43782 Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules 

(iii) An order issued under multiple 

award task and delivery order contracts, 

follow the procedures at 16.505(b)(2). 

* * * * * 

PART 16—TYPE OF CONTRACTS 

16.504 [Amended] 

4. Amend section 16.504 by removing 

from paragraph (a)(4)(v) ‘‘(see 

16.505(b)(6))’’ and adding ‘‘(see 

16.505(b)(8))’’ in its place. 

5. Amend section 16.505 by— 

a. Removing from paragraph 

(b)(1)(iv)(E) ‘‘paragraph (b)(4)’’ and 

adding ‘‘paragraph (b)(6)’’ in its place; 

b. Redesignating paragraphs (b)(4) 

through paragraphs (b)(6) as paragraphs 

(b)(6) through (b)(8), respectively; and 

c. Adding new paragraphs (b)(4) and 

(b)(5). 

The additions read as follows: 

16.505 Ordering. 

* * * * * 

(b) * * * 

(4) For additional requirements for 

cost reimbursement orders see 

16.301–3. 

(5) For additional requirements for 

time-and-materials or labor-hour orders, 

see 16.601(e). 

* * * * * 

6. Amend section 16.601 by— 

a. Removing from paragraph (c)(2)(i) 

‘‘(see 16.601(e)(1))’’ and adding ‘‘(see 

16.601(f)(1))’’ in its place; 

b. Revising paragraph (d) introductory 

text and paragraph (d)(2); 

c. Redesignating paragraph (e) as 

paragraph (f); and 

d. Adding a new paragraph (e), 

The revisions and addition read as 

follows. 

16.601 Time-and-materials contracts. 

* * * * * 

(d) Limitations. A time-and-materials 

contract or order may be used only if— 

* * * * * 

(2) The contract or order includes a 

ceiling price that the contractor exceeds 

at its own risk. Also see 12.207(b) for 

further limitations on use of time-andmaterials or labor-hour contracts for 

acquisition of commercial items. 

(e) Post award requirements. Prior to 

an increase in the ceiling price of a 

time-and-materials or labor-hour 

contract or order, the contracting officer 

shall— 

(1) Conduct an analysis of pricing and 

other relevant factors to determine if the 

action is in the best interest of the 

Government; 

(2) Document the decision in the 

contract or order file; and 

(3) When making a change that 

modifies the general scope of— 

(i) A contract, follow the procedures 

at 6.303; 

(ii) An order issued under the Federal 

Supply Schedules, follow the 

procedures at 8.405–6; or 

(iii) An order issued under multiple 

award task and delivery order contracts, 

follow the procedures at 16.505(b)(2). 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.216–29 [Amended] 

7. Amend section 52.216–29 by 

removing from the introductory 

paragraph ‘‘16.601(e)(1)’’ and adding 

‘‘16.601(f)(1)’’ in its place. 

52.216–30 [Amended] 

8. Amend section 52.216–30 by 

removing from the introductory 

paragraph ‘‘16.601(e)(2)’’ and adding 

‘‘16.601(f)(2)’’ in its place. 

52.216–31 [Amended] 

9. Amend section 52.216–31 by 

removing from the introductory 

paragraph ‘‘16.601(e)(3)’’ and adding 

‘‘16.601(f)(3)’’ in its place. 

[FR Doc. 2012–18276 Filed 7–25–12; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

48 CFR Parts 1401, 1452, and 1480 

RIN 1090–AB03 

Acquisition Regulations; Buy Indian 

Act; Procedures for Contracting 

AGENCY: Assistant Secretary for Policy, 

Management and Budget, Interior. 

ACTION: Proposed rule. 

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 Indianowned 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 


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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-Prote ́ge ́ 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-Prote ́ge ́ 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-Prote ́ge ́ Program and 

not lose their eligibility for contracts 

awarded under the authority of the Buy 

Indian Act. This rule includes language 

stating that participation in the MentorProte ́ge ́ 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 


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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 setaside 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 setaside 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’’ 


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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 policymaking, 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 setaside 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 


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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 setaside 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 


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‘‘consistent with the efficient 

performance of this contract.’’ The 

clause requires the contractor to 

maintain records to demonstrate 

compliance and states that noncompliance 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 setaside 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 MentorProte ́ge ́ 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, 


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employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. The annual value of 

the acquisitions made under this 

authority is less than $45 million. 

D. Unfunded Mandates Reform Act 

This rule does not impose any 

unfunded mandate on State, local, or 

tribal governments or the private sector. 

The rule does not have a significant or 

unique effect on State, local or tribal 

governments or the private sector. The 

rule merely governs acquisitions from 

contractors. 

