HHSAR CD 2026-25, Attachment 1: RFO HHSAR Part 326 & Applicable Part 352 Deviation Text

Any contract or subcontract pursuant to subchapter II, chapter 14, title 25 of the United States Code, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other Act authorizing Federal contracts with or grants to Indian organizations or for the benefit of Indians, shall, to the greatest extent feasible, comply with section 7(b) of the Indian Self-Determination and Education Assistance Act, Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b) which provides preferences and opportunities for training and employment in connection with the administration of such contracts, and preference in the award of subcontracts in connection with the administration of such contracts to Indian organizations and to Indian-owned economic enterprises as defined in section 1452 of title 25, United States Code.

[(a) Contracts with Indian Economic Enterprises, or for the benefit of Indians, require, to the greatest extent feasible, certain preferences and opportunities (25 U.S.C. ch. 46, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other Act authorizing such contracts).

(b) Include preferences and opportunities to Indians for training and employment in connection with the administration of such contracts. (25 U.S.C. 5307(b)(1))

(c) Include preferences in the award of subcontracts to Indian Economic Enterprises (see 326.7002) in connection with the administration of such contracts. (25 U.S.C. 5307(b)(2))]

For purposes of this subpart, the following definitions shall apply:

[As used in this subpart—]

[Alaska Native Claims Settlement Act (ANCSA) means Pub. L. 92-203 (December 18, 1971), 85 Stat. 688 (43 U.S.C. 1601-1629(h)).]

[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 ANCSA.]

(a) Indian means a person who is [an enrolled member of a Federally Recognized Indian Tribe or Alaska Native regional or village corporation.]a member of an Indian tribe. If the contractor has reason to doubt that a person seeking employment preference is an Indian, the contractor shall grant the preference but shall require the individual provide evidence within 30 days from the tribe concerned that the person is a member of the tribe.

[Indian Economic Enterprise (IEE) means any business activity owned by one or more Indians or Federally Recognized Indian Tribes or Alaska Native regional or village corporation provided that:

(b) Indian tribe means an Indian tribe, pueblo, band, nation, or other organized group or community, including any Alaska Native Village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601), which the United States recognizes as eligible for special programs and services because of its status as Indian.

(c) Indian organization means the governing body of any Indian tribe, or entity established or recognized by such governing body, in accordance with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C. 1451).

(d) Indian-owned economic enterprise means any Indian-owned commercial, industrial, or business activity established or organized for the purpose of profit, provided that such Indian ownership shall constitute not less than 51 percent of the enterprise, and the ownership shall encompass active operation and control of the enterprise.

(e) Indian reservation includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 1601 et seq.).

(f) On or near an Indian reservation means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably commute to and from in the course of a work day.

[Secretary, unless otherwise designated, means the Secretary of Health and Human Services.]

(a) When the contractor will perform work under a contract on an Indian reservation, the contracting officer may supplement the clause at 352.226-2[71], Indian Preference Program[,] by adding specific Indian preference requirements of the t[T]ribe on whose reservation the contractor will work. The contracting activity and the tribe shall jointly develop supplemental requirements for the contract. Supplemental preference requirements shall represent a further implementation of the requirements of section 7(b) of Public Law 93-638 and require the approval of the affected program director and the appropriate legal office, or a regional attorney, before the contracting officer adds them to a solicitation and resultant contract. Any supplemental preference requirements the contracting officer adds to the clause at 352.226-2, Indian Preference Program shall also clearly identify in the solicitation the additional requirements.

(b) Nothing in this [sub]part shall preclude[s] t[T]ribes from independently developing and enforcing their own t[T]ribal preference requirements. Such independently-developed t[T]ribal preference requirements shall[must] not, except as provided in paragraph (a) of this section, become a requirement in contracts covered under this subpart, and shall[must] not conflict with any Federal statutory or regulatory requirement concerning the award and administration of contracts.

      [Insert the clauses at 352.226-70, Indian Preference, and 352.226-71, Indian Preference Program, in solicitations and contracts to implement 25 U.S.C. 5307(a) and (b).  Use the clauses as follows, except for those exempted solicitations and contracts issued and or awarded pursuant to 25 U.S.C. chapter 46, subchapter I:

      (a) Insert the clause at 352.226-70, Indian Preference, in solicitations and contracts when—

      (b) Insert the clause at 352.226-71, Indian Preference Program, in solicitations and contracts when—

The contracting officer shall insert the clause at 352.226-1, Indian Preference, and the clause at 352.226-2, Indian Preference Program, in contracts to implement section 7(b) of Public Law 93-638 for all Department of Health and Human Services (HHS) activities. Contracting activities shall use the clauses as follows, except for those exempted solicitations and contracts issued and or awarded pursuant to Title I of Public Law 93-638 (25 U.S.C. 450 et seq.):

(a) The contracting officer shall insert the clause at 352.226-1, Indian Preference, in solicitations, contracts, and orders when—

(b) The contracting officer shall insert the clause at 352.226-2, Indian Preference Program, in solicitations, contracts, and orders when—

(a) This subpart supplements Federal Acquisition Regulation (FAR) and Health and Human Services Acquisition Regulation (HHSAR) requirements to meet the needs of the Department of Health and Human Services (HHS), Indian Health Service (IHS) in implementing the Buy Indian Act.

