34266 Federal Register / Vol. 78, No. 110 / Friday, June 7, 2013 / Rules and Regulations 

Electronic information system, 

Electronic transactions, Employer 

benefit plan, Health, Health care, Health 

facilities, Health insurance, Health 

records, Hospitals, Medicaid, Medical 

research, Medicare, Privacy, Reporting 

and recordkeeping requirements, 

Security. 

For the reasons set forth in the 

preamble, the Department amends 45 

CFR Subtitle A, Subchapter C, parts 160 

and 164, as set forth below: 

PART 160—GENERAL 

ADMINISTRATIVE REQUIREMENTS 

■ 1. The authority citation for part 160 

continues to read as follows: 

Authority: 42 U.S.C. 1302(a); 42 U.S.C. 

1320d–1320d–9; sec. 264, Pub. L. 104–191, 

110 Stat. 2033–2034 (42 U.S.C. 1320d–2 

(note)); 5 U.S.C. 552; secs. 13400–13424, Pub. 

L. 111–5, 123 Stat. 258–279; and sec. 1104 of 

Pub. L. 111–148, 124 Stat. 146–154. 

§ 160.508 [Amended] 

■ 2. Amend § 160.508(c)(5) by 

correcting ‘‘§ 160.410(b)(3)(ii)(B)’’ to 

read ‘‘§ 160.410(b)(2)(ii)(B) or (c)(2)(ii)’’ 

and by correcting ‘‘42 U.S.C. 1320d– 

5(b)(3)(B)’’ to read ‘‘42 U.S.C. 1320d– 

5(b)(2)(B)’’. 

§ 160.548 [Amended] 

■ 3. Amend § 160.548(e) by correcting 

‘‘§ 160.410(b)(1)’’ to read 

‘‘§ 160.410(a)(1) or (2)’’. 

PART 164—SECURITY AND PRIVACY 

■ 4. The authority citation for part 164 

continues to read as follows: 

Authority: 42 U.S.C. 1302(a); 42 U.S.C. 

1320d–1320d–9; sec. 264, Pub. L. 104–191, 

110 Stat. 2033–2034 (42 U.S.C. 1320d–2 

(note)); and secs. 13400–13424, Pub. L. 111– 

5, 123 Stat. 258–279. 

§ 164.103 [Amended] 

■ 5. Amend § 164.103 as follows: 

■ a. In the definition of health care 

component, by correcting 

‘‘§ 164.105(a)(2)(iii)(C)’’ to read 

‘‘§ 164.105(a)(2)(iii)(D)’’. 

■ b. In the definition of hybrid entity, by 

correcting ‘‘§ 164.105(a)(2)(iii)(C)’’ to 

read ‘‘§ 164.105(a)(2)(iii)(D)’’. 

§ 164.314 [Amended] 

■ 6. Amend § 164.314(a)(1) by 

correcting ‘‘§ 164.308(b)(4)’’ to read 

‘‘§ 164.308(b)(3)’’. 

§ 164.512 [Amended] 

■ 7. Amend § 164.512(k)(4)(i) by 

correcting ‘‘12698’’ to read ‘‘12968’’. 

§ 164.514 [Amended] 

■ 8. Amend § 164.514(f)(2)(iv) by 

correcting ‘‘paragraph (f)(1)(ii)(B)’’ to 

read ‘‘paragraph (f)(2)(ii)’’. 

§ 164.524 [Amended] 

■ 9. Amend § 164.524(c)(4)(iv) by 

correcting ‘‘paragraph (c)(2)(ii)’’ to read 

‘‘paragraph (c)(2)(iii)’’. 

§ 164.532 [Amended] 

■ 10. Amend the introductory text of 

§ 164.532(f) by correcting ‘‘[January 25, 

2013’’ to read ‘‘January 25, 2013’’. 

Dated: May 31, 2013. 

Jennifer M. Cannistra, 

Executive Secretary to the Department. 

[FR Doc. 2013–13472 Filed 6–6–13; 8:45 am] 

BILLING CODE 4153–01–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

48 CFR Parts 1401, 1452, and 1480 

RIN 1090–AB03 

Acquisition Regulations; Buy Indian 

Act; Procedures for Contracting 

AGENCY: Assistant Secretary for Policy, 

Management and Budget, Interior. 

ACTION: Final rule. 

SUMMARY: The Department of the 

Interior is finalizing regulations guiding 

implementation of the Buy Indian Act, 

which provides Indian Affairs (IA) with 

authority to set aside procurement 

contracts for Indian-owned and 

controlled businesses. This rule 

supplements the Federal Acquisition 

Regulation (FAR) and the Department of 

the Interior Acquisition Regulation 

(DIAR). 

DATES: This rule is effective on July 8, 

2013. 

FOR FURTHER INFORMATION CONTACT: 

Jonodev Chaudhuri, Office of the 

Assistant Secretary—Indian Affairs, 

(202) 208–7163; 

jonodev.chaudhuri@bia.gov; or David 

Brown, Office of Acquisitions—Indian 

Affairs, (703) 390–6605, 

David.Brown@bia.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Statutory Authority 

III. Overview of Final Rule 

A. Numbering System 

B. What this Rule Does 

IV. Development of Rule 

A. Prior Publication and Comment 

Solicitation 

B. Summary of Comments 

1. Goals for Set-Asides 

2. Indian Economic Enterprise Definition & 

Representation 

a. Fifty-one (51) percent Indian ownership 

b. Self-certification 

c. Challenges to an entity’s representation 

as an ‘‘Indian economic enterprise’’ 

3. Restrictions on Construction 

4. Subcontracting 

5. Buy Indian Implementation by Other 

Bureaus and Departments 

6. Awarding 

7. Applicability to Tribes 

8. Other 

V. Procedural Requirements 

A. Regulatory Planning and Review 

(Executive Order 12866 and 13563) 

B. Regulatory Flexibility Act 

C. Small Business Regulatory Enforcement 

Fairness Act (SBREFA) 

D. Unfunded Mandates Reform Act 

E. Takings Implications (Executive Order 

12630) 

F. Federalism (Executive Order 13132) 

G. Civil Justice Reform (Executive Order 

12988) 

H. Consultation with Indian Tribes 

(Executive Order 13175) 

I. Paperwork Reduction Act 

J. National Environmental Policy Act 

K. Effects on the Energy Supply (E.O. 

13211) 

I. Background 

IA has obtained services and supplies 

from Indian sources using the Buy 

Indian Program since 1965, based on 

policy memoranda and acquisition. This 

rule describes uniform administrative 

procedures that IA will use in all of its 

locations to encourage procurement 

relationships with eligible Indian 

Economic Enterprises in the execution 

of the Buy Indian Act. 

This rule incorporates the decision of 

the Assistant Secretary—Indian Affairs 

to increase economic development and 

employment of Indian persons by 

reducing the percentage of Indian 

ownership of business enterprises from 

a mandatory 100 percent to minimum 

51 percent. 

In addition, the regulations respond to 

and incorporate the nuances of Section 

831 of the National Defense 

Authorization Act for Fiscal Year 1991 

(Pub. L. 101–510, 10 U.S.C. 2301 note) 

that amended 25 U.S.C. 47 to allow 

Indian firms to participate in the 

Department of Defense’s Mentor-Prote ́ge ́

Program and not lose their eligibility for 

contracts awarded under the authority 

of the Buy Indian Act. This rule 

includes language stating that 

participation in the Mentor-Prote ́ge ́

program has no effect on eligibility for 

contracts awarded under the authority 

of the Buy Indian Act. 

This rule also includes revisions to 

address the input received as a result of 

earlier publications and consultation 

hearings in Indian Country. 

Indian economic enterprises 

interested in contracting with IA should 

monitor www.FedBizOpps.gov to 

identify opportunities for which there is 

a Buy Indian set-aside under this rule. 


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II. Statutory Authority 

The authority to issue regulations is 

vested in the Secretary of the Interior by 

5 U.S.C. 301. The authorizing statute is 

section 23 of the Act of June 25, 1910 

(25 U.S.C. 47, as amended). 