E. Takings Implications (Executive 

Order 12630) 

In accordance with Executive Order 

12630, the rule does not have any 

takings implications. The rule governs 

acquisitions from contractors. 

F. Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have any 

Federalism implications to warrant the 

preparation of a Federalism Assessment. 

The rule governs acquisitions from 

contractors and does not interfere with 

the administration of programs by State 

Governments. 

G. Civil Justice Reform (Executive Order 

12988) 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

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

H. Consultation With Indian Tribes 

(Executive Order 13175) 

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 


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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 SetAside (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-Prote ́ge ́

Program established under section 831 of the 

National Defense Authorization Act for Fiscal 

Year 1991 (25 U.S.C. 47 note) does not render 

an Indian economic enterprise ineligible for 

contracts awarded under the Buy Indian Act. 

(2) If a contractor no longer meets the 

definition of an Indian economic enterprise 

after award, the contractor must notify the 

CO in writing. The notification must include 

full disclosure of circumstances causing the 

contractor to lose eligibility status and a 

description of any actions that the contractor 

will take to regain eligibility. Failure to give 

the CO immediate written notification means 

that: (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 employeremployee relationship) entered into by a 

Government prime contractor or 

subcontractor calling for supplies and/or 

services required for performance of the 

contract, contract modification, or 

subcontract. 

(3) Subcontractor means a concern to 

which a contractor subcontracts any work 

under the contract. 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 onreservation 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: 


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(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 onreservation 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 

§ 1480.101 Scope of part. 

This part prescribes policies and 

procedures for the procurement of 

supplies and services from Indian 

economic enterprises under the Buy 

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

§ 1480.102 Buy Indian Act acquisition 

regulations. 

(a) This part supplements Federal 

Acquisition Regulation (FAR) and 

Department of the Interior 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 

§ 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 SecretaryIndian 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’’ 


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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-Prote ́ge ́ 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 employeremployee relationship) entered into by 

a Government prime contractor or 

subcontractor calling for supplies and/ 

or services required for performance of 

the contract, contract modification, or 

subcontract. 

Subcontractor means a concern to 

which a contractor subcontracts any 

work under the contract. The term 

includes subcontractors at any tier who 

perform work on the contract. 

Work means the level of work effort 

by the prime contractor based on total 

direct project costs. 

Subpart 1480.3—Applicability 

§ 1480.301 Scope of part. 

Except as provided in 1480.401(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). 

§ 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 SelfDetermination 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 

§ 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 setasides 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. 

§ 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 


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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: 

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

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

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

Exceeding $11.5 million but not exceeding $57 million ........................... The head of the procuring activity, or a designee who is a civilian serving in a position in a grade above GS–15 under the General Schedule or in a comparable or higher position under another schedule. 

Exceeding $57 million .............................................................................. 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 or commercial item acquisition in accordance with FAR Parts 12 or 

13 and DIAR 1413.

The Bureau determines after a market survey 

that there is no reasonable expectation of 

obtaining offers that will be competitive in 

terms of market price, quality, and delivery 

from two or more responsible ISBEEs (or at 

least from one such enterprise, if the purchase does not exceed the dollar threshold 

described in FAR 13.003).

The CO must: 

(1) Document the reasons for the deviation in 

the file; 

(2) Ascertain the availability of small business 

suppliers through market research; and 

(3) If appropriate, compete the purchase 

using an unrestricted small business setaside as prescribed in FAR 19.502–2. 

In pursuit of all other acquisitions ...................... The Bureau determines there is no reasonable expectation that offers will be received 

from two or more responsible IEEs at a reasonable and fair market price.

The official must: 

(1) Provide a written determination in the contract file stating there is no reasonable expectation of receiving offers from two or 

more responsible IEEs and that award cannot be made at a reasonable and fair market price; and 

(2) Proceed with the acquisition using the 

order of precedence established in FAR 

8.001. 

(c) Deviations may be authorized after 

issuing solicitations when 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 or commercial item acquisition in accordance with FAR Parts 12 or 

13 and DIAR 1413.

Only one offer is received from a responsible 

ISBEE and the price is unreasonable or no 

offers are received from a responsible 

ISBEE.

The CO must: 

(1) Document the reasons for the deviation in 

the file; 

(2) Ascertain the availability of small business 

suppliers through market research; and 

(3) If appropriate, compete the purchase 

using an unrestricted small business setaside as prescribed in FAR 19.502–2. 

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

1480.504–1(b)(3).

The Bureau must proceed under PL 93–638. 

(1) All otherwise acceptable offers received 

from IEEs are unreasonable; 

(2) Only one offer is received from an IEE 

and the CO determines the price to be unreasonable; or 

(3) No responsive offers have been received 

from IEEs. 

