BNUMBER:  B-266164
DATE:  January 11, 1996
TITLE:  Lewis, Oberly, Sloan & Associates, P.C.

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Matter of:Lewis, Oberly, Sloan & Associates, P.C.

File:     B-266164

Date:     January 11, 1996

Robert F. Lewis and Harry Sloan for the protester.
James L. Weiner, Esq., Department of the Interior, for the agency.
John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that the awardee does not satisfy Buy Indian Act set-aside 
eligibility requirements is denied where the Bureau of Indian Affairs 
reasonably found that the awardee corporation is owned and controlled 
by a certified Indian, who will be responsible for the management and 
conduct of the awarded contract.

DECISION

Lewis, Oberly, Sloan & Associates protests the award of a contract to 
Dan D. Griffin, P.C., C.P.A., under request for proposals (RFP) No. 
1450-K00-95-002, issued as a total set-aside for Indian-owned and 
controlled concerns by the Bureau of Indian Affairs (BIA), Department 
of the Interior, for the performance of compliance audits and internal 
control reviews for BIA's Office of Trust Funds Management.  The 
protester contends that Griffin is not an Indian economic enterprise 
as required by the RFP.

We deny the protest.

The RFP was issued as a total set-aside for Indian-owned and 
controlled concerns pursuant to the Buy Indian Act, 25 U.S.C.  47 
(1994).  The RFP required that each offeror certify that it was an 
"eligible Indian economic enterprise."  The RFP stated that the term 
"'[e]ligible' means that the majority owner of an Indian economic 
enterprise . . . meets both the definitions 'Indian' and of 'Indian 
economic enterprise'" as set forth in this portion of the RFP.  The 
RFP defined "Indian" as "a person who is a member of an Indian tribe, 
as defined herein," and defined "Indian tribe" as "any Indian tribe, 
band, nation, rancheria, pueblo, colony, Alaska native village, or 
community which is recognized by the U.S. Government through the 
Secretary [of the Interior] as eligible for the special programs and 
services provided by the Secretary to Indians because of their status 
as Indians."  The RFP defined "Indian Economic Enterprise" as a 
business entity which:  (1) is at least 51 percent owned by one or 
more individuals qualifying as Indians; (2) has one or more of the 
Indian owners involved in the daily business management of the 
enterprise; and (3) has the majority of the enterprise's earnings 
accrue to such Indian persons.

The agency received two offers, those of the protester and Griffin, by 
the RFP's closing date.  In their offers, both the protester and 
Griffin certified that they were eligible Indian economic enterprises.  
The proposals were evaluated by a technical evaluation board (TEB), 
and the agency issued an amendment to the RFP, which, among other 
things, requested the submission of best and final offers (BAFO).  
After the BAFOs were evaluated, the TEB recommended that award be made 
to Griffin.  The agency conducted a pre-award survey of Griffin at 
that firm's office, during which the agency asked Dan Griffin, the 
owner,  a number of questions and requested the submission of certain 
documents bearing on the firm's eligibility as an Indian economic 
enterprise.  The agency subsequently determined that Griffin was 
eligible for award, and awarded the firm a contract on September 1, 
1995.

The protester argues that the agency erred in determining that Griffin 
is an eligible Indian economic enterprise.  Specifically, the 
protester argues that Mr. Griffin is not an "Indian," as that term is 
defined in the RFP, and that because Griffin, as provided in its 
proposal, will subcontract much of the work required by the contract 
to Arthur Andersen, L.L.P., Griffin will neither manage the contract 
nor receive the majority of the profit generated by the contract.

The Buy Indian Act, 25 U.S.C.  47, provides that: 

     "So far as may be practicable Indian labor shall be employed, and 
     purchases of the products . . . of Indian industry may be made in 
     the open market in the discretion of the Secretary of the 
     Interior."