III. Overview of Final Rule 

This rule supplements the Federal 

Acquisition Regulation (FAR) and the 

Department of the Interior Acquisition 

Regulation (DIAR). For this reason the 

rule is issued by the Assistant Secretary 

for Policy, Management and Budget. 

This rule formalizes an administrative 

procedure for all IA acquisition 

activities and locations to ensure 

uniformity for eligible Indian Economic 

Enterprises that submit offers under 

solicitations set aside under the Act and 

this part. 

A. Numbering System 

This rule follows the numbering 

system established by the FAR and 

supplements the DIAR. Section 

1401.303(a)(3) of 48 CFR authorizes 

each Interior bureau to codify 

regulations implementing the DIAR. 

Where material in the FAR and/or DIAR 

do not require IA implementing 

regulations, there will be no 

corresponding section number in the 

supplementary material. 

B. What This Rule Does 

This rule formalizes an administrative 

procedure for all IA acquisition 

activities/locations to ensure that IA 

will apply the procedures uniformly for 

eligible Indian Economic Enterprises 

that submit offers under solicitations set 

aside under the Act. This rule also 

incorporates Congress’s determination 

that Indian firms should not lose their 

eligibility for contract awards under the 

Buy Indian Act due to participation in 

the Department of Defense’s MentorProte ́ge ́ Program. 

IV. Development of Rule 

A. Prior Publication and Comment 

Solicitation 

This rule has been in development for 

decades. IA published proposed rules in 

the Federal Register on October 8, 1982 

(47 FR 44678), November 15, 1984 (49 

FR 45187), June 30, 1988 (53 FR 24738), 

and September 12, 1991 (56 FR 46468). 

Public comments received by IA were 

reviewed, addressed in succeeding 

editions, and incorporated in this 

proposed rule, where applicable. 

Notification regarding a series of three 

public consultation sessions was 

published in the Federal Register on 

October 18, 2001 (66 FR 52931). The 

consultation sessions were conducted in 

Oklahoma City, Oklahoma, on October 

25, 2001; in Scottsdale, Arizona, on 

November 8, 2001; and in Portland, 

Oregon, on November 15, 2001. 

IA then circulated a draft rule and 

held a series of three tribal consultation 

sessions in 2010. The consultation 

sessions were conducted in Portland, 

Oregon on April 26, 2010; in Rapid City, 

South Dakota, on April 28, 2010; and in 

Tulsa, Oklahoma on April 29, 2010. IA 

published notice of these consultations 

in the Federal Register on March 26, 

2010 (75 FR 14547). 

IA published a proposed rule on July 

26, 2012 (77 FR 43782) and hosted four 

additional tribal consultation sessions: 

in Albuquerque, New Mexico, on 

August 14, 2012; in Billings, Montana, 

on August 15, 2012; in Sacramento, 

California, on August 21, 2012; and in 

Prior Lake, Minnesota, on August 23, 

2012. A summary of the comments 

received during these consultations and 

throughout the public comment period 

is provided below. 

B. Summary of Comments 

Most comments were oral at 

consultation sessions. Only a few 

written comments were received. The 

following is a summary of some of the 

main categories of comments, including 

oral comments, and IA’s responses. 

Overall, they expressed general support 

for finalizing the Buy Indian rule as 

soon as possible. 

1. Goals for Set-Asides 

Comment: A commenter asked if IA 

has a goal or will track how many jobs 

are created in Indian country from this 

rule. 

Response: IA does not speculate on 

how many jobs are created as a result of 

contracts it awards; however, IA does 

track the number of awards under Buy 

Indian authority and the dollar value of 

those awards. IA expects the number of 

awards and dollar value under Buy 

Indian authority to increase as a result 

of this rule. 

2. Indian Economic Enterprise 

Definition & Representation 

a. Fifty-one (51) Percent Indian 

Ownership 

Comment: A few commenters 

objected to formalizing by regulation the 

existing IA policy of having a minimum 

51 percent Indian ownership of the 

Indian economic enterprise for 

participation in the set-aside awards 

under the Buy Indian Act. A few 

commenters stated the minimum should 

be 80 or even 100 percent Indian 

ownership to ensure proceeds go to 

Indian economic enterprises. A 

commenter who stated that the 

minimum Indian ownership should be 

80 percent stated that doing so would 

disincentivize ‘‘front’’ companies 

because such companies would make 

only 20 percent from the proceeds 

rather than 49 percent. A commenter 

who stated the minimum Indian 

ownership should be 100 percent stated 

that there should be a tiered system 

whereby any contractors with 100 

percent Indian ownership would get the 

award and if there were none, then a 

contractor with 51 percent Indian 

ownership would get the award. A 

commenter voiced support for the 51 

percent minimum, stating that an 

increased minimum would make it 

more difficult to attract business 

partners to Indian communities. 

Response: Before January 1988, IA 

policy required participant firms to be 

100 percent Indian-owned and 

controlled. IA changed its policy in 

order to facilitate and expand economic 

development in Indian communities by 

increasing the opportunities for Indian 

businesses to obtain operating capital, 

which was often difficult, if not 

impossible, to do under the ‘‘100 

percent ownership’’ policy. IA believes 

this ‘‘minimum 51 percent ownership’’ 

requirement is a more realistic 

requirement that can, with sufficient 

regulatory safeguards, protect the 

integrity of the majority Indian owner(s) 

of the Indian economic enterprise, while 

promoting economic development. 

Specifically, IA believes that this 

minimum is flexible enough to provide 

an incentive for outside investors to 

partner with Indian economic 

enterprises and contribute needed 

capital and seed money to Indian 

communities. 

In addition, the rule defines Indian 

economic enterprise to include 

additional qualifications beyond just 51 

percent Indian ownership to help 

prevent companies ‘‘fronting’’ as Indian 

economic enterprises. To be an Indian 

economic enterprise, Indian(s) or 

tribe(s) must manage the contract, 

receive the majority of earnings from the 

contract, and control management and 

daily business operations. To ensure 

actual control, the Indians must possess 

requisite management or technical 

capabilities directly related to the 

primary industry in which the 

enterprise conducts business. 

b. Self-Certification 

Comment: A commenter expressed 

concern about having contractors selfcertify that they qualify as ‘‘Indian 

economic enterprises’’ and that IA will 

accept the certification without looking 

into financial statements unless 

someone challenges it. 


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Response: IA’s self-certification policy 

is a simple representation statement that 

an offeror submits to support its claim 

for eligibility to participate in contract 

awards under the authority of the Buy 

Indian Act. The information is required 

in order for the contractor to obtain a 

benefit in accordance with the Buy 

Indian Act. It is the responsibility of the 

contractor to examine their own 

financial statements to determine 

whether they meet the requirements for 

qualifying as an Indian economic 

enterprise. The self-certification 

approach is consistent with the FAR 

approach for challenges to smallbusiness set-asides. It is true that IA will 

look into financial statements only if 

someone challenges the representation 

as an Indian economic enterprise, but 

there are stiff penalties for 

misrepresentation that should deter 

contractors from falsely claiming to be 

an Indian economic enterprise. 

Misrepresentation of eligibility as an 

Indian economic enterprise is a 

violation of Federal criminal statutes. 

(See 48 CFR 1480.802(c)). In addition, 

the FAR and DIAR include procedures 

to address false certification. See FAR 

9.406 (Debarment), FAR 9.407 

(Suspension), DIAR 1409.406 

(Debarment), and DIAR 1409.407 

(Suspension). 

Comment: A few commenters 

predicted that having self-certification 

(rather than a process whereby IA 

determines, up front, if a contractor 

qualifies as an Indian economic 

enterprise) will result in a lot of 

challenges to representations that 

contractors qualify as Indian economic 

enterprises. 

Response: IA will monitor the number 

of challenges to determine whether an 

approach other than self-certification 

would be preferable. 

Comment: A commenter asked why 

IA doesn’t just require contractors 

claiming to be Indian economic 

enterprises to provide an Indian 

preference form, up-front, as proof. 