(b) This subpart is under the direct oversight and control of the Head of Contracting Activity (HCA), within the Office of Management Services (OMS)—IHS, HHS. The HCA, in consultation with the Assistant Secretary for Financial Resources (ASFR) and the Senior Procurement Executive (SPE), is responsible for promulgating this subpart, and following its enactment, will be primarily responsible for implementing its terms.

(c[b]) Acquisitions conducted under this subpart are subject to all applicable requirements of the FAR and HHSAR, as well as internal policies, procedures, or instructions issued by IHS. After the FAR, this HHSAR subpart would take[s] precedence over any inconsistent IHS policies, procedures, or instructions.

[As used in this subpart—]

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[)].

Alaska Native Corporation means any Regional Corporation, any Village Corporation, any Urban Corporation, and any Group Corporation as those terms are defined by ANCSA.

Buy Indian Act means section 23 of the Act of June 25, 1910, codified at [(]25 U.S.C. 47[)].

Chief Contracting Officer (CCO) means a person with authority to enter into, administer, or terminate contracts and make related determinations and findings on behalf of the U.S. Government for the respective IHS Areas.

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.

Construction means the planning, design, construction and renovation, including associated architecture and engineering services, of IHS facilities pursuant to 25 U.S.C. 1631 and in the construction of safe water and sanitary waste disposal facilities pursuant to 25 U.S.C. 1632.

[Buy Indian Act d]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 19.202-6(a)[19.205(c)].

Indian means a person who is an enrolled member of an [Federally Recognized] Indian Tribe [or Alaska Native regional or village corporation.] “Native” as defined in the Alaska Native Claims Settlement Act.

Indian Health Service (IHS) means operations at all administrative levels of IHS, including Headquarters, Area Offices, and Service Units (inclusive of clinics).

[Indian Economic Enterprise (IEE) means any business activity owned by one or more Indians or Federally Recognized Indian Tribes or Alaska Native regional or village corporation provided that—

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 provided that: The combined Indian or Indian Tribe ownership must constitute not less than 51 percent of the enterprise; the Indians or Indian Tribes must, together, receive at least a majority of the earnings from the contract; and the management and daily business operations of an 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. The enterprise must meet these requirements throughout the following time periods:

[Indian Health Service (IHS) means operations at all administrative levels of IHS, including Headquarters, Area Offices, and Service Units (inclusive of clinics).

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.]

Indian Tribe means an Indian Tribe, band, nation, or other recognized group or community that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, including any Alaska Native village or regional or village corporation under the Alaska Native Claims Settlement Act (Pub. L. 92-203, 85 Stat. 688; 43 U.S.C. 1601).

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 P[p]arty 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] the list published annually in the Federal Register identifying Indian entities that are recognized by and eligible to receive services from 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 Pub. L. 103-454 (25 U.S.C. 5131).] (DOI), Bureau of Indian Affairs (BIA).

[Representation means the positive statement by an enterprise of its eligibility for participation in acquisitions conducted under the Buy Indian Act, 25 U.S.C. 47, in accordance with the procedures in 326.7106.]

Transfer Act of 1954 means the authority of transferred responsibility and other health care “functions, responsibilities, authorities and duties of the Department of the Interior” (including the Snyder Act) to Health, Education and Welfare, the predecessor of the HHS.[(see] Pub[.]lic L[.]aw 83-568, 68 Stat. 674 (1954) (codified at 42 U.S.C. 2001 et seq.). The Transfer Act authorizes IHS to use the Buy Indian Act (25 U.S.C. 47) to carry out its health care responsibilities.

(a) IHS may not use the authority of the Buy Indian Act and the procedures contained in this subpart to award intergovernmental contracts to Tribal organizations to plan, operate, or administer authorized IHS programs (or parts thereof) that are within the scope and intent of the Indian Self-Determination and Education Assistance Act (ISDEAA) (Pub. L. 93-638). IHS must use the Buy Indian Act solely to award procurement contracts to IEEs. Contracts subject to ISDEAA are not covered under the FAR and are codified separately under 25 CFR part 900 and 42 CFR part 137.

