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Department of the Interior Bureau of Indian Affairs Final Regulations Buy Indian Act

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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

  • 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

    [email protected]

    Is creating a data base of Native Vendors

    mailto:[email protected]

  • QUESTIONS

    Jocelyn LittleChief, Supervisory Contract Specialist

    Southern Plains Regional Office

    405.247.1527 ph

    580.450.5740 cell