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					                                                 43782                    Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules

                                                   (iii) An order issued under multiple                      (i) A contract, follow the procedures               ADDRESSES:   You may submit comments,
                                                 award task and delivery order contracts,                 at 6.303;                                              identified by the Number by any of the
                                                 follow the procedures at 16.505(b)(2).                      (ii) An order issued under the Federal              following methods:
                                                 *      *    *     *    *                                 Supply Schedules, follow the                             • Federal rulemaking portal: http://
                                                                                                          procedures at 8.405–6; or                    
                                                 PART 16—TYPE OF CONTRACTS                                   (iii) An order issued under multiple                  • Email:
                                                                                                          award task and delivery order contracts,                 • Mail or hand-delivery: Elizabeth
                                                 16.504    [Amended]                                      follow the procedures at 16.505(b)(2).                 Appel, Office of Regulatory Affairs &
                                                    4. Amend section 16.504 by removing                   *       *    *     *     *                             Collaborative Action—Indian Affairs,
                                                 from paragraph (a)(4)(v) ‘‘(see                                                                                 U.S. Department of the Interior, 1849 C
                                                 16.505(b)(6))’’ and adding ‘‘(see                        PART 52—SOLICITATION PROVISIONS                        Street NW., MS–4141, Washington, DC
                                                 16.505(b)(8))’’ in its place.                            AND CONTRACT CLAUSES                                   20240
                                                    5. Amend section 16.505 by—                                                                                    • See the SUPPLEMENTARY
                                                    a. Removing from paragraph                            52.216–29        [Amended]                             INFORMATION section of this notice for
                                                 (b)(1)(iv)(E) ‘‘paragraph (b)(4)’’ and                      7. Amend section 52.216–29 by                       the locations of the tribal consultation
                                                 adding ‘‘paragraph (b)(6)’’ in its place;                removing from the introductory                         meetings.
                                                    b. Redesignating paragraphs (b)(4)                    paragraph ‘‘16.601(e)(1)’’ and adding                  FOR FURTHER INFORMATION CONTACT:
                                                 through paragraphs (b)(6) as paragraphs                  ‘‘16.601(f)(1)’’ in its place.                         Jonodev Chaudhuri, Office of the
                                                 (b)(6) through (b)(8), respectively; and                                                                        Assistant Secretary—Indian Affairs,
                                                    c. Adding new paragraphs (b)(4) and                   52.216–30        [Amended]
                                                                                                             8. Amend section 52.216–30 by                       (202) 208–7163;
                                                 (b)(5).                                                                                               ; or David
                                                    The additions read as follows:                        removing from the introductory
                                                                                                          paragraph ‘‘16.601(e)(2)’’ and adding                  Brown, Office of Acquisitions—Indian
                                                 16.505    Ordering.                                      ‘‘16.601(f)(2)’’ in its place.                         Affairs, (703) 390–6605,
                                                 *      *    *      *     *                                                                            
                                                    (b) * * *                                             52.216–31        [Amended]                             SUPPLEMENTARY INFORMATION:
                                                    (4) For additional requirements for                      9. Amend section 52.216–31 by                       I. Background
                                                 cost reimbursement orders see                            removing from the introductory                         II. Tribal Consultations Planned
                                                 16.301–3.                                                paragraph ‘‘16.601(e)(3)’’ and adding                  III. Statutory Authority
                                                    (5) For additional requirements for                   ‘‘16.601(f)(3)’’ in its place.                         IV. Overview of Proposed Rule
                                                 time-and-materials or labor-hour orders,                 [FR Doc. 2012–18276 Filed 7–25–12; 8:45 am]            V. Development of Proposed Rule
                                                 see 16.601(e).                                                                                                     A. Prior Publication and Comment
                                                                                                          BILLING CODE 6820–EP–P
                                                 *      *    *      *     *                                                                                         B. Summary of Comments
                                                    6. Amend section 16.601 by—                                                                                     1. Goals for Set-Asides
                                                    a. Removing from paragraph (c)(2)(i)                  DEPARTMENT OF THE INTERIOR                                2. Consistency With the Federal
                                                 ‘‘(see 16.601(e)(1))’’ and adding ‘‘(see                                                                              Acquisition Regulation (FAR)
                                                 16.601(f)(1))’’ in its place;                            Office of the Secretary                                   3. Definitions
                                                    b. Revising paragraph (d) introductory                                                                          4. Indian Economic Enterprise Definition
                                                 text and paragraph (d)(2);                               48 CFR Parts 1401, 1452, and 1480                            and Representation
                                                    c. Redesignating paragraph (e) as                                                                               5. Restrictions on Construction
                                                                                                          RIN 1090–AB03                                             6. Deviations
                                                 paragraph (f); and                                                                                                 7. Subcontracting
                                                    d. Adding a new paragraph (e),                        Acquisition Regulations; Buy Indian                       8. Indian Preference Requirements
                                                    The revisions and addition read as                    Act; Procedures for Contracting                           9. Buy Indian Implementation by Other
                                                 follows.                                                                                                              Bureaus
                                                                                                          AGENCY:  Assistant Secretary for Policy,                  10. Other
                                                 16.601    Time-and-materials contracts.                  Management and Budget, Interior.                       VI. Procedural Requirements
                                                 *      *     *    *     *                                ACTION: Proposed rule.                                    A. Regulatory Planning and Review
                                                    (d) Limitations. A time-and-materials                                                                              (Executive Order 12866)
                                                 contract or order may be used only if—                   SUMMARY:   The Department of the                          B. Regulatory Flexibility Act
                                                                                                          Interior proposes to issue regulations                    C. Small Business Regulatory Enforcement
                                                 *      *     *    *     *
                                                                                                          guiding implementation of the Buy                            Fairness Act (SBREFA)
                                                    (2) The contract or order includes a                                                                            D. Unfunded Mandates Reform Act
                                                 ceiling price that the contractor exceeds                Indian Act, which provides the Bureau
                                                                                                                                                                    E. Takings Implications (Executive Order
                                                 at its own risk. Also see 12.207(b) for                  of Indian Affairs with authority to set                      12630)
                                                 further limitations on use of time-and-                  aside procurement contracts for Indian-                   F. Federalism (Executive Order 13132)
                                                 materials or labor-hour contracts for                    owned and controlled businesses. This                     G. Civil Justice Reform (Executive Order
                                                 acquisition of commercial items.                         rule supplements the Federal                                 12988)
                                                    (e) Post award requirements. Prior to                 Acquisition Regulation (FAR) and the                      H. Consultation With Indian Tribes
                                                 an increase in the ceiling price of a                    Department of the Interior Acquisition                       (Executive Order 13175)
                                                 time-and-materials or labor-hour                         Regulations (DIAR).                                       I. Paperwork Reduction Act
                                                                                                                                                                    J. National Environmental Policy Act
                                                 contract or order, the contracting officer               DATES: Comments must be received on
                                                                                                                                                                    K. Effects on the Energy Supply (E.O.
                                                 shall—                                                   or before September 24, 2012. Tribal                         13211)

                                                    (1) Conduct an analysis of pricing and                consultation meetings to discuss this                     L. Clarity of This Regulation
                                                 other relevant factors to determine if the               rule will take place on Tuesday, August                   M. Public Availability of Comments
                                                 action is in the best interest of the                    14, 2012, from 8 a.m. to noon;
                                                 Government;                                              Wednesday, August 15, 2012, from                       I. Background
                                                    (2) Document the decision in the                      3 p.m. to 6 p.m.; Tuesday, August 21,                     The Bureau of Indian Affairs has
                                                 contract or order file; and                              2012, from 8 a.m. to noon; and                         obtained services and supplies from
                                                    (3) When making a change that                         Thursday, August 23, 2012, from 8 a.m.                 Indian sources using the Buy Indian
                                                 modifies the general scope of—                           to noon.                                               Program since 1965, based on policy

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                                                                           Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules                                              43783

                                                 memoranda and acquisition. This rule is                      enterprises from a mandatory 100                      eligibility for contracts awarded under
                                                 proposed to describe uniform                                 percent to minimum 51 percent.                        the authority of the Buy Indian Act.
                                                 administrative procedures that the BIA                         In addition, the regulations respond to                This proposed rule also includes
                                                 will use in all of its locations to                          and incorporate the nuances of the
                                                                                                                                                                    revisions to address the input received
                                                 encourage procurement relationships                          Section 831 of the National Defense
                                                                                                                                                                    as a result of earlier publications and
                                                 with eligible Indian Economic                                Authorization Act for Fiscal Year 1991
                                                                                                              (10 U.S.C. 2301 note) that amended 25                 three consultation hearings in Indian
                                                 Enterprises in the execution of the Buy                                                                            Country.
                                                 Indian Act.                                                  U.S.C. 47 to allow Indian firms to
                                                                                                              participate in the Department of                      II. Tribal Consultations Planned
                                                   This proposal incorporates the                                                      ´ ´
                                                                                                              Defense’s Mentor-Protege Program and
                                                 Assistant Secretary—Indian Affairs                           not lose their eligibility for contracts                The Office of the Assistant
                                                 decision to increase economic                                awarded under the authority of the Buy                Secretary—Indian Affairs will be
                                                 development and employment of Indian                         Indian Act. This proposed rule includes               hosting tribal consultation meetings
                                                 persons by reducing the percentage of                        language stating that participation in the            addressing this rule at the following
                                                 Indian ownership of business                                              ´ ´
                                                                                                              Mentor-Protege program has no effect on               dates and locations:

                                                               Date                                   Time                                                            Venue

                                                 August 14, 2012 ...................    8 a.m.–12 p.m ....................    National Indian Programs Training Center, 1011 Indian School Road NW., Suite
                                                                                                                                254, Albuquerque, NM 87104, (505) 563–5400.
                                                 August 15, 2012 ...................    3 p.m.–6 p.m ......................   Holiday Inn Grand (In conjunction with NADC Conference 2012), 5500 Midland
                                                                                                                                Road, Billings, MT 59101, (406) 248–7701.
                                                 August 21, 2012 ...................    8 a.m.–12 p.m ....................    Hilton Sacramento Arden West, 2200 Harvard Street, Sacramento, CA 95815,
                                                                                                                                (916) 924–4900.
                                                 August 23, 2012 ...................    8 a.m.–12 p.m ....................    Mystic Lake Casino Hotel, 2400 Mystic Lake Boulevard, Prior Lake, MN 55372,
                                                                                                                                (952) 445–9000.

                                                   Tribal leader letters announcing these                     B. How This Rule Fits With the Indian                 Bureau will apply the procedures
                                                 consultation meetings were distributed                       Affairs Acquisition Regulations                       uniformly for eligible Indian Economic
                                                 on July 5, 2012, providing advance                             When finalized, the rule will govern,               Enterprises that submit offers under
                                                 notice of these consultations.                               and be incorporated into the Indian                   solicitations set aside under the Act and
                                                                                                              Affairs Acquisition Regulations (IAAR),               this part.
                                                 III. Statutory Authority
                                                                                                              which establishes uniform acquisition                 V. Development of Proposed Rule
                                                   The authority to issue regulations is                      policies and procedures for BIA, and is
                                                                                                              part of the Indian Affairs Manual (IAM).              A. Prior Publication and Comment
                                                 vested in the Secretary of the Interior by
                                                                                                              Handbooks, Acquisition Guidance                       Solicitation
                                                 5 U.S.C. 301. The authorizing statute is
                                                 section 23 of the Act of June 25, 1910                       Releases and the BIA’s Guidelines on                    This rule has been in development for
                                                 (25 U.S.C. 47, as amended).                                  the Charge Card Program supplement                    decades. BIA published proposed rules
                                                                                                              the IAAR provisions of the IAM.                       in the Federal Register on October 8,
                                                 IV. Overview of Proposed Rule
                                                                                                              C. What This Rule Does                                1982 (47 FR 44678), November 15, 1984
                                                    This rule supplements the Federal                                                                               (49 FR 45187), June 30, 1988 (53 FR
                                                                                                                 The BIA has encouraged major                       24738), and September 12, 1991 (56 FR
                                                 Acquisition Regulation (FAR) and the                         initiatives for economic development
                                                 Department of the Interior Acquisition                                                                             46468). Public comments received by
                                                                                                              and employment of Indian persons,                     BIA were reviewed, addressed in
                                                 Regulations (DIAR). For this reason the                      such as reducing the required
                                                 rule is issued by the Assistant Secretary                                                                          succeeding editions, and incorporated
                                                                                                              percentage of Indian ownership of                     in this proposed rule, where applicable.
                                                 for Policy, Management and Budget.                           Indian economic enterprises from 100
                                                 This rule formalizes an administrative                       percent to 51 percent. In support of                    Notification regarding a series of three
                                                 procedure for all Bureau of Indian                           these initiatives, the previously                     public consultation sessions was
                                                 Affairs acquisition activities and                           proposed rules have been revised and                  published in the Federal Register on
                                                 locations to ensure uniformity for                           are published here as a new proposed                  October 18, 2001 (66 FR 52931). The
                                                 eligible Indian Economic Enterprises                         rule.                                                 consultation sessions were conducted in
                                                 that submit offers under solicitations set                      Section 831 of the National Defense                Oklahoma City, Oklahoma, on October
                                                 aside under the Act and this part.                           Authorization Act for Fiscal Year 1991                25, 2001; in Scottsdale, Arizona, on
                                                                                                              (10 U.S.C. 2301 note) amended 25                      November 8, 2001; and in Portland,
                                                 A. Numbering System                                          U.S.C. 47 to allow Indian firms to                    Oregon, on November 15, 2001.
                                                   This rule follows the numbering                            participate in the Department of                        Most recently, BIA circulated a draft
                                                                                                                                       ´ ´
                                                                                                              Defense’s Mentor-Protege Program and                  rule and held a series of three tribal
                                                 system established by the FAR and
                                                                                                              not lose their eligibility for contracts              consultation sessions in 2010. The
                                                 supplements the DIAR. Section
                                                                                                              awarded under the authority of the Buy                consultation sessions were conducted in
                                                 1401.303(a)(3) of 48 CFR authorizes

