Part 26 - Other Socioeconomic Programs

Subpart 26.1 - Indian Incentive Program

26.100 Scope of subpart.

26.101 Definitions.

26.102 Policy.

26.103 Procedures.

26.104 Contract clause.

Subpart 26.2 - Major Disaster or Emergency Assistance Activities

26.200 Scope of subpart.

26.201 Definitions.

26.202 Local area preference.

26.202-1 Local area set-aside.

26.202-2 Evaluation preference.

26.203 Transition of work.

26.204 Justification for expenditures to other than local firms.

26.205 Disaster Response Registry.

26.206 Solicitation provision and contract clauses.

Subpart 26.3 - Historically Black Colleges and Universities and Minority Institutions

26.300 Scope of subpart.

26.301 [Reserved]

26.302 General policy.

26.303 Data collection and reporting requirements.

26.304 Solicitation provision.

Subpart 26.4 - Food Donations to Nonprofit Organizations

26.400 Scope of subpart.

26.401 Definitions.

26.402 Policy.
26.403 Procedures.

26.404 Contract clause.

Parent topic: Federal Acquisition Regulation

Subpart 26.1 - Indian Incentive Program

26.100 Scope of subpart.

This subpart implements 25 U.S.C.1544, which provides an incentive to prime contractors that use

Indian organizations and Indian-owned economic enterprises as subcontractors.

26.101 Definitions.

As used in this subpartIndian means any person who is a member of any Indian tribe, band, group, pueblo, or community

that is recognized by the Federal Government as eligible for services from the Bureau of Indian

Affairs (BIA) in accordance with 25 U.S.C.1452(c) and any "Native" as defined in the Alaska Native

Claims Settlement Act (43 U.S.C.1601).

Indian organization means the governing body of any Indian tribe or entity established or recognized

by the governing body of an Indian tribe for the purposes of 25 U.S.C., Chapter 17.

Indian-owned economic enterprise means any Indian-owned (as determined by the Secretary of the

Interior) commercial, industrial, or business activity established or organized for the purpose of

profit, provided that Indian ownership constitutes not less than 51 percent of the enterprise.

Indian tribe means any Indian tribe, band, pueblo, or community, including native villages and native

groups (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined in the

Alaska Native Claims Settlement Act, that is recognized by the Federal Government as eligible for

services from BIA in accordance with 25 U.S.C.1452(c).

Interested party means a prime contractor or an actual or prospective offeror whose direct economic

interest would be affected by the award of a subcontract or by the failure to award a subcontract.

26.102 Policy.

Indian organizations and Indian-owned economic enterprises shall have the maximum practicable

opportunity to participate in performing contracts awarded by Federal agencies. In fulfilling this

requirement, the Indian Incentive Program allows an incentive payment equal to 5 percent of the

amount paid to a subcontractor in performing the contract, if the contract so authorizes and the

subcontractor is an Indian organization or Indian-owned economic enterprise.
26.103 Procedures.

(a) Contracting officers and prime contractors, acting in good faith, may rely on the representation

of an Indian organization or Indian-owned economic enterprise as to its eligibility, unless an

interested party challenges its status or the contracting officer has independent reason to question

that status.

(b) In the event of a challenge to the representation of a subcontractor, the contracting officer shall

refer the matter to theU.S. Department of the Interior Bureau of Indian Affairs (BIA)

Attn: Acquisition Management Director

12220 Sunrise Valley Drive

Reston, VA 20191.

The BIA will determine the eligibility and notify the contracting officer.

(c) The BIA will acknowledge receipt of the request from the contracting officer within 5 working

days. Within 45 additional working days, BIA will advise the contracting officer, in writing, of its

determination.

(d) The contracting officer will notify the prime contractor upon receipt of a challenge.

(1) To be considered timely, a challenge shall-

(i) Be in writing;

(ii) Identify the basis for the challenge;

(iii) Provide detailed evidence supporting the claim; and

(iv) Be filed with and received by the contracting officer prior to award of the subcontract in

question.

(2) If the notification of a challenge is received by the prime contractor prior to award, it shall

withhold award of the subcontract pending the determination by BIA, unless the prime contractor

determines, and the contracting officer agrees, that award must be made in order to permit timely

performance of the prime contract.

(3) Challenges received after award of the subcontract shall be referred to BIA, but the BIA

determination shall have prospective application only.

(e) If the BIA determination is not received within the prescribed time period, the contracting officer

and the prime contractor may rely on the representation of the subcontractor.

(f) Subject to the terms and conditions of the contract and the availability of funds, contracting

officers shall authorize an incentive payment of 5 percent of the amount paid to the subcontractor.

