Federal Register / Vol. 87, No. 68 / Friday, April 8, 2022 / Rules and Regulations 20761 

[FR Doc. 2022–07541 Filed 4–7–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary 

48 CFR Parts 1426, 1452, and 1480 

[DOI–2019–0012; 212D0102DM DS62500000 

DLSN00000.000000 DX62501] 

RIN 1090–AB21 

Acquisition Regulations; Buy Indian 

Act; Procedures for Contracting 

AGENCY: Assistant Secretary for Policy, 

Management and Budget, Interior. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Department of the Interior’s regulations 

implementing the Buy Indian Act, 

which provides the Department of 

Interior (DOI) with authority to set aside 

procurement contracts for Indian-owned 

and controlled businesses. These 

revisions eliminate barriers to Indian 

Economic Enterprises from competing 

on certain construction contracts, 

expand Indian Economic Enterprises’ 

ability to subcontract construction work 

consistent with other socio-economic 

set-aside programs, and give greater 

preference to Indian Economic 

Enterprises when a deviation from the 

Buy Indian Act is necessary, among 

other updates. 

DATES: This rule is effective May 9, 

2022. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Christopher Bell, Senior Small Business 

Specialist, Office of Small and 

Disadvantaged Small Business, 

Department of the Interior, 1849 C Street 

NW, Mail Stop 4214 MIB, Washington, 

DC 20240; telephone (202) 208–3458 or 

email christopher_bell@ios.doi.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Department of the Interior 

Acquisition Regulations (DIAR) are in 

title 48, chapter 14 of the Code of 

Federal Regulations (48 CFR parts 1401– 

1499) and include regulations 

implementing the Buy Indian Act (25 

U.S.C. 47, as amended). The Department 

recently reviewed the DIAR consistent 

with Executive Order (E.O.) 13985, 

Advancing Racial Equity and Support 

for Underserved Communities Through 

the Federal Government. Interior has 

identified various aspects of parts 1426, 

1452, and 1480 that are barriers to equal 

opportunity for Indians and Indian 

Tribes in the Interior procurement 

process. These barriers inhibit job 

creation, are ineffective at promoting 

maximum economic development in 

Indian Country, and limit Indian 

country from fully participating in 

Interior procurements subject to the Buy 

Indian Act. 

This rule supplements the Federal 

Acquisition Regulation (FAR) and 

revises the DIAR. For this reason, the 

rule is issued by the Assistant Secretary 

for Policy, Management and Budget and 

follows the numbering system 

established by the FAR and DIAR. The 

DIAR was last revised in 2013 and 

included the addition of a new part 

1480 to address acquisitions under the 

Buy Indian Act. See 78 FR 34266 (June 

7, 2013). 

II. Description of Final Rule 

This rule revises the DIAR in the 

following ways, as explained below: 

Eliminate the restriction on Indian 

Economic Enterprises (IEE) from 

competing on ‘‘covered’’ construction 

contracts issued under the Buy Indian 

Act; expand IEEs’ ability to subcontract 

work subject to the Buy Indian Act 

consistent with other government socioeconomic set-aside programs; give 

greater preference to IEEs; update the 

process and thresholds for deviations; 

and clarify applicability. 

A. Elimination of Restriction for 

‘‘Covered’’ Construction Contracts 

Interior’s review of DIAR parts 1426, 

1480, and 1452 identified changes in 

law that affect how Interior applies the 

Andrus v. Glover Construction Co. 

Supreme Court decision, 446 U.S. 608 

(1980). The case has underpinned the 

current language of the DIAR part 1480, 

which restricts IEE set-asides to 

‘‘covered’’ construction. Interior has 

determined that the underlying law 

upon which the case was decided has 

significantly changed since the case was 

decided in 1980. The decision 

references 41 U.S.C. 252, which was 

amended by The Deficit Reduction Act 

of 1984 (Pub. L. 98–369) and moved to 

41 U.S.C. 253. Interior has reviewed 41 

U.S.C 253 as currently codified (and 

now reclassified to 41 U.S.C. 3301 et 

seq. per Pub. L. 111–315) and has 

determined that the ‘‘covered’’ 

construction language in the regulation 

is no longer required by law. Interior 

has removed all references to ‘‘covered’’ 

construction throughout the regulation. 

Removal of this language allows for the 

set-aside of construction contracts to 

IEEs. 

B. Expansion of Indian Economic 

Enterprises’ Ability To Subcontract 

Since Interior proposes to remove 

references to ‘‘covered’’ construction 

and allow IEEs to compete for all 

construction contracts, Interior has 

identified restrictions on IEEs that 

exceed restrictions in other government 

socio-economic set-aside programs. 

Currently, 48 CFR 1452.280–3 restricts 

the ability of IEEs from subcontracting 

more than 50% of the work to firms 

other than IEEs. This rule does not 

change the 50% subcontract limitation 

for supplies and services. However, the 

50% limitation is currently not 

consistent with FAR clause 52.219–14 

Limitation on Subcontracting which has 

different limitations for construction 

awards. This rule ensures that the 48 

CFR 1452.280–3 clause is consistent 

with the FAR 52.219–14 clause. The 

change will allow IEEs to subcontract 

up to 75% for construction by special 

trade contractors and 85% for general 

construction. Consistency with FAR 

clause 52.219–14 ensures equal 

treatment of IEEs in Federal 

procurement and removes 

subcontracting barriers for IEEs. 

C. Preference for Indian Small Business 

Economic Enterprises 

The rule revises 48 CFR 1480.4 to 

clarify and simplify the preferences 

granted to IEEs under the Buy Indian 

Act. The current language of section 

1480.403(b) directs Contracting Officers 

(CO) to solicit purchases as an 

unrestricted small business set-aside 

open to firms that are not Indian Small 

Business Economic Enterprises (ISBEE) 

when the CO determines two or more 

ISBEEs would not provide competitive 

offers and the CO has an approved 

deviation. This final rule deletes the 

existing language, because Interior has 

determined it is not fully compliant 

with the Buy Indian Act. 

The revised section 1480.401(c) adds 

language that the CO will give priority 

to ISBEEs for all purchases subject to 

the Buy Indian Act. The current 

language of 1480.4 only gives preference 

to ISBEEs when the purchase is 

commercial or a simplified acquisition. 

Section 1480.401(d) adds language that 

if a CO determines that there is not a 

reasonable expectation of obtaining 

competitive offers, then the CO will give 

priority to IEEs. The updated language 

also allows sole source awards to an 

ISBEE or IEE authorized under the FAR 

to be compliant with the Buy Indian 

Act. 


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D. Updates to Thresholds and Process 

for Deviations 

Interior has determined the existing 

deviation process at 48 CFR 1480.403 to 

be burdensome in implementation and 

not fully compliant with the Buy Indian 

Act. This final rule clarifies the 

deviation process by identifying 

acquisitions that do not require a 

deviation and streamlining the actions 

taken after a deviation is approved. As 

stated in section 1480.403(b) of the final 

rule, if a contract follows the 

requirements of FAR 6.3 or is subject to 

a previously approved deviation, the 

contract no longer requires an approved 

deviation. As stated in section 

1480.403(f) of the final rule, acquisitions 

made under an authorized deviation 

from the Buy Indian Act must follow the 

FAR and DIAR unless specified 

otherwise. 

