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[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Proposed Rules]
[Pages 43782-43796]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18189]

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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: Proposed rule.

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SUMMARY: The Department of the Interior proposes to issue regulations 
guiding implementation of the Buy Indian Act, which provides the Bureau 
of Indian Affairs 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 Regulations (DIAR).

DATES: Comments must be received on or before September 24, 2012. 
Tribal consultation meetings to discuss this rule will take place on 
Tuesday, August 14, 2012, from 8 a.m. to noon; Wednesday, August 15, 
2012, from 3 p.m. to 6 p.m.; Tuesday, August 21, 2012, from 8 a.m. to 
noon; and Thursday, August 23, 2012, from 8 a.m. to noon.

ADDRESSES: You may submit comments, identified by the Number by any of 
the following methods:
     Federal rulemaking portal: http://www.regulations.gov.
     Email: consultation@bia.gov.
     Mail or hand-delivery: Elizabeth Appel, Office of 
Regulatory Affairs & Collaborative Action--Indian Affairs, U.S. 
Department of the Interior, 1849 C Street NW., MS-4141, Washington, DC 
20240
     See the SUPPLEMENTARY INFORMATION section of this notice 
for the locations of the tribal consultation meetings.

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. Tribal Consultations Planned
III. Statutory Authority
IV. Overview of Proposed Rule
V. Development of Proposed Rule
    A. Prior Publication and Comment Solicitation
    B. Summary of Comments
    1. Goals for Set-Asides
    2. Consistency With the Federal Acquisition Regulation (FAR)
    3. Definitions
    4. Indian Economic Enterprise Definition and Representation
    5. Restrictions on Construction
    6. Deviations
    7. Subcontracting
    8. Indian Preference Requirements
    9. Buy Indian Implementation by Other Bureaus
    10. Other
VI. Procedural Requirements
    A. Regulatory Planning and Review (Executive Order 12866)
    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)
    L. Clarity of This Regulation
    M. Public Availability of Comments

I. Background

    The Bureau of Indian Affairs has obtained services and supplies 
from Indian sources using the Buy Indian Program since 1965, based on 
policy

[[Page 43783]]

memoranda and acquisition. This rule is proposed to describe uniform 
administrative procedures that the BIA 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 proposal incorporates the Assistant Secretary--Indian Affairs 
decision 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 the Section 831 of the National Defense Authorization Act for Fiscal 
Year 1991 (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-
Prot[eacute]g[eacute] Program and not lose their eligibility for 
contracts awarded under the authority of the Buy Indian Act. This 
proposed rule includes language stating that participation in the 
Mentor-Prot[eacute]g[eacute] program has no effect on eligibility for 
contracts awarded under the authority of the Buy Indian Act.
    This proposed rule also includes revisions to address the input 
received as a result of earlier publications and three consultation 
hearings in Indian Country.

II. Tribal Consultations Planned

    The Office of the Assistant Secretary--Indian Affairs will be 
hosting tribal consultation meetings addressing this rule at the 
following dates and locations:

----------------------------------------------------------------------------------------------------------------
                  Date                                Time                               Venue
----------------------------------------------------------------------------------------------------------------
August 14, 2012.........................  8 a.m.-12 p.m..............  National Indian Programs Training Center,
                                                                        1011 Indian School Road NW., Suite 254,
                                                                        Albuquerque, NM 87104, (505) 563-5400.
August 15, 2012.........................  3 p.m.-6 p.m...............  Holiday Inn Grand (In conjunction with
                                                                        NADC Conference 2012), 5500 Midland
                                                                        Road, Billings, MT 59101, (406) 248-
                                                                        7701.
August 21, 2012.........................  8 a.m.-12 p.m..............  Hilton Sacramento Arden West, 2200
                                                                        Harvard Street, Sacramento, CA 95815,
                                                                        (916) 924-4900.
August 23, 2012.........................  8 a.m.-12 p.m..............  Mystic Lake Casino Hotel, 2400 Mystic
                                                                        Lake Boulevard, Prior Lake, MN 55372,
                                                                        (952) 445-9000.
----------------------------------------------------------------------------------------------------------------

    Tribal leader letters announcing these consultation meetings were 
distributed on July 5, 2012, providing advance notice of these 
consultations.

III. 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).

IV. Overview of Proposed Rule

    This rule supplements the Federal Acquisition Regulation (FAR) and 
the Department of the Interior Acquisition Regulations (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 Bureau of Indian Affairs 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 BIA 
implementing regulations, there will be no corresponding section number 
in the supplementary material.

B. How This Rule Fits With the Indian Affairs Acquisition Regulations

    When finalized, the rule will govern, and be incorporated into the 
Indian Affairs Acquisition Regulations (IAAR), which establishes 
uniform acquisition policies and procedures for BIA, and is part of the 
Indian Affairs Manual (IAM). Handbooks, Acquisition Guidance Releases 
and the BIA's Guidelines on the Charge Card Program supplement the IAAR 
provisions of the IAM.

C. What This Rule Does

    The BIA has encouraged major initiatives for economic development 
and employment of Indian persons, such as reducing the required 
percentage of Indian ownership of Indian economic enterprises from 100 
percent to 51 percent. In support of these initiatives, the previously 
proposed rules have been revised and are published here as a new 
proposed rule.
    Section 831 of the National Defense Authorization Act for Fiscal 
Year 1991 (10 U.S.C. 2301 note) amended 25 U.S.C. 47 to allow Indian 
firms to participate in the Department of Defense's Mentor-
Prot[eacute]g[eacute] 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-
Prot[eacute]g[eacute] program has no effect on eligibility for 
contracts awarded under the authority of the Buy Indian Act.
    This rule formalizes an administrative procedure for all Bureau 
acquisition activities/locations to ensure that the Bureau will apply 
the procedures uniformly for eligible Indian Economic Enterprises that 
submit offers under solicitations set aside under the Act and this 
part.