                                                                                                              Indian Act. This rule includes language               Portland, Oregon, on April 26, 2010; in
                                                 each Interior bureau to codify
                                                                                                              stating that participation in the Mentor-             Rapid City, South Dakota, on April 28,
                                                 regulations implementing the DIAR.                                ´ ´                                              2010; and in Tulsa, Oklahoma, on April
                                                                                                              Protege program has no effect on
                                                   Where material in the FAR and/or                           eligibility for contracts awarded under               29, 2010. BIA published notice of these
                                                 DIAR do not require BIA implementing                         the authority of the Buy Indian Act.                  consultations in the Federal Register on
                                                 regulations, there will be no                                   This rule formalizes an administrative             March 26, 2010 (75 FR 14547).
                                                 corresponding section number in the                          procedure for all Bureau acquisition                  Comments received at all these
                                                 supplementary material.                                      activities/locations to ensure that the               consultation meetings were reviewed

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                                                 43784                    Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules

                                                 and incorporated in this proposed rule,                  requirements in the proposed section                  setting of the tribe’s own standards for
                                                 where applicable.                                        1480.503(b). When the Bureau                          enrollment and membership so long as
                                                                                                          contracting officer cannot make an                    the standards reflect a meaningful
                                                 B. Summary of Comments
                                                                                                          advance determination of a potential                  bilateral, political relationship between
                                                   In addition to changes addressing the                  award as an Indian small business set-                the tribe and its members.
                                                 following comments, we made several                      aside under the Buy Indian Act, the                      Comment: Another comment stated
                                                 editorial changes to the text of the                     Bureau must follow the order of                       that the rule simply states rather than
                                                 proposed rule to clarify our intent                      preference in the Federal Acquisition                 employs or invokes 25 U.S.C. 479 and
                                                 regarding specific provisions, including                 Regulation (see FAR 8.001). If an award               479a regarding ‘‘who is an Indian’’ and
                                                 changes to subchapter A. A significant                   cannot be made to an eligible Indian                  therefore who is eligible.
                                                 portion of BIA’s acquisition regulation                  firm that is responsible, responsive, and                Response: The rule relies upon 25
                                                 covered under subchapter A does not                      is price reasonable, then the Buy Indian              U.S.C. 479, which defines ‘‘Indian’’ as a
                                                 impact a contractor’s ability to contract                Act set-aside notice is canceled.                     member of a tribe.
                                                 with the BIA and therefore does not                      However, the Bureau may not move                         Comment: Another comment
                                                 require publication in 48 CFR part 14.                   from a Buy Indian Act set-aside to full               expressed disagreement with the
                                                 These editorial changes are minor and                    and open competition without first                    proposed rule definition of ‘‘Indian
                                                 do not affect the substance or intent of                 giving consideration to other authorized              land’’ (1480.201), citing consideration
                                                 the rule.                                                procurement set-aside programs.                       for the term ‘‘Indian country,’’ as found
                                                   The following is a summary of some                        Comment: One commenter requested                   in 18 U.S.C. 1151.
                                                 of the main categories of comments and                   clarification of the size standards and                  Response: The purpose of defining the
                                                 BIA’s responses.                                         stated that the draft regulation would                term ‘‘Indian land’’ is to assist in
                                                                                                          allow the Bureau to contract only with                determining when the Indian preference
                                                 1. Goals for Set-Asides
                                                                                                          Indian economic enterprises that are                  clauses set forth in the DIAR must be
                                                    Comment: One commenter                                also small businesses, thereby                        inserted into a Buy Indian Act set-aside
                                                 recommended additional language                          disqualifying large Indian economic                   contract under section 1480.601(a) of
                                                 identifying program goals for awarding                   enterprises.                                          the rule. In contrast, the term ‘‘Indian
                                                 contracts to Indian Economic                                Response: The rule mirrors the                     country’’ defines Federal criminal
                                                 Enterprises.                                             guidance of FAR Part 19, and                          jurisdiction in Indian areas and contains
                                                    Response: This rule establishes that                  specifically FAR section 19.502, which                references to ‘‘dependent Indian
                                                 BIA will conduct a market survey to                      enumerates when contracts shall be set                communities’’ and to ‘‘Indian
                                                 determine whether an Indian Economic                     aside for small businesses and when                   allotments,’’ which do not provide
                                                 Enterprise is appropriate for every                      deviations are permitted.                             sufficient guidance in determining the
                                                 contract it solicits.                                       Comment: One commenter asked why                   applicability of Indian preference
                                                                                                          the FAR is restated instead of citing                 clauses. Moreover, several comments
                                                 2. Consistency With the Federal
                                                                                                          applicable FAR parts and subparts.                    were directed to the language in
                                                 Acquisition Regulation (FAR)
                                                                                                          Another commenter stated that the rule                proposed section 1480.401(b) with
                                                    Comment: One comment expressed                        contains too many references to the FAR               regard to construction. The Bureau has
                                                 concern about references to the Federal                  and DIAR, which makes it difficult for                changed the language to comply with
                                                 Acquisition Regulation (FAR) on the                      a layperson to understand.                            FAR 6.1 and 6.2, as applicable to set-
                                                 premise that the Buy Indian regulation                      Response: The Bureau has reviewed
                                                                                                                                                                aside awards.
                                                 may seem to be in conflict with the                      the rule and removed any unnecessarily                   Comment: One comment asked for a
                                                 FAR.                                                     duplicative restatement of the FAR and
                                                    Response: The Buy Indian Act                                                                                definition of ‘‘Indian reservation.’’
                                                                                                          FAR and DIAR citations.                                  Response: The rule now includes a
                                                 regulation may be compared to the
                                                 spoke of an umbrella with the FAR as                     3. Definitions                                        definition of ‘‘Indian reservation’’ based
                                                 the umbrella. The two regulations work                      Comment: One comment expressed                     on the DIAR section 1452.226–70.
                                                 in tandem. The regulatory authority that                 opposition to the proposed rule                       4. Indian Economic Enterprise
                                                 encompasses the Buy Indian set-aside                     definition for ‘‘Indian’’ (1452.280–4 and             Definition and Representation
                                                 authority may be found in FAR 6.302–                     1480.201), and stated an opinion that
                                                                                                                                                                a. Fifty-One (51) Percent Indian
                                                 5, which authorizes ‘‘other than full and                the term in the rule should incorporate
                                                 open competition’’ when ‘‘authorized or                  a quarter-degree blood requirement as a
                                                 required by law.’’ The law authorizing                   requirement for being an enrolled tribal                Comment: A number of comments
                                                 Buy Indian set-asides is 25 U.S.C. 47, as                member.                                               objected to formalizing by regulation the
                                                 amended.                                                    Response: The commenter appears to                 existing Bureau policy of having a
                                                    Comment: Several comments                             have mixed two distinct issues. Tribes                minimum 51 percent Indian ownership
                                                 questioned whether there was an                          may set a blood quantum for                           of the Indian economic enterprise for
                                                 inconsistency in the proposed rule                       membership, and many have. In some                    participation in the set-aside awards
                                                 regarding small business set-asides for                  instances tribes, and the Bureau, have                under the Buy Indian Act.
                                                 acquisitions valued between $3,001 and                   used the degree of Indian or tribal blood               Response: Before January 1988,
                                                 $150,000, specifically, the relationship                 as one factor in establishing the relative            Bureau policy required participant firms
                                                 of the Act with regard to eligible Indian                priorities among eligible participants.               to be 100 percent Indian-owned and

                                                 enterprises and the order of preference                  However, the Bureau cannot impose a                   controlled. The Bureau changed its
                                                 in FAR 8.001.                                            blood quantum requirement for initial                 policy in order to facilitate and expand
                                                    Response: The Bureau must adhere to                   eligibility for its programs unless the               economic development on Indian
                                                 the Small Business Act Requirements,                     legislation authorizing the program                   reservations by increasing the
                                                 as it governs small purchases, and at the                allows it. The Bureau programs are                    opportunities for Indian businesses to
                                                 same time continue its policy of                         available to all tribal members                       obtain operating capital, which was
                                                 utilizing the Buy Indian Act. To this                    regardless of blood degree. The Bureau                often difficult, if not impossible, to do
                                                 end, it has attempted to join the two                    defers to tribal governments in the                   under the ‘‘100 percent ownership’’

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                                                                          Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules                                           43785

                                                 policy. The Bureau believes this                           Response: FAR section 33.206 states                 are required to be filed before bid
                                                 ‘‘minimum 51 percent ownership’’                         that contractor claims must be                        opening or the closing date for receipt
                                                 requirement is a much more realistic                     submitted in writing. A written                       of proposals. Since this protest would
                                                 requirement that can, with sufficient                    response provides a record for review.                constitute a possible first-step procedure
                                                 regulatory safeguards, protect the                                                                             under FAR 33.1, the Bureau is required
                                                                                                          c. Self-Certification Policy
                                                 integrity of the majority Indian owner of                                                                      to: (1) Promptly notify all offerors
                                                 the Indian economic enterprise.                             Comment: One comment expressed                     (successful as well as unsuccessful)
                                                   Corresponding with the change in                       concern about the self-certification                  within the prescribed time-frame (for
                                                 Bureau policy from ‘‘100 percent                         policy and mentioned that the                         sealed bids and competitive
                                                 ownership’’ to ‘‘a minimum of 51                         Environmental Protection Agency                       negotiations) so that all possible protests
                                                 percent ownership’’ of an Indian firm,                   disallowed self-certification in their                may be timely lodged with the Bureau;
                                                 the Bureau will not certify ‘‘Indian’’                   Office of Small and Disadvantaged                     and (2) seek resolution within the
                                                 ownership of a participating firm.                       Business Utilization.                                 prescribed time-frame before the
                                                 Rather, an economic enterprise will now                     Response: BIA’s self-certification                 interested party pursues the protest with
                                                 represent themselves in writing as an                    policy is a simple representation                     the General Accounting Office (GAO). In
                                                 Indian economic enterprise in response                   statement that an offeror submits to                  keeping with the procedures outlined in
                                                 to a specific Bureau set-aside. The                      support its claim for eligibility to                  FAR 33.1 for filing protests, the rule
                                                 contracting officer or an interested                     participate in contract awards under the              language is considered appropriate.
                                                 party, as defined in section 1480.201,                   authority of the Buy Indian Act. The                     Comment: One commenter questioned
                                                 may raise a protest to the representation                information is required in order for the              the provision that states that a contract
                                                 declaration of an offeror. The                           contractor to obtain a benefit in                     will be considered valid if a protest is
                                                 contracting officer will handle the                      accordance with the Buy Indian Act. In                received only after the award has been
                                                 protest under proposed Subpart 1480.9                    addition to being supported by stiff                  made. This commenter recommended
                                                 of the rule. The Bureau believes this                    penalties, the representation is                      that, instead, the CO investigate the
                                                 approach will be more effective than a                   supported by long established elements                situation and make a determination
                                                 Bureau certification system to ensure                    of enforcement including both                         within 3 days.
                                                 the eligibility requirements of the Buy                  contractors and contracting officers who                 Response: The proposed rule’s
                                                 Indian Act.                                              have successfully implemented the                     presumptive valid contract language is
                                                                                                          policy since 1988.                                    consistent with FAR 33.104(c)(1) and
                                                 b. Requirement for Daily Business                           Comment: One commenter asked                       (5). In accordance with that section of
                                                 Management                                               whether the Bureau is going to check                  the FAR, the CO need not suspend
                                                                                                          the validity of self-certifications.                  contract performance or terminate the
                                                    Comment: Some comments expressed                         Response: The Contracting Officer is
                                                 concern that the rule does not include                                                                         awarded contract unless the CO believes
                                                                                                          required to check the CCR to identify                 that an award may be invalidated and a
                                                 sufficient controls to ensure that the                   whether an Indian economic enterprise
                                                 Indian economic enterprise is actually                                                                         delay in receiving the supplies or
                                                                                                          that self-certified is, in fact, and Indian           service is not prejudicial to the
                                                 owned and controlled by Indians. These                   economic enterprise.
                                                 comments specifically requested a better                                                                       Government’s interest.
                                                 description of what constitutes                          d. Protests of an Entity’s Representation             e. Requesting an Independent Review in
                                                 participation in the daily business                      as an ‘‘Indian Economic Enterprise’’                  an Agency Protest
                                                 management of the enterprise.                               Comment: The language in proposed                     Comment: One comment expressed
                                                    Response: The proposed rule defines                   section 1480.902 deals with time frames               concern about a protester to the agency
                                                 Indian economic enterprise to include                    regarding Bureau receipt of a protest                 being able to request an independent
                                                 additional qualifications beyond what                    from an interested party. Some                        review.
                                                 were included in previous versions. In                   comments stated that the deadlines                       Response: An independent review
                                                 addition to requirements of 51%                          were too short to permit lodging a                    may be requested in accordance with
                                                 ownership and management by an                           protest. One comment objected to the                  FAR 33.103. Prior to submission of an
                                                 Indian or tribe, the Indian or tribe must                specific words governing the protest                  agency protest, all parties must use their
                                                 receive the majority of earnings from the                deadline regarding Buy Indian                         best efforts to resolve concerns raised by
                                                 contract. The revised definition also                    eligibility.                                          interested parties at the contracting
                                                 clarifies that the individual Indians or                    Response: The Bureau must utilize                  officer level through open and frank
                                                 tribal representatives must control                      the time frames for small business set-               discussions. Where appropriate,
                                                 management and daily business                            aside awards protests, referenced in                  alternative dispute resolution methods
                                                 operations, and to ensure actual control,                FAR 19.302. The time available to lodge               may be used.
                                                 requires such individuals to possess                     a protest is proposed in the rule as ‘‘a                 In the event of a protest to the agency,
                                                 requisite management or technical                        protest must be received by the                       award in the face of protest requires
                                                 capabilities directly related to the                     contracting officer not later than 10 days            approval by an official other than the
                                                 primary industry in which the                            after the basis of protest is known or                contracting officer. In the event of a
                                                 enterprise conducts business. The intent                 should have been known, whichever is                  GAO protest, approval is required by the
                                                 of these changes is to ensure that the                   earlier.’’ The Bureau believes the                    head of the contracting activity.
                                                 individual Indians or tribal                             proposed time period to be reasonable