(b) Contract health services (referred to administratively as Purchased/Referred Care services) are defined at 25 U.S.C. 1603 as excluding services provided by Buy Indian Act contractors. Accordingly, the Buy Indian Act may not be used to obtain services through the Purchased/Referred Care program (previously Contract Health Services). Purchase orders for care authorized pursuant to 42 CFR part 136 subpart C may be issued without regard to the provisions of this Part[subpart].

(a) Except as provided by 25 U.S.C. 1633, IHS must use the negotiation authority of the Buy Indian Act to give preference to IEEs whenever the use of that authority is practicable. Thus, IHS may use the Buy Indian Act to give preference to IEEs through set-asides when acquiring supplies, general services, A&E[architect-engineer (A-E)] services, or construction to meet IHS needs and requirements. The Buy Indian Act does not apply when mandatory government sources are available, as required by FAR P[subp]art 8.[1]002.

(b) [Acquisitions set-aside for ISBEEs or IEEs under the authority of the Buy Indian Act are considered full and open competition after exclusion of sources, as provided under FAR 6.102. A separate justification and approval under FAR subpart 6.2 is not required for acquisitions set-aside pursuant to this subpart.]

[(c)] Contract awards under the authority of the Buy Indian Act can be pursued via the acquisition procedures prescribed in this HHSAR subpart in conjunction with the procedures from FAR part[s] 12, 13, 14, 15 and/or 16.

(c[d]) The CO[contracting officer must] will give priority to ISBEEs for all purchases, regardless of dollar value, by utilizing ISBEE set-aside to the maximum extent possible. COs[Contracting officers] when prioritizing ISBEEs may consider either:[—]

(d[e]) If the CO[contracting officer] 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 [a fair] market price, product quality, and delivery capability, the CO[contracting officer] may consider either:[—]

(e) If the CO determines after market research that there is no reasonable expectation of obtaining two or more offers that will be competitive in terms of market price, product quality, and delivery capability, from ISBEEs and/or IEEs, then the CO shall follow the Deviation process under HHSAR 326.603-3.

(f) Price analysis technique(s) provided in FAR 15.404-1(b) shall be used in determination of price fair and reasonableness when only one offer is received from a responsible ISBEE or IEE in response to an acquisition set-aside under paragraph (d)(1) or (e)(1) of this section:

(g) If the offers received in response to an acquisition set-aside under paragraph (c) or (d) of this section are determined to be unreasonable or otherwise unacceptable upon price and/or technical evaluations, then the CO must follow the Deviation process under HHSAR 326.603-3. The CO must document in the deviation determination the reasons why the IEE offeror(s) were not reasonable or otherwise unacceptable.

(h[f]) With respect to construction, the provisions of 25 U.S.C. 1633 shall apply. Under 25 U.S.C. 1633, IHS may give a preference to an IEE unless the agency finds, after considering the evaluation criteria listed in 25 U.S.C. 1633, that the project to be contracted for will not be satisfactory or cannot be properly completed or maintained under the proposed contract.

(a) The Director, IHS—exercises the authority of the Buy Indian Act pursuant to the Transfer Act of 1954, as delegated pursuant to 25 U.S.C. 1661. Under 25 U.S.C. 1661, the Director is authorized “to enter into contracts for the procurement of goods and services to carry out the functions of the IHS.” IHS exercises this authority in support of its mission and program activities and as a means of fostering Indian employment and economic development.

(b) The IHS HCA is responsible for ensuring that all IHS acquisitions under the Buy Indian Act comply with the requirements of this part.

[(a) Sole source acquisitions awarded to an ISBEE or IEE under 326.7103-1(c)(2) or (d)(2) do not require a Buy Indian Act deviation determination and comply with the requirements of the Buy Indian Act. Some acquisitions by their very nature would also make a written determination unnecessary.

(b) The following acquisitions do not require a written Buy Indian Act deviation:

(a) There are certain instances where the application of the Buy Indian Act to an acquisition may not be appropriate. In these instances, the CO must detail the reasons in writing or via email and make a deviation determination.

(b) Some acquisitions by their very nature would make such a written determination unnecessary. For example, 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 shall be required for all other acquisitions where the Buy Indian Act is applicable and must be approved as follows:

Table 1 to Paragraph (c)

(d) Deviations may be authorized prior to issuing the solicitation when the CO makes the following determinations and takes the following actions:

(e) If a deviation determination has been approved, the CO must follow the FAR and HHSAR 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 Part 8.002.

(a) Each acquisition of supplies, services[commercial products, commercial services] and construction that is subject to commercial items or simplified acquisition procedures in accordance with FAR P[p]arts 12 or 13 must be set-aside exclusively for ISBEEs, except as otherwise set forth in this P[subp]art. IHS will use ISBEE commercial item(s)[products and commercial services,] or simplified acquisition set-asides to accomplish this preference action.

