Acquisition Regulations; Buy Indian Act; Procedures for Contracting

Published date10 November 2020
Citation85 FR 71596
Record Number2020-24339
SectionProposed rules
CourtIndian Health Service
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Federal Register / Vol. 85, No. 218 / Tuesday, November 10, 2020 / Proposed Rules
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
11. The Further Notice seeks comment
on four proposals for NGSO regulatory
fee categories for FY 2021. The
Commission will release a Notice of
Proposed Rulemaking for all regulatory
fees for FY 2021; the Further Notice will
give parties an opportunity to file
comments prior to the annual Notice of
Proposed Rulemaking. If any of these
proposals are adopted, it may reduce the
regulatory fee burden on some satellite
entities. In addition, the section 9(e)(2)
annual regulatory fee exemption of
$1,000 will reduce burdens on small
entities with annual regulatory fees that
total $1,000 or less.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
12. None.
IV. Ordering Clauses
13. Accordingly, it is ordered that,
pursuant to section 9(a), (b), (e), (f), and
(g) of the Communications Act of 1934,
as amended, 47 U.S.C. 159(a), (b), (e),
(f), and (g), this Notice of Proposed
Rulemaking is hereby adopted.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2020–24503 Filed 11–9–20; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Indian Health Service
48 CFR Parts 326 and 352
[Docket No. OI–2012–0005]
RIN 0917–AA18
Acquisition Regulations; Buy Indian
Act; Procedures for Contracting
AGENCY
: Indian Health Service (IHS),
Department of Health and Human
Services (HHS).
ACTION
: Notice of Proposed Rulemaking
(NPRM).
SUMMARY
: The United States Department
of Health and Human Services (HHS) is
proposing to issue regulations guiding
implementation of the Buy Indian Act,
which provides IHS with authority to
set-aside procurement contracts for
Indian-owned and controlled
businesses.
DATES
: Send your comments on or
before January 11, 2021.
ADDRESSES
: You may send comments
identified by docket number January 11,
2021 using any of the following
methods:
Evonne Bennett, Acting Director,
Division of Regulatory Policy
Coordination (DRPC), Office of
Management Services (OMS), Indian
Health Service, 5600 Fishers Lane, Mail
Stop 09E70, Rockville, MD 20857.
Tiffani Redding, Director, Office of
Recipient Integrity Coordination (ORIC),
Department of Health and Human
Services, Office of the Assistant
Secretary for Financial Resources
(ASFR), Room 533H, Hubert H.
Humphrey Building, 200 Independence
Avenue SW, Washington, DC 20201.
FOR FURTHER INFORMATION CONTACT
: For
technical questions concerning this
proposed rule contact:
Evonne Bennett, Acting Director,
Division of Regulatory Policy
Coordination (DRPC), Office of
Management Services, Indian Health
Service, 301–443–4750,
evonne.bennett@ihs.gov; or Santiago
Almaraz, Acting Director Office of
Management Services, Indian Health
Service, 301–443–4872,
santiago.almaraz@ihs.gov.
SUPPLEMENTARY INFORMATION
:
I. Background
The Indian Health Service (IHS) is an
agency of the United States Department
of Health and Human Services (HHS)
whose principal mission is to provide
health care to American Indians and
Alaska Natives. 25 U.S.C. 1661. IHS’
authority to provide health care services
to the American Indian and Alaska
Native people derives from the Snyder
Act of 1921, 25 U.S.C. 13, a broad,
general authority to ‘‘expend such
moneys as Congress may from time to
time appropriate, for the benefit, care,
and assistance of the Indians,’’ for,
among other things, the ‘‘relief of
distress and conservation of health.’’ 25
U.S.C. 13. In 1954, Congress transferred
this responsibility and other health care
‘‘functions, responsibilities, authorities,
and duties of the Department of the
Interior’’ (including the Snyder Act) to
the Department of Health, Education,
and Welfare, the predecessor of the
Department of Health and Human
Services (‘‘HHS’’). See Public Law 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. IHS authority to
use the Buy Indian Act is further
governed by 25 U.S.C.1633. This rule is
proposed to describe uniform
administration procedures that the IHS
will use in all of its locations to
encourage procurement relationships
with Indian labor and industry in the
execution of the Buy Indian Act. IHS’
current rules are codified at HHSAR, 48
CFR part 326, subpart 326.6.