                                                 representatives take part in the policy-                 for an interested party to lodge a written            5. Restrictions on Construction
                                                 making, budgeting, controlling,                          protest to the contracting officer,                      Comment: A commenter expressed
                                                 directing, coordinating, organizing, and                 thereby conforming to the general                     concern on the general topic of roads
                                                 planning functions for an enterprise.                    principles reflected in FAR Subpart                   construction in relationship to the
                                                    Comment: All challenged offerors                      33.1. Also, this wording is based on                  Indian set-aside program under the Buy
                                                 should be permitted to respond by any                    FAR 33.103 and has withstood the test                 Indian Act.
                                                 means of contemporary communication                      of time. Protests based on alleged                       Response: The language in proposed
                                                 (e.g., email).                                           apparent improprieties in a solicitation              section 1480.401(b) implements the

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                                                 decision of the Supreme Court in                         Public Law 93–638 as amended by                       respondents believed the percentages
                                                 Andrus v. Glover, 446 U.S. 608, (1980),                  Public Law 100–472.                                   stated were too high for Indian
                                                 which upheld an Oklahoma Court’s                                                                               economic enterprises.
                                                                                                          b. Authority to Deviate                                 Response: The percentages listed in
                                                 decision that the Bureau could not use
                                                 the Buy Indian Act to contract for                          Comment: Several comments                          the 1991 proposed rule are required for
                                                 construction. The BIA currently                          requested clarification regarding who                 inclusion by FAR 52.219–14 and apply
                                                 interprets this decision as preventing                   may authorize deviations and under                    to all procurement contracts. Section
                                                 application of the Buy Indian Act set-                   what circumstances.                                   7(b) of Public Law 93–638, as
                                                 aside program to off-reservation                            Response: Today’s proposed rule                    implemented by DIAR 1452.226–71,
                                                 construction activities.                                 clarifies who may authorize deviations                applies the Indian preference
                                                   Comment: Some sentiment was                            based on the contract value thresholds,               requirement for employment and
                                                 expressed about difficulties with                        which were based on the thresholds                    subcontracting opportunities under
                                                 categorizing certain projects as                         established in FAR 6.304. The                         contracts for the benefit of Indians, or
                                                 construction.                                            appropriate official will support the                 contracts made under statutes
                                                   Response: The FAR provisions at                        deviation by written determinations and               authorizing contracts with Indians. This
                                                 22.401 and 37.301 may be used by the                     findings made part of the contract file.              principle is reiterated in this rule in
                                                 contracting officer to determine the                     In previous drafts, approval by the                   sections 1480.503(c), 1452.280–2(c)(2),
                                                 appropriate categorization and clause                    Assistant Secretary and BIA Director                  (3), and (4), 1480.601, and 1480.701(c).
                                                 usage. It is solely at the discretion of the             were necessary for a deviation. This                    Comment: Several comments
                                                 contracting office to determine whether                  proposed rule instead includes the                    requested clarification of whether the
                                                 a project is construction or service. In                 tiered system for authority to approve to             subcontracting clause requiring Native
                                                 order to make this determination, the                    avoid potential delays resulting from                 American subcontractors is included in
                                                 contracting officer must review the                      going through several layers of approval,             solicitations for all BIA subcontracts, or
                                                 statement of work and make a rational                    while continuing to ensure that                       only those BIA contracts awarded using
                                                 decision based on the information at                     deviations are only authorized in                     a Buy Indian set-aside.
                                                 hand.                                                    limited circumstances.                                  Response: The proposed rule clarifies
                                                                                                             Comment: One commenter stated that                 that the subcontracting clause is
                                                 6. Deviations                                                                                                  required only for subcontracts to BIA
                                                                                                          cancellation of an announced
                                                 a. Tribal Modification of Buy Indian                     opportunity should not be the remedy                  contracts awarded using a Buy Indian
                                                 Acquisition                                              when only ‘‘unreasonable’’ offers are                 set-aside.
                                                   Comment: Several comments were                         received. This commenter suggested                    b. Subcontracting Limitations and the
                                                 received regarding the language in                       that BIA instead negotiate with the                   Definition for ‘‘Cost of the Contract’’
                                                 proposed section 1480.504–1(b)(14)                       offers or amend the announcement.
                                                                                                             Response: Although contracting                        Comment: Some comments requested
                                                 wherein the Bureau contracting officer                                                                         a definition for ‘‘cost of the contract’’ as
                                                 would provide written notice to the                      officers are expected to search for an
                                                                                                          Indian firm when pursuing a contract                  mentioned in 1452.280–2.
                                                 Indian governing body when a proposed                                                                             Response: The clause entitled
                                                 set-aside involves services to be                        under section 8(a) of the Small Business
                                                                                                          Act, a regulatory provision mandating                 ‘‘Subcontracting Limitations’’ is based
                                                 performed in whole or in part on land                                                                          on FAR 52.219–14. The term ‘‘cost of
                                                 of that governing body. The objection                    this action would infringe upon the
                                                                                                          jurisdiction of the Small Business                    the contract’’ means cost to the
                                                 focused on the Bureau notifying the                                                                            Government that is the total amount of
                                                 involved tribe at the same time that the                 Administration.
                                                                                                             Comment: One commenter asked how                   the contract. Offerors must submit a
                                                 synopsis notice is published in the                                                                            detailed subcontract plan with their
                                                 Governmentwide Point of Entry (GPE)                      the Contracting Officer would address a
                                                                                                          situation where his or her market                     offers as required by 1452.280–2.
                                                 (FedBizOpps). If a tribal resolution was
                                                 passed opposing the set-aside intention,                 research identifies only one Indian                   c. Verifying Compliance With
                                                 this Bureau action could require much                    economic enterprise for a contract.                   Subcontracting Limitations
                                                 unnecessary effort and expense on the                       Response: The Contracting Officer’s
                                                                                                                                                                   Comment: One comment expressed
                                                 part of a non-tribal Indian business firm                market research determines whether
                                                                                                                                                                some concern about verification of
                                                 in preparing a bid or proposal. This time                BIA solicits with a set-aside for Indian
                                                                                                                                                                compliance after contract award.
                                                 and expense could be eliminated if the                   economic enterprises based on whether
                                                                                                                                                                   Response: The contracting officer and
                                                 Indian business firms knew of the tribe’s                the government will receive at least two
                                                                                                                                                                contracting officer’s representative are
                                                 possible resolution of non-support for                   responsible, responsive offers. If the
                                                                                                                                                                specifically required by 1480.701 to
                                                 the set-aside approach.                                  solicitation includes a set-aside but
                                                                                                                                                                monitor the contractor’s compliance
                                                   Response: The Bureau made the                          fewer than two responsible, responsive
                                                                                                                                                                with the subcontracting limitations
                                                 necessary change to reflect Public Law                   offers from Indian economic enterprises
                                                                                                                                                                clause, the Indian preference clauses,
                                                 93–638, as amended by Public Law 100–                    are received, in accordance with FAR
                                                                                                                                                                and the requirements for Indian
                                                 472, to advise a tribe of any work that                  19.502.2, the Contracting Officer will
                                                                                                                                                                ownership and daily business
                                                 will be performed within the boundaries                  withdraw the set-aside, and resolicit the
                                                 of its tribal lands. If the tribe does not               requirement on an unrestricted basis.
                                                 (1) give a negative response to the notice                                                                     8. Indian Preference Requirements
                                                                                                          7. Subcontracting

                                                 or (2) advise the Bureau of its intent to                                                                         Comment: One comment sought a
                                                 contract for the program within 15                       a. Percentages of Subcontracting                      specific definition of the term ‘‘extent
                                                 calendar days from the date of                           Allowed                                               feasible’’ as it is used in the Indian
                                                 publication in FedBizOpps of the                           Comment: Several comments stated                    Preference clause which is in the
                                                 solicitation, the Bureau will then                       concern about the general topic of the                Department of the Interior Acquisition
                                                 proceed with the solicitation. This                      percentages of subcontracting expressed               Regulation (DIAR) at 1452.226–70.
                                                 change addresses the concern expressed                   in the language in proposed section                      Response: The words ‘‘extent
                                                 by commenters and honors the spirit of                   1452.280–3 and in 1480.602. Some                      feasible’’ are qualified by the phrase

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                                                 ‘‘consistent with the efficient                          preference to all eligible Indian                     Law 93–638 to clarify that a tribe can
                                                 performance of this contract.’’ The                      economic enterprises.                                 invoke its rights under that statute.
                                                 clause requires the contractor to                           Comment: One commenter asked
                                                                                                                                                                VI. Procedural Requirements
                                                 maintain records to demonstrate                          whether there is a database of debarred
                                                 compliance and states that non-                          Indian economic enterprises.                          A. Regulatory Planning and Review
                                                 compliance is cause for termination. If                     Response: It is the Contracting                    (Executive Orders 12866 and 13563)
                                                 the contract is over $50,000, and                        Officer’s duty to review the debarred                   Executive Order 12866 provides that
                                                 performed on or near a reservation, the                  listing before making an award. The list              the Office of Information and Regulatory
                                                 contractor is required to appoint a                      is available on the Internet at                       Affairs (OIRA) will review all significant
                                                 liaison officer who will administer the                                                 rules. The Office of Information and
                                                 contractor’s Indian preference program,                     Comment: One commenter asked                       Regulatory Affairs has determined that
                                                 maintain detailed six part records and                   what the ramifications are for false                  this rule is not significant.
                                                 provide a written semiannual report to                   certification.                                          Executive Order 13563 reaffirms the
                                                 the contracting officer. The Indian                         Response: The FAR and DIAR include                 principles of E.O. 12866 while calling
                                                 preference clauses provide reasonable                    procedures to address false certification.            for improvements in the nation’s
                                                 specificity and controls.                                See FAR 9.406 (Debarment), FAR 9.407                  regulatory system to promote
                                                 9. Buy Indian Implementation by Other                    (Suspension), DIAR 1409.406                           predictability, to reduce uncertainty,
                                                 Bureaus                                                  (Debarment), and DIAR 1409.407                        and to use the best, most innovative,
                                                                                                          (Suspension).                                         and least burdensome tools for
                                                   Comment: Some comments expressed                          Comment: One comment asked why a                   achieving regulatory ends. The
                                                 concern about the loss of contracting                    set-aside cannot be extended if the                   executive order directs agencies to
                                                 opportunities under the Buy Indian set-                  solicitation hasn’t closed and there                  consider regulatory approaches that
                                                 aside authority when BIA transfers                       hasn’t been an award made on the                      reduce burdens and maintain flexibility
                                                 funds to another organization for award                  contract.                                             and freedom of choice for the public
                                                 of a contract supporting BIA’s mission.                     Response: The Contracting Officer’s                where these approaches are relevant,
                                                   Response: The BIA has no regulatory                    market research determines whether to                 feasible, and consistent with regulatory
                                                 authority beyond itself to implement the                 establish a set-aside for Indian economic             objectives. E.O. 13563 emphasizes
                                                 Buy Indian Act set-aside authority. A                    enterprises, based on whether the                     further that regulations must be based
                                                 change to transfer the authority along                   Government will receive at least two                  on the best available science and that
                                                 with funds to another agency when                        reasonable, responsive offers. In                     the rulemaking process must allow for
                                                 entering into an agreement for award of                  accordance with FAR 19.502–2, if the                  public participation and an open
                                                 a contract supporting BIA’s mission                      Contracting Officer receives no                       exchange of ideas. We have developed
                                                 would require a different statute. BIA                   acceptable offers from responsible small              this rule in a manner consistent with
                                                 does encourage the implementation of                     business concerns, the set-aside will be              these requirements. This rule is also
                                                 the Indian Preference requirement                        withdrawn and the requirement, if still               part of the Department’s commitment
                                                 under Section 7(b) of Public Law 93–                     valid, will be resolicited on an                      under the Executive Order to reduce the
                                                 638.                                                     unrestricted basis.                                   number and burden of regulations.
                                                   Comment: Several commenters asked                         Comment: One comment asked if BIA
                                                 who the rule will apply to—and                           could review the TERO list to identify                B. Regulatory Flexibility Act
                                                 specifically whether the Indian Health                   Indian economic enterprises.                            The Department of the Interior
                                                 Service (IHS) will be bound by this rule.                   Response: In addition to checking the              certifies that this document will not
                                                   Response: The BIA is promulgating                      CCR, the Contracting Officers may                     have a significant economic effect on a
                                                 this rule; therefore, the rule will apply                contact local TERO offices as part of                 substantial number of small entities
                                                 only to BIA.                                             their market research to ensure that                  under the Regulatory Flexibility Act (5
                                                 10. Other                                                their research was comprehensive.                     U.S.C. 601 et seq.). The total annual
                                                                                                             Comment: Several comments asked                    value of Buy Indian contracts is less
                                                   Comment: One commenter suggested                       how Indian economic enterprises may                   than $45 million awarded to fewer than
                                                 that the organization of the clauses to be               identify opportunities for which there is             200 contractors.
                                                 inserted into solicitations be rearranged                a Buy Indian set-aside.
                                                 so that the definitions appear at the end,                  Response: Indian economic                          C. Small Business Regulatory
                                                 rather than at the beginning, of the                     enterprises should monitor                            Enforcement Fairness Act (SBREFA)
                                                 clauses.                                        to identify                           This rule is not a major rule under 5
                                                   Response: BIA has chosen to retain                     opportunities for which there is a Buy                U.S.C. 804(2), the Small Business
                                                 the current organization for consistency                 Indian set-aside.                                     Regulatory Enforcement Fairness Act.
                                                 with FAR Part 1 and the standard                            Comment: A few comments asked                         (a) This rule does not have an annual
                                                 practice of defining terms prior to their                how the Buy Indian set-asides work                    effect on the economy of $100 million
                                                 use in clauses.                                          with Public Law 93–638.                               or more. The annual value of contracts
                                                   Comment: One commenter suggested                          Response: The rule provides the                    is less than $45 million.
                                                 imposing an order of preference for                      Indian tribe with the opportunity to                     (b) This rule will not cause any
                                                 awarding Buy Indian set-asides that                      contract under Public Law 93–638 for a                increase in costs or prices for

