be in writing and must contain the basis for
the challenge with accurate, complete, specific, and detailed evidence.
The evidence must support the allegation that the offeror fails to meet
the definition of ``Indian Economic Enterprise'' or ``Indian Small
Business Economic Enterprise'' as defined in 1480.201 or is otherwise
ineligible. The CO will dismiss any challenge that is deemed frivolous
or that does not meet the conditions in this section.
(c) To be considered timely, a challenge must be received by the CO
no later than 10 days after the basis of challenge is known or should
have been known, whichever is earlier.
(1) A challenge may be made orally if it is confirmed in writing
within the 10-day period after the basis of challenge is known or
should have been known, whichever is earlier.
(2) A written challenge may be delivered by hand, telefax,
telegram, email, or letter postmarked within the 10-day period after
the basis of challenge is known or should have been known, whichever is
earlier.
(3) A CO's challenge to a certification is always considered
timely, whether filed before or after award.
(d) Upon receiving a timely challenge, the CO must:
(1) Notify the challenger of the date it was received, and that the
representation of the enterprise being challenged is under
consideration; and
(2) Furnish to the offeror (whose representation is being
challenged) a request to provide detailed information on its
eligibility by certified mail, return receipt requested or electronic
mail.
(e) Within 3 days after receiving a copy of the challenge and the
CO's request for detailed information, the challenged offeror must
file, as specified at paragraph (d)(2) of this section, with the CO a
complete statement answering the allegations in the challenge and
furnish evidence to support its position on representation. If the
offeror does not submit the required material within the 3 days, or
another period of time
[[Page 20770]]
granted by the CO, the CO may assume that the offeror does not intend
to dispute the challenge and must not award to the challenged offeror.
(f) Within 10 days after receiving a challenge, the challenged
offeror's response, and any other pertinent information, the CO must
determine the representation status of the challenged offeror and
notify the challenger and the challenged offeror of the decision by
certified mail, return receipt requested, or by other expeditious means
including by hand, email, telefax, or telegraph if actual delivery can
be shown, and make known to all parties the option to appeal the
determination to the Director, Office of Acquisition and Property
Management, Department of the Interior (PAM).
(g) If the representation accompanying an offer is challenged and
subsequently upheld by the Director of PAM, the written notification of
this action must state the reason(s).
1480.903 Award in the face of challenge.
(a) Award of a contract in the face of challenge may be made on the
basis of the CO's written determination that the challenged offeror's
representation is valid.
(1) This determination of validity is final unless it is appealed
to the Director of PAM and the CO is notified of the appeal before
making award.
(2) If an award was made before the CO received notice of appeal,
the award is presumed to be valid.
(b) After receiving a challenge involving an offeror being
considered for award, the CO must not award the contract until the CO
has determined the validity of the representation. Award may be made in
the face of a timely challenge when the CO determines in writing that
an award must be made to protect the public interest, is urgently
required, or a prompt award will otherwise be advantageous to the
Government.
(c) If a timely challenge on representation is filed with the CO
and received before award in response to a specific offer and
solicitation, the CO must notify eligible offerors within one day that
the solicitation will not be awarded due to a pending challenge. The CO
also may ask eligible offerors to extend the period for acceptance of
their proposals.
(d) If a challenge on representation is filed with the CO and
received after award in response to a specific offer and solicitation,
the CO need not suspend contract performance or terminate the awarded
contract unless the CO believes that an award may be invalidated and a
delay would prejudice the Government's interest. However, if contract
performance is to be suspended or terminated, a mutual no cost
agreement will be sought.
1480.904 Challenge not timely.
If a CO receives an untimely filed challenge of a representation,
the CO must notify the challenger that the challenge cannot be
considered on the instant acquisition but will be considered in any
future actions. However, the CO may question at any time, before or
after award, the representation of an IEE.
Joan M. Mooney,
Principal Deputy Assistant Secretary, Policy, Management and Budget.
[FR Doc. 2022-07118 Filed 4-7-22; 8:45 am]
BILLING CODE 4334-63-P
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</html>Indexed from Federal Register on April 8, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.