Other changes to the deviation 

process include: 

• Adding section 1480.403(a) which 

ensures sole source awards made to IEEs 

or ISBEEs comply with the requirements 

of the Buy Indian Act and do not require 

a deviation; 

• Adding COs as authorized to 

approve deviations under $25,000 at 

section 1480.403(c); 

• Updating deviation approval 

thresholds in section 1480.403(c) from 

$550,000 to $700,000 to be consistent 

with changes in FAR 6.304; and 

• Adding ‘‘one level above the CO’’ to 

officials authorized to approve 

deviations for actions exceeding $25,000 

but not exceeding $700,000 in section 

1480.403(c). 

E. Inapplicability to ISDEAA Contracts 

The final rule removes language 

referencing the Indian Self 

Determination and Education 

Assistance Act (ISDEAA) (Pub. L. 93– 

638) in 48 CFR 1426.70 and 1480.504(b). 

Contracts issued under the authority of 

ISDEAA are not covered under the FAR 

and are codified separately under 25 

CFR part 900. Since the contracts under 

ISDEAA are not a procurement action 

subject to the FAR and are separately 

codified, there is no need to address 

contracts subject to ISDEAA in the 

DIAR. This rule specifically removes 48 

CFR 1426.70, 1452.226–70, 1452.226– 

71, and 1480.504(b) in their entirety and 

removes all other references to those 

sections. 

III. Comments Received on the 

Proposed Rule 

The Department published a proposed 

rule on October 27, 2021 (86 FR 59338), 

hosted a Tribal consultation session on 

December 1, 2021, and received 10 

comments prior to the comment 

deadline on December 27, 2021. A 

substantial number of comments 

supported Interior’s efforts to update 

these rules. A summary of the 

comments received, and Interior’s 

responses and changes made to the rule 

as a result of those comments are 

provided here: 

A. Summary and Analysis of Comments 

1. Strong Support for the Rule 

Comment: Most of the respondents 

strongly supported the proposed rule. 

Multiple respondents noted positive 

factors regarding this rule as follows: 

• Removing the ‘‘covered 

construction’’ language in the rule; 

• Decreasing subcontract limitations 

for construction contracts that conform 

to Small Business Administration (SBA) 

regulations for small and socioeconomic businesses; 

• Enhancing the preferences for 

Indian Small Business Economic 

Enterprises; and 

• Streamlining and clarifying the 

process when deviation from the Buy 

Indian Act is necessary. 

2. Comments and Responses 

2A. Definitions 

Comment 1: A commentor proposed 

that the definition of IEE at DIAR 

1480.201 and 1452.280–2 be clarified to 

be consistent with the SBA regulation 

covering management and control of the 

business. 

Response: Interior agrees that the 

definition of IEE at DIAR 1480.201 and 

1452.280–2 covering management and 

control of the business should be 

revised to ensure consistency with SBA 

regulation. Consistency with SBA 

regulations ensures equal and consistent 

treatment of IEEs in Federal 

procurement and removes barriers for 

IEEs seeking SBA 8a program 

participation. Interior has revised the 

definition of IEE at DIAR 1480.201 and 

1452.280–2 to be consistent with SBA’s 

regulation at 13 CFR 124.109(c)(4). 

Comment 2: A commenter suggested 

that to ensure control of the IEE that an 

Indian individual must possess both 

management and technical capabilities 

directly related to the primary industry 

in which the enterprise conducts 

business. 

Response: This rule does not change 

the requirement that individual owners 

of an IEE possess the requisite 

management or technical capabilities to 

control the enterprise. Interior views the 

possession of either management 

capabilities or technical capabilities in 

the industry of the enterprise to be 

sufficient to control the management 

and daily business operations of the 

enterprise. This rule does add 

clarification on the requirement for 

management and control for Tribally 

owned Indian Economic Enterprises. 

See comment 3. 

Comment 3: A commenter suggested 

adding Tribally owned entities not 

organized for profit into the definition 

of IEEs at DIAR 1480.201. 

Response: The proposed rule removed 

‘‘that is established for the purpose of 

profit’’ from the definition of IEE. This 

final rule also removes ‘‘that is 

established for the purpose of profit’’ 

from the definitions at DIAR 1452.280– 

2 and 1452.280–3. This final rule retains 

the definition of ISBEE at DIAR 

1480.201. This rule language ensures 

consistency with Small Business 

Administration regulations concerning 

the definition of a small business at 13 

CFR 121.105. 

Comment 4: A commenter suggested 

that State recognized Tribes should be 

eligible as IEEs. 

Response: This rule only covers 

Federally Recognized Tribes as listed on 

the Federally Recognized Tribe List 

most recent published February 1, 2019, 

in the Federal Register at 84 FR 1200 

and as required by 25 U.S.C. 5131. The 

Federally Recognized Tribe List is list of 

all Indian Tribes which the Secretary 

recognizes to be eligible for the special 

programs and services provided by the 

United States to Indians because of their 

status as Indians. 

2B. Preferences for IEEs and ISBEEs 

Comment 1: During the Tribal 

Consultation a commenter asked if 

General Services Administration (GSA) 

schedule purchases would fall under 

the proposed rule’s deviation process. 

Response: The rule states at 

1480.401(a) that ‘‘IA must use the 

negotiation authority of the Buy Indian 

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

Indians whenever the use of that 

authority is authorized and practicable.’’ 

Since GSA Schedules do not allow for 

a set-aside for IEE or ISBEEs, Interior 

COs purchasing under the Buy Indian 

Act may only utilize GSA Schedules 

when there is an approved deviation. 

Comment 2: During the Tribal 

Consultation a commentor asked if the 

removal of covered construction 

language in the rule also applies to 

architect-engineering services and if 

Interior COs must still follow the 

procedures of FAR Part 36.6 Architect 

Engineering Services. 

Response: Yes, the rule clarifies that 

Architect Engineering services are 

covered under the Buy Indian Act. This 

rule does not propose any changes to 

FAR 36.6 and Interior COs must still 


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follow the procedures for purchasing 

Architect Engineering services under 

the FAR. 

Comment 3: A commentor suggested 

that the Department should consider 

expanding scope of acquisitions under 

Buy Indian Act to the maximum extent 

possible, including with respect to the 

definitions of ‘‘supplies’’ and ‘‘general 

services’’. The commentor specifically 

mentions adding printing. 

Response: This rulemaking 

supplements the FAR and does not 

supersede the requirements of FAR 

8.002 or 8.003 which specifies 

mandatory sources for certain supplies 

and services. DIAR 1480.401(a) states 

that supplies include ‘‘printing, 

notwithstanding any other law 

specifically includes printing’’. 

However, Interior must follow FAR 

8.802(a) which states that ‘‘Government 

printing must be done by or through the 

Government Printing Office’’ unless an 

exception applies. FAR 8.802(a) 

implements the law as codified at 44 

U.S.C 501. If an exception applied to a 

Interior printing acquisition covered by 

the by Buy Indian Act then the 

acquisition shall follow the procedures 

of DIAR 1480. 