Response: The form Verification of 

Indian Preference for Employment in 

the Bureau of Indian Affairs and Indian 

Health Service is approved under Office 

of Management and Budget Control 

Number 1076–0160, but only for the 

purpose of applying for Federal 

employment. The information on this 

form may be helpful in a challenge for 

determining whether 51 percent of the 

owners of the contracting company are 

Indian; however, there are other criteria 

for qualifying for Indian economic 

enterprises that are not represented by 

this form (i.e., whether such individuals 

manage the contract, receive the 

majority of earnings from the contract, 

control management and daily business 

operations and possess requisite 

management or technical capabilities 

directly related to the primary industry 

in which the enterprise conducts 

business). Therefore, requiring this form 

up-front would not easily identify 

whether the contractor qualifies as an 

Indian economic enterprise. 

Comment: A commenter 

recommended that IA not rely on the 

Central Contractor Registration (CCR) to 

identify whether an Indian economic 

enterprise that self-certified is, in fact, 

an Indian economic enterprise, because 

anyone can identify as a Native-owned 

enterprise in that system without 

meeting the requirements for an ‘‘Indian 

economic enterprise’’ under this rule. 

Response: IA has determined that 

CCR is not a reliable source for 

identifying Indian economic enterprises 

due to the issue the commenter 

identified, but may use it in addition to 

other sources in conducting market 

research. When making awards, IA will 

rely on the self-certification statements 

that are specific to the definition of 

‘‘Indian economic enterprise’’ in this 

rule and carry the weight of penalties 

for falsification. 

Comment: A few commenters 

suggested that IA establish a repository 

of Indian economic enterprises, either 

by setting up a Web site similar to the 

Small Business Administration (SBA) or 

working with the SBA to expand its 

Web site to identify Indian economic 

enterprises. A commenter noted that 

other Federal agencies look to IA for 

information on Indian-owned 

businesses. 

Response: IA agrees that a repository 

of vetted Indian economic enterprises 

would be useful and may examine this 

option in the future, once it has 

monitored the number of challenges 

resulting from implementation of the 

self-certification approach in this rule. 

Currently, IA regions may have 

information about Indian economic 

enterprises in their respective regions 

and several tribes maintain their own 

lists of native-owned businesses. 

Comment: A commenter asked how 

IA ensures that Indian economic 

enterprises are qualified to provide the 

goods and services for contracts 

awarded through Buy Indian set-asides. 

Response: When awarding Buy Indian 

contracts, the contracting officer will 

fulfill their usual responsibilities under 

the FAR, including examining 

contractors’ past performance to ensure 

they are qualified. 

Comment: A commenter asked how 

they, as a member of the public, can 

know the facts to challenge an award on 

the basis of a business not being small 

or an Indian economic enterprise. 

Response: Dun & Bradstreet is a 

source for determining whether a 

contractor meets size limitations for 

small-business set-asides. As discussed 

above, there is currently no repository of 

Indian economic enterprises. A 

challenger would have to have 

independent knowledge that a 

contractor does not qualify as an Indian 

economic enterprise. 

Comment: A commenter stated that 

preferences and set-asides must be 

based on tribal membership rather than 

race because favoritism based on race 

poses significant constitutional and 

other legal issues (see, e.g., Civil Rights 

Act). 

Response: The definition of ‘‘Indian’’ 

is based on membership in a federally 

recognized Indian tribe, which is a 

political classification. The definition 

also includes Alaska ‘‘Natives,’’ as 

defined by the Alaska Native Claims 

Settlement Act (Pub. L. 92–203; 85 Stat. 

688; 43 U.S.C. 1601). 

Comment: A commenter stated that 

State-recognized Indian tribes that are 

not federally recognized should be 

included in this rule. 

Response: This rule includes only 

federally recognized tribes because the 

rule addresses acquisitions by IA, a 

Federal agency. 

Comment: A commenter noted that 

the proposed rule’s definition of ‘‘Indian 

economic enterprise’’ could be 

interpreted to mean that any one 

individual Indian must own at least 51 

percent of the enterprise, thus excluding 

enterprises in which one Indian owns 

50 percent and another Indian owns the 

other 50 percent. 

Response: We have revised the 

proposed rule to address this issue. The 

final rule now specifies that the 

enterprise may be owned by one or 

more Indians or Indian tribes and such 

ownership shall together constitute no 

less than 51 percent of the enterprise. 

c. Challenges to an Entity’s 

Representation as an ‘‘Indian Economic 

Enterprise’’ 

Comment: A commenter questioned 

why the process for protesting an 

entity’s representation as an ‘‘Indian 

economic enterprise’’ is different from 

the process of protesting an award 

under the FAR, and suggested instead 

relying on the FAR process. 

Response: The FAR provides a 

process for protesting awards to the U.S. 

Government Accountability Office 

(GAO), but does not provide for a 

process to challenge representations as 

an Indian economic enterprise to IA. 

This rule establishes a process that is 


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consistent with the FAR but specific to 

challenges to Indian economic 

enterprise representations. To avoid 

confusion with the standard FAR 

protest process, the final rule uses the 

term ‘‘challenge’’ instead of ‘‘protest.’’ 

Comment: A commenter asked 

whether it is acceptable to challenge an 

Indian economic enterprise 

representation by email. 

Response: You may challenge an 

Indian economic enterprise 

representation by email under this rule. 

3. Restrictions on Construction 

Comment: A commenter asked 

whether surety bond requirements will 

apply to construction projects awarded 

under this Buy Indian rule. 

Response: The FAR continues to 

apply to contracts awarded under this 

Buy Indian rule, so any FAR 

requirements for a surety bond that 

would otherwise apply will continue to 

apply. 

Comment: A commenter requested 

clarification on the applicability of 

Andrus v. Glover, 446 U.S. 608 (1980), 

on Buy Indian set-asides for 

construction and whether the 

applicability changes depending upon 

whether the construction will occur on 

reservation or off reservation. 

Response: In response to this 

comment, IA reexamined and refined its 

interpretation of applicable law, as 

stated in the proposed rule. The final 

rule implements IA’s current 

interpretation of the Federal Property 

and Administrative Services Act of 1949 

(FPASA), the U.S. Supreme Court 

decision in Andrus v. Glover, and the 

subsequent Surface Transportation 

Assistance Act of 1982 (STAA), Public 

Law 97–424. In light of these legal 

parameters, IA has determined that it 

has authority to use funds available for 

construction of Indian reservation roads 

by using Indian labor and may use Buy 

Indian set-asides for the following: 

• Road facilities on Indian-owned 

land; 

• Road facilities on an Indian 

reservation; 

• Road facilities that are primary 

access routes proposed by tribal 

governments, including roads between 

villages, roads to landfills, roads to 

drinking water sources, roads to natural 

resources identified for economic 

development; 

• Roads that provide access to 

intermodal termini, such as airports, 

harbors, or boat landings; 

• Bridges along these roads; 

• Planning and other needs and 

facilities associated with roads; and 

• Sidewalks along these roads. 

IA has determined that it may not use 

Buy Indian set-asides for other 

categories of public works including 

buildings, sewers, water mains, and 

similar items. The final rule reflects this 

distinction. 

4. Subcontracting 

Comment: A commenter asked 

whether a tribe that received a contract 

under a Buy Indian set-aside could 

apply the Buy Indian rule for 

subcontracting. 

Response: The final rule prohibits 

contractors from subcontracting more 

than 50 percent of the work under a 

prime contract awarded under Buy 

Indian to anyone other than responsible 

Indian economic enterprises. Therefore, 

a tribe that receives a contract under a 

Buy Indian set-aside would be required 

to apply the Buy Indian rule to its 

subcontracts, and could subcontract no 

less than 50 percent of the work to 

Indian economic enterprises. 

Comment: A commenter stated that 

all contractors should be prohibited 

from subcontracting more than 50 

percent of the work to anyone other 

than responsible Indian economic 

enterprises, even if the prime contract 

was not awarded under the Buy Indian 

Act. 