                                                 would give first preference to                           requirement taking place on its                       consumers, individual industries,
                                                 individually owned Indian concerns,                      reservation before BIA issues a                       Federal, State, or local government
                                                 then to tribal concerns, then to tribal                  solicitation with a Buy Indian set-aside.             agencies, or geographic regions. The
                                                 8(a) concerns, and finally Indian                        A tribal contract under Public Law 93–                rule will be applied on a national basis
                                                 concerns participating in the Mentor-                    638, is a non-procurement action, so the              and has no effect on the dollar amount
                                                      ´ ´
                                                 Protege program.                                         tribe would not have to compete for the               expended for acquisitions.
                                                   Response: BIA interprets the purpose                   contract (with or without a Buy Indian                   (c) This rule does not have significant
                                                 of the Buy Indian Act as giving                          set-aside). The rule now refers to Public             adverse effects on competition,

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                                                 employment, investment, productivity,                    information under the Paperwork                         Dated: July 20, 2012.
                                                 innovation, or the ability of U.S.-based                 Reduction Act. See 5 CFR 1320.3(h).                   Amy Holley,
                                                 enterprises to compete with foreign-                                                                           Chief of Staff, Policy, Management and
                                                                                                          J. National Environmental Policy Act
                                                 based enterprises. The annual value of                                                                         Budget.
                                                 the acquisitions made under this                            This rule does not constitute a major                For the reasons set out in the
                                                 authority is less than $45 million.                      Federal action significantly affecting the            preamble, the Department of the Interior
                                                                                                          quality of the human environment. A                   proposes to amend chapter 14 of title 48
                                                 D. Unfunded Mandates Reform Act                          detailed statement under the National                 of the Code of Federal Regulations as
                                                    This rule does not impose any                         Environmental Policy Act of 1969 is not
                                                 unfunded mandate on State, local, or                     required because there is nothing
                                                 tribal governments or the private sector.                inherent in the rule that will                        PART 1401—DEPARTMENT OF THE
                                                 The rule does not have a significant or                  significantly affect the quality of the               INTERIOR ACQUISITION REGULATION
                                                 unique effect on State, local or tribal                  human environment; the rule merely                    SYSTEM
                                                 governments or the private sector. The                   regulates the implementation of an
                                                                                                          acquisition authority.                                  1. The authority for part 1401
                                                 rule merely governs acquisitions from
                                                                                                                                                                continues to read as follows:
                                                 contractors.                                             K. Effects on the Energy Supply
                                                                                                          (Executive Order 13211)                                 Authority: Sec. 205(c), 63 Stat. 390, 40
                                                 E. Takings Implications (Executive                                                                             U.S.C. 486(c); and 5 U.S.C. 301.
                                                 Order 12630)                                                This rule is not a significant energy
                                                                                                                                                                  2. Add section 1401.301–80 to read as
                                                                                                          action under the definition in Executive
                                                   In accordance with Executive Order                     Order 13211. A statement of energy                    follows:
                                                 12630, the rule does not have any                        effects is not required.                              1401.301–80          Policy.
                                                 takings implications. The rule governs
                                                 acquisitions from contractors.                           L. Clarity of This Regulation                            BIA must use the negotiation
                                                                                                                                                                authority of the Buy Indian Act, 25
                                                 F. Federalism (Executive Order 13132)                       We are required by Executive Orders
                                                                                                                                                                U.S.C. 47 to give preference to Indians
                                                                                                          12866 (section 1 (b)(12)) and 12988
                                                   In accordance with Executive Order                                                                           whenever using that authority is
                                                                                                          (section 3(b)(1)(B)) and by the
                                                 13132, the rule does not have any                                                                              authorized and feasible. The Buy Indian
                                                                                                          Presidential Memorandum of June 1,
                                                 Federalism implications to warrant the                                                                         Act requires that, so far as may be
                                                                                                          1998, to write all rules in plain
                                                 preparation of a Federalism Assessment.                                                                        feasible, Indian labor must be employed,
                                                                                                          language. This means that each rule we
                                                 The rule governs acquisitions from                                                                             and purchases of the products of Indian
                                                                                                          publish must:
                                                 contractors and does not interfere with                     (a) Be logically organized;                        industry may be made in open market
                                                 the administration of programs by State                     (b) Use the active voice to address                at the discretion of the Secretary of the
                                                 Governments.                                             readers directly;                                     Interior. This requirement applies
                                                                                                             (c) Use common, everyday words and                 notwithstanding any other law and
                                                 G. Civil Justice Reform (Executive Order                 clear language rather than jargon;                    applies to all products of an industry,
                                                 12988)                                                      (d) Be divided into short sections and             including printing.
                                                   In accordance with Executive Order                     sentences; and
                                                                                                             (e) Use lists and tables wherever                  PART 1452—SOLICITATION
                                                 12988, the Office of the Solicitor has                                                                         PROVISIONS AND CONTRACT
                                                 determined that this rule does not                       possible.
                                                                                                             If you feel that we have not met these             CLAUSES
                                                 unduly burden the judicial system and
                                                                                                          requirements, send us comments by one                   3. The authority for part 1452
                                                 meets the requirements of sections 3(a)
                                                                                                          of the methods listed in the ADDRESSES                continues to read as follows:
                                                 and 3(b)(2) of the Order.
                                                                                                          section. To better help us revise the
                                                 H. Consultation With Indian Tribes                       rule, your comments should be as                        Authority: Sec. 205(c), 63 Stat. 390, 40
                                                                                                                                                                U.S.C. 486(c); and 5 U.S.C. 301.
                                                 (Executive Order 13175)                                  specific as possible. For example, you
                                                                                                          should tell us the numbers of the                       4. In subpart 1452.2, add the
                                                   The BIA has held public meetings                       sections or paragraphs that you find                  following sections to read as follows:
                                                 with the tribes as stated in the                         unclear, which sections or sentences are
                                                 Background section of this preamble as                                                                         Subpart 1452.2—Texts of Provisions and
                                                                                                          too long, the sections where you feel                 Clauses
                                                 well as the several previous                             lists or tables would be useful, etc.
                                                 publications of the proposed rule. This                                                                        *       *        *      *      *
                                                 meets the intent of the Executive Order.                 M. Public Availability of Comments
                                                 The rule will more directly affect any                                                                         1452.280–1 Notice of Indian small business
                                                                                                            Before including your address, phone                    economic enterprise set-aside.
                                                 contractors who may decide to use the                    number, email address, or other                       1452.280–2 Notice of Indian economic
                                                 Buy Indian Act for subcontracting and                    personal identifying information in your                  enterprise set-aside.
                                                 Indian economic enterprises.                             comment, you should be aware that                     1452.280–3 Subcontracting limitations.
                                                 I. Paperwork Reduction Act of 1995                       your entire comment—including your                    1452.280–4 Indian economic enterprise
                                                                                                          personal identifying information—may                      representation.
                                                   This regulation requires offerors to                   be made publicly available at any time.
                                                 state whether they meet the definition of                While you can ask us in your comment                  Subpart 1452.2—Texts of Provisions
                                                 an ‘‘Indian economic enterprise.’’ This                  to withhold your personal identifying                 and Clauses

                                                 statement is a simple representation that                information from public review, we                    *       *        *      *      *
                                                 an offeror submits to support its claim                  cannot guarantee that we will be able to
                                                 for eligibility to participate in contract               do so.                                                1452.280–1 Notice of Indian small
                                                 awards under the authority of the Buy                                                                          business economic enterprise set-aside.
                                                 Indian Act 25 U.S.C. 47, as amended.                     List of Subjects in 48 CFR Chapter 14                   As prescribed in 1480.503(b)(1), and
                                                 Because this statement is a simple                         Government procurement, Indian                      in lieu of the requirements of FAR
                                                 certification or acknowledgment, it does                 Economic Enterprises, Reporting and                   19.508, insert the following provision in
                                                 not qualify as a collection of                           recordkeeping requirements.                           each written solicitation of offers to