Comment 4: A commenter suggests 

establishing a certification program to 

verify that a company is Indian owned 

and controlled. 

Response: This rule maintains the 

requirement that IEEs certify that the 

enterprise meets the definition at 

1480.201. The provision at DIAR 

1452.280–5 must be certified by the 

Enterprise prior to any award under the 

Buy Indian Act. No additional 

certification program is planned at this 

time. To strengthen oversight and 

reduce the potential for fraud and abuse 

this final rule updates the language at 

DIAR 1452.280–2(f)(2). The updated 

language requires a contractor to update 

the representations and certifications in 

the System for Award Management if 

the contractor no longer meets the 

requirements to be certified as an IEE. 

Comment 5: A commentor suggesting 

eliminating the ‘‘rule of two’’ 

requirement or mandate that 

Contracting Officers extensively 

document their efforts to search for 

Indian vendors. 

The proposed and final rule does not 

contain a ‘‘rule of two’’ requirement, see 

DIAR 1480.401(d). 

Comment 6: A commenter suggests 

that the Secretary of Interior delegate 

Buy Indian procurement authority to 

other Interior bureaus and offices 

beyond the Department of Interior and 

Indian Health Service. 

Response: Per DIAR 1480.402(b) ‘‘The 

Secretary may delegate authority under 

the Buy Indian Act to a bureau or office 

within the Department of the Interior 

other than IA.’’ The Secretary has 

already delegated authority through the 

Department Manual to allow Interior 

COs to utilize the Buy Indian Act 

procedures of DIAR 1480. This 

rulemaking only covers Department of 

Interior and Interior does not have 

authority to change the FAR. 

2C Subcontract Limitations 

Comment 1: A commentor suggested 

removing all subcontract limitations and 

allow subcontracting up to 100% of the 

value of the contract. 

Response: This rule retains 

consistency with Small Business 

Administration limitations on 

subcontracting. The expansion of 

subcontracting to firms other than IEEs 

beyond the SBA limitations would not 

support development of competitive 

IEEs or maximize the employment of 

Indian Labor. 

Comment 2: A commentor 

recommended that the Department 

consider providing technical assistance 

to ISBEEs when requested. 

Response: Interior currently provides 

small business assistance to all small 

businesses as requested through the 

Office of Small and Disadvantaged 

Business Utilization. 

2D Reporting and Transparency 

Comment 1: Multiple commenters 

requested greater transparency and 

reporting on the use of Buy Indian 

contracting procedures at Interior and 

adherence to the requirements of the 

Indian Community Economic 

Enhancement Act (ICEEA). 

Our Response: Indian Affairs is 

committed to giving preference to IEEs 

to the maximum extent practicable and 

continuously monitor the marketplace 

to identify IEEs that can perform Indian 

Affairs requirements. In Fiscal Year 

2021 Indian Affairs has awarded over 

59% to IEEs. Indian Affairs (IA) already 

reports on Buy Indian Act performance 

to Congress and will comply with all 

reporting requirements of the Indian 

Community Economic Enhancement 

Act. IA is committed to faithfully 

implementing the ICEEA requirement to 

harmonize the regulations 

implementing the Buy Indian Act. This 

final rule is one step in implementing 

ICEEA and IA will continue to 

coordinate with IHS. IA is interested in 

collaborating with the Tribes to provide 

more data and insight on how IA is 

meeting the requirements of the Buy 

Indian Act. 

3. Comments Outside the Scope of the 

Rule 

Comment 1: A commenter stated that 

the Indian Health Service’s (IHS) 

proposed rulemaking did not engage in 

meaningful Tribal consultation. 

Response: This rulemaking only 

covers the Department of Interior and is 

separate from the IHS rulemaking. As 

part of this rule-making we have 

followed Interior’s Tribal consultation 

policy. 

Comment 2: A commentor encouraged 

Interior to review Interior’s surety bond 

guarantee authority and policies under 

25 U.S.C 1497a and expand the use of 

the authority. 

Response: This final rule does not 

change how surety bond guarantees are 

treated under DIAR 1480.602 nor does 

this rule alter or expand the authority 

under 25 U.S.C.1497a. However, the 

commentor noted the updated authority 

of the Indian Financing Act. The 

outdated reference to the Indian 

Financing Act at DIAR 1480.602 was 

corrected to 25 U.S.C. 1497a. 

Comment 3: A commenter suggested 

that Interior should give preference to 

Tribal owned enterprises in Federal 

green products and Federal energy 

acquisitions. 

Response: This rulemaking only 

covers Department of Interior and 

Interior does not have authority to 

change the FAR. 

B. Final Rule Corrections 

Correction 1: The final rule removes 

references to Bureau Procurement Chief 

at 1480.505 and Table 1 at 1480.403(c). 

Bureau Procurement Chief is no longer 

a term or position that exists at Interior. 

The IA Competition Advocate was 

added in place of the Bureau 

Procurement Chief to the Table 1 at 

1480.403(c) as an official that may 

authorize a deviation when the Chief of 

the Contracting Office is absent. 

Correction 2: Replaced the word 

‘‘investigate’’ with ‘‘review’’ at DIAR 

1480.802(d) to avoid confusion with 

legal proceedings. 

Correction 3: Identified the Director as 

the official in the Office of Acquisition 

and Property Management that is 

responsible for challenges to 

representation under 1480.902 and 

appeals under DIAR 1480.903. 

Correction 4: Updated notification 

delivery options at 1480.902(f) to be 

consistent with 1480.902(c)(2). 

Correction 5: Updated various 

language at DIAR 1480.903 for clarity. 

III. Required Determinations 

1. Regulatory Planning and Review 

(Executive Orders 12866 and 13563). 


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Executive Order (E.O.) 12866 provides 

that the Office of Information and 

Regulatory Affairs (OIRA) will review 

all significant rules. OIRA 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. 

2. Regulatory Flexibility Act. The 

Secretary certifies that the adoption of 

this rule will not have a significant 

economic impact on a substantial 

number of small entities as they are 

defined in the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.). Therefore, under 

5 U.S.C. 605(b), this rulemaking is 

exempt from the initial and final 

regulatory flexibility analysis 

requirements of sections 603 and 604. 

3. Small Business Regulatory 

Enforcement Fairness Act. This rule is 

not a major rule under the Small 

Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 804(2)). This rule 

does not have an annual effect on the 

economy of $100 million or more. This 

rule will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. This rule does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. 

4. Unfunded Mandates Reform Act. 

This rule does not impose an unfunded 

mandate on State, local, or Tribal 

governments or the private sector of 

more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or Tribal 

governments, or the private sector nor 

does the rule impose requirements on 

State, local, or Tribal governments. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

5. Takings (E.O. 12630). This rule 

does not affect a taking of private 

property or otherwise have taking 

implications under Executive Order 

12630. A takings implication assessment 

is not required. 