Response: Because there are instances 

where the prime contract cannot be 

awarded under Buy Indian, the rule 

requires subcontracting to Indian 

economic enterprises only when the 

prime contract was awarded using a Buy 

Indian set-aside. 

5. Buy Indian Implementation by Other 

Bureaus and Departments 

Comment: Several commenters stated 

that this rule should apply to other 

agencies, such as the Department of 

Defense and Indian Health Service, and 

to other bureaus within the Department 

of the Interior. 

Response: IA has no regulatory 

authority over other Federal agencies to 

implement the Buy Indian Act set-aside 

authority. IA is promulgating this rule; 

therefore, the rule will apply only to IA. 

The Secretary of the Interior may 

delegate Buy Indian authority to other 

bureaus within the Department of the 

Interior. Additionally, as a matter of 

policy, IA encourages other Bureaus and 

Departments to implement Buy Indian 

set-aside authority, as appropriate. 

6. Awarding 

Comment: A commenter suggested 

allowing IA to negotiate with an Indian 

economic enterprise on price if only one 

offeror responds to a Buy Indian 

solicitation. 

Response: We have incorporated this 

suggestion into the final rule by adding 

that the contracting officer may 

negotiate with the Indian economic 

enterprise if otherwise permitted under 

the applicable procurement strategy. 

Comment: A commenter stated that 

the rule is clear on what happens if only 

one offer from an Indian economic 

enterprise is received and that offer is 

unreasonable, but is not clear on what 

happens if one offer from an Indian 

economic enterprise is received and that 

offer is reasonable. 

Response: Provisions on when 

deviations are permitted state that 

receiving only one unreasonable offer is 

a basis for a deviation. Other sections of 

the rule, at 1480.503(c) and 1480.504– 

1(e), state what happens if one 

reasonable offer is received. 

Comment: A commenter asked 

whether Indian economic enterprises 

may be granted a 10 percent price 

preference to give them an advantage 

where the contract is being advertised 

under the order of precedence because 

there were not two reasonable offers 

under the Buy Indian set-aside. 

Response: The contracting officer may 

give up to a 10 percent preference at his 

or her discretion, if authorized, 

considering all applicable factors and 

circumstances and the preference is 

included in the solicitation. 

7. Applicability to Tribes 

Comment: A commenter stated that it 

was ready to bid on a contract, but the 

contracting officer instead gave the tribe 

the opportunity to contract for the 

program. 

Response: The rule provides the 

Indian tribe with the opportunity to 

contract under Public Law 93–638 for a 

requirement taking place on Indian land 

under its jurisdiction before IA issues a 

solicitation with a Buy Indian set-aside. 

A tribal contract under Public Law 93– 

638 is a non-procurement action, so the 

tribe would not have to compete for the 

contract (with or without a Buy Indian 

set-aside). The rule requires the 

contracting officer to give written notice 

to the governing body of the applicable 

Indian tribe when it publishes the 

synopsis, stating the intent to contract 

using a Buy Indian set-aside and 

providing the tribe with the opportunity 

to contract. The tribe may contract if it 

adequately justifies a deviation for the 

work on or near its Indian land. See 

section 1480.504–1(b). 

Comment: A commenter noted that 

tribes have access to more capital than 

individual Indians and could overpower 

individual business owners in politics 

and marketing. This commenter stated 

that if this inequality manifests at some 


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point, IA may want to come up with 

policies to counter it. 

Response: IA is interested in fostering 

economic development for tribes as well 

as individual Indians; IA will examine 

this issue if and when it arises. 

Comment: Two commenters stated 

their strong opposition to exempting 

tribes that contract or compact Bureau 

of Indian Affairs functions under Public 

Law 93–638 from the requirements to 

set-aside their acquisitions under the 

Buy Indian Act. 

Response: The rule does not prohibit 

tribes from using Buy Indian set-asides 

for its acquisitions, and tribes may 

apply the rule in accordance with their 

respective Self-Determination contracts 

and compacts and principles of tribal 

sovereignty. 

8. Other 

Comment: A commenter asked 

whether this rule will apply to all 

offices under the Assistant Secretary— 

Indian Affairs, or only the Bureau of 

Indian Affairs. 

Response: This rule applies to all 

offices and bureaus under the Assistant 

Secretary—Indian Affairs, including the 

Bureau of Indian Affairs and Bureau of 

Indian Education. 

Comment: A commenter asked 

whether this rule will apply to 

personnel and hiring services. 

Response: This rule will apply to any 

contracts IA uses to obtain services, 

including personnel support obtained 

by contract. 

Comment: A commenter asked 

whether Alaska Native regional 

corporations may receive Buy Indian 

set-asides. 

Response: The definition of ‘‘Indian 

tribe’’ includes Alaska Native villages 

and regional or village corporations 

under the Alaska Native Claims 

Settlement Act. If an Alaska Native 

regional corporation meets this 

definition and otherwise qualifies as an 

Indian economic enterprise, it may 

receive a Buy Indian set-aside. 

Comment: A commenter asked 

whether there is a graduation out of the 

Buy Indian set-aside if an Indian 

economic enterprise exceeds a certain 

size or number of contracts. 

Response: Any entity that qualifies as 

an Indian economic enterprise may 

receive an award under a Buy Indian 

set-aside; there is no graduation out of 

Buy Indian. 

Comment: A commenter asked why 

the rule specifies that Indian economic 

enterprises are eligible for Buy Indian 

set-asides even if they are participating 

in the Department of Defense’s MentorProte ́ge ́ agreement. 

Response: At one point, there was 

some question as to whether contractors 

were ineligible for Buy Indian set-asides 

if they participated in the MentorProte ́ge ́ program. Congress clarified this 

issue by amending the Buy Indian Act 

at 25 U.S.C. 47. This rule incorporates 

that clarification. 

Comment: A commenter asked how 

the Buy Indian set-aside works with 8(a) 

and historically underutilized business 

zone (HUBZone). 

Response: HUBZone and 8(a) are 

small business socioeconomic programs 

under the FAR. If the contracting officer 

cannot award a Buy Indian set-aside to 

an Indian economic enterprise, then the 

contracting officer may solicit under the 

HUBZone or 8(a) programs under 

section 19 of the FAR. 

Comment: A commenter asked who 

will be the watchdog to make sure IA 

implements this rule. 

Response: The Director, Office of 

Acquisitions, will be ensuring that 

contracting officers implement this rule 

through Buy Indian set-aside goals and 

monitoring. 

Comment: A commenter asked how to 

know who IA is awarding contracts to 

under this rule. 

Response: Anyone can track a specific 

solicitation on FedBizOpps and see who 

received the award. 

Comment: A commenter stated that 

Buy Indian preference should be higher 

priority in relation to other procurement 

programs to allow Indian economic 

enterprises the opportunity for more 

market share in major contracts for 

manufacturing and other industries that 

have high manpower needs. 

Response: This rule will ensure that 

responsible Indian economic enterprises 

receive as many IA contract awards as 

possible. To change the priority among 

other procurement programs 

government-wide would require an 

amendment to the FAR. 

Comment: A commenter stated that 

the solicitations to native businesses 

should be in layman terms and possibly 

in each tribe’s native language to level 

the playing field. 

Response: The Buy Indian set-aside 

solicitations will be written in layman 

terms to the extent possible in 

compliance with the FAR. Solicitations 

are provided in English as a common 

language. The large number of different 

native languages would render it 

infeasible to translate every solicitation 

into each native language without 

disruptive delays. 

Comment: A commenter asked that 

we avoid any issues with the Paperwork 

Reduction Act because that process 

would delay finalization of this rule. 

Response: As explained in the 

Paperwork Reduction Act section of this 

preamble, this rule does not contain any 

information collection requirements that 

trigger the need for OMB approval 

under the Paperwork Reduction Act. 

Comment: A commenter asked 

whether indefinite delivery-indefinite 

quantity (IDIQ) contracts may be set 

aside under this rule. 

Response: IDIQs may be set aside 

under this rule. 

Comment: A commenter asked how 

contracting officers determine whether 

something is for construction versus 

services. 

