[Federal Register Volume 85, Number 218 (Tuesday, November 10, 2020)]
[Proposed Rules]
[Pages 71596-71602]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24339]
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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).
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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, [email protected]; or Santiago Almaraz,
Acting Director Office of Management Services, Indian Health Service,
301-443-4872, [email protected].
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.
[[Page 71597]]
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:
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Time (local time
Date zone) Location
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November 9, 2020.............. 3:00-4:30 p.m. 1-888-391-3141,
EST. Participant Code:
8680097.
November 16, 2020............. 3:00-4:30 p.m. 1-888-391-3141,
EST. Participant Code:
8680097.
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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
[[Page 71598]]
(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
0
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.
0
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
Sec. 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).
Sec. 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
Sec. 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
[[Page 71599]]
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
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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
[[Page 71600]]
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.
Sec. 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:
Table 1 to Paragraph (c)
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The following official may authorize
For a proposed contract action a deviation
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Exceeding the micro-purchase Contracting Officer.
threshold and up to $25,000.
Exceeding $25,000 but not Chief Contracting Officer (CCO) (or
exceeding $700,000. the IHS Division of Acquisition
Policy (DAP) Director, absent a
CCO).
Exceeding $700,000 but not IHS Competition Advocate.
exceeding $13.5 million.
Exceeding $13.5 million but not Head of Contracting Activity.
exceeding $68 million.
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
Sec. 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.
Sec. 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.
Sec. 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
Sec. 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.
Sec. 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
Sec. 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
[[Page 71601]]
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-Prot[eacute]g[eacute] 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.
Sec. 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.
Sec. 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
Sec. 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
0
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
0
2. Add Sec. Sec. 352.226-4 through 352.226-7 to read as follows:
Sec. 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 Sec. 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)
Sec. 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
[[Page 71602]]
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)
Sec. 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