6. Federalism (E.O. 13132). Under the 

criteria in section 1 of E.O. 13132, this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. It does not substantially and 

directly affect the relationship between 

the Federal and State governments. A 

federalism summary impact statement is 

not required. 

7. Civil Justice Reform (E.O. 12988). 

This rule complies with the 

requirements of E.O. 12988. 

Specifically, this rule (1) meets the 

criteria of section 3(a) of this E.O. 

requiring that all regulations be 

reviewed to eliminate errors and 

ambiguity and be written to minimize 

litigation; and (2) meets the criteria of 

section 3(b)(2) of this E.O. requiring that 

all regulations be written in clear 

language and contain clear legal 

standards. 

8. Consultation with Indian Tribes 

(E.O. 13175). The Department of the 

Interior strives to strengthen its 

government-to-government relationship 

with Indian Tribes through a 

commitment to consultation with Indian 

Tribes and recognition of their right to 

self-governance and Tribal sovereignty. 

We have evaluated this rule under the 

Department’s consultation policy and 

under the criteria in E.O. 13175 and 

have determined there may be 

substantial direct effects on federally 

recognized Indian Tribes that will result 

from this rulemaking. The Department 

hosted Tribal consultation and has 

addressed the input received in Section 

II, above. 

9. Paperwork Reduction Act, 44 

U.S.C. 3501, et seq. This rule requires 

offerors to certify whether they met the 

definition of an ‘‘Indian Economic 

Enterprise’’. These statements are 

considered simple representations that 

an offeror submitted 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 these statements are a simple 

certification or acknowledgment related 

to a transaction, they do not qualify as 

a collection of information under the 

Paperwork Reduction Act. See 5 CFR 

1320.3(h). 

10. 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 (NEPA) is not 

required because the rule is covered by 

the categorical exclusion listed in 43 

CFR 46.210(c). We have also determined 

that the rule does not involve any of the 

extraordinary circumstances listed in 43 

CFR 46.215 that would require further 

analysis under NEPA. 

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

13211). This rule is not a significant 

energy action under the definition in 

E.O. 13211. A Statement of Energy 

Effects is not required. 

This action is taken pursuant to 

delegated authority. 

List of Subjects in 48 CFR Parts 1426, 

1452, and 1480 

Government procurement, Indians, 

Indians—business and finance, 

Reporting and recordkeeping 

requirements. 

For the reasons set out in the 

preamble, the Interior amends chapter 

14 of title 48 CFR as follows: 

PART 1426—OTHER 

SOCIOECONOMIC PROGRAMS 

■ 1. The authority citation for part 1426 

continues to read as follows: 

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

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

Subpart 1426.70—[Removed and 

Reserved] 

■ 2. Remove and reserve subpart 

1426.70, consisting of sections 

1426.7000 through 1426.7005. 

PART 1452—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. The authority citation for part 1452 

continues to read as follows: 

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

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

Subpart 1452.2—Text of Provisions 

and Clauses 

1452.226–70 and 1452.226–71 [Removed 

and Reserved] 

■ 4. Remove and reserve sections 

1452.226–70 and 1452.226–71. 

■ 5. Revise sections 1452.280–1 through 

1452.280–4 to read as follows: 

1452.280–1 Notice of Indian Small 

Business Economic Enterprise set-aside. 

As prescribed in 1480.503(e)(1), and 

in lieu of the requirements of FAR 

19.508, insert the following provision in 

each written solicitation of offers to 

provide supplies, general services, A–E 

services, or construction. If the 


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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 (FEB 

2021) 

Under the Buy Indian Act, 25 U.S.C. 47, 

offers are solicited only from Indian 

Economic Enterprises (Subpart 1480.8) that 

are also small business concerns. Any 

acquisition resulting from this solicitation 

will be from such a concern. Offers received 

from enterprises that are not both Indian 

Economic Enterprises and small business 

concerns will not be considered and will be 

rejected. 

(End of provision) 

1452.280–2 Notice of Indian Economic 

Enterprise set-aside. 

As prescribed in 1480.503(e)(2), insert 

the following clause in solicitations and 

contracts involving Indian Economic 

Enterprise set-asides. If the solicitation 

is oral, information substantially 

identical to that contained in the 

provision must be given to potential 

offerors. 

Notice of Indian Economic Enterprise 

Set-Aside (FEB 2021) 

(a) Definitions as used in this clause. 

Alaska Native Claims Settlement Act 

(ANCSA) means Public Law 92–203 

(December 18, 1971), 85 Stat. 688, codified at 

43 U.S.C. 1601–1629h. 

Indian means a person who is an enrolled 

member of a Federally Recognized Indian 

Tribe. 

Indian Economic Enterprise means any 

business activity owned by one or more 

Indians or Federally Recognized Indian 

Tribes, provided that: 

(i) The combined Indian or Federally 

Recognized Indian Tribe ownership of the 

enterprise shall constitute not less than 51 

percent; 

(ii) The Indians or Federally Recognized 

Indian Tribes shall, together, receive at least 

51 percent 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 Indians. To ensure 

actual control over the enterprise, the 

individuals must possess requisite 

management or technical capabilities directly 

related to the primary industry in which the 

enterprise conducts business. Management of 

Tribally owned Indian Economic Enterprises 

may be provided by: 

(A) Committees, teams, or Boards of 

Directors which are controlled by one or 

more members of Tribe, or; 

(B) Non-Tribal members if the enterprise 

can demonstrate that the Tribe can hire and 

fire those individuals, that it will retain 

control of all management decisions common 

to Committees, teams, or Boards of Directors. 

Common management decisions, include 

strategic planning, budget approval, and the 

employment and compensation of officers. A 

written management development plan must 

also exist which shows how Tribal members 

will develop managerial skills sufficient to 

manage the enterprise or similar enterprises 

in the future. 

The enterprise must meet the requirements 

of (i) through (iii) 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. 

Federally Recognized Indian Tribe means 

an Indian Tribe, band, nation, or other 

Federally recognized group or community on 

the List of Federally Recognized Tribes. This 

definition includes any Alaska Native 

regional or village corporation under the 

Alaska Native Claims Settlement Act 

(ANCSA). 

List of Federally Recognized Tribes means 

an entity appearing on the United States 

Department of the Interior’s List of federally 

recognized Indian Tribes published annually 

in the Federal Register pursuant to Section 

104 of Public Law 103–454, codified at 25 

U.S.C. 5131. 

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) The Contracting Officer (CO) will reject 

all offers received from ineligible enterprises. 

(3) Any award resulting from this 

solicitation will be made to an Indian 

Economic Enterprise, as defined in paragraph 

(a) of this clause. 

(c) Required Submissions. In response to 

this solicitation, an offeror must also provide 

the following: 

(1) A description of the required 

percentage of the work/costs to be provided 

by the offeror over the contract term as 

required by section 1452.280–3, 

Subcontracting Limitations clause; and 

(2) Qualifications of the key personnel (if 

any) that will be assigned to the contract. 