Response: Contracting officers will 

use the FAR to determine whether a 

contract is for construction or services. 

Comment: A commenter stated that it 

is important for contracting officers to 

go to FedBizOpps and do a ‘‘sources 

sought’’ search during market research. 

Response: The contracting officers use 

FedBizOpps as a source when doing 

market research. Contracting officers 

may also contact local tribal 

employment rights offices (TEROs) as 

part of their market research to ensure 

that their research was comprehensive. 

V. Procedural Requirements 

A. Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) will review all significant 

rules. The Office of Information and 

Regulatory Affairs 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. This rule is also 

part of the Department’s commitment 

under the Executive Order to reduce the 

number and burden of regulations. 

B. Regulatory Flexibility Act 

The Department of the Interior 

certifies that this document will not 


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have a significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The total annual 

value of Buy Indian contracts is less 

than $45 million awarded to fewer than 

200 contractors. 

C. Small Business Regulatory 

Enforcement Fairness Act (SBREFA) 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

(a) This rule does not have an annual 

effect on the economy of $100 million 

or more. The annual value of contracts 

is less than $45 million. 

(b) This rule will not cause any 

increase in costs or prices for 

consumers, individual industries, 

Federal, State, or local government 

agencies, or geographic regions. The 

rule will be applied on a national basis 

and has no effect on the dollar amount 

expended for acquisitions. 

(c) 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 foreignbased enterprises. The annual value of 

the acquisitions made under this 

authority is less than $45 million. 

D. Unfunded Mandates Reform Act 

This rule does not impose any 

unfunded mandate on State, local, or 

tribal governments or the private sector. 

The rule does not have a significant or 

unique effect on State, local or tribal 

governments or the private sector. The 

rule merely governs acquisitions from 

contractors. 

E. Takings Implications (Executive 

Order 12630) 

In accordance with Executive Order 

12630, the rule does not have any 

takings implications. The rule governs 

acquisitions from contractors. 

F. Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have any 

Federalism implications to warrant the 

preparation of a Federalism Assessment. 

The rule governs acquisitions from 

contractors and does not interfere with 

the administration of programs by State 

governments. 

G. Civil Justice Reform (Executive Order 

12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

H. Consultation With Indian Tribes 

(Executive Order 13175) 

In accordance with Executive Order 

13175, IA held consultation meetings 

with the tribes on draft and proposed 

versions of this rule, as well as the 

several previous publications of the 

proposed rule (see ‘‘IV. Development of 

Rule’’ of this preamble for details). The 

rule will more directly affect Indian 

economic enterprises and any 

contractors who use the Buy Indian Act 

for subcontracting. 

I. Paperwork Reduction Act 

This regulation requires offerors to 

state whether they meet the definition of 

an ‘‘Indian economic enterprise.’’ This 

statement is a simple representation that 

an offeror submits 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 this statement is a simple 

certification or acknowledgment, it does 

not qualify as a collection of 

information under the Paperwork 

Reduction Act. See 5 CFR 1320.3(h). 

J. 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 is not 

required because there is nothing 

inherent in the rule that will 

significantly affect the quality of the 

human environment; the rule merely 

regulates the implementation of an 

acquisition authority. 

K. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A statement of energy 

effects is not required. 

List of Subjects in 48 CFR Parts 1401, 

1452, and 1480 

Government procurement, Indian 

Economic Enterprises, Reporting and 

recordkeeping requirements. 

Dated: May 15, 2013. 

Rhea Suh, 

Assistant Secretary for Policy, Management 

and Budget. 

For the reasons set out in the 

preamble, the Department of the Interior 

amends chapter 14 of title 48 of the 

Code of Federal Regulations as follows: 

PART 1401—DEPARTMENT OF THE 

INTERIOR ACQUISITION REGULATION 

SYSTEM 

■ 1. The authority citation for part 1401 

continues to read as follows: 

Authority: Sec. 205(c), 63 Stat. 390, 40 

U.S.C. 486(c); and 5 U.S.C. 301. 

■ 2. Add a new section 1401.301–80 to 

read as follows: 

1401.301–80 Policy. 

Indian Affairs must use the 

negotiation authority of the Buy Indian 

Act, 25 U.S.C. 47 to give preference to 

Indians whenever using that authority is 

authorized and feasible. The Buy Indian 

Act requires that, so far as may be 

feasible, Indian labor must be employed, 

and purchases of the products of Indian 

industry may be made in open market 

at the discretion of the Secretary of the 

Interior. This requirement applies 

notwithstanding any other law and 

applies to all products of industry, 

including printing. 

PART 1452—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 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. 

■ 4. Add the following new sections to 

subpart 1452.2 to read as follows: 

Subpart 1452.2—Texts of Provisions and 

Clauses 

* * * * * 

1452.280–1 Notice of Indian small business 

economic enterprise set-aside. 

1452.280–2 Notice of Indian economic 

enterprise set-aside. 

1452.280–3 Subcontracting limitations. 

1452.280–4 Indian economic enterprise 

representation. 

Subpart 1452.2—Texts of Provisions 

and Clauses 

1452.280–1 Notice of Indian small 

business economic enterprise set-aside. 

As prescribed in 1480.503(d)(3), and 

in lieu of the requirements of FAR 

19.508, insert the following 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. If the 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 

(JUL 2013) 

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 


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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(d)(4) and 

1480.504–1(f)(5), 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 (JUL 2013) 

(a) Definitions as used in this clause. 

Indian means a person who is a member 

of an Indian Tribe or ‘‘Native’’ as defined in 

the Alaska Native Claims Settlement Act (PL 

92–203; 85 Stat. 688; 43 U.S.C. 1601). 

Indian Economic Enterprise means any 

business activity owned by one or more 

Indians or Indian Tribes that is established 

for the purpose of profit, provided that: 

(i) The combined Indian or Indian Tribe 

ownership shall constitute not less than 51 

percent of the enterprise; (ii) the Indians or 

Indian Tribes shall, together, receive at least 

a majority 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 members of an Indian 

Tribe. 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. The enterprise must meet these 

requirements 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. 

Indian Tribe means an Indian Tribe, band, 

nation, or other recognized group or 

community which is recognized as eligible 

for the special programs and services 

provided by the United States to Indians 

because of their status as Indians, including 

any Alaska Native village, regional or village 

corporation established under the Alaska 

Native Claims Settlement Act (PL 92–203, 85 

Stat. 688; 43 U.S.C. 1601). 

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) BIA 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; 

(2) A description of the source of human 

resources for the work to be performed by the 

offeror; 

(3) A description of the method(s) of 

recruiting and training Indian employees, 

indicating the extent of soliciting 

employment of Indian persons, as required 

by DIAR 1452.226–70, Indian Preference, or 

DIAR 1452.226–71, Indian Preference 

Program, clause(s); 

(4) A description of how subcontractors (if 

any) will be selected in compliance with the 

‘‘Indian Preference’’ or ‘‘Indian Preference 

Program’’ clause(s); 

(5) The names, addresses, and descriptions 

of work to be performed by Indian persons 

or economic enterprises being considered for 

subcontracts (if any) and the percentage of 

the total direct project work/costs they would 

be performing; 

(6) Qualifications of the key personnel (if 

any) that will be assigned to the contract; and 

(7) A description of method(s) for 

compliance with any supplemental Tribal 

employment preference requirements, if 

contained in this solicitation. 

(d) Required Assurance. The offeror must 

provide written assurance to the Indian 

Affairs that it will comply, or has, complied 

fully with the requirements of this clause. It 

must do this before Indian Affairs awards the 

Buy Indian contract, and upon successful 

and timely completion of the contract, but 

before the Indian Affairs Contracting Officer 

(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 Indian 

Affairs to find an offer non-responsive and to 

reject it. 

(f) Eligibility. 

(1) Participation in the Mentor-Prote ́ge ́

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 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. Failure to give 

the CO immediate written notification means 

that: (i) The economic enterprise may be 

declared ineligible for future contract awards 

under this part; and (ii) Indian Affairs may 

consider termination for default if it is in the 

best interest of the government. 