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                                                 provide supplies or services when                        Native Claims Settlement Act (Pub. L. 92–             CO in writing. The notification must include
                                                 purchasing commercial items under                        203, 85 Stat. 688; 43 U.S.C. 1601).                   full disclosure of circumstances causing the
                                                 FAR Part 12 or using simplified                              Representation means the positive                 contractor to lose eligibility status and a
                                                                                                          statement by an enterprise of its eligibility for     description of any actions that the contractor
                                                 acquisition procedures under FAR Part
                                                                                                          preferential consideration and participation          will take to regain eligibility. Failure to give
                                                 13. If the solicitation is oral, information             for acquisitions conducted under the Buy              the CO immediate written notification means
                                                 substantially identical to that contained                Indian Act, 25 U.S.C. 47, in accordance with          that: (1) The economic enterprise may be
                                                 in the provision must be given to                        the procedures in Subpart 1480.8.                     declared ineligible for future contract awards
                                                 potential offerors.                                          (b) General.                                      under this part; and (2) The Bureau may
                                                                                                              (1) Under the Buy Indian Act, offers are          consider termination for default if it is in the
                                                 Notice of Indian Small Business Economic                 solicited only from Indian economic                   best interest of the government.
                                                 Enterprise Set-Aside (Current Date)                      enterprises.
                                                    Under the Buy Indian Act, 25 U.S.C. 47,                   (2) BIA will reject all offers received from      (End of clause)
                                                 offers submitted in response to this                     ineligible enterprises.
                                                 solicitation are solicited only from Indian                  (3) Any award resulting from this                 1452.280–3       Subcontracting limitations.
                                                 economic enterprises (Subpart 1480.8) that               solicitation will be made to an Indian                  A contractor shall not subcontract to
                                                 also must be small business concerns. The                economic enterprise, as defined in paragraph          other than responsible Indian economic
                                                 offeror must represent that they meet the                (a).
                                                                                                                                                                enterprises more than 50 percent of the
                                                 definition of Indian economic enterprise at                  (c) Required Submissions. In response to
                                                 the time of submission of its offer to a                 this solicitation, an offeror must also provide       work under a prime contract awarded
                                                 specific solicitation as evidence that it is             the following:                                        under the Buy Indian Act. For this
                                                 eligible to be considered for award. Any                     (1) A description of the required                 purpose, work to be performed does not
                                                 acquisition resulting from this solicitation             percentage of the work/costs to be provided           include the provision of materials,
                                                 will be from such a concern. Offers received             by the offeror over the contract term as              supplies, or equipment.
                                                 from enterprises that are not Indian economic            required by section 1452.280–3,                         As prescribed in 1480.602(b), insert
                                                 enterprises will not be considered and will              Subcontracting Limitations clause;                    the following clause in each written
                                                 be rejected.                                                 (2) A description of the source of human
                                                                                                                                                                solicitation or contracts to provide
                                                                                                          resources for the work to be performed by the
                                                 (End of provision)                                       offeror;                                              supplies, services, or on-reservation
                                                                                                              (3) A description of the method(s) of             construction:
                                                 1452.280–2 Notice of Indian economic
                                                                                                          recruiting and training Indian employees,
                                                 enterprise set-aside.                                                                                          Subcontracting Limitations (Current Date)
                                                                                                          indicating the extent of soliciting
                                                   As prescribed in 1480.504–1(b)(2),                     employment of Indian persons, as required               (a) Definitions as used in this clause.
                                                 insert the following clause in                           by DIAR 1452.226–70, Indian Preference, or              (1) Concern means any business entity
                                                 solicitations and contracts involving                    DIAR 1452.226–71, Indian Preference                   organized for profit (even if its ownership is
                                                 Indian economic enterprise set-asides:                   Program, clause(s);                                   in the hands of a nonprofit entity) with a
                                                                                                              (4) A description of how subcontractors (if       place of business located in the United States
                                                 Notice of Indian Economic Enterprise Set-                any) will be selected in compliance with the          or its outlying areas and that makes a
                                                 Aside (Current Date)                                     ‘‘Indian Preference’’ or ‘‘Indian Preference’’        significant contribution to the U.S. economy
                                                   (a) Definitions as used in this clause.                clause(s);                                            through payment of taxes and/or use of
                                                   Indian means a person who is a member                      (5) The names, addresses, and descriptions        American products, material and/or labor,
                                                 of an Indian Tribe or ‘‘Native’’ as defined in           of work to be performed by Indian persons             etc. ‘‘Concern’’ includes but is not limited to
                                                 the Alaska Native Claims Settlement Act (PL              or economic enterprises being considered for          an individual, partnership, corporation, joint
                                                 92–203; 85 Stat. 688; 43 USC 1601).                      subcontracts (if any) and the percentage of           venture, association, or cooperative. For the
                                                   Indian Economic Enterprise means any                   the total direct project work/costs they would        purpose of making affiliation findings (see
                                                 business activity owned by an Indian or an               be performing;                                        19.101) any business entity, whether
                                                 Indian Tribe that is established for the                     (6) Qualifications of the key personnel (if       organized for profit or not, and any foreign
                                                 purpose of profit, provided that: (i) Such               any) that will be assigned to the contract;           business entity, i.e., any entity located
                                                 Indian or Indian Tribe ownership shall                       (7) A description of method(s) for                outside the United States and its outlying
                                                 constitute not less than 51 percent of the               compliance with any supplemental Tribal               areas.
                                                 enterprise; (ii) the Indian or Indian Tribe              employment preference requirements, if                  (2) Subcontract means any agreement
                                                 shall receive a majority of the earnings from            contained in this solicitation; and                   (other than one involving an employer-
                                                 the contract; and (iii) the management and                   (d) Required Assurance. The contractor            employee relationship) entered into by a
                                                 daily business operations of an Indian                   must provide written assurance to the Bureau          Government prime contractor or
                                                 economic enterprise must be controlled by                that it will comply, or has, complied fully           subcontractor calling for supplies and/or
                                                 one or more individuals who are members of               with the requirements of this clause. It must         services required for performance of the
                                                 an Indian Tribe. To ensure actual control                do this before the Bureau awards the Buy              contract, contract modification, or
                                                 over the enterprise, the individuals must                Indian contract, as well as, upon successful          subcontract.
                                                 possess requisite management or technical                and timely completion of the contract, but              (3) Subcontractor means a concern to
                                                 capabilities directly related to the primary             before the Bureau Contracting Officer (CO)            which a contractor subcontracts any work
                                                 industry in which the enterprise conducts                accepts the work or product.                          under the contract. The term includes
                                                 business. The enterprise must meet these                     (e) Non-responsiveness. Failure to provide        subcontractors at any tier who perform work
                                                 requirements throughout the following time               the information required by paragraphs (c)            on the contract.
                                                 periods:                                                 and (d) of this clause may cause the Bureau             (b) Required Percentages of work by the
                                                   (1) At the time an offer is made in response           to find an offer non-responsive and to reject         concern. The contractor must comply with
                                                 to a written solicitation;                               it.                                                   FAR 52.219–14 Limitations on
                                                   (2) At the time of contract award; and,                    (f) Eligibility.                                  Subcontracting clause.

                                                   (3) During the full term of the contract.                  (1) Participation in the Mentor-Protege´ ´          (c) Indian Preference. Regardless of the
                                                   Indian Tribe means an Indian Tribe, band,              Program established under section 831 of the          contract type for services, supplies, or on-
                                                 nation, or other recognized group or                     National Defense Authorization Act for Fiscal         reservation construction, the contractor
                                                 community which is recognized as eligible                Year 1991 (25 U.S.C. 47 note) does not render         agrees to give preference to Indian
                                                 for the special programs and services                    an Indian economic enterprise ineligible for          organizations and Indian owned economic
                                                 provided by the United States to Indians                 contracts awarded under the Buy Indian Act.           enterprises in awarding subcontracts under
                                                 because of their status as Indians, including                (2) If a contractor no longer meets the           this contract in accordance with DIAR
                                                 any Alaska Native village, regional or village           definition of an Indian economic enterprise           1452.226–71, Indian Preference.
                                                 corporation established under the Alaska                 after award, the contractor must notify the             (d) Cooperation. The contractor must:

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                                                 43790                    Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules

                                                    (1) Carry out the requirements of this                Subpart 1480.7—Contract Administration                 Reston, Virginia that serves as staff
                                                 clause to the fullest extent; and                        1480.701 Contract administration                       resource to the Assistant Secretary-
                                                    (2) Cooperate in any study or survey that                 requirements.                                      Indian Affairs. For purposes of this part,
                                                 the CO, the Bureau of Indian Affairs, or its                                                                    the term refers specifically to the Office
                                                 agents may conduct to verify the contractor’s            Subpart 1480.8—Representation by an
                                                 compliance with this clause.                             Indian Economic Enterprise Offeror                     of Management and Administration,
                                                    (e) Incorporation in Subcontracts. The                                                                       Division of Acquisition and Property
                                                                                                          1480.801 General.
                                                 contractor must incorporate the substance of             1480.802 Representation provision.
                                                 this clause, including this paragraph (e), in            1480.803 Declaration process.                             Buy Indian Act means section 23 of
                                                 all subcontracts for supplies, services, and                                                                    the Act of June 25, 1910 (25 U.S.C. 47
                                                 construction awarded under this contract.                Subpart 1480.9—Protests of Representation              (hereinafter ‘‘the Act’’).
                                                                                                          1480.901 General.                                         Buy Indian contract means any
                                                 (End of clause)                                          1480.902 Receipt of protest.                           contract involving activities covered by
                                                                                                          1480.903 Award in the face of protest.                 the Buy Indian Act that is negotiated
                                                 1452.280–4 Indian Economic Enterprise
                                                                                                          1480.904 Protest not timely.                           under the provisions of 41 U.S.C. 252(c)
                                                                                                            Authority: 25 U.S.C. 47, as amended (36              and 25 U.S.C. 47 between an Indian
                                                   As prescribed in 1480.801(a), insert
                                                                                                          Stat. 861), 41 U.S.C. 253(c)(5), and 5 U.S.C.          economic enterprise and a Contracting
                                                 the following provision in each written                  301.                                                   Officer representing the Department of
                                                 solicitation for supplies, services, or on-
                                                                                                                                                                 the Interior.
                                                 reservation construction:                                PART 1480—ACQUISITIONS UNDER                              Chief of the Contracting Office (CCO),
                                                 Indian Economic Enterprise Representation                THE BUY INDIAN ACT                                     unless otherwise specified by bureau/
                                                 (Current Date)                                                                                                  office regulation, means the senior GS–
                                                                                                          Subpart 1480.1—General
                                                   The offeror represents as part of its offer                                                                   1102 within a contracting office. If the
                                                 that it [ ] does [ ] does not meet the definition        § 1480.101       Scope of part.                        CCO is also the CO for an action
                                                 of Indian economic enterprise as defined in                                                                     requiring approval by the CCO, then
                                                                                                            This part prescribes policies and
                                                                                                          procedures for the procurement of                      approval shall be at a level above the
                                                 [End of provision]                                       supplies and services from Indian                      CCO in accordance with bureau
                                                                                                          economic enterprises under the Buy                     procedures.
                                                   5. Add subchapter H, consiting of part                                                                           Concern means any business entity
                                                 1480, to read as follows:                                Indian Act, 25 U.S.C. 47, and this part.
                                                                                                                                                                 organized for profit (even if its
                                                 SUBCHAPTER H—BUREAU OF INDIAN                            § 1480.102 Buy Indian Act acquisition                  ownership is in the hands of a nonprofit
                                                 AFFAIRS SUPPLEMENT                                       regulations.                                           entity) with a place of business located
                                                                                                            (a) This part supplements Federal                    in the United States or its outlying areas
                                                 PART 1480—ACQUISITIONS UNDER                             Acquisition Regulation (FAR) and                       and that makes a significant
                                                 THE BUY INDIAN ACT                                       Department of the Interior Regulation                  contribution to the U.S. economy
                                                 Subpart 1480.1—General                                   (DIAR) requirements to satisfy the needs               through payment of taxes and/or use of
                                                                                                          of the Bureau of Indian Affairs in                     American products, material and/or
                                                 Sec.                                                                                                            labor, etc. ‘‘Concern’’ includes but is not
                                                 1480.101 Scope of part.
                                                                                                          implementing the Buy Indian Act.
                                                 1480.102 Buy Indian Act acquisition                        (b) Regulations issued under this part               limited to an individual, partnership,
                                                      regulations.                                        will be codified in Department of the                  corporation, joint venture, association,
                                                 1480.103 Information collection.                         Interior (DOI) regulations at 48 CFR                   or cooperative. For the purpose of
                                                                                                          Chapter 14, Appendix A, Part 1480.                     making affiliation findings (see FAR
                                                 Subpart 1480.2—Definitions                                                                                      19.101), ‘‘concern’’ includes any
                                                                                                            (c) This part is under the direct
                                                 1480.201 Definitions as used in this part.               oversight and control of the Chief                     business entity, whether organized for
                                                 Subpart 1480.3—Applicability                             Financial Officer, BIA, Department of                  profit or not, and any foreign business
                                                 1480.301 Scope of part.                                  the Interior (hereinafter, ‘‘CFO’’). The               entity, i.e., any entity located outside
                                                 1480.302 Restrictions on use of the Buy                  CFO is responsible for issuing and                     the United States and its outlying areas.
                                                     Indian Act.                                          implementing this part.                                   Contracting Officer (CO) means a
                                                                                                            (d) Acquisitions conducted under this                person with the authority to enter into,
                                                 Subpart 1480.4—Policy                                                                                           administer, and/or terminate contracts
                                                                                                          part are subject to all applicable
                                                 1480.401 Requirement to give preference to               requirements of the FAR and DIAR, as                   and make related determinations and
                                                     Indian Economic Enterprises.                         well as internal policies, procedures or               findings on behalf of the U.S.
                                                 1480.402 Delegations and responsibility.                                                                        government.
                                                                                                          instructions issued by the Bureau of
                                                 1480.403 Deviations.                                                                                               Day means, unless otherwise
                                                                                                          Indian Affairs. The provisions of the
                                                 Subpart 1480.5—Procedures                                FAR takes precedence in all instances                  specified, a calendar day.
                                                 1480.501 General.                                        where there may be a conflict or                          Deviation means an exception to the
                                                 1480.502 Order of precedence for use of                  discrepancy.                                           requirement for use of the Buy Indian
                                                     Government supply sources.                                                                                  Act in fulfilling an acquisition
                                                 1480.503 Commercial item or simplified                   Subpart 1480.2—Definitions                             requirement of the Bureau.
                                                     acquisitions.                                                                                                  Fair market price means a price based
                                                 1480.504 Other than full and open                        § 11480.201       Definitions as used in this          on reasonable costs under normal
                                                     competition.                                         part.                                                  competitive conditions and not on

                                                 1480.504–1 Set-asides for Indian Economic                  The following words and terms are                    lowest possible cost, as determined in
                                                     Enterprises.                                         used as defined below unless a different               accordance with FAR 19.202–6(a).
                                                 1480.504–2 Other circumstances for use of                definition is prescribed for a particular                 Governing body means the recognized
                                                     other than full and open competition.
                                                                                                          subpart or portion of a subpart.                       entity empowered to exercise
                                                 1480.505 Debarment and suspension.
                                                                                                            Bureau means the Bureau of Indian                    governmental authority over an Indian
                                                 Subpart 1480.6—Contract Requirements                     Affairs                                                tribe.
                                                 1480.601 Subcontracting limitations.                       Bureau central office means the                         Indian means a person who is a
                                                 1480.602 Performance and payment bonds.                  Headquarters component located in                      member of an Indian Tribe or ‘‘Native’’

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                                                                          Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules                                                 43791