(d) Required Assurance. The offeror must 

provide written assurance to the CO that the 

offeror is and will remain in compliance with 

the requirements of this clause. It must do 

this before the CO awards the Buy Indian 

contract and upon successful and timely 

completion of the contract, but before the 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 CO to 

find an offer non-responsive and 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 immediately and 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. If the contract is unable to regain 

eligibility, then the contractor must revise its 

the representations and certifications in the 

System for Award Management. Failure to 

give the CO immediate written notification 

means that: 

(i) The economic enterprise may be 

declared ineligible as an IEE for future 

contract awards under this part; and 

(ii) The CO may consider termination for 

default if it is in the best interest of the 

government. 

(End of clause) 

1452.280–3 Indian Economic Enterprise 

subcontracting limitations. 

A contractor shall not subcontract 

more than the subcontract limitations 

specified under FAR 52.219–14 to other 

than responsible Indian Economic 

Enterprises when receiving an award 

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 1480.503(e)(3), insert the following 

clause in each written solicitation or 

contract to provide supplies, general 

services, A–E services, or construction: 

Indian Economic Enterprise 

Subcontracting Limitations (FEB 2021) 

(a) Definitions as used in this clause. 

(1) Concern means any business 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, materials and/or labor, 

etc. It includes but is not limited to an 

individual, partnership, corporation, joint 

venture, association, or cooperative. For the 

purpose of making affiliation findings (see 

FAR 19.101), it includes any business entity, 

whether or not it is organized for profit or 

located in the United States or its outlying 

areas. 

(2) Subcontract means any agreement 

(other than one involving an employeremployee relationship) entered into by a 

government prime contractor or 

subcontractor calling for supplies and/or 

services required for performance of the 

contract, contract modification, or 

subcontract. 

(3) Subcontractor means a concern to 

which a contractor subcontracts any work 

under the contract. It includes subcontractors 

at any tier who perform work on the contract. 

(b) Required Percentages of work by the 

concern. The contractor must comply with 

FAR 52.219–14 Limitations on 

Subcontracting clause in allocating what 

percentage of work to subcontract. The 

contractor shall not subcontract work 

exceeding the subcontract limitations in FAR 

52.219–14 to a concern other than a 

responsible Indian Economic Enterprise. 


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(c) Any work that an IEE subcontractor 

does not perform with its own employees 

shall be considered subcontracted work for 

the purpose of calculating percentages of 

subcontract work in accordance with FAR 

52.219–14 Limitations on Subcontracting. 

(d) Cooperation. The contractor must: 

(1) Carry out the requirements of this 

clause to the fullest extent; and 

(2) Cooperate in any study or survey that 

the CO, Indian Affairs, or its agents may 

conduct to verify the contractor’s compliance 

with this clause. 

(e) Incorporation in Subcontracts. The 

contractor must incorporate the substance of 

this clause, including this paragraph (e), in 

all subcontracts for supplies, general 

services, A–E services, and construction 

awarded under this contract. 

1452.280–4 Indian Economic Enterprise 

representation. 

As prescribed in 1480.503(e)(4), insert 

the following provision in each written 

solicitation for supplies, services, A–E, 

or construction: 

Indian Economic Enterprise 

Representation (FEB 2021) 

(a) The offeror represents as part of its offer 

that it [ ] does [ ] does not meet the definition 

of Indian Economic Enterprise (IEE) as 

defined in DIAR 1480.201 and that it intends 

to meet the definition of an IEE throughout 

the performance of the contract. The offeror 

must notify the contracting officer 

immediately in writing if there is any 

ownership change affecting compliance with 

this representation. 

(b) 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. 

(End of provision) 

■ 6. Under the authority of 25 U.S.C. 9, 

revise subchapter H to read as follows: 

Subchapter H—Buy Indian Act 

PART 1480—ACQUISITIONS UNDER 

THE BUY INDIAN ACT 

Subpart 1480.1—General 

1480.101 Scope of part. 

1480.102 Buy Indian Act acquisition 

regulations. 

Subpart 1480.2—Definitions 

1480.201 Definitions. 

Subpart 1480.3—Applicability 

1480.301 Scope of part. 

1480.302 Restrictions on the 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 [Reserved] 

1480.503 Procedures for acquisitions under 

the Buy Indian Act. 

1480.504 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—[Reserved] 

Subpart 1480.8—Representation by an 

Indian Economic Enterprise Offeror 

1480.801 General. 

1480.802 Representation provision. 

1480.803 Representation process. 

Subpart 1480.9—Challenges to 

Representation 

1480.901 General. 

1480.902 Receipt of challenge. 

1480.903 Award in the face of challenge. 

1480.904 Challenge not timely. 

Authority: 25 U.S.C. 47, as amended, 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 implements policies and 

procedures for the procurement of 

supplies, general services, architect and 

engineering (A&E) services, or 

construction while giving preference to 

Indian Economic Enterprises under 

authority of the Buy Indian Act (25 

U.S.C. 47). 

1480.102 Buy Indian Act acquisition 

regulations. 

(a) This part supplements Federal 

Acquisition Regulation (FAR) and 

Department of the Interior Acquisition 

Regulation (DIAR) requirements in this 

chapter to meet the needs of the 

Department of Interior in implementing 

the Buy Indian Act. 

(b) This part is under the direct 

oversight and control of the Chief 

Financial Officer, within the Office of 

the Assistant Secretary—Indian Affairs, 

Department of the Interior (CFO). The 

CFO is responsible for issuing and 

implementing this part. 

(c) Acquisitions conducted under this 

part are subject to all applicable 

requirements of the FAR and DIAR, as 

well as internal policies, procedures, or 

instructions issued by Indian Affairs. 

After the FAR, this part would take 

precedence over any inconsistent Indian 

Affairs policies, procedures, or 

instructions. 

Subpart 1480.2—Definitions 

1480.201 Definitions. 

Alaska Native Claims Settlement Act 

(ANCSA) means Public Law 92–203 

(December 18, 1971), 85 Stat. 688, 

codified at 43 U.S.C. 1601–1629h. 

Buy Indian Act means section 23 of 

the Act of June 25, 1910, codified at 25 

U.S.C. 47. 

Contracting Officer (CO) means a 

person with the authority to enter into, 

administer, or terminate contracts and 

make related determinations and 

findings on behalf of the U.S. 

Government. 

Deviation means an exception to the 

requirement to use the Buy Indian Act 

in fulfilling an acquisition requirement 

subject to the Buy Indian Act. 

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 15.404–1(b). 

Federally Recognized Indian Tribe 

means an Indian Tribe, band, nation, or 

other Federally recognized group or 

community on the List of Federally 

Recognized Tribes. This definition 

includes any Alaska Native regional or 

village corporation under the Alaska 

Native Claims Settlement Act (ANSCA). 

Governing Body means the recognized 

entity empowered to exercise 

governmental authority over a Federally 

Recognized Indian Tribe. 

Indian means a person who is an 

enrolled member of a Federally 

Recognized Indian Tribe. 

Indian Affairs (IA) means all bureaus 

and offices under the Assistant 

Secretary—Indian Affairs. 