II. Statutory Authority
The Transfer Act authorizes the
Secretary of HHS to ‘‘make such other
regulations as he deems desirable to
carry out the provisions of the [Transfer
Act]’’. 42 U.S.C. 2003. The Secretary’s
authority to carry out functions under
the Transfer Act has been vested in the
Director of the Indian Health Service
under 25 U.S.C. 1661. Because of these
authorities, use of the Buy Indian Act is
reserved to IHS and is not available for
use by any other HHS component. IHS
authority to use the Buy Indian Act is
further governed by 25 U.S.C.1633,
which directs the Secretary to issue
regulations governing the application of
the Buy Indian Act to construction
activities.
III. Overview of Proposed Rule
This rule supplements the Federal
Acquisition Regulations (FAR) and the
Health and Human Services Acquisition
Regulations (HHSAR). This rule
formalizes an administrative procedure
for all IHS acquisition activities and
locations to ensure uniformity for offers
submitted by Indian labor and industry
under solicitations set aside under the
Buy Indian Act and this part.
A. Numbering System
This rule replaces the HHSAR,
Subpart 326.6—Acquisitions Under the
Buy Indian Act.
B. How This Rule Fits With the Indian
Health Service and Department
Acquisition Regulations
This rule proposes to amend the
HHSAR, which is maintained by
Assistant Secretary for Financial
Resources (ASFR) pursuant to 48 CFR
301.103. ASFR is responsible for
developing and preparing for issuance
all acquisition regulatory material to be
included in the HHSAR. Accordingly,
the rule is being proposed through
coordination between IHS and ASFR.
The rule is intended to establish Buy
Indian Act acquisition policies and
procedures for IHS that are consistent
with rules proposed and/or adopted by
the Department of the Interior.
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IV. Tribal Consultation
Under 25 U.S.C. 1672, IHS must
consult with Indian tribes and publish,
any proposed revision or amendment of
any regulation promulgated under the
Indian Health Care Improvement Act, in
the Federal Register not less than sixty
days prior to the effective date of such
revision or amendment in order to
provide adequate notice to, and receive
comments from, other interested parties.
Because this rule is being promulgated
in part based on the Indian Health Care
Improvement Act, IHS will be hosting
tribal consultation meetings addressing
this rule on the following dates at these
locations:
Date Time
(local time zone) Location
November 9, 2020 .................... 3:00–4:30 p.m. EST ......................................... 1–888–391–3141, Participant Code: 8680097.
November 16, 2020 .................. 3:00–4:30 p.m. EST ......................................... 1–888–391–3141, Participant Code: 8680097.
Tribal leader letters announcing these
consultation meetings will be
distributed to provide advance notice of
these consultations.
V. Required Determinations
1. Regulatory Planning and Review
(Executive Orders 12866 and 13563).
Executive Order (E.O.) 12866 provides
that the Office of Information and
Regulatory Affairs (OIRA) will review
all significant rules. OIRA has
determined that this proposed rule is
not significant. Executive Order 13563
reaffirms the principles of E.O. 12866
while calling for improvements in the
nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
Executive Order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public,
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
2. Regulatory Flexibility Act. HHS
certifies that the adoption of this
proposed rule will not have a significant
economic impact on a substantial
number of small entities as they are
defined in the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.). Therefore, under
5 U.S.C. 605(b), this rulemaking is
exempt from the initial and final
regulatory flexibility analysis
requirements of sections 603 and 604.
3. Small Business Regulatory
Enforcement Fairness Act. This
proposed rule is not a major rule under
the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C.
804(2)). This rule does not have an
annual effect on the economy of $100
million or more. This proposed rule will
not cause a major increase in costs or
prices for consumers, individual
industries, Federal, State, or local
government agencies, or geographic
regions. This proposed rule does not
have significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
4. Unfunded Mandates Reform Act.
This proposed rule does not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or tribal
governments, or the private sector nor
does the rule impose requirements on
State, local, or tribal governments. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
5. Takings (E.O. 12630). This
proposed rule does not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630. A takings implication
assessment is not required.
6. Federalism (E.O. 13132). Under the
criteria in section 1 of E.O. 13132, this
proposed rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement. This rule would not
substantially and directly affect the
relationship between the Federal and
State Governments. A Federalism
summary impact statement is not
required.
7. Civil Justice Reform (E.O. 12988).
This proposed rule complies with the
requirements of E.O. 12988.
Specifically, this rule (1) meets the
criteria of section 3(a) of this E.O.
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and (2) meets the criteria of
section 3(b)(2) of this E.O. requiring that
all regulations be written in clear
language and contain clear legal
standards.