                                                 as defined in the Alaska Native Claims                   Bureau award of a particular contract                  scope and intent of the Indian Self-
                                                 Settlement Act (Pub. L. 92–203; 85 Stat                  set-aside pursuant the Act.                            Determination and Education
                                                 688; 43 U.S.C. 1601).                                                                                           Assistance Act. The Bureau must use
                                                                                                                     ´ ´
                                                                                                          Mentor-Protege Program
                                                    Indian Economic Enterprise (IEE)                                                                             the Buy Indian Act solely to award
                                                 means:                                                      Product of Indian industry means                    procurement contracts to IEEs.
                                                    (1) Any business activity owned by an                 anything produced by an IEE either                       (b) The Bureau must not use the
                                                 Indian or an Indian Tribe that is                        through physical labor or by intellectual              authority of this Act for off-reservation
                                                 established for the purpose of profit                    effort involving the use and application               construction contracts, as defined in
                                                 provided that:                                           of their skills.                                       FAR 36.102 (48 CFR 36.02).
                                                    (i) Such Indian or Indian Tribe                          Protest of representation means an
                                                 ownership shall constitute not less than                 accurate, complete and timely written                  Subpart 1480.4—Policy
                                                 51 percent of the enterprise;                            objection by an interested party to an                 § 1480.401 Requirement to give preference
                                                    (ii) That the Indian or Indian Tribe                  offeror’s representation declaration                   to Indian Economic Enterprises.
                                                 shall receive a majority of the earnings                 status for a submitted in response to a                  (a) The Bureau shall utilize the
                                                 from the contract; and                                   solicitation under the Act.                            negotiation authority of the Buy Indian
                                                    (iii) The management and daily                           Representation means the positive                   Act, 25 U.S.C. 47, to give preference to
                                                 business operations of an enterprise                     statement by an enterprise of its                      Indians whenever the use of that
                                                 must be controlled by one or more                        eligibility for preferential consideration             authority is authorized and practicable.
                                                 individuals who are Indians.                             and participation for acquisitions                     The Buy Indian Act provides that, so far
                                                    (2) To ensure actual control over the                 conducted under the Buy Indian Act,                    as may be practicable, Indian labor shall
                                                 enterprise, the individuals must possess                 25 U.S.C. 47, in accordance with the                   be employed, and purchases of the
                                                 requisite management or technical                        procedures in Subpart 1480.8.                          products (including, but not limited to
                                                 capabilities directly related to the                        Reservation means Indian                            printing, notwithstanding any other
                                                 primary industry in which the                            reservations, public domain Indian                     law) of Indian industry may be made in
                                                 enterprise conducts business. The                        allotments, former Indian reservations                 open market at the discretion of the
                                                 enterprise must meet these requirements                  in Oklahoma, and land held by                          Secretary of the Interior. Thus, the
                                                 for these time periods:                                  incorporated Native groups, regional                   Bureau may use the Buy Indian Act to
                                                    (i) At the time an offer is made in                   corporations, and village corporations                 give preference to IEEs through set-
                                                 response to a written solicitation;                      under the provisions of the Alaska                     asides when acquiring supplies,
                                                    (ii) At the time of contract award; and               Native Claims Settlement Act, 43 U.S.C.                services, and on-reservation
                                                    (iii) During the full term of the                     1601.                                                  construction to meet Bureau needs and
                                                 contract.                                                   Subcontract means any agreement                     requirements. The Bureau must contract
                                                    Indian land means land over which                     (other than one involving an employer-                 for on-reservation construction in
                                                 an Indian Tribe is recognized by the                     employee relationship) entered into by                 accordance with FAR Part 36 (48 CFR
                                                 United States as having governmental                     a Government prime contractor or                       part 36).
                                                 jurisdiction and land owned by a Native                  subcontractor calling for supplies and/                  (b) The Bureau or any other bureau or
                                                 corporation established under the                        or services required for performance of                office of the Department of the Interior
                                                 Alaska Native Claims Settlement Act of                   the contract, contract modification, or                delegated the authority to make
                                                 1971 (85 Stat. 688, 43 U.S.C. 1601), so                  subcontract.                                           acquisitions under the Buy Indian Act
                                                 long as the Native corporation qualifies                    Subcontractor means a concern to                    may not use the Buy Indian Act to give
                                                 as an IEE, as defined herein. In the State               which a contractor subcontracts any                    preference to IEEs through set-asides
                                                 of Oklahoma, or where there has been                     work under the contract. The term                      when acquiring construction services
                                                 a final judicial determination that a                    includes subcontractors at any tier who                for off-reservation construction
                                                 reservation has been disestablished or                   perform work on the contract.                          activities.
                                                 diminished, the term means that area of                     Work means the level of work effort                   (c) The provisions of this section shall
                                                 land constituting the former reservation                 by the prime contractor based on total                 not apply to the awarding of contracts
                                                 of the Tribe as defined by the Secretary.                direct project costs.                                  under the Indian Self-Determination
                                                    Indian small business economic                                                                               and Education Assistance Act (25 U.S.C.
                                                                                                          Subpart 1480.3—Applicability                           450b et seq.) by DOI.
                                                 enterprise (ISBEE) means an IEE that is
                                                 also a small business concern                            § 1480.301       Scope of part.                        § 1480.402       Delegations and responsibility.
                                                 established in accordance with the                         Except as provided in 1480.401(b),                     (a) The Secretary has delegated
                                                 criteria and size standards of 13 CFR                    this part applies to all acquisitions,                 authority under the Buy Indian Act to
                                                 part 121.                                                including simplified acquisitions, made                the Assistant Secretary—Indian Affairs.
                                                    Indian Tribe means an Indian Tribe,                   by the BIA and by any other bureau or                  The Bureau exercises this authority in
                                                 band, nation, or other recognized group                  office of the Department of the Interior               support of its mission and program
                                                 or community which is recognized as                      delegated the authority to make                        activities and as a means of fostering
                                                 eligible for the special programs and                    acquisitions under the Buy Indian Act                  Indian employment and economic
                                                 services provided by the United States                   and 1480.401(d).                                       development.
                                                 to Indians because of their status as                                                                             (b) The Secretary may delegate
                                                 Indians, including any Alaska Native                     § 1480.302 Restrictions on use of the Buy              authority under the Buy Indian Act to

                                                 village or regional or village corporation               Indian Act.                                            a bureau or office within the
                                                 under the Alaska Native Claims                              (a) The Bureau must not use the                     Department of the Interior other than
                                                 Settlement Act (Pub. L. 92–203, 85 Stat.                 authority of the Buy Indian Act and the                the Bureau of Indian Affairs only by a
                                                 688; 43 U.S.C. 1601).                                    procedures contained in this part to                   Secretarial Order issued in accordance
                                                    Interested party means an IEE that is                 award intergovernmental contracts to                   with Part 012, Chapter 1 of the
                                                 an actual or prospective offeror whose                   tribal organizations to plan, operate or               Departmental Manual (012 DM 1).
                                                 direct economic interest would be                        administer authorized Bureau programs                    (c) The CFO as the head of the
                                                 affected by the proposed or actual                       (or parts thereof) that are within the                 contracting activity, is responsible for

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                                                 43792                         Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules

                                                 ensuring that all Indian Affairs                                    1480.403        Deviations.
                                                 acquisitions under the Buy Indian Act                                 (a) The following officials may
                                                 comply with the requirements of this                                authorize a deviation for an Indian
                                                 part.                                                               Affairs acquisition:

                                                 For a proposed contract action . . .                                                                   The following official may authorize a deviation . . .

                                                 Exceeding $25,000 but not exceeding $550,000 .....................................                     The CCO (or the Bureau Procurement Chief, absent a CCO).
                                                 Exceeding $550,000 but not exceeding $11.5 million .............................                       Bureau Competition Advocate.
                                                 Exceeding $11.5 million but not exceeding $57 million ...........................                      The head of the procuring activity, or a designee who is a civilian serv-
                                                                                                                                                          ing in a position in a grade above GS–15 under the General Sched-
                                                                                                                                                          ule or in a comparable or higher position under another schedule.
                                                 Exceeding $57 million ..............................................................................   Senior procurement executive.

                                                   (b) Deviations may be authorized                                  determinations and the appropriate
                                                 prior to issuing the solicitation when                              official takes the following actions:
                                                 the Bureau makes the following

                                                                       Acquisition type                                                   Basis for deviation                                      Necessary actions

                                                 In pursuit of a simplified or commercial item ac-                     The Bureau determines after a market survey                 The CO must:
                                                   quisition in accordance with FAR Parts 12 or                          that there is no reasonable expectation of                (1) Document the reasons for the deviation in
                                                   13 and DIAR 1413.                                                     obtaining offers that will be competitive in                the file;
                                                                                                                         terms of market price, quality, and delivery              (2) Ascertain the availability of small business
                                                                                                                         from two or more responsible ISBEEs (or at                  suppliers through market research; and
                                                                                                                         least from one such enterprise, if the pur-               (3) If appropriate, compete the purchase
                                                                                                                         chase does not exceed the dollar threshold                  using an unrestricted small business set-
                                                                                                                         described in FAR 13.003).                                   aside as prescribed in FAR 19.502–2.
                                                 In pursuit of all other acquisitions ......................           The Bureau determines there is no reason-                   The official must:
                                                                                                                         able expectation that offers will be received             (1) Provide a written determination in the con-
                                                                                                                         from two or more responsible IEEs at a rea-                 tract file stating there is no reasonable ex-
                                                                                                                         sonable and fair market price.                              pectation of receiving offers from two or
                                                                                                                                                                                     more responsible IEEs and that award can-
                                                                                                                                                                                     not be made at a reasonable and fair mar-
                                                                                                                                                                                     ket price; and
                                                                                                                                                                                   (2) Proceed with the acquisition using the
                                                                                                                                                                                     order of precedence established in FAR

                                                    (c) Deviations may be authorized after                           the appropriate official takes the
                                                 issuing solicitations when the Bureau                               following actions:
                                                 makes the following determinations and

                                                                       Acquisition type                                                   Basis for deviation                                      Necessary actions

                                                 In pursuit of a simplified or commercial item ac-                     Only one offer is received from a responsible               The CO must:
                                                   quisition in accordance with FAR Parts 12 or                         ISBEE and the price is unreasonable or no                  (1) Document the reasons for the deviation in
                                                   13 and DIAR 1413.                                                    offers are received from a responsible                       the file;
                                                                                                                        ISBEE.                                                     (2) Ascertain the availability of small business
                                                                                                                                                                                     suppliers through market research; and
                                                                                                                                                                                   (3) If appropriate, compete the purchase
                                                                                                                                                                                     using an unrestricted small business set-
                                                                                                                                                                                     aside as prescribed in FAR 19.502–2.
                                                 In pursuit of all other acquisitions ......................           The Indian tribe justifies a deviation under                The Bureau must proceed under PL 93–638.
                                                                                                                       (1) All otherwise acceptable offers received                The official must:
                                                                                                                         from IEEs are unreasonable;                               (1) Cancel the solicitation;
                                                                                                                       (2) Only one offer is received from an IEE                  (2) Reject all offers in writing in accordance
                                                                                                                         and the CO determines the price to be un-                     with FAR 14.404–3; and
                                                                                                                         reasonable; or                                            (3) Complete the acquisition by either:
                                                                                                                       (3) No responsive offers have been received                 (i) Using negotiation, provided the CO has ob-
                                                                                                                         from IEEs.                                                    tained the approval required by FAR
                                                                                                                                                                                       14.404–1; or

                                                                                                                                                                                   (ii) If negotiation with the offerors responding
                                                                                                                                                                                       to the canceled solicitation is not author-
                                                                                                                                                                                       ized, the CO must proceed with a new ac-
                                                                                                                                                                                       quisition using the order of precedence in
                                                                                                                                                                                       FAR 8.001.

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                                                                          Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules                                            43793