(End of clause) 

1452.280–3 Subcontracting limitations. 

A contractor shall not subcontract to 

other than responsible Indian economic 

enterprises more than 50 percent of the 

subcontracted work when the prime 

contract was awarded 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 

1480.601(b), insert the following clause 

in each written solicitation or contract 

to provide supplies, services, or covered 

construction: 

SUBCONTRACTING LIMITATIONS 

(JUL 2013) 

(a) Definitions as used in this clause. 

(1) Concern means any business entity 

organized for profit (even if its ownership is 

in the hands of a nonprofit 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, material 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 

19.101) any business entity, whether 

organized for profit or not, and any foreign 

business entity, i.e., any entity located 

outside the United States and its outlying 

areas. 

(2) Subcontract means any agreement 

(other than one involving an employeremployee 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. Of the 

work subcontracted, no more than 50 percent 

may be subcontracted to a concern other than 

a responsible Indian economic enterprise. 

(c) Indian Preference. Regardless of the 

contract type for services, supplies, or 

covered construction, the contractor agrees to 

give preference to Indian organizations and 

Indian owned economic enterprises in 

awarding subcontracts under this contract in 

accordance with DIAR 1452.226–71, Indian 

Preference. 

(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, services, and 

construction awarded under this contract. 

(End of clause) 

1452.280–4 Indian economic enterprise 

representation. 

As prescribed in 1480.801(a), insert 

the following provision in each written 


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solicitation for supplies, services, or 

covered construction: 

INDIAN ECONOMIC ENTERPRISE 

REPRESENTATION (JUL 2013) 

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. 

[End of provision] 

■ 5. Add a new subchapter H, consisting 

of part 1480, to read as follows: 

SUBCHAPTER H—INDIAN AFFAIRS 

SUPPLEMENT 

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 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 Order of precedence for use of 

Government supply sources. 

1480.503 Commercial item and simplified 

acquisitions. 

1480.504 Other than full and open 

competition. 

1480.504–1 Set-asides for Indian economic 

enterprises. 

1480.504–2 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 Contract Administration 

1480.701 Contract administration 

requirements. 

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 (36 

Stat. 861), 41 U.S.C. 253(c)(5), and 5 U.S.C. 

301. 

Subpart 1480.1 General 

1480.101 Scope of part. 

This part prescribes policies and 

procedures for the procurement of 

supplies and services from Indian 

economic enterprises under the Buy 

Indian Act, 25 U.S.C. 47, and this part. 

1480.102 Buy Indian Act acquisition 

regulations. 

(a) This part supplements Federal 

Acquisition Regulation (FAR) and 

Department of the Interior Acquisition 

Regulation (DIAR) requirements to 

satisfy the needs of Indian Affairs 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 the Indian 

Affairs. The provisions of the FAR take 

precedence in all instances where there 

may be a conflict or discrepancy. 

Subpart 1480.2 Definitions 

1480.201 Definitions. 

The following words and terms are 

used as defined below unless a different 

definition is prescribed for a particular 

subpart or portion of a subpart. 

Buy Indian Act means section 23 of 

the Act of June 25, 1910 (25 U.S.C. 47). 

Buy Indian contract means any 

contract involving activities covered by 

the Buy Indian Act that is negotiated 

under the provisions of 41 U.S.C. 252(c) 

and 25 U.S.C. 47 between an Indian 

economic enterprise and a Contracting 

Officer representing the Department of 

the Interior. 

Challenge to representation means an 

accurate, complete and timely written 

objection by an interested party to an 

offeror’s representation submitted in 

response to a solicitation under the Buy 

Indian Act. 

Chief of the Contracting Office (CCO), 

unless otherwise specified by bureau/ 

office regulation, means the senior GS– 

1102 within a contracting office. If the 

CCO is also the CO for an action 

requiring approval by the CCO, then 

approval shall be at a level above the 

CCO in accordance with bureau/office 

procedures. 

Concern means any business entity 

organized for profit (even if its 

ownership is in the hands of a nonprofit 

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, material 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 organized for profit or not, and 

any foreign business entity, i.e., any 

entity located outside the United States 

and its outlying areas. 

Contracting Officer (CO) means a 

person with the authority to enter into, 

administer, and/or terminate contracts 

and make related determinations and 

findings on behalf of the U.S. 

Government. 

Covered construction means 

construction for road facilities on 

Indian-owned land; road facilities on an 

Indian reservation; road facilities that 

are primary access routes proposed by 

tribal governments, including roads 

between villages, roads to landfills, 

roads to drinking water sources, roads to 

natural resources identified for 

economic development; roads that 

provide access to intermodal termini, 

such as airports, harbors, or boat 

landings; bridges along these roads; 

planning and other needs and facilities 

associated with roads; and sidewalks 

along these roads. 

Day means a calendar day. 

Deviation means an exception to the 

requirement for use of the Buy Indian 

Act in fulfilling an acquisition 

requirement of Indian Affairs. 

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 19.202–6(a). 

Governing body means the recognized 

entity empowered to exercise 

governmental authority over an Indian 

tribe. 

Indian means a person who is a 

member of an Indian Tribe or ‘‘Native’’ 

as defined in the Alaska Native Claims 

Settlement Act (PL 92–203; 85 Stat 688; 

43 U.S.C. 1601). 

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 Indian Tribes 

that is established for the purpose of 

profit provided that: the combined 

Indian or Indian Tribe ownership must 

constitute not less than 51 percent of the 

enterprise; the Indians or Indian Tribes 

must, together, receive at least a 

majority of the earnings from the 


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contract; and the management and daily 

business operations of an 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. The enterprise must meet 

these requirements 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. 

Indian land means land over which 

an Indian Tribe is recognized by the 

United States as having governmental 

jurisdiction and land owned by a Native 

corporation established under the 

Alaska Native Claims Settlement Act of 

1971 (85 Stat. 688, 43 U.S.C. 1601), so 

long as the Native corporation qualifies 

as an IEE, as defined herein. In the State 

of Oklahoma, or where there has been 

a final judicial determination that a 

reservation has been disestablished or 

diminished, the term means that area of 

land constituting the former reservation 

of the Tribe as defined by the Secretary. 

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. 

Indian Tribe means an Indian Tribe, 

band, nation, or other recognized group 

or community that is recognized as 

eligible for the special programs and 

services provided by the United States 

to Indians because of their status as 

Indians, including any Alaska Native 

village or regional or village corporation 

under the Alaska Native Claims 

Settlement Act (PL 92–203, 85 Stat. 688; 

43 U.S.C. 1601). 

Interested party means an IEE that is 

an actual or prospective offeror whose 

direct economic interest would be 

affected by the proposed or actual IA 

award of a particular contract set-aside 

pursuant the Buy Indian Act. 

Product of Indian industry means 

anything produced by an IEE either 

through physical labor or by intellectual 

effort involving the use and application 

of its skills. 

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. 

Reservation means Indian 

reservations, public domain Indian 

allotments, former Indian reservations 

in Oklahoma, and land held by 

incorporated Native groups, regional 

corporations, and village corporations 

under the provisions of the Alaska 

Native Claims Settlement Act, 43 U.S.C. 

1601. 

Subcontract means any agreement 

(other than one involving an employeremployee 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. 

Subcontractor means a concern to 

which a contractor subcontracts any 

work under the contract. The term 

includes subcontractors at any tier who 

perform work on the contract. 

Work means the level of work effort 

by the prime contractor based on total 

direct project costs. 

Subpart 1480.3 Applicability 

1480.301 Scope of part. 

Except as provided in 1480.302 and 

1480.401(b), 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 delegated the authority to 

make acquisitions under the Buy Indian 

Act and 1480.401(d). 

1480.302 Restrictions on use of the Buy 

Indian Act. 

(a) 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 SelfDetermination and Education 

Assistance Act. IA must use the Buy 

Indian Act solely to award procurement 

contracts to IEEs. 

(b) IA must not use the authority of 

this Act for construction contracts, as 

defined in FAR 36.102, unless the 

construction is covered construction, as 

defined in 1480.201. 

