IHS and DOI broaden and clarify use of Buy Indian Act set-asides

      The Indian Health Service issued a final rule on Jan. 13 to expand use of Buy Indian Act (BIA) set-asides for Native-owned businesses.

      It follows release of a BIA proposed rule with similar goals by the Interior Dept.’s Bureau of Indian Affairs, which was published on Oct. 27, 2021.

      Both regulations make significant changes to existing regulations, include expanding BIA application to construction contracts, and a clarification that BIA small business set-asides are the top priority for all purchases subject to the BIA law.

      Both new rules are intended to replace existing BIA implementation rules, which were judged to have shortcomings in a 2015 review by the Government Accountability Office. The original BIA implementing rules went into effect in 2013, more than 100 years after the BIA law was passed by Congress.

      Both the IHS and Interior Dept. regulations are intended to better harmonize their BIA processes. They are the only two agencies authorized to apply BIA preferences.

IHS Final Rule

      The final rule states that IHS contracting officers “will give priority to Indian Small Business Economic Enterprises (ISBEES) for all purchases, regardless of dollar value, by utilizing ISBEE set-aside(s) to the maximum extent possible.”

      If the contracting officers “determines after market research that there is no reasonable expectation of obtaining offers from two or more ISBEEs that will be competitive in terms of market price, product quality, and delivery capability, the officer may consider set-asides or sole source awards to Indian Economic Enterprises,” IHS’ final rule states. It goes to describe the specific conditions when the agency may deviate from these procedures.

      In addition, the final rule expands application of the BIA to all construction including the planning, design and construction of health care facilities, personnel quarters and water supply and waste disposal facilities.

      ITS recently received $3.5 billion for construction of sanitation facilities in the Biden administration’s $1.2 trillion Infrastructure package, of which “plenty of funding opportunities” ahead for Native-owned firms, Santiago Almaraz, an enrolled member of the San Carlos Apache Tribe and director of the Office of Management Services for the IHS, told GovExec magazine in a recent briefing.

      In fiscal 2021, the IHS set aside $55.9 million in Buy Indian Act set-asides, Almaraz added. “This rule, however, will increase the amount that (IHS) sets aside for Buy Indian Act contracts.”

Additional provisions

      In addition, the IHS and DOI’s rules have provisions to:

• Better adhere to BIA law’s language;
• Strengthen oversight to reduce fraud and abuse.
• Define subcontracting limitations; and
• Describe circumstances allowing deviations.

More information:
IHS final rule: https://bit.ly/3IJWnb6
IHS fact sheet: https://bit.ly/3gqGCtT
IHS proposed rule: https://bit.ly/3rdt4rO
DOI proposed rule: https://bit.ly/3AJpc4Q
GovExec article: https://bit.ly/3G8gZrT

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