8. Consultation with Indian tribes
(E.O. 13175). IHS strives to strengthen
its government-to-government
relationship with Indian tribes through
a commitment to consultation with
Indian tribes and recognition of their
right to self-governance and tribal
sovereignty. We have evaluated this rule
under the Department and Agency
consultation policies and under the
criteria in E.O. 13175 and have
determined there may be substantial
direct effects on federally recognized
Indian Tribes that will result from this
rulemaking. In addition, we note that 25
U.S.C. 1672 expressly directs
consultation prior to amendment of the
rule. HHS will hold meetings with the
Tribes as stated in the Background
section of this preamble.
9. Paperwork Reduction Act, 44
U.S.C. 3501, et seq. This proposed rule
requires offerors to certify whether they
met the definition of an ‘‘Indian
Economic Enterprise’’ and to provide
the name of the federally recognized
Indian Tribe or Alaska Native
Corporation with which they are
affiliated. These statements are
considered simple representations that
an offeror submitted to support its claim
for eligibility to participate in contract
awards under the authority of the Buy
Indian Act (25 U.S.C. 47, as amended).
Because these statements are a simple
certification or acknowledgment related
to a transaction, they do not qualify as
a collection of information under the
Paperwork Reduction Act. See 5 CFR
1320.3(h).
10. National Environmental Policy
Act. This proposed rule does not
constitute a major Federal action
significantly affecting the quality of the
human environment. A detailed
statement under the National
Environmental Policy Act of 1969
(NEPA) is not required because the rule
is covered by the categorical exclusion
listed in 43 CFR 46.210(c). We have also
determined that the rule does not
involve any of the extraordinary
circumstances listed in 43 CFR 46.215
that would require further analysis
under NEPA.
11. Clarity of this Regulation. We are
required by Executive Orders 12866
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(section 1(b)(12)), and 12988 (section
3(b)(1)(B)), and 13563 (section 1(a)), and
by the Presidential Memorandum of
June 1, 1998, to write all rules in plain
language. This means that each rule we
publish must (1) be logically organized;
(2) use the active voice to address
readers directly; (3) use common,
everyday words and clear language
rather than jargon; (4) be divided into
short sections and sentences; and (5) use
lists and tables wherever possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the
FOR FURTHER
INFORMATION CONTACT
section. To better
help us revise the rule, your comments
should be as specific as possible. For
example, you should tell us the number
of section or paragraphs that you find
unclear, which section or sentences are
too long, the sections where you feel
lists or tables would be useful, etc.
12. Public availability of comments.
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be publicly available at any time. While
you can ask us in your comment to
withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so. When submitting comments
please identify what topic your
comment covers from the following list:
(1) Subcontract Limitations
(2) Buy Indian Act Deviations
(3) Preventing Fraud and Abuse
(4) Covered Construction
(5) Other Topic Related to the Proposed
Rule
List of Subjects
48 CFR Part 326
Government procurement, Indians,
Indians-business and finance, Reporting
and recordkeeping requirements.
48 CFR Part 352
Government procurement.
For the reasons set out in the
preamble, the HHS proposes to amend
parts 326 and 352 as follows:
CHAPTER 3—HEALTH AND HUMAN
SERVICES
Subchapter D—Socioeconomic
Programs
PART 326—OTHER SOCIOECONOMIC
PROGRAMS
1. The authority citation for part 326
is revised to read as follows:
Authority: 5 U.S.C. 301, 25 U.S.C. 47, 25
U.S.C. 1633, 41 U.S.C. 253(c)(5), and 42
U.S.C. 2003.
2. Revise subpart 326.6 to read as
follows:
Subpart 326.6—Acquisitions Under the Buy
Indian Act
326.600—General
Sec.
326.600–1 Scope of part.
326.600–2 Buy Indian Act acquisition
regulations.
326.601—Definitions
326.601 Definitions.
326.602—Applicability
326.602–1 Scope of part.
326.602–2 Restrictions on the use of the
Buy Indian Act.
326.603—Policy
326–603–1 Requirement to give preference
to Indian Economic Enterprises.
326–603–2 Delegations and responsibility.
326–603–3 Deviations.
326.604—Procedures
326.604–1 General.
326.604–2 Procedures for Acquisitions
under the Buy Indian Act.
326.604–3 Debarment and suspension.
326.605—Contract Requirements
326.605–1 Subcontracting limitations.
326.605–2 Performance and payment
bonds.