V. Development of Proposed Rule

A. Prior Publication and Comment Solicitation

    This rule has been in development for decades. BIA 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 BIA 
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.
    Most recently, BIA 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. BIA published notice of these consultations in the Federal 
Register on March 26, 2010 (75 FR 14547). Comments received at all 
these consultation meetings were reviewed

[[Page 43784]]

and incorporated in this proposed rule, where applicable.

B. Summary of Comments

    In addition to changes addressing the following comments, we made 
several editorial changes to the text of the proposed rule to clarify 
our intent regarding specific provisions, including changes to 
subchapter A. A significant portion of BIA's acquisition regulation 
covered under subchapter A does not impact a contractor's ability to 
contract with the BIA and therefore does not require publication in 48 
CFR part 14. These editorial changes are minor and do not affect the 
substance or intent of the rule.
    The following is a summary of some of the main categories of 
comments and BIA's responses.
1. Goals for Set-Asides
    Comment: One commenter recommended additional language identifying 
program goals for awarding contracts to Indian Economic Enterprises.
    Response: This rule establishes that BIA will conduct a market 
survey to determine whether an Indian Economic Enterprise is 
appropriate for every contract it solicits.
2. Consistency With the Federal Acquisition Regulation (FAR)
    Comment: One comment expressed concern about references to the 
Federal Acquisition Regulation (FAR) on the premise that the Buy Indian 
regulation may seem to be in conflict with the FAR.
    Response: The Buy Indian Act regulation may be compared to the 
spoke of an umbrella with the FAR as the umbrella. The two regulations 
work in tandem. The regulatory authority that encompasses the Buy 
Indian set-aside authority may be found in FAR 6.302-5, which 
authorizes ``other than full and open competition'' when ``authorized 
or required by law.'' The law authorizing Buy Indian set-asides is 25 
U.S.C. 47, as amended.
    Comment: Several comments questioned whether there was an 
inconsistency in the proposed rule regarding small business set-asides 
for acquisitions valued between $3,001 and $150,000, specifically, the 
relationship of the Act with regard to eligible Indian enterprises and 
the order of preference in FAR 8.001.
    Response: The Bureau must adhere to the Small Business Act 
Requirements, as it governs small purchases, and at the same time 
continue its policy of utilizing the Buy Indian Act. To this end, it 
has attempted to join the two requirements in the proposed section 
1480.503(b). When the Bureau contracting officer cannot make an advance 
determination of a potential award as an Indian small business set-
aside under the Buy Indian Act, the Bureau must follow the order of 
preference in the Federal Acquisition Regulation (see FAR 8.001). If an 
award cannot be made to an eligible Indian firm that is responsible, 
responsive, and is price reasonable, then the Buy Indian Act set-aside 
notice is canceled. However, the Bureau may not move from a Buy Indian 
Act set-aside to full and open competition without first giving 
consideration to other authorized procurement set-aside programs.
    Comment: One commenter requested clarification of the size 
standards and stated that the draft regulation would allow the Bureau 
to contract only with Indian economic enterprises that are also small 
businesses, thereby disqualifying large Indian economic enterprises.
    Response: The rule mirrors the guidance of FAR Part 19, and 
specifically FAR section 19.502, which enumerates when contracts shall 
be set aside for small businesses and when deviations are permitted.
    Comment: One commenter asked why the FAR is restated instead of 
citing applicable FAR parts and subparts. Another commenter stated that 
the rule contains too many references to the FAR and DIAR, which makes 
it difficult for a layperson to understand.
    Response: The Bureau has reviewed the rule and removed any 
unnecessarily duplicative restatement of the FAR and FAR and DIAR 
citations.
3. Definitions
    Comment: One comment expressed opposition to the proposed rule 
definition for ``Indian'' (1452.280-4 and 1480.201), and stated an 
opinion that the term in the rule should incorporate a quarter-degree 
blood requirement as a requirement for being an enrolled tribal member.
    Response: The commenter appears to have mixed two distinct issues. 
Tribes may set a blood quantum for membership, and many have. In some 
instances tribes, and the Bureau, have used the degree of Indian or 
tribal blood as one factor in establishing the relative priorities 
among eligible participants. However, the Bureau cannot impose a blood 
quantum requirement for initial eligibility for its programs unless the 
legislation authorizing the program allows it. The Bureau programs are 
available to all tribal members regardless of blood degree. The Bureau 
defers to tribal governments in the setting of the tribe's own 
standards for enrollment and membership so long as the standards 
reflect a meaningful bilateral, political relationship between the 
tribe and its members.
    Comment: Another comment stated that the rule simply states rather 
than employs or invokes 25 U.S.C. 479 and 479a regarding ``who is an 
Indian'' and therefore who is eligible.
    Response: The rule relies upon 25 U.S.C. 479, which defines 
``Indian'' as a member of a tribe.
    Comment: Another comment expressed disagreement with the proposed 
rule definition of ``Indian land'' (1480.201), citing consideration for 
the term ``Indian country,'' as found in 18 U.S.C. 1151.
    Response: The purpose of defining the term ``Indian land'' is to 
assist in determining when the Indian preference clauses set forth in 
the DIAR must be inserted into a Buy Indian Act set-aside contract 
under section 1480.601(a) of the rule. In contrast, the term ``Indian 
country'' defines Federal criminal jurisdiction in Indian areas and 
contains references to ``dependent Indian communities'' and to ``Indian 
allotments,'' which do not provide sufficient guidance in determining 
the applicability of Indian preference clauses. Moreover, several 
comments were directed to the language in proposed section 1480.401(b) 
with regard to construction. The Bureau has changed the language to 
comply with FAR 6.1 and 6.2, as applicable to set-aside awards.
    Comment: One comment asked for a definition of ``Indian 
reservation.''
    Response: The rule now includes a definition of ``Indian 
reservation'' based on the DIAR section 1452.226-70.
4. Indian Economic Enterprise Definition and Representation
a. Fifty-One (51) Percent Indian Ownership
    Comment: A number of comments objected to formalizing by regulation 
the existing Bureau 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.
    Response: Before January 1988, Bureau policy required participant 
firms to be 100 percent Indian-owned and controlled. The Bureau changed 
its policy in order to facilitate and expand economic development on 
Indian reservations 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''

