HHSAR PART 326 – OTHER SOCIOECONOMIC PROGRAMS (RFO DEVIATION)

(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))

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.

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

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:

(1) The combined Indian, Federally Recognized Indian Tribe, Alaska Native regional or village corporation ownership of the enterprise constitutes not less than 51 percent;

(2) The Indians, Federally Recognized Indian Tribe, or Alaska Native regional or village corporation must, together, receive at least 51 percent of the earnings from the contract; and

(3) The management and daily business operations of an enterprise must be controlled by one or more individuals who are Indians. The Indian individual(s) must possess requisite management or technical capabilities directly related to the primary industry in which the enterprise conducts business. Management may be provided by:

(i) Committees, teams, or Boards of Directors which are controlled by one or more members of Tribe, or;

(ii) Non-Tribal members if the enterprise can demonstrate;

(A) That the Tribe can hire and fire those individuals,

(B) That it will retain control of all management decisions common to Boards of Directors, including strategic planning, budget approval, and the employment and compensation of officers, and

(C) That a written management development plan exists which shows how Tribal members will develop managerial skills sufficient to manage the enterprise or similar enterprises in the future.

 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 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 352.226-71, Indian Preference Program, by adding specific Indian preference requirements of the Tribe on whose reservation the contractor will work.

(b) Nothing in this subpart precludes Tribes from independently developing and enforcing their own Tribal preference requirements. Such independently-developed Tribal preference requirements must not, except as provided in paragraph (a) of this section, become a requirement in contracts covered under this subpart, and 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—

(1) The award is pursuant to an act specifically authorizing such awards with IEEs; or

(2) The work is specifically for the benefit of Indians and is in addition to any incidental benefits which might otherwise accrue to the general public.

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

(1) The dollar amount of the acquisition is expected to equal or exceed $750,000 for non-construction work or $1.5 million for construction work;

(2) The solicitation or contract includes the clause at 352.226-70; and

(3) The contracting officer makes the determination, prior to solicitation, that performance will take place in whole or in substantial part on or near an Indian reservation(s). In addition, the contracting officer may insert the clause at 352.226-71 in solicitations and contracts below the $750,000 threshold or $1.5 million threshold level for non-construction or construction contracts, respectively, but which meet the requirements of paragraphs (b)(2) and (3) of this section, and in the opinion of the contracting officer, offer substantial opportunities for Indian employment, training, and subcontracting.

This subpart implements policies and procedures for the procurement of supplies, general services, architect-engineer (A-E) services, or construction while giving preference to Indian Economic Enterprises under authority of the Buy Indian Act (25 U.S.C. 47).

(a) This subpart supplements Federal Acquisition Regulation (FAR) and 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) Acquisitions conducted under this subpart are subject to the FAR and HHSAR, as well as internal policies, procedures, or instructions issued by IHS. After the FAR, this HHSAR subpart takes precedence over any inconsistent IHS policies, procedures, or instructions.

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. 1601-1629h).

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, (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.

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 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 19.205(c).

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

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—

(1) The combined Indian, Federally Recognized Indian Tribe, Alaska Native regional or village corporation ownership of the enterprise constitutes not less than 51 percent;

(2) The Indians, Federally Recognized Indian Tribe, or Alaska Native regional or village corporation must, together, receive at least 51 percent of the earnings from the contract; and

(3) The management and daily business operations of an enterprise must be controlled by one or more individuals who are Indians. The Indian individual(s) must possess requisite management or technical capabilities directly related to the primary industry in which the enterprise conducts business. Management may be provided by—

(i) Committees, teams, or Boards of Directors which are controlled by one or more members of Tribe, or;

(ii) Non-Tribal members if the enterprise can demonstrate-

(A) That the Tribe can hire and fire those individuals;

(B) That it will retain control of all management decisions common to Boards of Directors, including strategic planning, budget approval, and the employment and compensation of officers; and

(C) That a written management development plan exists which shows how Tribal members will develop managerial skills sufficient to manage the enterprise or similar enterprises in the future.

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.

Interested party 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 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).

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. L. 83-568, 68 Stat. 674 (1954) ( 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.

Except as provided in 326.7102-1, this subpart applies to all acquisitions above the micro-purchase threshold, including simplified acquisitions, made by IHS, and any HHS operating or staff divisions or agency outside of HHS conducting acquisitions on behalf of IHS.

(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 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, 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 subpart 8.1.

(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 subpart in conjunction with the procedures from FAR parts 12, 13, 14, 15 and/or 16.

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

(1) A set-aside for ISBEEs; or

(2) A sole source award to an ISBEE, as authorized under the FAR.

(e) If the contracting officer determines after market research that there is no reasonable expectation of obtaining offers from ISBEEs that will be competitive in terms of a fair market price, product quality, and delivery capability, the contracting officer may consider either—

(1) A set-aside for IEEs; or

(2) A sole source award to an IEE, as authorized under the FAR.

(f) With respect to construction, the provisions of 25 U.S.C. 1633 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) 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:

(1) Any sole source acquisition justified and approved in accordance with the FAR and HHSAR constitutes an authorized Buy Indian Act deviation.