326.606—Representation by an Indian
Economic Enterprise Offeror
326.606–1 General.
326.606–2 Representation provision.
326.606–3 Representation process.
326.607—Challenges to Representation
326.607–1 Procedure.
Subpart 326.6—Acquisitions Under the
Buy Indian Act
326.600—General
§ 326.600–1 Scope of part.
This subpart implements policies and
procedures for the procurement of
supplies, general services, architect and
engineering (A&E) services, or covered
construction (including A&E services),
while giving preference to Indian
Economic Enterprises under authority of
the Buy Indian Act (25 U.S.C. 47).
§ 326.600–2 Buy Indian Act acquisition
regulations.
(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, Indian
Health Service 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)—
Indian Health Service, Department of
Health and Human Services. The HCA,
in consultation with the 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) 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 Indian Health
Service. After the FAR, this HHSAR
subpart would take precedence over any
inconsistent Indian Health Service
policies, procedures, or instructions.
326.601—Definitions
§ 326.601 Definitions.
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.
Covered 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.
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).
Federally Recognized Indian Tribe
means an Indian tribe, band, nation, or
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other recognized group or community,
or any Alaska Native village or Native
group (as those terms are defined in
ANCSA) found on the List of Federally
Recognized Tribes. Governing Body
means the recognized entity empowered
to exercise governmental authority over
a Federally Recognized Indian Tribe.
Indian means a person who is an
enrolled member of a Federally
Recognized Indian Tribe.
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, Federally
Recognized Indian Tribes, or Alaska
Native Corporations provided that:
(1) The combined Indian, Federally
Recognized Indian Tribe, or Alaska
Native Corporation ownership of the
enterprise constitutes not less than 51
percent;
(2) The Indians, Federally Recognized
Indian Tribes, or Alaska Native
Corporations 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.
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 a tribal entity recognized by and
eligible for funding and services from
the Indian Health Service by virtue of
their status as Indian Tribes. A full list
of these entities is published annually
in the Federal Register pursuant to
Section 104 of Public Law 103–454,
codified at 25 U.S.C. 5131.
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 Department of Health and Human
Services (DHHS). Public Law 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.
326.602—Applicability
§ 326.602–1 Scope of part.
Except as provided in HHSAR
326.602–2, this subpart applies to all
acquisitions, including simplified
acquisitions, made by IHS, any HHS
operating divisions or agency outside of
HHS conducting acquisitions on behalf
of IHS.
§ 326.602–2 Restrictions on the use of the
Buy Indian Act.
(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 CHS). Purchase orders for
care authorized pursuant to 42 CFR part
136 subpart C may be issued without
regard to the provisions of this Part.
326.603—Policy
§ 326.603–1 Requirement to give
preference to Indian Economic Enterprises.
(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 Indians, Federally
Recognized Tribes, or Alaska Native
Corporations 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 services, or covered
construction to meet IHS needs and
requirements.
(b) 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 12, 13, 14, 15 and/or 16.
(c) The CO will give priority to
ISBEEs for all purchases, regardless of
dollar value, by utilizing ISBEE set-
aside to the maximum extent possible.
(d) If the CO 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 CO
shall expand the market research to all
IEEs to determine if the requirement can
be set aside for IEEs.
(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 (c) or (d) 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 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.
(1) If a deviation determination is
approved, the CO must cancel the
current ISBEE or IEE set-aside
solicitation and identify, based on
current available market research, an
alternate set-aside or procurement
method.
(h) With respect to covered
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.
§ 326.603–2 Delegations and
responsibility.
(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
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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 Head of Contracting Activity,
IHS (IHS HCA) is responsible for
ensuring that all IHS acquisitions under
the Buy Indian Act comply with the
requirements of this part.
§ 326.603–3 Deviations.
(a) There are certain instances where
the application of the Buy Indian Act to
an acquisition may not be appropriate.
In these instances, the Contracting
Officer 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. The
following acquisitions do not require a
written deviation from the requirements
of the Buy Indian Act:
(1) Any sole source acquisition
justified and approved in accordance
with FAR Subpart 6.3 and HHSAR 306.3
constitutes an authorized deviation from
the requirements of the Buy Indian Act.
(2) 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:
T
ABLE
1
TO
P
ARAGRAPH
(c)
For a proposed contract action The following official may authorize a deviation
Exceeding the micro-purchase
threshold and up to $25,000. Contracting Officer.
Exceeding $25,000 but not exceed-
ing $700,000. Chief Contracting Officer (CCO) (or the IHS Division of Acquisition Policy (DAP) Director, absent a CCO).