Contracting officers shall seek funding in accordance with agency procedures.
26.104 Contract clause.

Contracting officers in civilian agencies may insert the clause at 52.226-1, Utilization of Indian

Organizations and Indian-Owned Economic Enterprises, in solicitations and contracts if-

(a) In the opinion of the contracting officer, subcontracting possibilities exist for Indian

organizations or Indian-owned economic enterprises; and

(b) Funds are available for any increased costs as described in paragraph (b)(2) of the clause at

52.226-1.

Subpart 26.2 - Major Disaster or Emergency Assistance

Activities

26.200 Scope of subpart.

This subpart implements the Robert T. Stafford Disaster Relief and Emergency Assistance Act

(42U.S .C.5150), which provides a preference for local organizations, firms, and individuals when

contracting for major disaster or emergency assistance activities.

26.201 Definitions.

Emergency response contract means a contract with private entities that supports assistance

activities in a major disaster or emergency area, such as debris clearance, distribution of supplies, or

reconstruction.

Local firm means a private organization, firm, or individual residing or doing business primarily in a

major disaster or emergency area.

Major disaster or emergency area means the area included in the official Presidential declaration(s)

and any additional areas identified by the Department of Homeland Security. Major disaster

declarations and emergency declarations are published in the Federal Register and are available at

https://www.fema.gov/disasters/disaster/declarations.

26.202 Local area preference.

(a) When awarding emergency response contracts during the term of a major disaster or emergency

declaration by the President of the United States under the authority of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121, et seq.), preference shall be given, to

the extent feasible and practicable, to local firms. Preference may be given through a local area setaside or an evaluation preference.

(b) When using the authority under the Stafford Act, see the definitions of "micro-purchase

threshold" and "simplified acquisition threshold" in 2.101 for the authority to use an increased

micro-purchase threshold and simplified acquisition threshold.
26.202-1 Local area set-aside.

The contracting officer may set aside solicitations to allow only local firms within a specific

geographic area to compete (see 6.208).

(a) The contracting officer, in consultation with the requirements office, shall define the specific

geographic area for the local set-aside.

(b) A major disaster or emergency area may span counties in several contiguous States. The setaside area need not include all the counties in the declared disaster/emergency area(s), but cannot

go outside it.

(c) The contracting officer shall also determine whether a local area set-aside should be further

restricted to small business concerns in the set-aside area (see part 19).

26.202-2 Evaluation preference.

The contracting officer may use an evaluation preference, when authorized in agency regulations or

procedures.

26.203 Transition of work.

(a) In anticipation of potential emergency response requirements, agencies involved in response

planning should consider awarding emergency response contracts before a major disaster or

emergency occurs to ensure immediate response and relief. These contracts should be structured to

respond to immediate emergency response needs, and should not be structured in any way that may

inhibit the transition of emergency response work to local firms (e.g., unnecessarily broad scopes of

work or long periods of performance).

(b) 42U.S.C.5 150(b)(2) requires that agencies performing response, relief, and reconstruction

activities transition to local firms any work performed under contracts in effect on the date on which

the President declares a major disaster or emergency, unless the head of such agency determines in

writing that it is not feasible or practicable. This determination may be made on an individual

contract or class basis. The written determination shall be prepared within a reasonable time given

the circumstances of the emergency.

(c) In effecting the transition, agencies are not required to terminate or renegotiate existing

contracts. Agencies should transition the work at the earliest practical opportunity after

consideration of the following:

(1) The potential duration of the disaster or emergency.

(2) The severity of the disaster or emergency.

(3) The scope and structure of the existing contract, including its period of performance and the

milestone(s) at which a transition is reasonable (e.g., before exercising an option).

(4) The potential impact of a transition, including safety, national defense, and mobilization.
(5) The expected availability of qualified local offerors who can provide the products or services at a

reasonable price.

(d) The agency shall transition the work to local firms using the local area set-aside identified in

26.202-1.

26.204 Justification for expenditures to other than local firms.

(a) 42U.S.C .5150(b)(1) requires that, subsequent to any Presidential declaration of a major disaster

or emergency, any expenditure of Federal funds, under an emergency response contract not

awarded to a local firm, must be justified in writing in the contract file. The justification should

include consideration for the scope of the major disaster or emergency and the immediate

requirements or needs of supplies and services to ensure life is protected, victims are cared for, and

property is protected.

(b) The justification may be made on an individual or class basis. The contracting officer approves

the justification.

26.205 Disaster Response Registry.

(a) Contracting officers shall consult the Disaster Response Registry via https://www.sam.gov to

determine the availability of contractors for debris removal, distribution of supplies, reconstruction,

and other disaster or emergency relief activities inside the United States and outlying areas.