[[Page 43785]]

policy. The Bureau believes this ``minimum 51 percent ownership'' 
requirement is a much more realistic requirement that can, with 
sufficient regulatory safeguards, protect the integrity of the majority 
Indian owner of the Indian economic enterprise.
    Corresponding with the change in Bureau policy from ``100 percent 
ownership'' to ``a minimum of 51 percent ownership'' of an Indian firm, 
the Bureau will not certify ``Indian'' ownership of a participating 
firm. Rather, an economic enterprise will now represent themselves in 
writing as an Indian economic enterprise in response to a specific 
Bureau set-aside. The contracting officer or an interested party, as 
defined in section 1480.201, may raise a protest to the representation 
declaration of an offeror. The contracting officer will handle the 
protest under proposed Subpart 1480.9 of the rule. The Bureau believes 
this approach will be more effective than a Bureau certification system 
to ensure the eligibility requirements of the Buy Indian Act.
b. Requirement for Daily Business Management
    Comment: Some comments expressed concern that the rule does not 
include sufficient controls to ensure that the Indian economic 
enterprise is actually owned and controlled by Indians. These comments 
specifically requested a better description of what constitutes 
participation in the daily business management of the enterprise.
    Response: The proposed rule defines Indian economic enterprise to 
include additional qualifications beyond what were included in previous 
versions. In addition to requirements of 51% ownership and management 
by an Indian or tribe, the Indian or tribe must receive the majority of 
earnings from the contract. The revised definition also clarifies that 
the individual Indians or tribal representatives must control 
management and daily business operations, and to ensure actual control, 
requires such individuals to possess requisite management or technical 
capabilities directly related to the primary industry in which the 
enterprise conducts business. The intent of these changes is to ensure 
that the individual Indians or tribal representatives take part in the 
policy-making, budgeting, controlling, directing, coordinating, 
organizing, and planning functions for an enterprise.
    Comment: All challenged offerors should be permitted to respond by 
any means of contemporary communication (e.g., email).
    Response: FAR section 33.206 states that contractor claims must be 
submitted in writing. A written response provides a record for review.
c. Self-Certification Policy
    Comment: One comment expressed concern about the self-certification 
policy and mentioned that the Environmental Protection Agency 
disallowed self-certification in their Office of Small and 
Disadvantaged Business Utilization.
    Response: BIA'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. 
In addition to being supported by stiff penalties, the representation 
is supported by long established elements of enforcement including both 
contractors and contracting officers who have successfully implemented 
the policy since 1988.
    Comment: One commenter asked whether the Bureau is going to check 
the validity of self-certifications.
    Response: The Contracting Officer is required to check the CCR to 
identify whether an Indian economic enterprise that self-certified is, 
in fact, and Indian economic enterprise.
d. Protests of an Entity's Representation as an ``Indian Economic 
Enterprise''
    Comment: The language in proposed section 1480.902 deals with time 
frames regarding Bureau receipt of a protest from an interested party. 
Some comments stated that the deadlines were too short to permit 
lodging a protest. One comment objected to the specific words governing 
the protest deadline regarding Buy Indian eligibility.
    Response: The Bureau must utilize the time frames for small 
business set-aside awards protests, referenced in FAR 19.302. The time 
available to lodge a protest is proposed in the rule as ``a protest 
must be received by the contracting officer not later than 10 days 
after the basis of protest is known or should have been known, 
whichever is earlier.'' The Bureau believes the proposed time period to 
be reasonable for an interested party to lodge a written protest to the 
contracting officer, thereby conforming to the general principles 
reflected in FAR Subpart 33.1. Also, this wording is based on FAR 
33.103 and has withstood the test of time. Protests based on alleged 
apparent improprieties in a solicitation are required to be filed 
before bid opening or the closing date for receipt of proposals. Since 
this protest would constitute a possible first-step procedure under FAR 
33.1, the Bureau is required to: (1) Promptly notify all offerors 
(successful as well as unsuccessful) within the prescribed time-frame 
(for sealed bids and competitive negotiations) so that all possible 
protests may be timely lodged with the Bureau; and (2) seek resolution 
within the prescribed time-frame before the interested party pursues 
the protest with the General Accounting Office (GAO). In keeping with 
the procedures outlined in FAR 33.1 for filing protests, the rule 
language is considered appropriate.
    Comment: One commenter questioned the provision that states that a 
contract will be considered valid if a protest is received only after 
the award has been made. This commenter recommended that, instead, the 
CO investigate the situation and make a determination within 3 days.
    Response: The proposed rule's presumptive valid contract language 
is consistent with FAR 33.104(c)(1) and (5). In accordance with that 
section of the FAR, 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 in receiving the supplies or service is not 
prejudicial to the Government's interest.
e. Requesting an Independent Review in an Agency Protest
    Comment: One comment expressed concern about a protester to the 
agency being able to request an independent review.
    Response: An independent review may be requested in accordance with 
FAR 33.103. Prior to submission of an agency protest, all parties must 
use their best efforts to resolve concerns raised by interested parties 
at the contracting officer level through open and frank discussions. 
Where appropriate, alternative dispute resolution methods may be used.
    In the event of a protest to the agency, award in the face of 
protest requires approval by an official other than the contracting 
officer. In the event of a GAO protest, approval is required by the 
head of the contracting activity.
5. Restrictions on Construction
    Comment: A commenter expressed concern on the general topic of 
roads construction in relationship to the Indian set-aside program 
under the Buy Indian Act.
    Response: The language in proposed section 1480.401(b) implements 
the

