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

Ryan.geffre@bia.gov

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