                                                    (d) In response to a set-aside                          (2) Insert the clause at 1452.280–3,                   (2) Use the Class Justification for Use
                                                 acquisition, when using competitive                      SUBCONTRACTING LIMITATIONS, in                        of Other Than Full and Open
                                                 proposals, proposals may be rejected by                  purchase orders and contracts for                     Competition (JOFOC) in Acquisition of
                                                 a written determination by the CCO that                  services, supplies, or on-reservation                 Supplies and Services from Indian
                                                 a reasonable price cannot be negotiated.                 construction and awarded to IEEs.                     Industry to meet the requirements of
                                                                                                            (3) Insert the clause at DIAR                       FAR 6.303 (48 CFR 6.303).
                                                 Subpart 1480.5—Procedures                                1452.226–71, Indian Preference                           (3) By separate memorandum to the
                                                                                                          Program, in accordance with DIAR                      file, document that the supplies or
                                                 1480.501    General.
                                                                                                          1426.7003(b).                                         services to be acquired are available
                                                   All acquisitions made in accordance
                                                                                                                                                                from two or more responsible and IEEs;
                                                 with this part, including simplified or                  1480.504 Other than full and open
                                                                                                                                                                the anticipated cost to the Bureau of the
                                                 commercial item acquisitions, must
                                                                                                                                                                required supplies or services is
                                                 conform to all applicable requirements
                                                                                                          1480.504–1 Set-asides for Indian                      determined to be reasonable; and the
                                                 of the FAR and DIAR.                                     Economic Enterprises.                                 information in the ‘‘Class Justification
                                                 1480.502 Order of precedence for use of                    (a) Each proposed procurement for                   for Use of Other Than Full and Open
                                                 Government supply sources.                               supplies or services that has an                      Competition in Acquisition of Supplies
                                                   Acquisitions made under an                             anticipated dollar value in excess of the             and Services from Indian Industry’’ is
                                                 authorized deviation from the Buy                        simplified acquisition threshold amount               accurate and complete as it pertains to
                                                 Indian Act regulation must be made in                    in FAR Part 13.003 (48 CFR 13.003)                    the proposed acquisition.
                                                 conformance with the order of                            must be set aside exclusively for IEEs,                  (4) Reject offers that fail to provide
                                                 precedence required by FAR 8.002 (48                     and referred to as an ‘‘Indian Economic               representation that they meet the
                                                 CFR 8.002).                                              Enterprise Set-aside,’’ when there is a               definition of an IEE. The CO may also
                                                                                                          reasonable expectation that offers will               request the Office of the Inspector
                                                 1480.503 Commercial item or simplified                   be received from two or more                          General (on Form DI–1902 as part of a
                                                 acquisitions.                                            responsible, IEEs and award will be                   normal pre-award audit) to:
                                                    (a) Each acquisition of supplies,                     made at a reasonable price except when:                  (i) Assist in determining the eligibility
                                                 services, and on-reservation                               (1) The acquisition is for off-                     of the low responsive and responsible
                                                 construction that is subject to                          reservation construction, as described in             offerors on Buy Indian Act awards, and
                                                 commercial item or simplified                            1480.401(b);                                             (ii) Determine whether the work will
                                                 acquisition procedures in accordance                       (2) A deviation has been obtained in                be performed by the labor force required
                                                 with FAR Part 12 or 13 (48 CFR part 12                   accordance with 1480.402; or                          under 1480.602.
                                                 or 13) and DIAR 1413 must be set aside                     (3) Use of other than full and open                    (5) When using sealed bidding,
                                                 exclusively for ISBEEs. The Bureau will                  competition has been justified and                    determine that the price offered by the
                                                 use ISBEE commercial item(s) or                          approved in accordance with                           prospective contractor is considered to
                                                 simplified acquisition set-asides to                     1480.504–2.                                           be reasonable and at a fair market price
                                                 accomplish this preference action.                         (b) When acquiring services to be                   as required by FAR 14.408–2 (48 CFR
                                                    (b) Each written solicitation of offers               performed in whole or in part on Indian               14.408–2) before awarding a contract.
                                                 under an ISBEE commercial item or                        land, the CO must give written notice to                 (6) When using competitive
                                                 simplified acquisition set-aside must                    the governing body or bodies of the                   proposals, solicit proposals in
                                                 contain the provision at section                         applicable Indian tribe simultaneously                accordance with FAR Subpart 15.2 (48
                                                 1452.280–1, NOTICE OF INDIAN                             with publication of the synopsis                      CFR subpart 15.2) and select sources in
                                                 SMALL BUSINESS ECONOMIC                                  required by paragraph (c)(1) of this                  accordance with FAR Subpart 15.3 (48
                                                 ENTERPRISE SET-ASIDE. If the                             section. The notice must state the                    CFR subpart 15.3) and DIAR Subpart
                                                 solicitation is oral, information                        Bureau’s intent to solicit services or                1415.6.
                                                 substantially identical to that contained                supplies using an IEE set-aside and                      (7) When using competitive proposals
                                                 in the provision must be given to                        provide the tribe with the opportunity                or when negotiating modifications that
                                                 potential offerors.                                      to contract for the program within 15                 impact the cost of a contract, conduct
                                                    (c) If the CO proceeds with an ISBEE                  calendar days from the date of the                    proposal analyses, including cost or
                                                 commercial item or simplified                            synopsis publication in the GPE.                      price analyses in accordance with FAR
                                                 acquisition set-aside and receives an                      (1) If the tribe does not oppose the set-           Subpart 15.4 (48 CFR subpart 15.4),
                                                 offer at a reasonable price from only one                aside intention or advise the Bureau by               negotiate profit or fee in accordance
                                                 such responsible economic enterprise                     the established deadline of its intent to             with the procedures in FAR Subpart
                                                 (see FAR 19.502–2 (48 CFR 19.502–2)),                    contract, the Bureau will proceed with                15.4 and DIAR Subpart 1415.9, and
                                                 the CO must make an award to that                        the solicitation in accordance with FAR               prepare a negotiation memorandum in
                                                 enterprise.                                              5.2 (48 CFR 5.2).                                     accordance with FAR 15.406–3 (48 CFR
                                                    (d) Commercial item or simplified                       (2) If the tribe advises the Bureau by              15.406–3) and DIAR 1415.808.
                                                 acquisitions under this section must                     the established deadline of its intent to                (8) When acquiring architect-engineer
                                                 conform to the competition and price                     contract, it must adequately justify a                services, solicit proposals and evaluate
                                                 reasonableness documentation                             deviation for work on or near its own                 potential contractors in accordance with
                                                 requirements of FAR 12.209 (48 CFR                       Indian land through a tribal resolution               FAR Part 36 (48 CFR part 36) and DIAR
                                                 12.209) for commercial item                              in accordance with Public Law 93–638.                 Subpart 1436.6.

                                                 acquisitions and FAR 13.106 (48 CFR                        (c) When using an IEE set-aside in                     (d) This paragraph applies to
                                                 13.106) for simplified acquisitions.                     accordance with this section, the CO                  solicitations that are not restricted to
                                                    (e) Clauses and Provisions.                           must do the following:                                participation of IEEs.
                                                    (1) Insert the provision at 1452.280–                   (1) Synopsize the acquisition in the                   (1) If an interested IEE is identified
                                                 4, INDIAN ECONOMIC ENTERPRISE                            Governmentwide point of entry (GPE) as                after a market survey has been
                                                 REPRESENTATION, in each solicitation                     required by FAR Subpart 5.2 (48 CFR                   performed and a solicitation has been
                                                 of offers or requests for quotations that                subpart 5.2), and identify it as an IEE               issued, but before the date established
                                                 is set aside for IEEs.                                   set-aside.                                            for receipt of offers, the contracting

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                                                 43794                    Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules

                                                 office must provide a copy of the                        are required for a proposed contract, or                (a) Qualification as an IEE as defined
                                                 solicitation to this enterprise. In this                 for an out of scope modification to an                in 1480.201;
                                                 case, the CO:                                            existing contract.                                      (b) Maintenance of the subcontracting
                                                    (i) Will not give preference under the                                                                      limitations required by the clause at
                                                 Buy Indian Act to the IEE, and                           1480.505    Debarment and suspension.                 1452.280–3 when acquiring services,
                                                    (ii) May extend the date for receipt of                 Violation of the regulations in this                supplies, and on-reservation
                                                 offers when practical.                                   part by an offeror or an awardee may be               construction; and
                                                    (2) If more than one IEE comes                        cause for debarment or suspension in                    (c) Enforcement of Indian preference
                                                 forward subsequent to the solicitation,                  accordance with FAR 9.406 and 9.407                   requirements contained in DIAR
                                                 but prior to the date established for                    (48 CFR 9.406 and 9.407). The Bureau                  1426.7004, as prescribed by 1480.601.
                                                 receipt of offers, the CO may cancel the                 must refer recommendations for
                                                 solicitation and re-compete it as an IEE                 debarment or suspension to the                        Subpart 1480.8—Representations by
                                                 set-aside.                                               Director, Office of Acquisition and                   an Indian Economic Enterprise Offeror
                                                    (e) When only one offer is received                   Property Management (PAM),
                                                                                                                                                                1480.801     General.
                                                 from a responsible IEE at a reasonable                   Department of the Interior, in
                                                                                                          accordance with DIAR 1409.406 and                        (a) The CO must insert the provision
                                                 and fair market price in response to an                                                                        at 1452.280–4, INDIAN ECONOMIC
                                                 acquisition set-aside under paragraph                    1409.407 through the Division of
                                                                                                          Acquisition and Property Management                   ENTERPRISE REPRESENTATION, in all
                                                 (a) of this subsection, the CO must:                                                                           solicitations regardless of dollar value
                                                    (1) Make an award to that enterprise;                 (central office) and concurred by the
                                                                                                          HCA.                                                  that are set aside for IEEs in accordance
                                                    (2) Document the reason only one
                                                                                                                                                                with this part.
                                                 offer was considered; and                                                                                         (b) To be considered for an award
                                                    (3) Initiate action to increase                       Subpart 1480.6—Contract
                                                                                                          Requirements                                          under 1480.503 or 1480.504–1, an
                                                 competition in future solicitations.                                                                           offeror must:
                                                    (f) Provisions and Clauses.                           1480.601    Subcontracting limitations.                  (1) Represent that it meets the
                                                    (1) Insert the provision at 1452.280–                                                                       definition of ‘‘Indian economic
                                                                                                             (a) In contracts awarded under the
                                                 4, INDIAN ECONOMIC ENTERPRISE                                                                                  enterprise’’ in response to a specific
                                                                                                          Buy Indian Act and this part, the
                                                 REPRESENTATION, in accordance with                                                                             solicitation set-aside in accordance with
                                                                                                          contractor must agree to perform the
                                                 1480.801(a).                                                                                                   the Act and this part.
                                                                                                          contract in accordance with FAR
                                                    (2) Insert the clause at DIAR                                                                                  (c) The enterprise must meet the
                                                                                                          52.219–14 (48 CFR 52.219–14),
                                                 1452.226–70, Indian Preference, in                                                                             definition of ‘‘Indian economic
                                                                                                          Limitations on Subcontracting.
                                                 accordance with DIAR 1426.7003(a);                                                                             enterprise’’:
                                                                                                             (b) The CO must also insert the clause
                                                    (3) Insert the clause at DIAR                                                                                  (1) At the time an offer is made in
                                                                                                          at 1452.280–3, SUBCONTRACTING
                                                 1452.226–71, Indian Preference                                                                                 response to a solicitation;
                                                                                                          LIMITATIONS, in all purchase orders
                                                 Program, in accordance with DIAR                                                                                  (2) At the time of contract award; and,
                                                                                                          and contracts for services, supplies, or
                                                 1426.7003(b);                                                                                                     (3) During the full term of the
                                                                                                          on-reservation construction and
                                                    (4) Insert the clause at 1452.280–2,                                                                        contract.
                                                                                                          awarded to IEEs pursuant to this part.
                                                 NOTICE OF INDIAN ECONOMIC                                                                                         (d) If, after award, a contractor no
                                                 ENTERPRISE SET-ASIDE, in accordance                      1480.602    Performance and payment                   longer meets the eligibility requirements
                                                 with 1480.504–1(b)(2).                                   bonds.                                                in paragraph (b) of this section, the
                                                    (5) Insert the clause at 1452.280–3,                    Solicitations requiring performance                 contractor must provide immediate,
                                                 SUBCONTRACTING LIMITATIONS, as                           and payment bonds must conform to                     written notification to the CO. The
                                                 prescribed in 1480.601(b);                               FAR Part 28 (48 CFR part 28) and                      notification must include:
                                                    (6) When applicable, Tribal                           authorize use of any of the types of                     (1) Full disclosure of circumstances
                                                 employment preference requirements                       security acceptable in accordance with                causing the contractor to lose eligibility
                                                 may be added to the requirements of the                  FAR Subpart 28.2 (48 CFR subpart 28.2)                status; and
                                                 clause in accordance with DIAR                           or section 11 of Public Law 98–449, the                  (2) A description of actions, if any,
                                                 1426.7005.                                               Indian Financing Act Amendment of                     that must be taken to regain eligibility.
                                                                                                          1984. The CO may accept alternative                      (e) Failure to provide immediate
                                                 1480.504–2 Other circumstances for use                                                                         written notification required by
                                                 of other than full and open competition.                 forms of security in lieu of performance
                                                                                                          and payment bonds according to FAR                    paragraph (d) of this section means that:
                                                   (a) Other circumstances may exist                                                                               (1) The economic enterprise may be
                                                                                                          28.102 (48 CFR 28.102) and 25 U.S.C.
                                                 where the use of an IEE set-aside in                                                                           declared ineligible for future contract
                                                                                                          47a, if a determination is made that
                                                 accordance with 1480.401(a) and FAR                                                                            awards under this part; and
                                                                                                          such forms of security provide the
                                                 6.302–5 (48 CFR 6.302–5) is not feasible.                                                                         (2) The Bureau may consider
                                                                                                          Government with adequate security for
                                                 In such situations, the requirements of                                                                        termination for default if it is
                                                                                                          performance and payment.
                                                 FAR Subpart 6.3 (48 CFR subpart 6.3)                                                                           determined to be in the best interest of
                                                 and DIAR Subpart 1406.3 apply in                         Subpart 1480.7—Contract                               the government.
                                                 justifying the use of the appropriate                    Administration                                           (f) The CO will accept an offeror’s
                                                 authority for other than full and open                                                                         representation in a specific bid or
                                                 competition.                                             1480.701 Contract administration                      proposal that it is an IEE unless another
                                                   (b) Except as provided in FAR 5.202                    requirements.                                         interested party challenges the IEE

                                                 (48 CFR 5.202), all proposed acquisition                   The CO and the CO’s representative                  representation or the CO has reason to
                                                 actions must first be publicized in                      (see DIAR 1401.670) must monitor                      question the representation. Challenges
                                                 accordance with the requirements of                      performance and progress to ensure                    of and questions concerning a specific
                                                 FAR 5.2 (48 CFR 5.2) and DIAR 1405.2.                    contractor compliance with Part 42 of                 representation declaration must be
                                                   (c) Justifications for use of other than               the FAR (48 CFR part 42) regarding all                referred to the CO or CCO in accordance
                                                 full and open competition in accordance                  contract requirements. The CO must                    with subpart 1480.9.
                                                 with this section must be approved in                    ensure contractor compliance with the                                                          ´ ´
                                                                                                                                                                   (g) Participation in the Mentor-Protege
                                                 accordance with 14–6. These approvals                    following provisions of this part:                    Program established under section 831