(b) A list of prospective vendors voluntarily participating in the Disaster Response Registry can be

retrieved using the System for Award Management (SAM) search tool, which can be accessed via

https://www.sam.gov, Search Records, Advanced Search, Disaster Response Registry Search. These

vendors may be identified by selecting the criteria for "Disaster Response Contractors". Contractors

are required to register in SAM in order to gain access to the Disaster Response Registry.

26.206 Solicitation provision and contract clauses.

(a) The contracting officer shall insert the provision at 52.226-3, Disaster or Emergency Area

Representation, in solicitations involving the local area set-aside. For commercial products and

commercial services, see 12.301(e)(5).

(b) The contracting officer shall insert the clause at 52.226-4, Notice of Disaster or Emergency Area

Set-aside in solicitations and contracts involving local area set-asides.

(c) The contracting officer shall insert the clause at 52.226-5, Restrictions on Subcontracting

Outside Disaster or Emergency Area, in all solicitations and contracts that involve local area setasides.

Subpart 26.3 - Historically Black Colleges and Universities
and Minority Institutions

26.300 Scope of subpart.

(a) This subpart implements Executive Order12928 of September 16,1994, which promotes

participation of Historically Black Colleges and Universities (HBCUs) and Minority Institutions (MIs)

in Federal procurement.

(b) This subpart does not pertain to contracts performed entirely outside the United States and its

outlying areas.

26.301 [Reserved]

26.302 General policy.

It is the policy of the Government to promote participation of HBCUs and MIs in Federal

procurement.

26.303 Data collection and reporting requirements.

Executive Order12928 requires periodic reporting to the President on the progress of departments

and agencies in complying with the laws and requirements mentioned in the Executive order.

26.304 Solicitation provision.

Insert the provision at 52.226-2, Historically Black College or University and Minority Institution

Representation, in solicitations exceeding the micro-purchase threshold, for research, studies,

supplies, or services of the type normally acquired from higher educational institutions.

Subpart 26.4 - Food Donations to Nonprofit Organizations

26.400 Scope of subpart.

This section implements the Federal Food Donation Act of 2008 ( 42 U.S.C 1792).

26.401 Definitions.

As used in this subpartApparently wholesome food means food that meets all quality and labeling standards imposed by

Federal, State, and local laws and regulations even though the food may not be readily marketable
due to appearance, age, freshness, grade, size, surplus, or other conditions, in accordance with

(b)(2) of the Bill Emerson Good Samaritan Food Donation Act ( 42 U.S.C. 1791(b)).

Excess food means food that-

(1) Is not required to meet the needs of the executive agencies; and

(2) Would otherwise be discarded.

Food-insecure means inconsistent access to sufficient, safe, and nutritious food.

Nonprofit organization means any organization that is-

(1) Described in section 501(c) of the Internal Revenue Code of 1986; and

(2) Exempt from tax under section 501(a) of that Code.

26.402 Policy.

The Government encourages executive agencies and their contractors, to the maximum extent

practicable and safe, to donate excess apparently wholesome food to nonprofit organizations that

provide assistance to food-insecure people in the United States.

26.403 Procedures.

(a) In accordance with the Federal Food Donation Act of 2008 an executive agency shall comply with

the following:

(1) Encourage donations. In the applicable contracts stated at section 26.404, encourage

contractors, to the maximum extent practicable and safe, to donate apparently wholesome excess

food to nonprofit organizations that provide assistance to food-insecure people in the United States.

(2) Costs.

(i) In any case in which a contractor enters into a contract with an executive agency under which

apparently wholesome food is donated to food-insecure people in the United States, the head of the

executive agency shall not assume responsibility for the costs and logistics of collecting,

transporting, maintaining the safety of, or distributing excess, apparently wholesome food to foodinsecure people in the United States under this Act.

(ii) The Government will not reimburse any costs incurred by the contractor against this contract or

any other contract for the donation of Federal excess foods. Any costs incurred for Federal excess

food donations are not considered allowable public relations costs in accordance with 31.205-1(f)(8).

(3) Liability. An executive agency (including an executive agency that enters into a contract with a

contractor) and any contractor making donations pursuant to this Act shall be exempt from civil and

criminal liability to the extent provided under the Bill Emerson Good Samaritan Food Donation Act

(42 U.S.C. 1791).
26.404 Contract clause.

Insert the clause at 52.226-6, Promoting Excess Food Donation to Nonprofit Organizations, in

solicitations and contracts greater than $30,000 for the provision, service, or sale of food in the

United States.