BUY INDIAN ACT and
INDIAN INCENTIVE PROGRAM
Buy Indian Act
The Buy Indian Act of 1910 authorizes the Secretary of the Interior to employ Indian labor and to purchase the products of Indian-owned firms without using the normal competitive process.
Indian owned firms are before 8(a); Hubzone; GSA schedules; Women or Veteran owned businesses!
The Buy Indian Act rules authorize the Secretary of the Interior to set aside procurement contracts for Indian economic enterprises (IEEs), which are defined as for-profit businesses that are at least 51 percent Indian-owned.
The tribes or individual Indians that own the IEEs must manage the contract, receive the majority of earnings from it, and control the business’s daily operations.
The Indian owners of IEEs must self-certify that they are members of a federally-recognized Indian tribe or Alaska Native village.
There are stiff penalties for misrepresentation!
The rules apply to the procurement of supplies and services, with one big exception: construction. However, the construction of roads, bridges, and sidewalks that are located on Indian land or are necessary to provide Indian communities with access to vital resources and services is covered.
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This rule is effective on July 8, 2013.
The Department of the Interior is finalizing regulations guiding implementation of the Buy Indian Act, which provides Indian Affairs (IA) with authority to set aside procurement contracts for Indian-owned and controlled businesses. This rule supplements the Federal Acquisition Regulation (FAR) and the Department of the Interior Acquisition Regulation (DIAR).
Under the rules, the BIA must give Indian businesses first preference in procurement matters by seeking contract offers from at least two IEEs and then selecting one of them, so long as it is of a “reasonable and fair market price.”
The BIA may deviate from the rules only in specific circumstances, such as when no offers are received from any IEEs or when only one offer is received and it is not reasonable.
Subcontracting is permitted, but at least 50 percent of the subcontracted work must go to IEEs.
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January 13, 2016, 9:48 PM EST –
The Bureau of Indian Affairs posted a national policy meant to encourage the BIA and the Bureau of Indian Education to award more contracts to Native American-owned businesses under the Buy Indian Act. (Not IHS)
The policy memo calls for the BIA, BIE and office of the Assistant Secretary for Indian Affairs to make all the acquisitions they can under the 1910 Buy Indian Act, which allows the them to award federal procurement contracts to Indian-owned businesses without using the government's standard competitive process.
Please view these sites for more detail:
http://farsite.hill.af.mil/reghtml/regs/other/diar/1480.htm
No Construction – only on reservation
See Andrus vs Glover
https://slideplayer.com/slide/4532888/
The Indian Incentive Program
https://www.acq.osd.mil/dpap/dars/dfars/html/current/226_1.htm
In an effort to boost Native American economic development, Congress authorized Federal contracting agencies to encourage the use of Native American owned subcontractors. The Department of Defense (DoD) Indian Incentive Program (IIP) is an example of this.
The IIP provides a 5% rebate back to the prime contractor on the total amount subcontracted to an Indian-Owned Economic Enterprise or Indian Organization, Alaska Native Corporations and Native Hawaiian Small Business Concerns, in accordance with DFARS Clause 252.226-7001.
Through the generation of subcontracts to the above-mentioned entities, the IIP fulfills its purpose as an economic multiplier for Native American communities. Department of Defense (DoD) prime contractors, regardless of size of contract, that contain the appropriate clause(s) are eligible for incentive payments.
Contracting Activities do not need to provide any funding for this program. The Appropriations Act makes $15 million available for incentive payments. If the $15 million of appropriated IIP funds is expended before end of the fiscal year, all complete and eligible IIP requests submitted on time will be rolled over to the next fiscal year.
This program applies to any business with a DoD prime contract or sub-tier contract of over $500,000 who subcontracts to Indian owned firms. (Only one incentive payment per contract allowed.)
The size of the prime or sub-tier contractor is not a factor in determining eligibility; the size of the business may be small or “large”.
The prime may request these clauses be added at any time during the performance of the contract. Prime contractors must formally request the rebate by submitting a letter to the contracting officer along with supporting documentation proving the amount paid to Indian Organizations/Enterprises or Native Hawaiian Small Business Concern
Claims may be submitted if the contract is still open and performance is being made by the Prime. Once approved, the contract is modified to authorize payment of the incentive. When a contract is closed, claims cannot be filed.
For Native American businesses, there are two primary requirements that must be met in order to participate in the Indian Incentive Program:
1. 51% Native American/Alaskan/Hawaiian Ownership
Indian ownership and management of the subcontractor or supplier cannot constitute less than 51% of the enterprise. (see DFARS 252.226-7001)
2. Federally Recognized Tribal Enrollment
Native American: The subcontractor or supplier must be owned by a federally recognized tribe or a member of a federally recognized tribe.
Native Alaskan: The subcontractor or supplier must be owned by a “native”, “native village” or “native group” (including corporations organized by Kenai, Juneau, Sitka, and Kodiak) as defined by the Alaska Native Claims Settlement Act.
Native Hawaiian: The owner of the Native Hawaiian-Owned subcontractor or supplier must be a recognized Native Hawaiian as defined by 23 USC 4221(9).
*Native Owners will need to complete self-certification form. Challenges to ownership are processed in accordance with FAR Subpart 26.1 Indian Incentive Program and 26.103 Procedures.
[Source: Lea Anne Burke, Two Rivers Community Development Corporation]