(b) Commercial items[products and commercial services,] or simplified acquisitions under this section must conform to the competition and price reasonableness documentation requirements of FAR [part ]12.209[and 13] for commercial item[products and commercial services] acquisitions and FAR 13.106 for simplified acquisitions.

(c) When acquiring construction and [architect-engineer (A-E]A&E services, solicit proposals and evaluate potential contractors in accordance with FAR P[p]art 36.

(d) This paragraph [(d)] applies to solicitations that are not restricted to participation of IEEs.

(e) The contracting officer shall insert the provision at HHSAR 352.226-4, NOTICE OF INDIAN SMALL BUSINESS ECONOMIC ENTERPRISE SET-ASIDE, in solicitations for acquisitions that are set-aside to ISBEE concerns under HHSAR 326.603-1(c).

(a) The CO shall insert FAR clause at 52.219-14, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set-aside for ISBEEs and IEEs.

(b) The CO must also insert the clause 352.226-6, Indian Economic Enterprise Subcontracting Limitations, in all awards to ISBEEs and IEEs pursuant this part.

(a) Insert the provision at 352.226-73, Notice of Indian Small Business Economic Enterprise Set-Aside, in lieu of the requirements of FAR 19.104 and 26.102-2, in solicitations for acquisitions that are set-aside to ISBEE concerns under 326.7103-1(c).

(b) Insert the clause at 352.226-74, Notice of Indian Economic Enterprise Set-Aside, in solicitations and contracts for acquisitions that are set-aside to IEE concerns in accordance with 326.7103-1(d).

(c) Insert the clause at 352.226-75, Indian Economic Enterprise Subcontracting Limitations, in all solicitations and contracts when the contract award is to be made under the authority of the Buy Indian Act. Insert the clause in all awards to ISBEEs and IEEs pursuant to this subpart. Follow the prescription at FAR 19.104-3(e) requiring use of the clause at FAR 52.219-14, Limitations on Subcontracting; this applies in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is set-aside for ISBEEs and IEEs.

(d) Insert the provision at 352.226-76, Indian Economic Enterprise Representation, in all solicitations when the contract award is to be made under the authority of the Buy Indian Act.]

[(a) Insert the provision at 352.226-76, Indian Economic Enterprise Representation, in all solicitations regardless of dollar value solicited under 326.7103-1(c) or (d) and in accordance with this subpart.]

(a) The CO must insert the provision at HHSAR 352.226-7, INDIAN ECONOMIC ENTERPRISE REPRESENTATION, in all solicitations regardless of dollar value solicited under HHSAR 326.603-1(c) or (d) and in accordance with this part.

[(b) To be considered for an award under 326.7103-1(c) or (d), an offeror must –

(b) To be considered for an award under HHSAR 326.603-1(c) or (d), an offeror must:

(c) The enterprise must meet the definition of “Indian Economic Enterprise”[Indian Economic Enterprise] throughout the following time periods:[-]

(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[contracting officer] with written notification within 3 calendar days of its failure to comply with the eligibility requirements. The notification must include:[-]

[(e) Failure to maintain eligibility under the Buy Indian Act or to provide written notification required by paragraph (d) of this section means that the contractor may be declared ineligible for future contract awards under this subpart and the contracting officer may consider termination for default of the ongoing contract and may pursue debarment or suspension of the contractor.]

(e) Failure to maintain eligibility under the Buy Indian Act or to provide written notification required by paragraph (d) of this section means that:

(f) The CO[contracting officer] will review the offeror's representation that it is an IEE in a specific bid or proposal and verify that the [Federally Recognized ]Indian Tribe(s) that the offeror identified in the representation is either on the List of Federally Recognized Tribes or is an Alaska Native Corporation. A CO[contracting officer] will also investigate the representation if an interested party challenges the IEE representation or if the CO[contracting officer] has any other reason to question the representation. The CO[contracting officer] 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[contracting officer] or [Chief Contracting Officer (]CCO[)] in accordance with HHSAR 326.607[326.7107].

[(g) Participation in a Mentor-Protégé Program established under the Department of War pursuant to 10 U.S.C. 4902(c)(2)) does not render an IEE ineligible for contracts awarded under the Buy Indian Act. (25 U.S.C. 47)]

(g) Participation in the Mentor-Protégé 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.

(a) Contracting offices must provide copies of the awardees' IEE representation to any interested parties upon written request. IHS will make awardees' IEE representations available via IHS public sites and/or other means.

(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 may be a violation of the law punishable under 18 U.S.C. 1001. False claims submitted as part of contract performance may be subject to the penalties enumerated in 31 U.S.C. 3729 to 3731 and 18 U.S.C. 287.

(c) The CO shall inform the Head of Contracting Activity, within 10 business days, of all suspected IEE misrepresentation by an offeror or failure to provide written notification of a change in IEE eligibility.