Exceeding $700,000 but not ex-
ceeding $13.5 million. IHS Competition Advocate.
Exceeding $13.5 million but not ex-
ceeding $68 million. Head of Contracting Activity.
Exceeding $68 million ..................... HHS Office of Small & Disadvantaged Business Utilization (OSDBU), Office of General Counsel (OGC),
HHS Department Competition Advocate and the HHE Senior Procurement Executive.
326.604—Procedures
§ 326.604–1 General.
All acquisitions under the authority of
the Buy Indian Act, must conform to all
applicable requirements of the FAR and
HHSAR.
§ 326–604–2 Procedures for Acquisitions
under the Buy Indian Act.
(a) This paragraph 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 CO:
(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 CO may cancel the solicitation and
re-compete it as an IEE set-aside.
(b) Clauses and Provisions.
(1) 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).
(2) The contracting officer shall insert
the provision at HHSAR 352.226–5,
NOTICE OF INDIAN ECONOMIC
ENTERPRISE SET–ASIDE, in
solicitations for acquisitions that are set
aside to IEE concerns in accordance
with HHSAR 326.603–1(d).
(3) The contracting officer shall insert
the clause at HHSAR 352.226–6,
SUBCONTRACTING LIMITATIONS, in
all solicitations and contracts when the
contract award is to be made under the
authority of the Buy Indian Act.
(4) The contracting officer shall insert
the provision at HHSAR 352.226–7,
INDIAN ECONOMIC ENTERPRISE
REPRESENTATION, in all solicitations
when the contract award is to be made
under the authority of the Buy Indian
Act.
§ 326.604–3 Debarment and suspension.
A misrepresentation by an offeror of
its status as an IEE, failure to notify the
CO 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 HHSAR 309.406
and 309.407.
326.605—Contract Requirements
§ 326.605–1 Subcontracting limitations.
(a) The contracting officer 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.
§ 326.605–2 Performance and payment
bonds.
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 Public Law 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 CO
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.
326.606—Representation by an Indian
Economic Enterprise Offeror
§ 326.606–1 General.
(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 HHSAR 326.603–1(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 part; and
(2) Identify the Federally Recognized
Indian Tribe(s) or Alaska Native
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Corporation(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 CO 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:
(1) The contractor may be declared
ineligible for future contract awards
under this part;
(2) The CO may consider termination
for default of the ongoing contract; and
(3) The CO may pursue debarment or
suspension of the contractor.
(f) The CO 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) or Alaska Native Corporation(s)
that the offeror identifies in the
representation is either on the List of
Federally Recognized Tribes or is an
Alaska Native Corporation. A CO will
also investigate the representation if an
interested party challenges the IEE
representation or if the CO has any other
reason to question the representation.
The CO 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 or CCO in accordance with HHSAR
326.607.
(g) Participation in the Mentor-Prote
´ge
´
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.
§ 326.606–2 Representation provision.
(a) Contracting offices must provide
copies of the awardees’ IEE
representation to any interested parties
upon written request. IHS will make
awardees’ IEE representations 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.
§ 326.606–3 Representation process.
(a) Only IEEs may participate in
acquisitions set aside in accordance
with the Buy Indian Act and this part.
The procedures in this Part are intended
to support responsible IEEs and prevent
circumvention or abuse of the Buy
Indian Act.
(b) The CO shall review the
ownership information furnished under
HHSAR 352.226–7(b) and ensure that
the information submitted matches the
List of Federally Recognized Tribes or is
an Alaska Native Corporation, as
identified and published via a Federal
Register Notice as Indian entities
recognized by and eligible to receive
services from the United States
Department of the Interior (DOI), Bureau
of Indian Affairs (BIA).
(c) If the CO cannot verify the offeror
submission with the List of Federally
Recognized Tribes the CO must allow
the offeror to correct information
submitted under HHSAR 352.226–7(b).
The contracting officer should make
every effort to allow the offeror to
correct the information. If the
requirement is time sensitive the
contracting officer must specify to the
offeror the time and date by which a
response is required.
(1) If the CO determines the offeror is
not responsive, the CO must document
the circumstances and inform the
offeror of the determination.
(2) The CO may ask the Office of the
General Counsel to review the IEE
representation.
(3) The IEE representation does not
relieve the CO of the obligation for
determining contractor responsibility, as
required by FAR Subpart 9.1.
326.607—Challenges to Representation
§ 326.607–1 Procedure.