[[Page 43786]]

decision of the Supreme Court in Andrus v. Glover, 446 U.S. 608, 
(1980), which upheld an Oklahoma Court's decision that the Bureau could 
not use the Buy Indian Act to contract for construction. The BIA 
currently interprets this decision as preventing application of the Buy 
Indian Act set-aside program to off-reservation construction 
activities.
    Comment: Some sentiment was expressed about difficulties with 
categorizing certain projects as construction.
    Response: The FAR provisions at 22.401 and 37.301 may be used by 
the contracting officer to determine the appropriate categorization and 
clause usage. It is solely at the discretion of the contracting office 
to determine whether a project is construction or service. In order to 
make this determination, the contracting officer must review the 
statement of work and make a rational decision based on the information 
at hand.
6. Deviations
a. Tribal Modification of Buy Indian Acquisition
    Comment: Several comments were received regarding the language in 
proposed section 1480.504-1(b)(14) wherein the Bureau contracting 
officer would provide written notice to the Indian governing body when 
a proposed set-aside involves services to be performed in whole or in 
part on land of that governing body. The objection focused on the 
Bureau notifying the involved tribe at the same time that the synopsis 
notice is published in the Governmentwide Point of Entry (GPE) 
(FedBizOpps). If a tribal resolution was passed opposing the set-aside 
intention, this Bureau action could require much unnecessary effort and 
expense on the part of a non-tribal Indian business firm in preparing a 
bid or proposal. This time and expense could be eliminated if the 
Indian business firms knew of the tribe's possible resolution of non-
support for the set-aside approach.
    Response: The Bureau made the necessary change to reflect Public 
Law 93-638, as amended by Public Law 100-472, to advise a tribe of any 
work that will be performed within the boundaries of its tribal lands. 
If the tribe does not (1) give a negative response to the notice or (2) 
advise the Bureau of its intent to contract for the program within 15 
calendar days from the date of publication in FedBizOpps of the 
solicitation, the Bureau will then proceed with the solicitation. This 
change addresses the concern expressed by commenters and honors the 
spirit of Public Law 93-638 as amended by Public Law 100-472.
b. Authority to Deviate
    Comment: Several comments requested clarification regarding who may 
authorize deviations and under what circumstances.
    Response: Today's proposed rule clarifies who may authorize 
deviations based on the contract value thresholds, which were based on 
the thresholds established in FAR 6.304. The appropriate official will 
support the deviation by written determinations and findings made part 
of the contract file. In previous drafts, approval by the Assistant 
Secretary and BIA Director were necessary for a deviation. This 
proposed rule instead includes the tiered system for authority to 
approve to avoid potential delays resulting from going through several 
layers of approval, while continuing to ensure that deviations are only 
authorized in limited circumstances.
    Comment: One commenter stated that cancellation of an announced 
opportunity should not be the remedy when only ``unreasonable'' offers 
are received. This commenter suggested that BIA instead negotiate with 
the offers or amend the announcement.
    Response: Although contracting officers are expected to search for 
an Indian firm when pursuing a contract under section 8(a) of the Small 
Business Act, a regulatory provision mandating this action would 
infringe upon the jurisdiction of the Small Business Administration.
    Comment: One commenter asked how the Contracting Officer would 
address a situation where his or her market research identifies only 
one Indian economic enterprise for a contract.
    Response: The Contracting Officer's market research determines 
whether BIA solicits with a set-aside for Indian economic enterprises 
based on whether the government will receive at least two responsible, 
responsive offers. If the solicitation includes a set-aside but fewer 
than two responsible, responsive offers from Indian economic 
enterprises are received, in accordance with FAR 19.502.2, the 
Contracting Officer will withdraw the set-aside, and resolicit the 
requirement on an unrestricted basis.
7. Subcontracting
a. Percentages of Subcontracting Allowed
    Comment: Several comments stated concern about the general topic of 
the percentages of subcontracting expressed in the language in proposed 
section 1452.280-3 and in 1480.602. Some respondents believed the 
percentages stated were too high for Indian economic enterprises.
    Response: The percentages listed in the 1991 proposed rule are 
required for inclusion by FAR 52.219-14 and apply to all procurement 
contracts. Section 7(b) of Public Law 93-638, as implemented by DIAR 
1452.226-71, applies the Indian preference requirement for employment 
and subcontracting opportunities under contracts for the benefit of 
Indians, or contracts made under statutes authorizing contracts with 
Indians. This principle is reiterated in this rule in sections 
1480.503(c), 1452.280-2(c)(2), (3), and (4), 1480.601, and 1480.701(c).
    Comment: Several comments requested clarification of whether the 
subcontracting clause requiring Native American subcontractors is 
included in solicitations for all BIA subcontracts, or only those BIA 
contracts awarded using a Buy Indian set-aside.
    Response: The proposed rule clarifies that the subcontracting 
clause is required only for subcontracts to BIA contracts awarded using 
a Buy Indian set-aside.
b. Subcontracting Limitations and the Definition for ``Cost of the 
Contract''
    Comment: Some comments requested a definition for ``cost of the 
contract'' as mentioned in 1452.280-2.
    Response: The clause entitled ``Subcontracting Limitations'' is 
based on FAR 52.219-14. The term ``cost of the contract'' means cost to 
the Government that is the total amount of the contract. Offerors must 
submit a detailed subcontract plan with their offers as required by 
1452.280-2.
c. Verifying Compliance With Subcontracting Limitations
    Comment: One comment expressed some concern about verification of 
compliance after contract award.
    Response: The contracting officer and contracting officer's 
representative are specifically required by 1480.701 to monitor the 
contractor's compliance with the subcontracting limitations clause, the 
Indian preference clauses, and the requirements for Indian ownership 
and daily business management.
8. Indian Preference Requirements
    Comment: One comment sought a specific definition of the term 
``extent feasible'' as it is used in the Indian Preference clause which 
is in the Department of the Interior Acquisition Regulation (DIAR) at 
1452.226-70.
    Response: The words ``extent feasible'' are qualified by the phrase

[[Page 43787]]