(a) Only IEEs may participate in acquisitions set-aside in accordance with the Buy Indian Act and this [sub]part. The procedures in this Part[subpart] are intended to support responsible IEEs and prevent circumvention or abuse of the Buy Indian Act.

(b) The CO[contracting officer] shall[must] review the ownership information furnished under HHSAR 352.226-7(b)[352.226-76(b)] and verify that the [Federally Recognized] Indian Tribe(s) identified is either on the List of Federally Recognized Tribes or is an Alaska Native Corporation.

(c) If the CO[contracting officer] cannot verify from the offeror submission that the [Federally Recognized] Indian Tribe(s) identified is either on the List of Federally Recognized Tribes or is an Alaska Native Corporation, the CO[contracting officer] must allow the offeror to correct information submitted under HHSAR 352.226-7(b)[352.226-76(b)]. The CO should make every effort to allow the offeror to correct the information. If the requirement is time sensitive the CO must specify to the offeror the time and date by which a response is required.

(a) The CO[contracting officer] can accept an offeror's written representation of being an ISBEE or IEE (as defined in HHSAR 326.601[326.7101]) only when it is submitted in response to a Sources Sought Notice, Request for Information (RFI) or with an offer in response to a solicitation under the Buy Indian Act. Another interested party may challenge the representation of an offeror or awardee by filing a written challenge.

(b) Upon receipt of the challenge, the CO[contracting officer] shall[must] re-verify the representation of the offeror or awardee in accordance with the requirements of this subpart, including the provisions of 326.606[326.7106].

(a) An interested party must file any challenges against an offeror's representation with the cognizant CO[contracting officer].

(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[Indian Economic Enterprise] or Indian Small Business Economic Enterprise[Indian Small Business Economic Enterprise] as defined in HHSAR 326.601[326.7101] or is otherwise ineligible. The CO[contracting officer] 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[contracting officer] no later than 10 calendar days after the basis of challenge is known or should have been known, whichever is earlier.

(d) Upon receiving a timely challenge, the CO[contracting officer] must:[-]

(e) Within 3 calendar days after receiving a copy of the challenge and the CO’s[contracting officer’s] request for detailed information, the challenged offeror must file, as specified at [paragraph] (d)(2) [of this section], with the CO[contracting officer] 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 calendar days, or another period of time granted by the CO[contracting officer], the CO[contracting officer] may assume that the offeror does not intend to dispute the challenge and must not award to the challenged offeror.

(f) Within 10 calendar days after receiving a challenge, the challenged offeror's response, and any other pertinent information, the CO[contracting officer] 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 email, and make known to all parties the option to appeal the determination to IHS [Division of Acquisition Policy ][(]DAP[)].

(g) If the representation accompanying an offer is challenged and subsequently upheld by DAP, the written notification of this action must state the reason(s).

(a) Award of a contract in the face of challenge only may be made on the basis of the CO’s[contracting officer’s] written determination that the challenged offeror's representation is valid.

(b) After receiving a challenge involving an offeror being considered for award, the CO[contracting officer] must not award the contract until the CO[contracting officer] has determined the validity of the representation. Award may be made in the face of a timely challenge when the CO[contracting officer] 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[contracting officer] and received before award in response to a specific offer and solicitation, the CO[contracting officer] must notify eligible offerors within one day that the award will be withheld. The CO[contracting officer] 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[contracting officer] and received after award in response to a specific offer and solicitation, the CO[contracting officer] need not suspend contract performance or terminate the awarded contract unless the CO[contracting officer] believes that an award may be invalidated and a delay would prejudice the Government's interest. However, if contract performance is to be suspended, the CO[contracting officer] would follow those guidelines as outlined in FAR Part 49[subpart 9.4].

(e[a]) [Definitions.] As used in this clause,[ —]

[Alaska Native Claims Settlement Act (ANCSA) means Pub. L. 92-203 (December 18, 1971), 85 Stat. 688 (43 U.S.C. 1601-1629(h)).]

[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 ANCSA.]

[Indian means person who is an enrolled member of a Federally Recognized Indian Tribe or Alaska Native regional or village corporation.]

(1) Indian means a person who is a member of an Indian tribe. If the Contractor has reason to doubt that a person seeking employment preference is an Indian, the Contractor shall grant the preference but shall require the individual provide evidence within 30 days from the tribe concerned that the person is a member of the tribe.

(2) Indian tribe means an Indian tribe, pueblo, band, nation, or other organized group or community, including Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601) which the United States recognizes as eligible for the special programs and services provided to Indians because of its status as Indians.

(3) Indian organization means the governing body of any Indian Tribe or entity established or recognized by such governing body in accordance with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 1451).