Indian Economic Enterprise (IEE) 

means any business activity owned by 

one or more Indians or Federally 

Recognized Indian Tribes provided that: 

(1) The combined Indian or Federally 

Recognized Indian Tribe ownership of 

the enterprise constitutes not less than 

51 percent; 

(2) The Indians or Federally 

Recognized Indian Tribes must, 

together, receive at least 51 percent of 

the earnings from the contract; and 

(3) The management and daily 

business operations of an enterprise 

must be controlled by one or more 

individuals who are Indians. The Indian 

individual(s) must possess requisite 

management or technical capabilities 

directly related to the primary industry 

in which the enterprise conducts 

business. Management may be provided 

by: 

(i) Committees, teams, or Boards of 

Directors which are controlled by one or 

more members of Tribe, or; 

(ii) Non-Tribal members if the 

enterprise can demonstrate that the 


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Tribe can hire and fire those 

individuals, that it will retain control of 

all management decisions common to 

boards of directors, including strategic 

planning, budget approval, and the 

employment and compensation of 

officers, and that a written management 

development plan exists which shows 

how Tribal members will develop 

managerial skills sufficient to manage 

the enterprise or similar enterprises in 

the future. 

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. 

Interested Party means an IEE that is 

an actual or prospective offeror whose 

direct economic interest would be 

affected by the proposed or actual award 

of a particular contract set-aside 

pursuant the Buy Indian Act. 

List of Federally Recognized Tribes 

means an entity appearing on the 

United States Department of the 

Interior’s List of federally recognized 

Indian Tribes published annually in the 

Federal Register pursuant to Section 

104 of Public Law 103–454, codified at 

25 U.S.C. 5131. 

Subpart 1480.3—Applicability 

1480.301 Scope of part. 

Except as provided in 1480.302, this 

part applies to all acquisitions, 

including simplified acquisitions, made 

by IA and by any other bureau or office 

of the Department of the Interior 

conducting acquisitions on behalf of IA 

or otherwise delegated the authority to 

conduct acquisitions under the Buy 

Indian Act. 

1480.302 Restrictions on the use of the 

Buy Indian Act. 

IA must not use the authority of the 

Buy Indian Act and the procedures 

contained in this part to award 

intergovernmental contracts to Tribal 

organizations to plan, operate, or 

administer authorized IA programs (or 

parts thereof) that are within the scope 

and intent of the Indian SelfDetermination and Education 

Assistance Act (ISDEAA) (Pub. L. 93– 

638). IA must use the Buy Indian Act 

solely to award procurement contracts 

to IEEs. Contracts subject to ISDEAA 

must follow 25 CFR part 900. 

Subpart 1480.4—Policy 

1480.401 Requirement to give preference 

to Indian Economic Enterprises. 

(a) IA must use the negotiation 

authority of the Buy Indian Act to give 

preference to Indians or Federally 

Recognized Tribes whenever the use of 

that authority is practicable. The Buy 

Indian Act provides that so far as may 

be practicable, Indian labor shall be 

employed, and purchases of the 

products (including, but not limited to 

printing, notwithstanding any other 

law) of Indian industry may be made in 

open market at the discretion of the 

Secretary of the Interior. Thus, IA may 

use the Buy Indian Act to give 

preference to IEEs through set-asides 

when acquiring supplies, general 

services, A&E services, or construction 

to meet IA needs and requirements. All 

other FAR and DIAR requirements that 

do not conflict with this part, such as 

requirements applicable to the 

acquisition of A&E and construction 

services, remain applicable. 

(b) The Buy Indian Act does not apply 

when a supply requirement can be met 

by existing inventories of the requiring 

agency or excess from other agencies. 

(c) The CO will give priority to 

ISBEEs for all purchases, regardless of 

dollar value. COs when prioritizing 

ISBEEs may consider either: 

(1) A set-aside for ISBEEs; or 

(2) A sole source award to an ISBEE, 

as authorized under the FAR. 

(d) If the CO determines after market 

research that there is no reasonable 

expectation of obtaining offers that will 

be competitive in terms of market price, 

quality, and delivery, the CO may 

consider either: 

(1) A set-aside for IEEs; or 

(2) A sole source award to an IEE, as 

authorized under the FAR. 

(e) If the CO determines after market 

research that there is no reasonable 

expectation of obtaining offers that will 

be competitive in terms of market price, 

quality, and delivery from ISBEEs or 

IEEs, then the CO must follow the 

Deviation process under 1480.403. 

(f) When only one offer is received 

from a responsible IEE in response to an 

acquisition set-aside or direct 

negotiation under paragraph (c)(1) or 

(d)(1) of this section: 

(1) If the offer is not at a reasonable 

and fair market price, then the CO may 

negotiate with that enterprise for a 

reasonable and fair market price. 

(2) If the offer is at a reasonable and 

fair market price, then the CO must: 

(i) Make an award to that enterprise; 

(ii) Document the reason only one 

offer was considered; and 

(iii) Initiate action to increase 

competition in future solicitations. 

(g) If the offers received from one or 

more responsible IEEs in response to an 

acquisition set-aside under paragraph 

(c)(1) or (d)(1) of this section are not 

reasonable or otherwise unacceptable, 

then the CO must follow the deviation 

process under 1480.403. The CO must 

document in the deviation 

determination the reasons why the IEE 

offeror(s) were not reasonable or 

otherwise unacceptable. 

(1) If a deviation determination is 

approved, the CO must cancel the setaside solicitation and inform all offerors 

in writing. 

(2) When the solicitation of the same 

requirement is posted, the CO must 

inform all previous offerors in writing of 

the solicitation number. 

1480.402 Delegations and responsibility. 

(a) The Secretary has delegated 

authority under the Buy Indian Act to 

the Assistant Secretary—Indian Affairs. 

IA exercises this authority in support of 

its mission and program activities and 

as a means of fostering Indian 

employment and economic 

development. 

(b) The Secretary may delegate 

authority under the Buy Indian Act to 

a bureau or office within the 

Department of the Interior other than IA. 

(c) The Chief Financial Officer of The 

Office of the Assistant Secretary— 

Indian Affairs is responsible for 

ensuring that all IA acquisitions under 

the Buy Indian Act comply with the 

requirements of this part. 

1480.403 Deviations. 

There are certain instances where the 

application of the Buy Indian Act to an 

acquisition may not be appropriate. In 

these instances, the Contracting Officer 

must detail the reasons in writing and 

make a deviation determination. 

(a) Sole source acquisitions awarded 

to an ISBEE or IEE under 1480.401(c)(2) 

or (d)(2) do not require a deviation 

determination and comply with the 

requirements of the Buy Indian Act. 

(b) Some acquisitions by their very 

nature would make such a written 

determination unnecessary. The 

following acquisitions do not require a 

written deviation from the requirements 

of the Buy Indian Act: 

(1) Any sole source acquisition 

justified and approved in accordance 

with FAR 6.3 and DIAR 1406.3 

constitutes an authorized deviation from 

the requirements of the Buy Indian Act. 

(2) Any order or call placed against an 

indefinite delivery vehicle that already 

has an approved deviation from the 

requirements of the Buy Indian Act. 