``consistent with the efficient performance of this contract.'' The 
clause requires the contractor to maintain records to demonstrate 
compliance and states that non-compliance is cause for termination. If 
the contract is over $50,000, and performed on or near a reservation, 
the contractor is required to appoint a liaison officer who will 
administer the contractor's Indian preference program, maintain 
detailed six part records and provide a written semiannual report to 
the contracting officer. The Indian preference clauses provide 
reasonable specificity and controls.
9. Buy Indian Implementation by Other Bureaus
    Comment: Some comments expressed concern about the loss of 
contracting opportunities under the Buy Indian set-aside authority when 
BIA transfers funds to another organization for award of a contract 
supporting BIA's mission.
    Response: The BIA has no regulatory authority beyond itself to 
implement the Buy Indian Act set-aside authority. A change to transfer 
the authority along with funds to another agency when entering into an 
agreement for award of a contract supporting BIA's mission would 
require a different statute. BIA does encourage the implementation of 
the Indian Preference requirement under Section 7(b) of Public Law 93-
638.
    Comment: Several commenters asked who the rule will apply to--and 
specifically whether the Indian Health Service (IHS) will be bound by 
this rule.
    Response: The BIA is promulgating this rule; therefore, the rule 
will apply only to BIA.
10. Other
    Comment: One commenter suggested that the organization of the 
clauses to be inserted into solicitations be rearranged so that the 
definitions appear at the end, rather than at the beginning, of the 
clauses.
    Response: BIA has chosen to retain the current organization for 
consistency with FAR Part 1 and the standard practice of defining terms 
prior to their use in clauses.
    Comment: One commenter suggested imposing an order of preference 
for awarding Buy Indian set-asides that would give first preference to 
individually owned Indian concerns, then to tribal concerns, then to 
tribal 8(a) concerns, and finally Indian concerns participating in the 
Mentor-Prot[eacute]g[eacute] program.
    Response: BIA interprets the purpose of the Buy Indian Act as 
giving preference to all eligible Indian economic enterprises.
    Comment: One commenter asked whether there is a database of 
debarred Indian economic enterprises.
    Response: It is the Contracting Officer's duty to review the 
debarred listing before making an award. The list is available on the 
Internet at www.epls.gov.
    Comment: One commenter asked what the ramifications are for false 
certification.
    Response: 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: One comment asked why a set-aside cannot be extended if 
the solicitation hasn't closed and there hasn't been an award made on 
the contract.
    Response: The Contracting Officer's market research determines 
whether to establish a set-aside for Indian economic enterprises, based 
on whether the Government will receive at least two reasonable, 
responsive offers. In accordance with FAR 19.502-2, if the Contracting 
Officer receives no acceptable offers from responsible small business 
concerns, the set-aside will be withdrawn and the requirement, if still 
valid, will be resolicited on an unrestricted basis.
    Comment: One comment asked if BIA could review the TERO list to 
identify Indian economic enterprises.
    Response: In addition to checking the CCR, the Contracting Officers 
may contact local TERO offices as part of their market research to 
ensure that their research was comprehensive.
    Comment: Several comments asked how Indian economic enterprises may 
identify opportunities for which there is a Buy Indian set-aside.
    Response: Indian economic enterprises should monitor 
www.FedBizOpps.gov to identify opportunities for which there is a Buy 
Indian set-aside.
    Comment: A few comments asked how the Buy Indian set-asides work 
with Public Law 93-638.
    Response: The rule provides the Indian tribe with the opportunity 
to contract under Public Law 93-638 for a requirement taking place on 
its reservation before BIA 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 now refers to Public Law 
93-638 to clarify that a tribe can invoke its rights under that 
statute.

VI. 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 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,

[[Page 43788]]

employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based 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)

    The BIA has held public meetings with the tribes as stated in the 
Background section of this preamble as well as the several previous 
publications of the proposed rule. This meets the intent of the 
Executive Order. The rule will more directly affect any contractors who 
may decide to use the Buy Indian Act for subcontracting and Indian 
economic enterprises.

I. Paperwork Reduction Act of 1995

    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 (Executive Order 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A statement of energy effects is not 
required.

L. Clarity of This Regulation

    We are required by Executive Orders 12866 (section 1 (b)(12)) and 
12988 (section 3(b)(1)(B)) and by the Presidential Memorandum of June 
1, 1998, to write all rules in plain language. This means that each 
rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use common, everyday words and clear language rather than 
jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

M. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

List of Subjects in 48 CFR Chapter 14

    Government procurement, Indian Economic Enterprises, Reporting and 
recordkeeping requirements.

    Dated: July 20, 2012.
Amy Holley,
Chief of Staff, Policy, Management and Budget.

    For the reasons set out in the preamble, the Department of the 
Interior proposes to amend 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 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 section 1401.301-80 to read as follows:

1401.301-80  Policy.

    BIA 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 an 
industry, including printing.

PART 1452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. The authority 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. In subpart 1452.2, add the following sections 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(b)(1), and in lieu of the requirements of 
FAR 19.508, insert the following provision in each written solicitation 
of offers to

[[Page 43789]]

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 (Current 
Date)

    Under the Buy Indian Act, 25 U.S.C. 47, offers submitted in 
response to this solicitation are solicited only from Indian 
economic enterprises (Subpart 1480.8) that also must be small 
business concerns. The offeror must represent that they meet the 
definition of Indian economic enterprise at the time of submission 
of its offer to a specific solicitation as evidence that it is 
eligible to be considered for award. Any acquisition resulting from 
this solicitation will be from such a concern. Offers received from 
enterprises that are not Indian economic enterprises will not be 
considered and will be rejected.

(End of provision)

1452.280-2   Notice of Indian economic enterprise set-aside.

    As prescribed in 1480.504-1(b)(2), insert the following clause in 
solicitations and contracts involving Indian economic enterprise set-
asides:

Notice of Indian Economic Enterprise Set-Aside (Current Date)

    (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 USC 1601).
    Indian Economic Enterprise means any business activity owned by 
an Indian or an Indian Tribe that is established for the purpose of 
profit, provided that: (i) Such Indian or Indian Tribe ownership 
shall constitute not less than 51 percent of the enterprise; (ii) 
the Indian or Indian Tribe shall receive 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 (Pub. L. 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).
    (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'' 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;
    (7) A description of method(s) for compliance with any 
supplemental Tribal employment preference requirements, if contained 
in this solicitation; and
    (d) Required Assurance. The contractor must provide written 
assurance to the Bureau that it will comply, or has, complied fully 
with the requirements of this clause. It must do this before the 
Bureau awards the Buy Indian contract, as well as, upon successful 
and timely completion of the contract, but before the Bureau 
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 the 
Bureau to find an offer non-responsive and to reject it.
    (f) Eligibility.
    (1) Participation in the Mentor-Prot[eacute]g[eacute] 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: (1) The economic enterprise may be declared ineligible 
for future contract awards under this part; and (2) The Bureau 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 work under a prime 
contract 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 1480.602(b), insert the following clause in each 
written solicitation or contracts to provide supplies, services, or on-
reservation construction:

Subcontracting Limitations (Current Date)

    (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. ``Concern'' 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 
employer-employee 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. The term 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.
    (c) Indian Preference. Regardless of the contract type for 
services, supplies, or on-reservation 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:

[[Page 43790]]

    (1) Carry out the requirements of this clause to the fullest 
extent; and
    (2) Cooperate in any study or survey that the CO, the Bureau of 
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 solicitation for supplies, services, or on-reservation 
construction:

Indian Economic Enterprise Representation (Current Date)

    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 subchapter H, consiting of part 1480, to read as follows:

SUBCHAPTER H--BUREAU OF INDIAN AFFAIRS SUPPLEMENT

PART 1480--ACQUISITIONS UNDER THE BUY INDIAN ACT

Subpart 1480.1--General
Sec.
1480.101 Scope of part.
1480.102 Buy Indian Act acquisition regulations.
1480.103 Information collection.
Subpart 1480.2--Definitions
1480.201 Definitions as used in this part.
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 or 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 Declaration process.
Subpart 1480.9--Protests of Representation
1480.901 General.
1480.902 Receipt of protest.
1480.903 Award in the face of protest.
1480.904 Protest 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.

PART 1480--ACQUISITIONS UNDER THE BUY INDIAN ACT

Subpart 1480.1--General

Sec.  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.

Sec.  1480.102  Buy Indian Act acquisition regulations.

    (a) This part supplements Federal Acquisition Regulation (FAR) and 
Department of the Interior Regulation (DIAR) requirements to satisfy 
the needs of the Bureau of Indian Affairs in implementing the Buy 
Indian Act.
    (b) Regulations issued under this part will be codified in 
Department of the Interior (DOI) regulations at 48 CFR Chapter 14, 
Appendix A, Part 1480.
    (c) This part is under the direct oversight and control of the 
Chief Financial Officer, BIA, Department of the Interior (hereinafter, 
``CFO''). The CFO is responsible for issuing and implementing this 
part.
    (d) 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 Bureau of Indian 
Affairs. The provisions of the FAR takes precedence in all instances 
where there may be a conflict or discrepancy.

Subpart 1480.2--Definitions

Sec.  11480.201  Definitions as used in this part.

    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.
    Bureau means the Bureau of Indian Affairs
    Bureau central office means the Headquarters component located in 
Reston, Virginia that serves as staff resource to the Assistant 
Secretary-Indian Affairs. For purposes of this part, the term refers 
specifically to the Office of Management and Administration, Division 
of Acquisition and Property Management.
    Buy Indian Act means section 23 of the Act of June 25, 1910 (25 
U.S.C. 47 (hereinafter ``the Act'').
    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.
    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 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. 
``Concern'' 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), ``concern'' 
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.
    Day means, unless otherwise specified, a calendar day.
    Deviation means an exception to the requirement for use of the Buy 
Indian Act in fulfilling an acquisition requirement of the Bureau.
    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''

[[Page 43791]]

as defined in the Alaska Native Claims Settlement Act (Pub. L. 92-203; 
85 Stat 688; 43 U.S.C. 1601).
    Indian Economic Enterprise (IEE) means:
    (1) Any business activity owned by an Indian or an Indian Tribe 
that is established for the purpose of profit provided that:
    (i) Such Indian or Indian Tribe ownership shall constitute not less 
than 51 percent of the enterprise;
    (ii) That the Indian or Indian Tribe shall receive a majority of 
the earnings from the contract; and
    (iii) The management and daily business operations of an enterprise 
must be controlled by one or more individuals who are Indians.
    (2) 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 for these time 
periods:
    (i) At the time an offer is made in response to a written 
solicitation;
    (ii) At the time of contract award; and
    (iii) 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 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 
or regional or village corporation under the Alaska Native Claims 
Settlement Act (Pub. L. 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 Bureau award of a particular contract set-aside 
pursuant the Act.
Mentor-Prot[eacute]g[eacute] Program
    Product of Indian industry means anything produced by an IEE either 
through physical labor or by intellectual effort involving the use and 
application of their skills.
    Protest of representation means an accurate, complete and timely 
written objection by an interested party to an offeror's representation 
declaration status for a submitted in response to a solicitation under 
the Act.
    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 
employer-employee 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

Sec.  1480.301   Scope of part.

    Except as provided in 1480.401(b), this part applies to all 
acquisitions, including simplified acquisitions, made by the BIA 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).

Sec.  1480.302  Restrictions on use of the Buy Indian Act.

    (a) The Bureau 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 Bureau programs (or parts thereof) that are within the scope 
and intent of the Indian Self-Determination and Education Assistance 
Act. The Bureau must use the Buy Indian Act solely to award procurement 
contracts to IEEs.
    (b) The Bureau must not use the authority of this Act for off-
reservation construction contracts, as defined in FAR 36.102 (48 CFR 
36.02).

Subpart 1480.4--Policy

Sec.  1480.401  Requirement to give preference to Indian Economic 
Enterprises.

    (a) The Bureau shall utilize 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, the Bureau may use the Buy Indian Act to give preference to IEEs 
through set-asides when acquiring supplies, services, and on-
reservation construction to meet Bureau needs and requirements. The 
Bureau must contract for on-reservation construction in accordance with 
FAR Part 36 (48 CFR part 36).
    (b) The Bureau 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 services for off-
reservation construction activities.
    (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 DOI.

Sec.  1480.402  Delegations and responsibility.