The Secretary of the Interior, acting through the BIA, has broad 
discretionary authority to implement this statute; defining the 
criteria that a firm must meet to be eligible for award under a Buy 
Indian Act set-aside, and determining the quantum of evidence 
necessary to establish compliance with those criteria falls within 
that broad discretion.  Tomahawk Constr. Co., B-254938, Jan. 27, 1994, 
94-1 CPD  48;  Cheyenne, Inc., B-260328, June 2, 1995, 95-2 CPD  
117.  Consequently, we will only disturb a BIA conclusion regarding a 
firm's eligibility where it is shown to be arbitrary, unreasonable, or 
in violation of law or regulation.

The record shows that BIA had persuasive evidence of Mr. Griffin's 
status as an "Indian," and his corporation's eligibility, in the 
context of this procurement, as an "Indian Economic Enterprise."

With regard to Mr. Griffin's status as an "Indian," in addition to the 
Buy Indian Certification Statement submitted with the proposal, Mr. 
Griffin provided his membership card from the Cherokee Nation, signed 
by both the Tribal Registrar and Principal Chief, and a certification 
from the cognizant BIA office that Mr. Griffin "is 1/4 degree Indian 
blood of the Cherokee Tribe."

With regard to the firm's status as an eligible Indian economic 
enterprise, the agency concluded that Mr. Griffin had ownership and 
control of Dan D. Griffin, P.C., CPA, and that his corporation would 
perform the majority of the work and would receive the majority of the 
earnings under the contract.  In this regard, Mr. Griffin provided the 
articles of incorporation for Dan D. Griffin, P.C., Certified Public 
Accountant, which provide that Mr. Griffin is the corporation's 
registered agent, as well as the corporation's by-laws and a 
resolution adopted by the corporation's board of directors, which 
provide that Mr. Griffin is the president of the corporation and sole 
member of its board of directors.  The agency also verified during its 
pre-award survey interview with Mr. Griffin and from a copy of 
Griffin's teaming agreement with its subcontractor, Arthur Andersen, 
that in performance of the contract, Mr. Griffin, as stated in 
Griffin's proposal, will have overall project management 
responsibility and final decision-making authority, including the 
control of and follow-up on all project activities, including the work 
performed by Arthur Andersen. 

Certifications and determinations from the cognizant BIA and tribal 
offices constitute reliable evidence from which to ascertain an 
individual's status as an "Indian."  Cheyenne, Inc., supra.  Further, 
contemporaneous corporate documents--such as those provided by Mr. 
Griffin--provide reliable sources for assessing whether a firm 
constitutes an eligible Indian economic enterprise.  Id.; Navajo 
Security Co., B-260980 et al., July 17, 1995, 95-2 CPD  24.  In this 
case, considering the documentation gathered by the agency, including 
the certifications from the Cherokee Nation and BIA, the corporate 
documents, and the teaming agreement, as well as the agency's 
interview with Mr. Griffin and Griffin's proposal, the agency 
reasonably determined that Dan D. Griffin, P.C., C.P.A., is an 
eligible Indian economic enterprise.  Although the protester disagrees 
with BIA's determination, it has not shown, nor does the record 
reflect, that the agency's determination was unreasonable.  Under 
these circumstances, BIA's determination that the awardee is an 
eligible Indian economic enterprise is unobjectionable.[1]

The protest is denied.

Comptroller General
of the United States

1. The protester also contends that the awardee is not a responsible 
contractor.  Under our Bid Protest Regulations, we will not review an 
agency's affirmative determination that a prospective contractor is 
responsible--that is, capable of successful contract 
performance--absent a showing of possible fraud or bad faith on the 
part of contracting officials, or that definitive responsibility 
criteria in the solicitation have not been met.  4 C.F.R.  21.3(m)(5) 
(1995); Inframetrics, Inc., B-257400, Sept. 30, 1994, 94-2 CPD  138.  
Because here there is no showing of possible fraud or bad faith, or 
that definitive responsibility criteria have been misapplied, we will 
not review this protest contention.