(c) Deviation determinations are 

required for all other acquisitions where 

the Buy Indian Act is applicable and 

must be approved as follows: 


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TABLE 1 TO PARAGRAPH (c) 

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

Up to $25,000 ..................................................... CO. 

Exceeding $25,000 but not exceeding $700,000 One level above the CO or Chief of the Contracting Office (CCO) (or the IA Competition Advocate, absent a CCO). 

Exceeding $700,000 but not exceeding $13.5 

million.

IA Competition Advocate. 

Exceeding $13.5 million but not exceeding $57 

million.

The Head of the Contracting Activity or a designee who is a civilian serving in a position in a 

grade above GS–15 under the General Schedule or in a comparable or higher position 

under another schedule. 

Exceeding $57 million ......................................... Department of the Interior Senior Procurement Executive. 

(d) Deviations may be authorized 

prior to issuing the solicitation when 

the CO makes the following 

determinations and takes the following 

actions: 

(1) The CO determines after market 

research 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 ISBEE, IEEs, or direct 

negotiation with an IEE that is a 

certified 8a business. 

(2) The deviation determination is 

authorized by the official listed at 

1480.403(c) for the applicable contract 

action. 

(e) If a deviation determination has 

been approved, the CO must follow the 

FAR and DIAR unless specified 

otherwise. 

(f) Acquisitions made under an 

authorized deviation from the 

requirements of the Buy Indian Act 

must be made in conformance with the 

order of precedence required by FAR 

8.002. 

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 [Reserved] 

1480.503 Procedures for acquisitions 

under the Buy Indian Act. 

(a) Commercial items or simplified 

acquisitions under this section must 

conform to the competition and price 

reasonableness documentation 

requirements of FAR 12.209 for 

commercial item acquisitions and FAR 

13.106 for simplified acquisitions. 

(b) When acquiring construction 

services, solicit proposals and evaluate 

potential contractors in accordance with 

FAR part 36 and DIAR subpart 1436.2. 

(c) When acquiring A&E services, 

solicit proposals and evaluate potential 

contractors in accordance with FAR part 

36 and DIAR subpart 1436.6. 

(d) This paragraph (d) applies to 

solicitations that are not restricted to 

participation of IEEs. 

(1) If an interested IEE is identified 

after a solicitation has been issued, but 

before the date established for receipt of 

offers, the contracting office must 

provide a copy of the solicitation to this 

enterprise. In this case, the CO: 

(i) Will not give preference under the 

Buy Indian Act to the IEE; and 

(ii) May extend the date for receipt of 

offers when practical. 

(2) If more than one IEE is identified 

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) This paragraph (e) lists the clauses 

and provisions that must be inserted. 

(1) Insert the clause at 1452.280–1, 

Notice of Indian Small Business 

Economic Enterprise set-aside, in 

accordance with 1480.401(c). 

(2) Insert the clause at 1452.280–2, 

Notice of Indian Economic Enterprise 

set-aside, in accordance with 

1480.401(d). 

(3) Insert the clause at 1452.280–3, 

Indian Economic Enterprise 

subcontracting limitations, in 

accordance with 1480.601(b). 

(4) Insert the clause at 1452.280–4, 

Indian Economic Enterprise 

representation, in accordance with 

1480.801(a). 

1480.504 Other circumstances for use of 

other than full and open competition. 

(a) Other circumstances may exist 

where the use of an IEE set-aside in 

accordance with 1480.401(a) and FAR 

6.302–5 is not feasible. In such 

situations, the requirements of FAR 

subparts 6.3 and 13.5 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, 

all proposed acquisition actions must 

first be publicized in accordance with 

the requirements of FAR 5.2 and DIAR 

1405.2. 

(c) Justifications for use of other than 

full and open competition in accordance 

with this section must be approved in 

accordance with DIAR part 1406. These 

approvals are required for a proposed 

contract or for an out of scope 

modification to an existing contract. 

1480.505 Debarment and suspension. 

A misrepresentation by an offeror of 

its status as an IEE, failure to notify the 

CO of any change in IEE status that 

would make the contractor ineligible as 

an IEE, or any 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 and DIAR 1409.406 and 

1409.407. IA must refer 

recommendations for debarment or 

suspension to the Director, Office of 

Acquisition and Property Management, 

Department of the Interior, in 

accordance with DIAR 1409.406 and 

1409.407, through the Head of the 

Contracting Activity. 

Subpart 1480.6—Contract 

Requirements 

1480.601 Subcontracting limitations. 

(a) In contracts awarded under the 

Buy Indian Act and this part, the CO 

must insert the clause FAR 52.219–14, 

Limitations on Subcontracting. 

(b) The CO must also insert the clause 

at 1452.280–3, Indian Economic 

Enterprise subcontracting limitations, in 

all awards to ISBEEs and IEEs pursuant 

this part. 

1480.602 Performance and payment 

bonds. 

Solicitations requiring performance 

and payment bonds must conform to 

FAR part 28 and may authorize use of 

any of the types of security acceptable 

in accordance with FAR subpart 28.2 or 

25 U.S.C. 1497a. In accordance with 

FAR 28.102 and 25 U.S.C. 47a, the CO 

may accept alternative forms of security 

in lieu of performance and payment 

bonds if a determination is made that 

such forms of security provide the 


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Government with adequate security for 

performance and payment. 

Subpart 1480.7—[Reserved] 

Subpart 1480.8—Representation by an 

Indian Economic Enterprise Offeror 

1480.801 General. 

(a) The CO must insert the provision 

at 1452.280–4, Indian Economic 

Enterprise representation, in all 

solicitations regardless of dollar value 

solicited under 1480.401(c) or (d) and in 

accordance with this part. 

(b) To be considered for an award 

under 1480.401(c) or (d), an offeror must 

certify that it meets the definition of 

‘‘Indian Economic Enterprise’’ (as 

defined in 1480.201) in response to a 

specific solicitation set-aside in 

accordance with the Buy Indian Act and 

this part; and 

(c) The enterprise must meet the 

definition of ‘‘Indian Economic 

Enterprise’’ throughout the following 

time periods: 

(1) At the time an offer is made in 

response to a solicitation; 

(2) At the time of contract award; and 

(3) During the full term of the 

contract. 

(d) If, after award, a contractor no 

longer meets the eligibility requirements 

as it has certified and as set forth in this 

section, then the contractor must 

provide the CO with written notification 

within 3 days of its failure to comply 

with the eligibility requirements. 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 written 

notification required by paragraph (d) of 

this section means that: 

(1) The economic enterprise may be 

declared ineligible as an IEE for future 

contract awards under this part; and 

(2) The CO may consider termination 

for default if it is determined to be in 

the best interest of the Government. 

(f) A CO will review the 

representation if an interested party 

challenges the IEE representation or if 

the CO has any other reason to question 

the representation. The CO may ask the 

offeror for more information to 

substantiate the representation. 

Challenges of and questions concerning 

a specific representation must be 

referred to the CO or CCO in accordance 

with subpart 1480.9. 

