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Department of the Interior Bureau of Indian Affairs
Final Regulations Buy Indian Act
BUY INDIAN ACT HISTORY
Oldest of the Indian Preference laws on the books, adopted in 1910
Authority - Act of June 25, 1910 (25 U.S.C. 47)
Applies to BIA and IHS
Applies to DIRECT contracts let by these two agencies
Does not apply to contract awarded under P.L. 93-638 Self-Determination Contracts
Tribal polices and procedures apply
BUY INDIAN ACT
So far as may be practicable, Indian labor shall be employed and purchases of the products of Indian industry may be made in open market in the discretion of the Secretary of the Interior
REGULATIONS Proposed Rule
Published - Thursday, July 26, 2012;
Consultation Meetings
Final Rule Published June 7, 2013 FR Vol. 78, No. 110
Effective July 8, 2013
REGULATIONS • Establishes uniform policies and procedures for
all BIA locations to set aside acquisitions for “Indian Economic Enterprises”
• Reduces percentage of Indian ownership of Indian Economic Enterprise from 100% to 51%
• Allows Native firms to participate in the DOD Mentor-Protégé Program and not lose their eligibility for contracts awarded under Buy Indian Act
DEFINITION OF INDIAN
INDIAN –
Means a person who is a member of an Indian Tribe or is considered “Native” as defined in the Alaska Native Claims Settlement Act
DEFINITION OF INDIAN TRIBE
INDIAN TRIBE
Any tribe, band, nation, or other recognized group or community which is recognized as eligible for the special programs and services provided by the U.S. to Indians because of their status as Indians.
DEFINITION OF PRODUCT OF INDUSTRY
Means anything produced by an IEE either through physical labor or by intellectual effort involving the use and application of its skills.
DEFINITION OF INDIAN ECONOMIC ENTERPRISE (IEE)
Business activity owned by an Indian or an Indian Tribe that;
– Owns not less than 51%
– Receives a majority of the earnings from the contract
– The management and daily business operations must be controlled by one or more individuals who are members of an Indian tribe
DEFINITION OF 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
NAICS Codes
INDIAN ECONOMIC ENTERPRISE (IEE)
Must meet these requirements;
– At time an offer is made
– At time of contract award
– During the full term of the contract
1452.280-1 NOTICE OF INDIAN SMALL BUSINESS ECONOMIC ENTERPRISE SET-ASIDE (JUL 2013)
Insert this provision in each written solicitation of offers to provide supplies or services when purchasing commercial items under FAR Part 12 or using simplified acquisition procedures under FAR Part 13.
1452.280-2 Notice of Indian Economic Set-aside (IEE)
Will be included in all solicitations and contracts involving Indian economic enterprise set-asides.
1452.208-3 “Subcontracting Limitations”
A contractor shall not subcontract to other than responsible IEE more than 50% of the subcontracted work
1452.280-4 “Indian Economic Enterprise Representation”; will be in each written solicitation for supplies, services, or covered construction.
The offeror represents as part of its offer that it [ ] does [ ] does not meet the definition of Indian economic enterprise as defined in 1480.201.
Self Certification
CLAUSE
1452.226-70 Indian Preference (1984) Required in all SOL/Contracts-BIA
Required for other agencies when work to be performed is specifically for benefit of Natives
Hiring of Natives
Hiring of Native Subcontractors
Provide opportunities for training
CLAUSE 1452.226-71 Indian Preference Program (1984)
Is required for over contracts <$50k
Preformed on or near reservation
Offer substantial opportunities for Indian employment, training and subcontracting
Contractor required to establish a program
SET-ASIDE DETERMINATION
CONTRACTING OFFICER SHALL:
– For actions under FAR Part 12 or using simplified procedures under FAR Part 13
Set-aside for Indian Small Business Economic Enterprises (ISBEE)
SET-ASIDE DETERMINATION
CONTRACTING OFFICER SHALL:
– For actions over the simplified threshold
Set-aside for Indian Economic Enterprises (IEE)
SET-ASIDE DETERMINATION
CONTRACTING OFFICER SHALL:
– Conduct Market Research to determine whether to establish a set-aside based on whether the Government will receive at least two reasonable, responsive offers.
SET-ASIDE DETERMINATION IF BASED ON MARKET RESEARCH
CO determines no reasonable expectation of obtaining offers from at least two or more responsible ISBEE OR IEE’s
Document in the contract folder
Use Order of Precedence established in FAR 8.002
SET-ASIDE DETERMINATIONIF IT’S SET-ASIDE, AND;
◦ Only one offer received and price is
unreasonable or no offers are received
Document in the contract folder
Re-solicit using Order of Precedence established in FAR 8.002, or
CO may negotiate to reach a reasonable price
SET-ASIDE DETERMINATION
If decision not to set-aside was made based on market research, but then at least two IEE’s are identified during solicitation process;
Ability to cancel the solicitation
Re-compete it as an IEE Set-aside
SBA’S DYNAMIC SMALL BUSINESS SEARCH WEBSITE
BIA’S DATA BASE (CURRENTLY BEING ESTABLISHED)
REGIONAL DATA BASE
PTAC’S
CHALLENGES TO REPRESENTATION Interested Parties can challenge the IEE Representation
Written Challenge
Referred to the Contracting Officer
Must be received by the CO not later than 10 days after the basis of challenge is known or should have been know, whichever is earlier
CONSTRUCTION
1980 US Supreme Court ruled BIA could not use the Buy Indian Act on road construction projects and, by implication, on any other kind of construction (Andrus vs. Glover)
Recent Laws have corrected most of the damage
Only Road Construction funded by Surface Transportation Assistance Act of 1982 (STAA) can be set-aside under Buy Indian
As long as it’s on the Reservation
Since no Reservations in Oklahoma, not allowed
Facility construction cannot be set-aside on or off reservation
RYAN GEFFRE, CONTRACT SPECIALIST
Located in Central Office
Is creating a data base of Native Vendors
QUESTIONS
Jocelyn LittleChief, Supervisory Contract Specialist
Southern Plains Regional Office
405.247.1527 ph
580.450.5740 cell