[Indian Economic Enterprise (IEE) means any business activity owned by one or more Indians or Federally Recognized Indian Tribes or Alaska Native regional or village corporation provided that:

(a)[(b)] The Contractor agrees to give preference in employment opportunities under this contract to Indians who can perform required work, regardless of age (subject to existing laws and regulations), sex, religion, or t[T]ribal affiliation. To the extent feasible and consistent with the efficient performance of this contract, the Contractor further agrees to give preference in employment and training opportunities under this contract to Indians who are not fully qualified to perform regardless of age (subject to existing laws and regulations), sex, religion, or t[T]ribal affiliation. The Contractor also agrees to give preference to Indian organizations and Indian-owned economic enterprises [IEEs] in the awarding of any subcontracts to the extent feasible and consistent with the efficient performance of this contract. The Contractor shall[must] maintain the necessary statistical records to demonstrate compliance with this paragraph.

(b)[(c)] In connection with the Indian employment preference requirements of this clause, the Contractor shall[must] provide reasonable opportunities for training, incident to such employment. Such training shall[must] include on-the-job, classroom, or apprenticeship training designed to increase the vocational effectiveness of an Indian employee.

(c) If the Contractor is unable to fill its employment and training opportunities after giving full consideration to Indians as required by this clause, the Contractor may satisfy those needs by selecting non-Indian persons in accordance with the clause of this contract entitled “Equal Opportunity.”

(d) If no Indian organizations or Indian-owned economic enterprises[IEEs] are available under reasonable terms and conditions, including price, for awarding of subcontracts in connection with the work performed under this contract, the Contractor agrees to comply with the provisions of this contract involving utilization of small businesses; HUBZone small businesses; service-disabled, veteran-owned small businesses; 8(a) small businesses; veteran-owned small businesses; women-owned small businesses; or small disadvantaged businesses.

(e) As used in this clause,

(f)[(e)] [In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may pursue any other remedies authorized by law or by other provisions of the contract.] The Contractor agrees to include the provisions of this clause, including this paragraph (f) of this clause, in each subcontract awarded at any tier under this contract.

(g)[(f)] In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may pursue any other remedies authorized by law or by other provisions of the contract.[The Contractor must include substance of this clause, including this paragraph (f), in all subcontract awarded at any tier under this contract.]

[(a) Definitions. As used in this clause—]

Federally Recognized Indian Tribe, Indian, and Indian Economic Enterprise (IEE) are defined in the clause of this contract entitled Indian Preference.

Indian reservation includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.)

On or near an Indian reservation means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably expect to commute to and from in the course of a work day.]

(a)[(b)] In addition to the requirements of the clause of this contract entitled “Indian Preference,” the Contractor agrees to establish and conduct an Indian preference program which will expand opportunities for Indians to receive preference for employment and training in connection with the work performed under this contract, and which will expand the opportunities for Indian organizations and Indian-owned economic enterprises[IEEs] to receive a preference in the awarding of subcontracts. In this connection, the Contractor shall[must] perform the following:

(1) Designate a liaison officer who will[must] maintain liaison with the Government and the Tribe(s) on Indian preference matters; supervise compliance with the provisions of this clause;[,] and administer the Contractor's Indian preference program.

(2) Advise its recruitment sources in writing and include a statement in all employment advertisements that Indian applicants receive preference in employment and training incident to such employment.

(3) Not more than 20 calendar days after award of the contract, post a written notice setting forth the Contractor's employment needs and related training opportunities in the t[T]ribal office of any reservations on or near the contract work location. The notice shall[must] include the approximate numbers and types of employees needed; the approximate dates of employment; any experience or special skills required for employment; training opportunities available; and other pertinent information necessary to advise prospective employees of any other employment requirements. The Contractor shall[must] also request the t[T]ribe(s) on or near whose reservation(s) the Contractor will perform contract work to provide assistance filling its employment needs and training opportunities. The Contracting Officer will advise the Contractor of the name, location, and phone number of the Tribal officials to contact regarding the posting of notices and requests for Tribal assistance.

(4) Establish and conduct a subcontracting program which gives preference to Indian organizations and Indian-owned economic enterprises[IEEs] as subcontractors (including suppliers) under this contract. The Contractor shall[must] give public notice of existing subcontracting opportunities and, to the extent feasible and consistent with the efficient performance of this contract, shall[must] solicit bids or proposals from Indian organizations or Indian-owned economic enterprises[IEEs] only. The Contractor shall[must] request assistance and information on Indian firms qualified as subcontractors (including suppliers) from the Tribe(s) on or near whose reservation(s) the Contractor will perform contract work. The Contracting Officer will advise the Contractor of the name, location, and phone number of the Tribal officials to contact regarding the request for assistance and information. Public notices and solicitations for existing subcontracting opportunities shall[must] provide an equitable opportunity for Indian firms to submit bids or proposals by including—

(i) A clear description of the supplies or services required, including quantities, specifications, and delivery schedules that facilitate the participation of Indian firms;