(g) Participation in the Mentor-Prote ́ge ́

Program established under section 831 

of the National Defense Authorization 

Act for Fiscal Year 1991 (25 U.S.C. 47 

note) does not render an IEE ineligible 

for contracts awarded under the Buy 

Indian Act. 

1480.802 Representation provision. 

(a) Contracting offices must provide 

copies of the IEE representation to any 

interested parties upon written request. 

(b) The submission of a Solicitation 

Mailing List Application by an 

enterprise does not remove the 

requirement for it to provide 

representation as an IEE, as required by 

this part, if it wishes to be considered 

as an offeror for a specific solicitation. 

COs may determine the validity of the 

contents of the applicant’s 

representation. 

(c) Any false or misleading 

information submitted by an enterprise 

when submitting an offer in 

consideration for an award set aside 

under the Buy Indian Act is a violation 

of the law punishable under 18 U.S.C. 

1001. False claims submitted as part of 

contract performance are subject to the 

penalties enumerated in 31 U.S.C. 3729 

to 3731 and 18 U.S.C. 287. 

(d) The CO will review and refer to 

the appropriate officials all IEE 

misrepresentation by an offeror or 

failure to provide written notification of 

a change in IEE eligibility. 

1480.803 Representation process. 

(a) Only IEEs may participate in 

acquisitions set aside in accordance 

with the Buy Indian Act and this part. 

These procedures support responsible 

IEEs and prevent circumvention or 

abuse of the Buy Indian Act. 

(b) Eligibility is based on information 

furnished by the enterprise to a CO in 

the IEE representation at DIAR 

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 CO may also request the 

Office of the Inspector General (on Form 

DI–1902 as part of a normal pre-award 

audit) to assist in determining the 

eligibility of the low responsive and 

responsible offerors on Buy Indian Act 

awards. 

(e) The IEE representation does not 

relieve the CO of the obligation for 

determining contractor responsibility, as 

required by FAR subpart 9.1. 

Subpart 1480.9—Challenges to 

Representation 

1480.901 General. 

(a) The CO can accept an offeror’s 

written representation of being an IEE 

(as defined in 1480.201) only when it is 

submitted with an offer in response to 

a solicitation under the Buy Indian Act. 

Another interested party may challenge 

the representation of an offeror or 

contractor by filing a written challenge 

to the applicable CO in accordance with 

the procedures in 1480.902. 

(b) After receipt of offers, the CO may 

question the representation of any 

offeror in a specific offer by filing a 

formal objection with the CCO. 

1480.902 Receipt of challenge. 

(a) An interested party must file any 

challenges against an offeror’s 

representation with the cognizant CO. 

(b) The challenge must be in writing 

and must contain the basis for the 

challenge with accurate, complete, 

specific, and detailed evidence. The 

evidence must support the allegation 

that the offeror fails to meet the 

definition of ‘‘Indian Economic 

Enterprise’’ or ‘‘Indian Small Business 

Economic Enterprise’’ as defined in 

1480.201 or is otherwise ineligible. The 

CO will dismiss any challenge that is 

deemed frivolous or that does not meet 

the conditions in this section. 

(c) To be considered timely, a 

challenge must be received by the CO 

no later than 10 days after the basis of 

challenge is known or should have been 

known, whichever is earlier. 

(1) A challenge may be made orally if 

it is confirmed in writing within the 10- 

day period after the basis of challenge 

is known or should have been known, 

whichever is earlier. 

(2) A written challenge may be 

delivered by hand, telefax, telegram, 

email, or letter postmarked within the 

10-day period after the basis of 

challenge is known or should have been 

known, whichever is earlier. 

(3) A CO’s challenge to a certification 

is always considered timely, whether 

filed before or after award. 

(d) Upon receiving a timely challenge, 

the CO must: 

(1) Notify the challenger of the date it 

was received, and that the 

representation of the enterprise being 

challenged is under consideration; and 

(2) Furnish to the offeror (whose 

representation is being challenged) a 

request to provide detailed information 

on its eligibility by certified mail, return 

receipt requested or electronic mail. 

(e) Within 3 days after receiving a 

copy of the challenge and the CO’s 

request for detailed information, the 

challenged offeror must file, as specified 

at paragraph (d)(2) of this section, with 

the CO a complete statement answering 

the allegations in the challenge and 

furnish evidence to support its position 

on representation. If the offeror does not 

submit the required material within the 

3 days, or another period of time 


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20770 Federal Register / Vol. 87, No. 68 / Friday, April 8, 2022 / Rules and Regulations 

granted by the CO, the CO may assume 

that the offeror does not intend to 

dispute the challenge and must not 

award to the challenged offeror. 

(f) Within 10 days after receiving a 

challenge, the challenged offeror’s 

response, and any other pertinent 

information, the CO must determine the 

representation status of the challenged 

offeror and notify the challenger and the 

challenged offeror of the decision by 

certified mail, return receipt requested, 

or by other expeditious means including 

by hand, email, telefax, or telegraph if 

actual delivery can be shown, and make 

known to all parties the option to appeal 

the determination to the Director, Office 

of Acquisition and Property 

Management, Department of the Interior 

(PAM). 

(g) If the representation accompanying 

an offer is challenged and subsequently 

upheld by the Director of PAM, the 

written notification of this action must 

state the reason(s). 

1480.903 Award in the face of challenge. 

(a) Award of a contract in the face of 

challenge may be made on the basis of 

the CO’s written determination that the 

challenged offeror’s representation is 

valid. 

(1) This determination of validity is 

final unless it is appealed to the Director 

of PAM and the CO is notified of the 

appeal before making award. 

(2) If an award was made before the 

CO received notice of appeal, the award 

is presumed to be valid. 

(b) After receiving a challenge 

involving an offeror being considered 

for award, the CO must not award the 

contract until the CO has determined 

the validity of the representation. 

Award may be made in the face of a 

timely challenge when the CO 

determines in writing that an award 

must be made to protect the public 

interest, is urgently required, or a 

prompt award will otherwise be 

advantageous to the Government. 

(c) If a timely challenge on 

representation is filed with the CO and 

received before award in response to a 

specific offer and solicitation, the CO 

must notify eligible offerors within one 

day that the solicitation will not be 

awarded due to a pending challenge. 

The CO also may ask eligible offerors to 

extend the period for acceptance of their 

proposals. 

(d) If a challenge on representation is 

filed with the CO and received after 

award in response to a specific offer and 

solicitation, the CO need not suspend 

contract performance or terminate the 

awarded contract unless the CO believes 

that an award may be invalidated and a 

delay would prejudice the 

Government’s interest. However, if 

contract performance is to be suspended 

or terminated, a mutual no cost 

agreement will be sought. 

1480.904 Challenge not timely. 

If a CO receives an untimely filed 

challenge of a representation, the CO 

must notify the challenger that the 

challenge cannot be considered on the 

instant acquisition but will be 

considered in any future actions. 

However, the CO may question at any 

time, before or after award, the 

representation of an IEE. 

Joan M. Mooney, 

Principal Deputy Assistant Secretary, Policy, 

Management and Budget. 

[FR Doc. 2022–07118 Filed 4–7–22; 8:45 am] 

BILLING CODE 4334–63–P 


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