On June 7, 2013, the Department of the Interior (DOI) published in the FEDERAL REGISTER a final rule (attached) implementing the Buy Indian Act. This final rule supplements the Federal Acquisition Regulation (FAR) and the Department of the Interior Acquisition Regulation (DIAR), and will be effective on July 8, 2013. The final rule “formalizes an administrative procedure for all acquisition activities/locations to ensure that [Indian Affairs] will apply the procedures uniformly for eligible Indian Economic Enterprises that submit offers under solicitations set aside under the Act.” These regulations have been in the formulation process since 1982, with the most recent tribal consultations taking place during 2012. The final rule applies to all offices and bureaus that fall within the authority of the Assistant Secretary for Indian Affairs, including the Bureau of Indian Affairs and Bureau of Indian Education.
The rule states that an “Indian Economic Enterprise” (IEE) means “any business activity owned by one or more Indians or Indian Tribes that is established for the purpose of profit,” and also requires the business to be majority Indian owned, that Indians and/or Indian Tribes receive a majority of the contract earnings, and the management and daily business operations must be controlled by one or more members of an Indian tribe. Additionally, the final rule places a limitation on subcontracting to no more than 50 percent of the work that is awarded under the Buy Indian Act. Under the final rule, if an Indian Economic Enterprise is qualified, then Indian Affairs must use the Buy Indian Act to give preference to those enterprises through the use of set-asides. It is important to note that this does not apply to the awarding of contracts under the Indian Self-Determination and Education Assistance Act (ISDEAA).
The rule also requires that when acquiring services to be performed in whole or in part on Indian land under tribal jurisdiction, contracting officers within Indian Affairs must notify the tribe of the intent to solicit using an IEE set-aside. A tribe has 15 calendar days to contract for the program under ISDEAA. If a tribe decides not to do so, then the contracting officer may proceed with the IEE set-aside solicitation.
Please let us know if we may provide additional information on this final rule.