(ii) A statement indicating that Indian organizations and Indian-owned economic enterprises[IEEs] will receive preference in accordance with section 7(b) of Pub[.]lic L[.]aw 93-638; 88 Stat. 2205[.]; [(]25 U.S.C. 450e(b)[5907(b)][)];

(iii) Definitions for the terms “Indian organization” and “Indian-owned economic enterprise” [“Federally Recognized Indian Tribe,” “Indian,” and “Indian Economic Enterprise (IEE)”] prescribed under the “Indian Preference” clause of this contract;

(iv) A statement that the bidder or offeror shall complete certifying that it is an Indian organization or Indian-owned economic enterprise[IEE]; and

(v) A closing date for receipt of bids or proposals which provides sufficient time for preparation and submission of a bid or proposal. If, after soliciting bids or proposals from Indian organizations and Indian-owned economic enterprises[IEEs], the Contractor receives no responsive bid or acceptable proposal, the Contractor shall[must] comply with the requirements of paragraph (d) of the “Indian Preference” clause of this contract. If the Contractor receives one or more responsive bids or conforming proposals, the Contractor shall[must] award the contract to the low, responsive, responsible bidder or conforming offer from a responsible offeror if the price is reasonable. If the Contractor determines the low responsive bid or conforming proposal's price is unreasonable, the Contractor shall[must] attempt to negotiate a reasonable price and award a subcontract. If parties cannot agree on a reasonable price, the Contractor shall[must] comply with the requirements of paragraph (d) of the “Indian Preference” clause of this contract.

(5) Maintain written records under this contract which demonstrate—

(i) The numbers of Indians seeking employment for each employment position available under this contract;

(ii) The number and types of positions filled by Indians and non-Indians;

(iii) The total number of Indians employed under this contract;

(iv) For those positions having both Indian and non-Indian applicants, and a non-Indian is selected for employment, the reason(s) why the Contractor did not select the Indian applicant;

(v) Actions taken to give preference to Indian organizations and Indian-owned economic enterprises[IEEs] for subcontracting opportunities which exist under this contract;

(vi) Reasons why Indian subcontractors and or suppliers did not receive preference for each requirement where the Contractor determined that such preference was inconsistent with efficient contract performance; and

(vii) The number of Indian organizations and Indian-owned economic enterprises[IEEs] contacted, and the number receiving subcontract awards under this contract.

(6) Submit to the Contracting Officer for approval a quarterly report summarizing the Contractor's Indian preference program and indicating the number and types of available positions filled by Indians and non-Indians, and the dollar amounts of all subcontracts awarded to Indian organizations and Indian-owned economic enterprises[IEEs], and to all other firms.

(7) Maintain records pursuant to this clause and keep them available for review by the Government for one year after final payment under this contract, or for such longer period in accordance with requirements of any other clause of this contract or by applicable law or regulation.

(b) For purposes of this clause, the following definitions of terms shall apply:

(1) The terms Indian, Indian tribe, Indian organization, and Indian-owned economic enterprise are defined in the clause of this contract entitled Indian Preference.

(2) Indian reservation includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.)

(3) On or near an Indian reservation means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably expect to commute to and from in the course of a work day.

(c) Nothing in the requirements of this clause shall preclude[s] [Federally Recognized] Indian t[T]ribes from independently developing and enforcing their own Indian preference requirements. Such requirements must not conflict with any Federal statutory or regulatory requirement dealing with the award and administration of contracts.

(e)[(d)] [In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may pursue any other remedies authorized by law or by other provisions of the contract.]

(d)[(e)] The Contractor agrees to [must] include the provisions [substance] of this clause, including this paragraph (d)[(e)], in each [all] subcontract[s] awarded at any tier under this contract and to notify the Contracting Officer of such subcontracts.

(e) In the event of noncompliance with this clause, the Contracting Officer may terminate the contract in whole or in part or may pursue any other remedies authorized by law or by other provisions of the contract.

(a) Public Law 101-601, dated November 16, 1990, also known as t[T]he Native American Graves Protection and Repatriation Act [(25 U.S.C. 3001 et seq.)], imposes certain responsibilities on individuals and organizations when they discover Native American cultural items (including human remains) on Federal or t[T]ribal lands.

(b) In the event the Contractor discovers Native American cultural items (including human remains, associated funerary objects, unassociated funerary objects, sacred objects and cultural patrimony), as defined in the Act during contract performance, the Contractor shall[must]—

(c) Unless otherwise specified by the Contracting Officer, the Contractor may resume activity in the area on the 31st calendar day following the date that the appropriate authorities certify receipt of the discovery notice. The Contracting Officer shall[must] provide to the Contractor the date that the appropriate authorities certify receipt of the discovery notice and the date on which the Contractor may resume activities.

