|
Federal Market Intelligence for Small Business |
|
|
|
|
Column: Congress expands Buy Indian Act Procurement AuthorityBy PilieroMazza PLLCA law passed by Congress at the end of 2020 seeks to expand contracting opportunities under the Buy Indian Act (BIA). The Indian Community Economic Enhancement Act of 2020 amended the Buy Indian Act to enlarge the scope of the authorities of the Interior Dept. and Health & Human Services Dept. to make acquisitions subject to preferences for Indian labor and Indian industry. It is unclear how DOI or HHS will apply these new statutory provisions. However, federal contractors owned and controlled by Indian tribes should keep apprised of developments, as new BIA set-aside opportunities may arise. BIA history Prior to this amendment, the BIA provided scant detail on how Indian set-aside procurements were to be conducted. The law simply stated that “[s]o 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 in the discretion of the Secretary of the Interior.” In addition, in a separate statute, the Indian Health Service (IHS), an agency of HHS, was given the authority to use set-aside procurement procedures for Indian labor and industry under the BIA. It was understood that these procurement procedures were generally reserved to IHS and, with limited exceptions, did not apply to any other HHS agency. Similarly, BIA set-asides or preferences within Interior were generally reserved to the Bureau of Indian Affairs. Key changes The Buy Indian Act now states that “Indian labor shall be employed” unless determined “impracticable and unreasonable” by the Interior Dept. Secretary and the HHS Secretary. The new language is arguably more expansive because the Secretaries now are required to make an affirmative determination that the use of Indian set-asides is “impracticable” and “unreasonable” in order to rule them out. The previous version of the law provided that “[s]o far as may be practicable Indian labor shall be employed . . .” Open-Market Purchasing The Buy Indian Act now provides that “purchases of Indian industry products (including printing and facilities construction, notwithstanding any other provision of law) may be made in open market by the Secretaries.” Previously, only printing was authorized. Now, printing and facilities construction are both authorized. Set-Aside Authority Extension Previously, the authority to set aside procurements for Indian labor or industry products under the Buy Indian Act was (with certain exceptions) restricted to the IHS and the Bureau of Indian Affairs. Now, those restrictions have been removed. It is thus possible that other component agencies of HHS and DOI could utilize these set-aside procedures. Assistance Eligibility Restrictions Reduction The Buy Indian Act provides that participation in an assistance agreement under the Defense Dept.’s Mentor-Protégé Program does not render any individual or entity involved in the provision of Indian labor or Indian industry products ineligible to receive assistance under the Buy Indian Act. Additionally, when implementing the Buy Indian Act, no affiliation may be found as a result of developmental assistance provided under the DOD Mentor-Protégé Program. Outreach Requirements To implement the above-discussed provisions, the Buy Indian Act requires the HHS and DOI Secretaries to conduct outreach to Indian industrial entities, provide training, and promulgate regulations in accordance with the Buy Indian Act and with regulations that harmonize the procurement procedures of DOI and HHS. It also requires:
Reporting Requirements The Buy Indian Act now requires the HHS and DOI Secretaries to submit a report (first annually then biennially) to the Senate Committee on Indian Affairs, and to the House Committee on Natural Resources, describing their implementations of the Buy Indian Act. The Secretaries must indicate which of their agencies have implemented Buy Indian Act procedures, as well as efforts made by additional agencies under their departments to use these procurement procedures. The reporting requirements provide further evidence that Congress intended DOI and HHS to expand their use of set-asides under the amended Buy Indian Act for agencies other than IHS or the Bureau of Indian Affairs. The reports are also must summarize the types of purchases made from, and contracts award to, Indian economic enterprises, including those for supplies, services, and construction. Compliance Goals Under the Buy Indian Act, agencies are required to set annual minimum percentage goals for compliance with the Act. While it is unclear how much this procurement authority will be expanded beyond IHS and the Bureau of Indian Affairs, the recent amendments made by Congress are a sign that expanded set-aside opportunities gradually will become more available for Indian business concerns. At the very least, it indicates that Congress desires more widespread use of set-aside procurements under the Act and will more closely scrutinize the extent to which such set-asides are used. This article was reprinted with the permission of PilieroMazza PLLC http://www.pilieromazza.com.
|
Washington Insider:
|
Copyright © 2021 Business Research Services Inc. All rights reserved.