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, 25 

U.S.C. 47, to give preference to Indians 

whenever the use of that authority is 

authorized and 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, services, and 

covered construction to meet IA needs 

and requirements. IA must contract for 

covered construction in accordance 

with FAR Part 36. 

(b) IA or any other bureau or office of 

the Department of the Interior delegated 

the authority to make acquisitions under 

the Buy Indian Act may not use the Buy 

Indian Act to give preference to IEEs 

through set-asides when acquiring 

construction that is not covered 

construction. 

(c) The provisions of this section shall 

not apply to the awarding of contracts 

under the Indian Self-Determination 

and Education Assistance Act (25 U.S.C. 

450b et seq.) by the Department of the 

Interior. 

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 

only in accordance with the 

Departmental Manual. 

(c) As the head of the contracting 

activity, the CFO is responsible for 

ensuring that all IA acquisitions under 

the Buy Indian Act comply with the 

requirements of this part. 

1480.403 Deviations. 

(a) The following officials may 

authorize a deviation for an IA 

acquisition: 

For a proposed contract action . . . The following official may authorize a deviation . . . 

Exceeding $25,000 but not exceeding $550,000.The CCO (or the IA Procurement Chief, absent a CCO). 


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For a proposed contract action . . . The following official may authorize a deviation . . . 

Exceeding $550,000 but not exceeding $11.5 million.IA Competition Advocate. 

Exceeding $11.5 million but not exceeding $57 million.The head of the procuring activity, 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. 

(b) Deviations may be authorized 

prior to issuing the solicitation when IA 

makes the following determinations and 

the appropriate official takes the 

following actions: 

Acquisition type Basis for deviation Necessary actions 

In pursuit of a simplified or 

commercial item acquisition in accordance with 

FAR Parts 12 or 13 and 

DIAR 1413.

IA determines after a market survey 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 ISBEEs (or at 

least from one such enterprise, if the purchase does 

not exceed the dollar threshold described in FAR 

13.003).

The official must: 

(1) Document the reasons for the deviation in the file; 

(2) Ascertain the availability of small business suppliers 

through market research; and 

(3) If appropriate, compete the purchase using an unrestricted small business set-aside as prescribed in 

FAR 19.502–2. 

In pursuit of all other acquisitions.IA determines that there is no reasonable expectation 

that offers will be received from two or more responsible IEEs at a reasonable and fair market price.

The official must: 

(1) Provide a written determination in the contract file 

stating there is no reasonable expectation of receiving offers from two or more responsible IEEs and 

that award cannot be made at a reasonable and fair 

market price; and 

(2) Proceed with the acquisition using the order of precedence established in FAR 8.001. 

(c) Deviations may be authorized after 

issuing solicitations when IA makes the 

following determinations and the 

appropriate official takes the following 

actions: 

Acquisition type Basis for deviation Necessary actions 

In pursuit of a simplified or 

commercial item acquisition in accordance with 

FAR Parts 12 or 13 and 

DIAR 1413.

Only one offer is received from a responsible ISBEE 

and the price is unreasonable or no offers are received from a responsible ISBEE.

The official must: 

(1) Document the reasons for the deviation in the file; 

(2) Ascertain the availability of small business suppliers 

through market research; and 

(3) If appropriate, compete the purchase using an unrestricted small business set-aside as prescribed in 

FAR 19.502–2. 

In pursuit of all other acquisitions.The Indian tribe justifies a deviation under 1480.504– 

1(b)(2).

IA must proceed under PL 93–638. 

(1) All otherwise acceptable offers received from IEEs 

are unreasonable; 

(2) Only one offer is received from an IEE and the CO 

determines the price to be unreasonable; or 

(3) No responsive offers have been received from IEEs. 

The official must: 

(1) Cancel the solicitation; 

(2) Reject all offers in writing in accordance with FAR 

14.404–3; and 

(3) Complete the acquisition by either: 

(i) Using negotiation, provided the CO has obtained the 

approval required by FAR 14.404–1; or 

(ii) If negotiation with the offerors responding to the 

canceled solicitation is not authorized, the CO must 

proceed with a new acquisition using the order of 

precedence in FAR 8.001. 

(d) In response to a set-aside 

acquisition, when using competitive 

proposals, proposals may be rejected by 

a written determination by the CCO that 

a reasonable price cannot be negotiated. 

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 Order of precedence for use of 

Government supply sources. 

Acquisitions made under an 

authorized deviation from the Buy 

Indian Act regulation must be made in 

conformance with the order of 

precedence required by FAR 8.002. 

1480.503 Commercial item or simplified 

acquisitions. 

(a) Each acquisition of supplies, 

services, and covered construction that 

is subject to commercial item or 

simplified acquisition procedures in 

accordance with FAR Parts 12 or 13 and 

DIAR 1413 must be set aside exclusively 

for ISBEEs. IA will use ISBEE 

commercial item(s) or simplified 

acquisition set-asides to accomplish this 

preference action. 


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(b) If the CO proceeds with an ISBEE 

commercial item or simplified 

acquisition set-aside and receives an 

offer at a reasonable price from only one 

such responsible economic enterprise 

(see FAR 19.502–2), the CO must make 

an award to that enterprise. If the CO 

proceeds with an ISBEE commercial 

item or simplified acquisition set-aside 

and receives an offer from only one 

responsible economic enterprise at a 

price that is not reasonable, the CO may 

negotiate with that enterprise to reach a 

reasonable price. 

(c) Commercial item 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. 

(d) Clauses and Provisions. 

(1) Insert the clause at DIAR 

1452.226–70, Indian Preference, in 

accordance with DIAR 1426.7003(a). 

(2) Insert the clause at DIAR 

1452.226–71, Indian Preference 

Program, in accordance with DIAR 

1426.7003(b). 

(3) Insert the clause at 1452.280–1, 

NOTICE OF INDIAN SMALL BUSINESS 

ECONOMIC ENTERPRISE SET-ASIDE 

in accordance with 1480.503(a). 

(4) Insert the clause at 1452.280–2, 

NOTICE OF INDIAN ECONOMIC 

ENTERPRISE SET-ASIDE, in accordance 

with 1480.504–1(a). 

(5) Insert the clause at 1452.280–3, 

SUBCONTRACTING LIMITATIONS, in 

accordance with 1480.601(b). 

(6) Insert the clause at 1452.280–4, 

INDIAN ECONOMIC ENTERPRISE 

REPRESENTATION, in accordance with 

1480.801(a). 

1480.504 Other than full and open 

competition. 

1480.504–1 Set-asides for Indian 

economic enterprises. 

(a) Each proposed procurement for 

supplies or services that has an 

anticipated dollar value in excess of the 

simplified acquisition threshold amount 

in FAR Part 13.003 must be set aside 

exclusively for IEEs, and referred to as 

an ‘‘Indian Economic Enterprise Setaside,’’ when there is a reasonable 

expectation that offers will be received 

from two or more responsible IEEs, and 

award will be made at a reasonable 

price except when: 

(1) The acquisition is for construction 

that is not covered construction, as 

described in 1480.401(b); 

(2) A deviation has been obtained in 

accordance with 1480.403; or 

(3) Use of other than full and open 

competition has been justified and 

approved in accordance with 1480.504– 

2. 

(b) When acquiring services to be 

performed in whole or in part on Indian 

land under a tribe’s jurisdiction, the CO 

must give written notice to the 

governing body or bodies of the 

applicable Indian tribe simultaneously 

with publication of the synopsis 

required by paragraph (c)(1) of this 

section. The notice must state IA’s 

intent to solicit services or supplies 

using an IEE set-aside and provide the 

tribe with the opportunity to contract 

for the program within 15 calendar days 

from the date of the synopsis 

publication in the GPE. 

(1) If the tribe does not oppose the setaside intention or advise IA by the 

established deadline of its intent to 

contract, IA will proceed with the 

solicitation in accordance with FAR 5.2. 

(2) If the tribe advises IA by the 

established deadline of its intent to 

contract, it must adequately justify a 

deviation for work on or near Indian 

land under its jurisdiction through a 

tribal resolution in accordance with 

Public Law 93–638. 