    (a) The Secretary has delegated authority under the Buy Indian Act 
to the Assistant Secretary--Indian Affairs. The Bureau 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 
the Bureau of Indian Affairs only by a Secretarial Order issued in 
accordance with Part 012, Chapter 1 of the Departmental Manual (012 DM 
1).
    (c) The CFO as the head of the contracting activity, is responsible 
for

[[Page 43792]]

ensuring that all Indian Affairs 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 Indian 
Affairs acquisition:

------------------------------------------------------------------------
                                            The following official may
  For a proposed contract action . . .     authorize a deviation . . .
------------------------------------------------------------------------
Exceeding $25,000 but not exceeding      The CCO (or the Bureau
 $550,000.                                Procurement Chief, absent a
                                          CCO).
Exceeding $550,000 but not exceeding     Bureau Competition Advocate.
 $11.5 million.
Exceeding $11.5 million but not          The head of the procuring
 exceeding $57 million.                   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..................  Senior procurement executive.
------------------------------------------------------------------------

    (b) Deviations may be authorized prior to issuing the solicitation 
when the Bureau makes the following determinations and the appropriate 
official takes the following actions:

------------------------------------------------------------------------
      Acquisition type         Basis for deviation    Necessary actions
------------------------------------------------------------------------
In pursuit of a simplified    The Bureau            The CO must:
 or commercial item            determines after a   (1) Document the
 acquisition in accordance     market survey that    reasons for the
 with FAR Parts 12 or 13 and   there is no           deviation in the
 DIAR 1413.                    reasonable            file;
                               expectation of       (2) Ascertain the
                               obtaining offers      availability of
                               that will be          small business
                               competitive in        suppliers through
                               terms of market       market research;
                               price, quality, and   and
                               delivery from two    (3) If appropriate,
                               or more responsible   compete the
                               ISBEEs (or at least   purchase using an
                               from one such         unrestricted small
                               enterprise, if the    business set-aside
                               purchase does not     as prescribed in
                               exceed the dollar     FAR 19.502-2.
                               threshold described
                               in FAR 13.003).
In pursuit of all other       The Bureau            The official must:
 acquisitions.                 determines there is  (1) Provide a
                               no reasonable         written
                               expectation that      determination in
                               offers will be        the contract file
                               received from two     stating there is no
                               or more responsible   reasonable
                               IEEs at a             expectation of
                               reasonable and fair   receiving offers
                               market price.         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 
the Bureau makes the following determinations and the appropriate 
official takes the following actions:

------------------------------------------------------------------------
      Acquisition type         Basis for deviation    Necessary actions
------------------------------------------------------------------------
In pursuit of a simplified    Only one offer is     The CO must:
 or commercial item            received from a      (1) Document the
 acquisition in accordance     responsible ISBEE     reasons for the
 with FAR Parts 12 or 13 and   and the price is      deviation in the
 DIAR 1413.                    unreasonable or no    file;
                               offers are received  (2) Ascertain the
                               from a responsible    availability of
                               ISBEE.                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       The Indian tribe      The Bureau must
 acquisitions.                 justifies a           proceed under PL 93-
                               deviation under       638.
                               1480.504-1(b)(3).
                              (1) All otherwise     The official must:
                               acceptable offers    (1) Cancel the
                               received from IEEs    solicitation;
                               are unreasonable;    (2) Reject all
                              (2) Only one offer     offers in writing
                               is received from an   in accordance with
                               IEE and the CO        FAR 14.404-3; and
                               determines the       (3) Complete the
                               price to be           acquisition by
                               unreasonable; or.     either:
                              (3) No responsive     (i) Using
                               offers have been      negotiation,
                               received from IEEs..  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.
------------------------------------------------------------------------

[[Page 43793]]

     (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 (48 CFR 8.002).

1480.503  Commercial item or simplified acquisitions.

    (a) Each acquisition of supplies, services, and on-reservation 
construction that is subject to commercial item or simplified 
acquisition procedures in accordance with FAR Part 12 or 13 (48 CFR 
part 12 or 13) and DIAR 1413 must be set aside exclusively for ISBEEs. 
The Bureau will use ISBEE commercial item(s) or simplified acquisition 
set-asides to accomplish this preference action.
    (b) Each written solicitation of offers under an ISBEE commercial 
item or simplified acquisition set-aside must contain the provision at 
section 1452.280-1, NOTICE OF INDIAN SMALL BUSINESS ECONOMIC ENTERPRISE 
SET-ASIDE. If the solicitation is oral, information substantially 
identical to that contained in the provision must be given to potential 
offerors.
    (c) 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 (48 CFR 
19.502-2)), the CO must make an award to that enterprise.
    (d) Commercial item or simplified acquisitions under this section 
must conform to the competition and price reasonableness documentation 
requirements of FAR 12.209 (48 CFR 12.209) for commercial item 
acquisitions and FAR 13.106 (48 CFR 13.106) for simplified 
acquisitions.
    (e) Clauses and Provisions.
    (1) Insert the provision at 1452.280-4, INDIAN ECONOMIC ENTERPRISE 
REPRESENTATION, in each solicitation of offers or requests for 
quotations that is set aside for IEEs.
    (2) Insert the clause at 1452.280-3, SUBCONTRACTING LIMITATIONS, in 
purchase orders and contracts for services, supplies, or on-reservation 
construction and awarded to IEEs.
    (3) Insert the clause at DIAR 1452.226-71, Indian Preference 
Program, in accordance with DIAR 1426.7003(b).

