[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:

------------------------------------------------------------------------
                                 Time (local time
             Date                     zone)               Location
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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)
------------------------------------------------------------------------
                                    The following official may authorize
  For a proposed contract action                 a deviation
------------------------------------------------------------------------
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