(a) The CO can accept an offeror’s
written representation of being an ISBEE
or IEE (as defined in HHSAR 326.601)
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 shall re-verify the representation of
the offeror or awardee in accordance
with the requirements of this subpart,
including the provisions of 326.606.
PART 352—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
1. The authority citation for part 352
is revised to read as follows:
Authority: 5 U.S.C. 301, 40 U.S.C.
121(c)(2), 42 U.S.C. 2003
Subpart 352.2—Text of Provisions and
Clauses
2. Add §§ 352.226–4 through 352.226–
7 to read as follows:
§ 352.226–4 Notice of Indian Small
Business Economic Enterprise set-aside.
As prescribed in HHSAR 326.604–
2(b)(1), and in lieu of the requirements
of 48 CFR 19.508, insert the following
clause in solicitations and contracts for
acquisitions that are set aside to Indian
Small Business Economic Enterprise
concerns.
Notice of Indian Small Business Economic
Enterprise Set-Aside
Under the Buy Indian Act, 25 U.S.C. 47,
offers are solicited only from Indian
Economic Enterprises (HHSAR 326.606) that
are also small business concerns. As required
by HHSAR § 352.226–7(b), offerors shall
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
Division of Acquisition Policy public website
(www.IHS.gov/DAP), shall be included in
synopses, presolicitation notices, and
solicitations for the acquisitions under the
Buy Indian Act. Offers received from
enterprises that are not both Indian Economic
Enterprises and small business concerns
shall not be considered.
(End of clause)
§ 352.226–5 Notice of Indian Economic
Enterprise set-aside.
As prescribed in HHSAR 326.604–
2(b)(2), insert the following clause in
solicitations and contracts involving
Indian Economic Enterprise set-asides.
Notice of Indian Economic Enterprise Set-
Aside
Under the Buy Indian Act, 25 U.S.C. 47,
offers are solicited only from Indian
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Economic Enterprises (326.606). As required
by HHSAR 352.226–7(b), offerors shall
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
Division of Acquisition Policy public website
(www.IHS.gov/DAP), shall 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 not be considered.
(End of clause)
§ 352.226–6 Indian Economic Enterprise
Subcontracting Limitations.
A contractor shall not subcontract
more than the subcontract limitations
specified under FAR 52.219–14
Limitations on Subcontracting. As
prescribed in HHSAR 326.604–2(b)(3),
insert the following clause in each
written solicitation and contract to
provide supplies, general services, A&E
services, or covered construction:
Indian Economic Enterprise Subcontracting
Limitations
(a) Definitions as used in this clause.
(1) Indian Economic Enterprise Concern
means any business activity owned by one or
more Indians, Federally Recognized Indian
Tribes, or Alaska Native Corporations that is
established for the purpose of profit,
provided that:
(i) The combined Indian, Federally
Recognized Indian Tribe, or Alaska Native
Corporation ownership of the enterprise shall
constitute not less than 51 percent;
(ii) The Indians, Federally Recognized
Indian Tribes, or Alaska Native Corporations
shall, together, receive at least 51 percent of
the earnings from the contract; and
(iii) The management and daily business
operations of an Indian Economic 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.
(2) Subcontract means any agreement
(other than one involving an employer-
employee relationship) entered into by a
subcontractor to furnish supplies and/or
services required for performance of a prime
contract or a subcontract. It includes but is
not limited to contracts and contract
modifications.
(3) Subcontractor means any supplier,
distributor, vendor, or firm that furnishes
supplies or services to or for a prime
contractor or another subcontractor.
(b) The contractor must comply with FAR
52.219–14, Limitations on Subcontracting
clause throughout the contract period.
(End of clause)
352.226–7 Indian Economic Enterprise
representation.
As prescribed in HHSAR 326.604–
2(b)(4), insert the following provision in
each written solicitation for supplies,
services, A&E, or covered construction:
Indian Economic Enterprise Representation
(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 and that it intends to meet
the definition of an IEE throughout the
performance of the contract. The offeror must
notify the contracting officer within 10
business days, 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 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.
(End of provision)
Dated: September 30, 2020.
Michael D. Weahkee,
RADM, Assistant Surgeon General, U.S.
Public Health Service, Director, Indian Health
Service.
Approved: October 6, 2020.
Alex M. Azar II,
Secretary, Department of Health and Human
Services.
[FR Doc. 2020–24339 Filed 11–9–20; 8:45 am]
BILLING CODE 4160–01–P
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