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 (48 CFR 13.003) must be set aside 
exclusively for IEEs, and referred to as an ``Indian Economic 
Enterprise Set-aside,'' 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 off-reservation construction, as 
described in 1480.401(b);
    (2) A deviation has been obtained in accordance with 1480.402; 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, 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 the Bureau'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 set-aside intention or advise 
the Bureau by the established deadline of its intent to contract, the 
Bureau will proceed with the solicitation in accordance with FAR 5.2 
(48 CFR 5.2).
    (2) If the tribe advises the Bureau by the established deadline of 
its intent to contract, it must adequately justify a deviation for work 
on or near its own Indian land 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 (48 CFR 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 (48 CFR 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 the Bureau of the required supplies 
or services is determined to be reasonable; and the information in the 
``Class Justification for Use of Other Than Full and Open Competition 
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 1480.602.
    (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 (48 CFR 14.408-2) before 
awarding a contract.
    (6) When using competitive proposals, solicit proposals in 
accordance with FAR Subpart 15.2 (48 CFR subpart 15.2) and select 
sources in accordance with FAR Subpart 15.3 (48 CFR 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 (48 CFR 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 (48 CFR 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 (48 
CFR 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

[[Page 43794]]

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 at a 
reasonable and fair market price in response to an acquisition set-
aside under paragraph (a) of this subsection, the CO must:
    (1) Make an award to that enterprise;
    (2) Document the reason only one offer was considered; and
    (3) Initiate action to increase competition in future 
solicitations.
    (f) Provisions and Clauses.
    (1) Insert the provision at 1452.280-4, INDIAN ECONOMIC ENTERPRISE 
REPRESENTATION, in accordance with 1480.801(a).
    (2) Insert the clause at DIAR 1452.226-70, Indian Preference, in 
accordance with DIAR 1426.7003(a);
    (3) Insert the clause at DIAR 1452.226-71, Indian Preference 
Program, in accordance with DIAR 1426.7003(b);
    (4) Insert the clause at 1452.280-2, NOTICE OF INDIAN ECONOMIC 
ENTERPRISE SET-ASIDE, in accordance with 1480.504-1(b)(2).
    (5) Insert the clause at 1452.280-3, SUBCONTRACTING LIMITATIONS, as 
prescribed in 1480.601(b);
    (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 (48 CFR 6.302-5) is not 
feasible. In such situations, the requirements of FAR Subpart 6.3 (48 
CFR subpart 6.3) and DIAR Subpart 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 (48 CFR 5.202), all proposed 
acquisition actions must first be publicized in accordance with the 
requirements of FAR 5.2 (48 CFR 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 14-
6. 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 (48 CFR 9.406 and 9.407). The Bureau must refer 
recommendations for debarment or suspension to the Director, Office of 
Acquisition and Property Management (PAM), Department of the Interior, 
in accordance with DIAR 1409.406 and 1409.407 through the Division of 
Acquisition and Property Management (central office) and concurred by 
the HCA.

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 (48 CFR 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 on-reservation construction and awarded to IEEs 
pursuant to this part.

1480.602  Performance and payment bonds.

    Solicitations requiring performance and payment bonds must conform 
to FAR Part 28 (48 CFR part 28) and authorize use of any of the types 
of security acceptable in accordance with FAR Subpart 28.2 (48 CFR 
subpart 28.2) or section 11 of Public Law 98-449, the Indian Financing 
Act Amendment of 1984. The CO may accept alternative forms of security 
in lieu of performance and payment bonds according to FAR 28.102 (48 
CFR 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 Part 42 
of the FAR (48 CFR 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 on-
reservation construction; and
    (c) Enforcement of Indian preference requirements contained in DIAR 
1426.7004, as prescribed by 1480.601.

Subpart 1480.8--Representations 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 with this part.
    (b) To be considered for an award under 1480.503 or 1480.504-1, an 
offeror must:
    (1) Represent that it meets the definition of ``Indian economic 
enterprise'' in response to a specific solicitation set-aside in 
accordance with the Act and this part.
    (c) The enterprise must meet the definition of ``Indian economic 
enterprise'':
    (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) The Bureau 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 declaration must be referred to the CO or CCO in 
accordance with subpart 1480.9.
    (g) Participation in the Mentor-Prot[eacute]g[eacute] Program 
established under section 831

[[Page 43795]]

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) Bureau 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 also 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  Declaration process.

    (a) Only IEEs may participate in acquisitions set aside in 
accordance with the Act and this part. Bureau 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 a Bureau CO on the IEE representation provision 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--Protests of Representation Declaration

1480.901  General.

    (a) The CO can accept an offeror's written representation 
declaration 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 
declaration status of an offeror or contractor by filing a written 
protest to the applicable CO in accordance with the procedures in 
1480.902.
    (b) After receipt of offers, the CO may question the eligibility 
declaration of any offeror in a specific offer by filing a formal 
objection with the CCO.

1480.902  Receipt of protest.

    (a) An interested party must file any protests against the 
representation declaration of an offeror with the local CO.
    (b) The protest must be in writing and must contain the basis for 
the protest 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 protest that is deemed frivolous or that does not meet the 
conditions in this section.
    (c) To be considered timely, a protest must be received by the CO 
not later than 10 days after the basis of protest is known or should 
have been known, whichever is earlier.
    (1) A protest may be made orally if it is confirmed in writing 
within the 10-day period after the basis of protest is known or should 
have been known, whichever is earlier.
    (2) A protest 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 protest 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 protest, the CO must:
    (1) Notify the protestor of the date it was received, and that the 
representation declaration of the enterprise being challenged is under 
consideration by the Bureau; and
    (2) Furnish to the economic enterprise (whose representation 
declaration 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 protest and the 
Bureau's request for detailed information, the challenged offeror must 
file with the CO a completed statement answering the allegations in the 
protest, 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, the 
Bureau may assume that the offeror does not intend to challenge the 
protest and the Bureau must not award to the challenged offeror.
    (f) Within 10 days after receiving a protest, the challenged 
offeror's response and other pertinent information, the CO must 
determine the representation declaration status of the challenged 
offeror and notify the protestor and the challenged offeror of the 
decision by certified mail, return receipt requested, and make known 
the option to appeal the determination to the PAM.
    (g) If the declaration accompanying an offer is challenged and 
subsequently upheld by the PAM, the written notification of this Bureau 
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 protest.

    (a) Award of a contract in the face of protest may be made on the 
basis of the CO's written determination that the challenged offeror's 
representation declaration is valid.
    (1) This determination is final for the Bureau 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 protest 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 protest, 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 protest on representation declaration 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 protest on representation declaration 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  Protest not timely.

    If a CO receives an untimely filed protest of a representation 
declaration,

[[Page 43796]]

the CO must notify the protestor that the protest 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 declaration status of an IEE.

[FR Doc. 2012-18189 Filed 7-25-12; 8:45 am]
BILLING CODE 4310-02-P
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