(c) When using an IEE set-aside in 

accordance with this section, the CO 

must do the following: 

(1) Synopsize the acquisition in the 

Governmentwide point of entry (GPE) as 

required by FAR Subpart 5.2, and 

identify it as an IEE set-aside. 

(2) Use the Class Justification for Use 

of Other Than Full and Open 

Competition (JOFOC) in Acquisition of 

Supplies and Services from Indian 

Industry to meet the requirements of 

FAR 6.303. 

(3) By separate memorandum to the 

file, document that the supplies or 

services to be acquired are available 

from two or more responsible and IEEs; 

the anticipated cost to IA of the required 

supplies or services is determined to be 

reasonable; and the information in the 

JOFOC in Acquisition of Supplies and 

Services from Indian Industry is 

accurate and complete as it pertains to 

the proposed acquisition. 

(4) Reject offers that fail to provide 

representation that they meet the 

definition of an IEE. The CO may also 

request the Office of the Inspector 

General (on Form DI–1902 as part of a 

normal pre-award audit) to: 

(i) Assist in determining the eligibility 

of the low responsive and responsible 

offerors on Buy Indian Act awards; and 

(ii) Determine whether the work will 

be performed by the labor force required 

under 1480.601. 

(5) When using sealed bidding, 

determine that the price offered by the 

prospective contractor is considered to 

be reasonable and at a fair market price 

as required by FAR 14.408–2 before 

awarding a contract. 

(6) When using competitive 

proposals, solicit proposals in 

accordance with FAR Subpart 15.2 and 

select sources in accordance with FAR 

Subpart 15.3 and DIAR Subpart 1415.6. 

(7) When using competitive proposals 

or when negotiating modifications that 

impact the cost of a contract, conduct 

proposal analyses, including cost or 

price analyses in accordance with FAR 

Subpart 15.4, negotiate profit or fee in 

accordance with the procedures in FAR 

Subpart 15.4 and DIAR Subpart 1415.9, 

and prepare a negotiation memorandum 

in accordance with FAR 15.406–3 and 

DIAR 1415.808. 

(8) When acquiring architect-engineer 

services, solicit proposals and evaluate 

potential contractors in accordance with 

FAR Part 36 and DIAR Subpart 1436.6. 

(d) This paragraph applies to 

solicitations that are not restricted to 

participation of IEEs. 

(1) If an interested IEE is identified 

after a market survey has been 

performed and 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 comes 

forward 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) When only one offer is received 

from a responsible IEE in response to an 

acquisition set-aside under paragraph 

(a) 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, 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. 

(f) Provisions and Clauses. 

(1) Insert the clause at DIAR 

1452.226–70, Indian Preference, in 

accordance with DIAR 1426.7003(a). 

(2) Insert the clause at DIAR 

1452.226–71, Indian Preference 

Program, in accordance with DIAR 

1426.7003(b). 

(3) Insert the clause at 1452.280–2, 

NOTICE OF INDIAN ECONOMIC 

ENTERPRISE SET-ASIDE, in accordance 

with 1480.504–1(a). 


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(4) Insert the clause at 1452.280–3, 

SUBCONTRACTING LIMITATIONS, in 

accordance with 1480.601(b). 

(5) Insert the clause at 1452.280–4, 

INDIAN ECONOMIC ENTERPRISE 

REPRESENTATION, in accordance with 

1480.801(a). 

(6) When applicable, Tribal 

employment preference requirements 

may be added to the requirements of the 

clause in accordance with DIAR 

1426.7005. 

1480.504–2 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 DIAR Subparts 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 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. 

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. 

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 IA 

Division of Acquisitions with the 

concurrence of 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 

contractor must agree to perform the 

contract in accordance with FAR 

52.219–14, Limitations on 

Subcontracting. 

(b) The CO must also insert the clause 

at 1452.280–3, SUBCONTRACTING 

LIMITATIONS, in all purchase orders 

and contracts for services, supplies, or 

covered construction and awarded to 

IEEs pursuant this part. 

1480.602 Performance and payment 

bonds. 

Solicitations requiring performance 

and payment bonds must conform to 

FAR Part 28 and authorize use of any of 

the types of security acceptable in 

accordance with FAR Subpart 28.2 or 

section 11 of Public Law 98–449, the 

Indian Financing Act Amendments of 

1984. The CO may accept alternative 

forms of security in lieu of performance 

and payment bonds according to FAR 

28.102 and 25 U.S.C. 47a, if a 

determination is made that such forms 

of security provide the Government 

with adequate security for performance 

and payment. 

Subpart 1480.7—Contract 

Administration 

1480.701 Contract administration 

requirements. 

The CO and the CO’s representative 

(see DIAR 1401.670) must monitor 

performance and progress to ensure 

contractor compliance with FAR Part 42 

regarding all contract requirements. The 

CO must ensure contractor compliance 

with the following provisions of this 

part: 

(a) Qualification as an IEE as defined 

in 1480.201; 

(b) Maintenance of the subcontracting 

limitations required by the clause at 

1452.280–3 when acquiring services, 

supplies, and covered construction; and 

(c) Enforcement of Indian preference 

requirements contained in DIAR 

1426.7004. 

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 

that are set aside for IEEs in accordance 

this part. 

(b) To be considered for an award 

under 1480.503 or 1480.504–1, an 

offeror must represent that it meets the 

definition of ‘‘Indian economic 

enterprise’’ in response to a specific 

solicitation set-aside in accordance with 

the Buy Indian Act and this part. 

(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 

in paragraph (b) of this section, the 

contractor must provide immediate, 

written notification to the CO. 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 immediate 

written notification required by 

paragraph (d) of this section means that: 

(1) The economic enterprise may be 

declared ineligible for future contract 

awards under this part; and 

(2) IA may consider termination for 

default if it is determined to be in the 

best interest of the government. 

(f) The CO will accept an offeror’s 

representation in a specific bid or 

proposal that it is an IEE unless another 

interested party challenges the IEE 

representation or the CO has reason to 

question 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-Prote ́ge ́

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) IA 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. 

1480.803 Representation process. 

(a) Only IEEs may participate in 

acquisitions set aside in accordance 

with the Buy Indian Act and this part. 

IA procedure supports responsible IEEs 

and seeks to prevent circumvention or 

abuse of the Buy Indian Act. 

(b) Eligibility is based on information 

furnished by the enterprise to an IA CO 


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in the IEE representation at 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 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 local 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 is either ineligible or 

fails to meet both the definitions of 

‘‘Indian’’ and of ‘‘Indian economic 

enterprise’’ established in 1480.201. 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 challenge may be made in 

writing if it is delivered by hand, 

telefax, telegram, 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 objection 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 by IA; 

and 

(2) Furnish to the economic enterprise 

(whose representation is being 

challenged) a request to provide 

detailed information on its eligibility by 

certified mail, return receipt requested. 

(e) Within 3 days after receiving a 

copy of the challenge and IA’s request 

for detailed information, the challenged 

offeror must file 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 granted by the CO, IA 

may assume that the offeror does not 

intend to dispute the challenge and IA 

must not award to the challenged 

offeror. 

(f) Within 10 days after receiving a 

challenge, the challenged offeror’s 

response and 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, 

and make known the option to appeal 

the determination to the 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 PAM, the written 

notification of this action must state the 

reason(s). The PAM may review the 

economic enterprise for possible 

suspension or debarment 

recommendations. 

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 is final for IA 

unless it is appealed to the PAM, and 

the CO is notified of the appeal before 

award. 

(2) If an award was made before the 

time the CO received notice of appeal, 

the contract must be 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, or 10 

days have expired since the CO received 

the challenge, whichever occurs first. 

Award must be made when the CO 

determines in writing that an award 

must be made to protect the public 

interest, or the supplies and services are 

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 award will be withheld and 

a time extension for acceptance is 

requested. 

(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, 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. 

[FR Doc. 2013–13255 Filed 6–6–13; 8:45 am] 

BILLING CODE 4310–02–P 


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