The official must: 

(1) Cancel the solicitation; 

(2) Reject all offers in writing in accordance 

with FAR 14.404–3; and 

(3) Complete the acquisition by either: 

(i) Using negotiation, provided the CO has obtained the approval required by FAR 

14.404–1; or 

(ii) If negotiation with the offerors responding 

to the canceled solicitation is not authorized, the CO must proceed with a new acquisition using the order of precedence in 

FAR 8.001. 


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(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 offreservation 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 setaside 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 


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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-Prote ́ge ́

Program established under section 831 


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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, 


sroberts on DSK5SPTVN1PROD with PROPOSALS
43796 Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules 

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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2011–0097; 

4500030114] 

RIN 1018–AX41 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Lost River Sucker and 

Shortnose Sucker 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce the 

reopening of the public comment period 

on the December 7, 2011, proposed 

designation of critical habitat for the 

Lost River sucker (Deltistes luxatus) and 

shortnose sucker (Chasmistes 

brevirostris) under the Endangered 

Species Act of 1973, as amended (Act). 

We also announce the availability of a 

draft economic analysis (DEA) of the 

proposed designation of critical habitat 

for Lost River sucker and shortnose 

sucker and an amended required 

determinations section of the proposal. 

DATES: We will consider all comments 

received or postmarked on or before 

August 27, 2012. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES

section, below) must be received by 

11:59 p.m. Eastern Time on the closing 

date. 

ADDRESSES: Document availability: You 

may obtain copies of the proposed rule 

and the draft economic analysis on the 

Internet at http://www.regulations.gov at 

Docket Number FWS–R8–ES–2011– 

0097, or by mail from the Klamath Falls 

Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT). 

Comment submission: You may 

submit written comments by one of the 

following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. In the Search box, 

enter FWS–R8–ES–2010–0097, which is 

the docket number for this rulemaking. 

Then, on the left side of the screen, 

under the Document Type heading, 

click on the Proposed Rules link to 

locate this document and submit a 

comment. 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R8–ES–2011– 

0097; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: 

Laurie R. Sada, Field Supervisor, U.S. 

Fish and Wildlife Service, Klamath Falls 

Fish and Wildlife Office, 1936 

California Avenue, Klamath Falls, OR 

97601, by telephone (541–885–8481), or 

by facsimile (541–885–7837). Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written comments and 

information during this reopened 

comment period on our proposed 

designation of critical habitat for the 

Lost River sucker and shortnose sucker 

that was published in the Federal 

Register on December 7, 2011 (76 FR 

76337), our DEA of the proposed 

designation, and the amended required 

determinations provided in this 

document. We will consider 

information and recommendations from 

all interested parties. We are 

particularly interested in comments 

concerning: 

(1) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are threats to the species from 

human activity, the degree of which can 

be expected to increase due to the 

designation, and whether that increase 

in threat outweighs the benefit of 

designation such that the designation of 

critical habitat may not be prudent. 

(2) Specific information on: 

(a) The amount and distribution of 

Lost River sucker and shortnose sucker 

habitat; 

(b) What areas that were occupied at 

the time of listing and contain physical 

and biological features essential to the 

conservation of the species should be 

included in the designation and why; 

(c) Special management 

considerations or protection that may be 

needed for the physical and biological 

features essential to the conservation of 

the species in critical habitat areas we 

are proposing, including managing for 

the potential effects of climate change; 

and 

(d) What areas not occupied at the 

time of listing meet our criteria for being 

essential for the conservation of the 

species and, therefore, should be 

included in the designation and why. 

(3) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(4) Information on the projected and 

reasonably likely impacts of climate 

change on the Lost River sucker and 

shortnose sucker, the features essential 

to their conservation, and the areas 

proposed as critical habitat. 

(5) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

area under section 4(b)(2) of the Act. 

(6) Any probable economic, national 

security, environmental, cultural, or 

other relevant impacts of designating as 

critical habitat any area that may be 

included in the final designation. In 

particular, we seek information on any 

impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts. 

(7) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

(8) The likelihood of adverse social 

reactions to the designation of critical 

habitat, as discussed in the draft 

economic analysis, and how the 

consequences of such reactions, if likely 

to occur, would relate to the 

conservation and regulatory benefits of 

the proposed critical habitat 

designation. 

If you submitted comments or 

information on the proposed rule (76 FR 

76337) during the initial comment 

period from December 7, 2011, to 

February 6, 2012, please do not 

resubmit them. We have incorporated 

them into the public record, and we will 

fully consider them in the preparation 

of our final determination. Our final 

determination concerning revised 


sroberts on DSK5SPTVN1PROD with PROPOSALS