(a) Definitions[.] as used in this clause:[As used in this clause—]

Alaska Native Claims Settlement Act (ANCSA) means Pub[.]lic L[.]aw 92-203 (December 18, 1971), 85 Stat. 688, codified at 43 U.S.C. 1601-1629h.

[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 ANCSA.]

Indian means a person who is an enrolled member of an Indian Tribe or “Native” as defined in the Alaska Native Claims Settlement Act.

[Indian Economic Enterprise (IEE) means any business activity owned by one or more Indians or Federally Recognized Indian Tribes or Alaska Native regional or village corporation provided that—

Indian Economic Enterprise means any business activity owned by one or more Indians or Indian Tribes that is established for the purpose of profit provided that: The combined Indian or Indian Tribe ownership must constitute not less than 51 percent of the enterprise; the Indians or Indian Tribes must, together, receive at least a majority of the earnings from the contract; and the management and daily business operations of an 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. The enterprise must meet these requirements throughout the following time periods:

Indian Tribe means an Indian Tribe, band, nation, or other recognized group or community that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians, including any Alaska Native village or regional or village corporation under the Alaska Native Claims Settlement Act (Pub. L. 92-203, 85 Stat. 688; 43 U.S.C. 1601).

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 326.6[71]06.

(b) General. (1) Under the Buy Indian Act, offers are solicited only from Indian Economic Enterprises.

(c) Required submissions. In response to this solicitation, an offeror must also provide the following:

(d) Required assurance[Required assurance]. The offeror must provide written assurance to the CO[Contracting Officer] that the offeror is and will remain in compliance with the requirements of this clause. It must do this before the CO[Contracting Officer] awards the Buy Indian Act contract and upon successful and timely completion of the contract, but before the CO[Contracting Officer] accepts the work or product.

(e) Non-responsiveness[Non-responsiveness]. Failure to provide the information required by paragraphs (c) and (d) of this clause may cause the CO[Contracting Officer] to find an offer non-responsive and reject it.

(f) Eligibility[Eligibility]. (1) Participation in the[a] Mentor-Protégé Program established under section 831 of the National Defense Authorization Act for Fiscal Year 1991 (25 U.S.C. 47 note) [the Department of War (pursuant to 10 U.S.C. 4902(c)(2))] does not render an Indian Economic Enterprise ineligible for contracts awarded under the Buy Indian Act [(25 U.S.C. 47)].

(g) Representation[Representation]. Under the Buy Indian Act, 25 U.S.C. 47, offers are solicited only from Indian Economic Enterprises (326.606[see 326.7106]). As required by HHSAR 352.226-7(b)[352.226-76(b)], offerors shall[must] include a completed Indian Economic Enterprise Representation form in response to Sources Sought Notices, Request for Information (RFI) and as part of the proposal submission. The Indian Economic Enterprise Representation form, available on the IHS DAP public website (www.IHS.gov/DAP[www.IHS.gov/DAP]), shall[must] be included in synopses, presolicitation notices, and solicitations for the acquisitions under the Buy Indian Act. Offers received from enterprises that are not Indian Economic Enterprises shall[will] not be considered.

(a) Definitions[Definitions. A]as used in this clause.[—]

[Indian Economic Enterprise (IEE) means any business activity owned by one or more Indians or Federally Recognized Indian Tribes or Alaska Native regional or village corporation provided that:

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.]

(b) Required Percentages of work by the concern[Required percentages of work by the concern]. The c[C]ontractor must comply with FAR 52.219-14, Limitations on Subcontracting[,] clause in allocating what percentage of work to subcontract. The c[C]ontractor shall[must] not subcontract work exceeding the subcontract limitations in FAR 52.219-14 to a concern other than a responsible Indian Economic Enterprise [ISBEE if the contract was set-aside for ISBEEs].

(c) [Work performed by non-IEE subcontractor employees.] Any work that an IEE subcontractor does not perform with its own employee shall[must] 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[Cooperation]. The c[C]ontractor must:

(e) Incorporation in Subcontracts[Subcontracts]. The c[C]ontractor must incorporate the substance of this clause, including this paragraph (e), in all subcontracts for general services, A&E[architect-engineer (A-E)] services and construction awarded under this contract.

(a) The offeror must represent as part of its offer that it does meet the definition of Indian Economic Enterprise (IEE) as defined in HHSAR 326.601[326.7101] and that it intends to meet the definition of an IEE throughout the performance of the contract. The offeror must notify the c[C]ontracting o[O]fficer immediately, via email, if there is any ownership change affecting compliance with this representation.

(b) The representation must be made on the designated IHS Indian Economic Enterprise Representation form or any successor forms through which the offeror will certify that the ownership requirements defined by HHSAR 326.601[326.7101] are met.

(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.