(2) Any order or call placed against an indefinite delivery vehicle that already has an approved Buy Indian Act deviation.

(a) Each acquisition of commercial products, commercial services and construction that is subject to FAR part 12 or 13 must be set-aside exclusively for ISBEEs, except as otherwise set forth in this subpart. IHS will use ISBEE commercial products and commercial services, or simplified acquisition set-asides to accomplish this preference action.

(b) Commercial products and commercial services, or simplified acquisitions under this section must conform to the competition and price reasonableness documentation requirements of FAR part 12and 13 for commercial products and commercial services acquisitions and simplified acquisitions.

(c) When acquiring construction and architect-engineer (A-E services, solicit proposals and evaluate potential contractors in accordance with FAR part 36.

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

(1) If an interested IEE is identified after a solicitation has been issued, but before the date established for receipt of offers, the contracting office must provide a copy of the solicitation to this enterprise. In this case, the contracting officer:

(i) Will not give preference under the Buy Indian Act to the IEE; and

(ii) May extend the date for receipt of offers when practical.

(2) If more than one IEE is identified after issuing a solicitation, but prior to the date established for receipt of offers, the contracting officer may cancel the solicitation and re-compete it as an IEE set-aside.

A misrepresentation by an offeror of its status as an IEE, failure to notify the contracting officer of any change in IEE status that would make the contractor ineligible as an IEE, or any violation of the regulations in this part by an offeror or an awardee may lead to debarment or suspension in accordance with FAR 9.406 and 9.407 and subpart 309.4.

Solicitations requiring performance and payment bonds must conform to FAR Part 28 and authorize use of any of the types of security acceptable in accordance with FAR Subpart 28.2 or section 11 of Pub. L. 98-449, the Indian Financing Act Amendments of 1984 (25 U.S.C. 47a). In accordance with FAR 28.102 and 25 U.S.C. 47a, the contracting officer may accept alternative forms of security in lieu of performance and payment bonds if a determination is made that such forms of security provide the Government with adequate security for performance and payment.

(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.

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

(1) Certify that it meets the definition of Indian Economic Enterprise in response to a specific solicitation set-aside in accordance with the Buy Indian Act and this subpart; and

(2) Identify the Indian Tribe(s) upon which the offeror relies for its IEE status.

(c) The enterprise must meet the definition of Indian Economic Enterprise throughout the following time periods-

(1) At the time an offer is made in response to a solicitation;

(2) At the time of contract award; and

(3) During the full term of the contract.

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

(1) Full disclosure of circumstances causing the contractor to lose eligibility status; and

(2) A description of actions, if any, that must be taken to regain eligibility.

(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.

(f) The 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 contracting officer will also investigate the representation if an interested party challenges the IEE representation or if the contracting officer has any other reason to question the representation. The 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 contracting officer or Chief Contracting Officer (CCO) in accordance with 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)

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.

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

(b) The contracting officer must review the ownership information furnished under 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 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 contracting officer must allow the offeror to correct information submitted under 352.226-76(b). 326.7107 Challenges to representation.

(a) The contracting officer can accept an offeror's written representation of being an ISBEE or IEE (as defined in 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 contracting officer must re-verify the representation of the offeror or awardee in accordance with the requirements of this subpart, including the provisions of 326.7106.

(a) An interested party must file any challenges against an offeror's representation with the cognizant 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 or Indian Small Business Economic Enterprise as defined in 326.7101 or is otherwise ineligible. The 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 contracting officer no later than 10 calendar days after the basis of challenge is known or should have been known, whichever is earlier.

(1) A challenge may be made orally if it is confirmed in writing within the 10-day period after the basis of challenge is known or should have been known, whichever is earlier.

(2) A written challenge may be delivered by hand, email, or letter postmarked within the 10-day period after the basis of challenge is known or should have been known, whichever is earlier.

(3) A contracting officer's challenge to a certification is always considered timely, whether filed before or after award.

(d) Upon receiving a timely challenge, the contracting officer must-

(1) Notify the challenger of the date it was received, and that the representation of the enterprise being challenged is under consideration; and

(2) Furnish to the offeror (whose representation is being challenged) a request to provide detailed information on its eligibility by certified mail, return receipt requested or email.

(e) Within 3 calendar days after receiving a copy of the challenge and the contracting officer’s request for detailed information, the challenged offeror must file, as specified at paragraph (d)(2) of this section, with the 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 contracting officer, the 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 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 contracting officer’s written determination that the challenged offeror's representation is valid.

(1) This determination is final unless it is appealed to DAP, and the contracting officer is notified of the appeal before award.

(2) If an award was made before the contracting officer received notice of appeal, the contract is presumed to be valid.

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

If a contracting officer receives an untimely filed challenge of a representation, the contracting officer must notify the challenger that the challenge cannot be considered on the instant acquisition but will be considered in any future actions. However, the contracting officer may question at any time, before or after award, the representation of an IEE.

The 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 Tribal lands.

Insert the clause at 352.226-72, Native American Graves Protection and Repatriation Act, in solicitations and contracts requiring performance on Tribal lands or those for construction projects on Federal or Tribal lands.