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                                                                          Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules                                              43795

                                                 of the National Defense Authorization                    any offeror in a specific offer by filing             information, the CO must determine the
                                                 Act for Fiscal Year 1991 (25 U.S.C. 47                   a formal objection with the CCO.                      representation declaration status of the
                                                 note) does not render an IEE ineligible                                                                        challenged offeror and notify the
                                                 for contracts awarded under the Buy                      1480.902    Receipt of protest.                       protestor and the challenged offeror of
                                                 Indian Act.                                                 (a) An interested party must file any              the decision by certified mail, return
                                                                                                          protests against the representation                   receipt requested, and make known the
                                                 1480.802    Representation provision.                    declaration of an offeror with the local              option to appeal the determination to
                                                   (a) Bureau contracting offices must                    CO.                                                   the PAM.
                                                 provide copies of the IEE representation                    (b) The protest must be in writing and               (g) If the declaration accompanying an
                                                 to any interested parties upon written                   must contain the basis for the protest                offer is challenged and subsequently
                                                 request.                                                 with accurate, complete, specific and                 upheld by the PAM, the written
                                                   (b) The submission of a Solicitation                   detailed evidence. The evidence must                  notification of this Bureau action must
                                                 Mailing List Application by an                           support the allegation that the offeror is            state the reason(s). The PAM may
                                                 enterprise does not remove the                           either ineligible or fails to meet both the           review the economic enterprise for
                                                 requirement for it to provide                            definitions of ‘‘Indian’’ and of ‘‘Indian             possible suspension or debarment
                                                 representation as an IEE also required                   economic enterprise’’ established in                  recommendations.
                                                 by this part if it wishes to be considered               1480.201. The CO will dismiss any
                                                 as an offeror for a specific solicitation.               protest that is deemed frivolous or that              1480.903     Award in the face of protest.
                                                 COs may determine the validity of the                    does not meet the conditions in this                    (a) Award of a contract in the face of
                                                 contents of the applicant’s                              section.                                              protest may be made on the basis of the
                                                 representation.                                             (c) To be considered timely, a protest             CO’s written determination that the
                                                   (c) Any false or misleading                            must be received by the CO not later                  challenged offeror’s representation
                                                 information submitted by an enterprise                   than 10 days after the basis of protest is            declaration is valid.
                                                 when submitting an offer in                              known or should have been known,                        (1) This determination is final for the
                                                 consideration for an award set aside                     whichever is earlier.                                 Bureau unless it is appealed to the
                                                 under the Buy Indian Act is a violation                     (1) A protest may be made orally if it             PAM, and the CO is notified of the
                                                 of the law punishable under 18 U.S.C.                    is confirmed in writing within the 10-                appeal before award.
                                                 1001. False claims submitted as part of                  day period after the basis of protest is                (2) If an award was made before the
                                                 contract performance are subject to the                  known or should have been known,                      time the CO received notice of appeal,
                                                 penalties enumerated in 31 U.S.C. 3729                   whichever is earlier.                                 the contract must be presumed to be
                                                 to 3731 and 18 U.S.C. 287.                                  (2) A protest may be made in writing               valid.
                                                                                                          if it is delivered by hand, telefax,                    (b) After receiving a protest involving
                                                 1480.803    Declaration process.                         telegram, or letter postmarked within                 an offeror being considered for award,
                                                    (a) Only IEEs may participate in                      the 10-day period after the basis of                  the CO must not award the contract
                                                 acquisitions set aside in accordance                     protest is known or should have been                  until the CO has determined the validity
                                                 with the Act and this part. Bureau                       known, whichever is earlier.                          of the representation, or 10 days have
                                                 procedure supports responsible IEEs                         (3) A CO’s objection is always                     expired since the CO received the
                                                 and seeks to prevent circumvention or                    considered timely, whether filed before               protest, whichever occurs first. Award
                                                 abuse of the Buy Indian Act.                             or after award.                                       must be made when the CO determines
                                                    (b) Eligibility is based on information                  (d) Upon receiving a timely protest,               in writing that an award must be made
                                                 furnished by the enterprise to a Bureau                  the CO must:                                          to protect the public interest, or the
                                                 CO on the IEE representation provision                      (1) Notify the protestor of the date it            supplies and services are urgently
                                                 at 1452.280–4 in response to a specific                  was received, and that the                            required, or a prompt award will
                                                 solicitation under the Buy Indian Act.                   representation declaration of the                     otherwise be advantageous to the
                                                    (c) The CO may ask the appropriate                    enterprise being challenged is under                  Government.
                                                 Regional Solicitor to review the                         consideration by the Bureau; and                        (c) If a timely protest on
                                                 enterprise’s representation.                                (2) Furnish to the economic enterprise             representation declaration is filed with
                                                    (d) The IEE representation does not                   (whose representation declaration is                  the CO and received before award in
                                                 relieve the CO of the obligation for                     being challenged) a request to provide                response to a specific offer and
                                                 determining contractor responsibility, as                detailed information on its eligibility by            solicitation, the CO must notify eligible
                                                 required by FAR Subpart 9.1.                             certified mail, return receipt requested.             offerors within one day that the award
                                                                                                             (e) Within 3 days after receiving a                will be withheld and a time extension
                                                 Subpart 1480.9—Protests of                               copy of the protest and the Bureau’s                  for acceptance is requested.
                                                 Representation Declaration                               request for detailed information, the                   (d) If a protest on representation
                                                                                                          challenged offeror must file with the CO              declaration is filed with the CO and
                                                 1480.901    General.                                     a completed statement answering the                   received after award in response to a
                                                   (a) The CO can accept an offeror’s                     allegations in the protest, and furnish               specific offer and solicitation, the CO
                                                 written representation declaration of                    evidence to support its position on                   need not suspend contract performance
                                                 being an IEE (as defined in 1480.201)                    representation. If the offeror does not               or terminate the awarded contract
                                                 only when it is submitted with an offer                  submit the required material within the               unless the CO believes that an award
                                                 in response to a solicitation under the                  3 days, or another period of time                     may be invalidated and a delay would

                                                 Buy Indian Act. Another interested                       granted by the CO, the Bureau may                     prejudice the Government’s interest.
                                                 party may challenge the representation                   assume that the offeror does not intend               However, if contract performance is to
                                                 declaration status of an offeror or                      to challenge the protest and the Bureau               be suspended, a mutual no cost
                                                 contractor by filing a written protest to                must not award to the challenged                      agreement will be sought.
                                                 the applicable CO in accordance with                     offeror.
                                                 the procedures in 1480.902.                                 (f) Within 10 days after receiving a               1480.904     Protest not timely.
                                                   (b) After receipt of offers, the CO may                protest, the challenged offeror’s                       If a CO receives an untimely filed
                                                 question the eligibility declaration of                  response and other pertinent                          protest of a representation declaration,

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                                                 43796                    Federal Register / Vol. 77, No. 144 / Thursday, July 26, 2012 / Proposed Rules

                                                 the CO must notify the protestor that the                enter FWS–R8–ES–2010–0097, which is                   and biological features essential to the
                                                 protest cannot be considered on the                      the docket number for this rulemaking.                conservation of the species should be
                                                 instant acquisition but will be                          Then, on the left side of the screen,                 included in the designation and why;
                                                 considered in any future actions.                        under the Document Type heading,                        (c) Special management
                                                 However, the CO may question at any                      click on the Proposed Rules link to                   considerations or protection that may be
                                                 time, before or after award, the                         locate this document and submit a                     needed for the physical and biological
                                                 representation declaration status of an                  comment.                                              features essential to the conservation of
                                                 IEE.                                                        (2) By hard copy: Submit by U.S. mail              the species in critical habitat areas we
                                                 [FR Doc. 2012–18189 Filed 7–25–12; 8:45 am]              or hand-delivery to: Public Comments                  are proposing, including managing for
                                                                                                          Processing, Attn: FWS–R8–ES–2011–                     the potential effects of climate change;
                                                 BILLING CODE 4310–02–P
                                                                                                          0097; Division of Policy and Directives               and
                                                                                                          Management; U.S. Fish and Wildlife                      (d) What areas not occupied at the
                                                 DEPARTMENT OF THE INTERIOR                               Service; 4401 N. Fairfax Drive, MS                    time of listing meet our criteria for being
                                                                                                          2042–PDM; Arlington, VA 22203.                        essential for the conservation of the
                                                 Fish and Wildlife Service                                   We request that you send comments                  species and, therefore, should be
                                                                                                          only by the methods described above.                  included in the designation and why.
                                                 50 CFR Part 17                                           We will post all comments on http://                    (3) Land use designations and current
                                                                                                 This generally                   or planned activities in the subject areas
                                                 [Docket No. FWS–R8–ES–2011–0097;                                                                               and their possible impacts on proposed
                                                 4500030114]                                              means that we will post any personal
                                                                                                          information you provide us (see the                   critical habitat.
                                                 RIN 1018–AX41                                            Public Comments section below for                       (4) Information on the projected and
                                                                                                          more information).                                    reasonably likely impacts of climate
                                                 Endangered and Threatened Wildlife                                                                             change on the Lost River sucker and
                                                 and Plants; Designation of Critical                      FOR FURTHER INFORMATION CONTACT:
                                                                                                                                                                shortnose sucker, the features essential
                                                 Habitat for the Lost River Sucker and                    Laurie R. Sada, Field Supervisor, U.S.                to their conservation, and the areas
                                                 Shortnose Sucker                                         Fish and Wildlife Service, Klamath Falls              proposed as critical habitat.
                                                                                                          Fish and Wildlife Office, 1936                          (5) Whether any specific areas we are
                                                 AGENCY:   Fish and Wildlife Service,                     California Avenue, Klamath Falls, OR                  proposing for critical habitat
                                                 Interior.                                                97601, by telephone (541–885–8481), or                designation should be considered for
                                                 ACTION: Proposed rule; reopening of                      by facsimile (541–885–7837). Persons                  exclusion under section 4(b)(2) of the
                                                 comment period.                                          who use a telecommunications device                   Act, and whether the benefits of
                                                                                                          for the deaf (TDD) may call the Federal               potentially excluding any specific area
                                                 SUMMARY:   We, the U.S. Fish and                         Information Relay Service (FIRS) at
                                                 Wildlife Service, announce the                                                                                 outweigh the benefits of including that
                                                                                                          800–877–8339.                                         area under section 4(b)(2) of the Act.
                                                 reopening of the public comment period                   SUPPLEMENTARY INFORMATION:                              (6) Any probable economic, national
                                                 on the December 7, 2011, proposed
                                                                                                          Public Comments                                       security, environmental, cultural, or
                                                 designation of critical habitat for the
                                                                                                                                                                other relevant impacts of designating as
                                                 Lost River sucker (Deltistes luxatus) and                   We will accept written comments and                critical habitat any area that may be
                                                 shortnose sucker (Chasmistes                             information during this reopened                      included in the final designation. In
                                                 brevirostris) under the Endangered                       comment period on our proposed                        particular, we seek information on any
                                                 Species Act of 1973, as amended (Act).                   designation of critical habitat for the               impacts on small entities, and the
                                                 We also announce the availability of a                   Lost River sucker and shortnose sucker                benefits of including or excluding areas
                                                 draft economic analysis (DEA) of the                     that was published in the Federal                     that exhibit these impacts.
                                                 proposed designation of critical habitat                 Register on December 7, 2011 (76 FR                     (7) Whether we could improve or
                                                 for Lost River sucker and shortnose                      76337), our DEA of the proposed                       modify our approach to designating
                                                 sucker and an amended required                           designation, and the amended required                 critical habitat in any way to provide for
                                                 determinations section of the proposal.                  determinations provided in this                       greater public participation and
                                                 DATES: We will consider all comments                     document. We will consider                            understanding, or to better
                                                 received or postmarked on or before                      information and recommendations from                  accommodate public concerns and
                                                 August 27, 2012. Comments submitted                      all interested parties. We are                        comments.
                                                 electronically using the Federal                         particularly interested in comments                     (8) The likelihood of adverse social
                                                 eRulemaking Portal (see ADDRESSES                        concerning:                                           reactions to the designation of critical
                                                 section, below) must be received by                         (1) The reasons why we should or                   habitat, as discussed in the draft
                                                 11:59 p.m. Eastern Time on the closing                   should not designate habitat as ‘‘critical            economic analysis, and how the
                                                 date.                                                    habitat’’ under section 4 of the Act (16              consequences of such reactions, if likely
                                                 ADDRESSES: Document availability: You                    U.S.C. 1531 et seq.), including whether               to occur, would relate to the
                                                 may obtain copies of the proposed rule                   there are threats to the species from                 conservation and regulatory benefits of
                                                 and the draft economic analysis on the                   human activity, the degree of which can               the proposed critical habitat
                                                 Internet at at                be expected to increase due to the                    designation.
                                                 Docket Number FWS–R8–ES–2011–                            designation, and whether that increase                  If you submitted comments or
                                                 0097, or by mail from the Klamath Falls                  in threat outweighs the benefit of                    information on the proposed rule (76 FR

                                                 Fish and Wildlife Office (see FOR                        designation such that the designation of              76337) during the initial comment
                                                 FURTHER INFORMATION CONTACT).                            critical habitat may not be prudent.                  period from December 7, 2011, to
                                                   Comment submission: You may                               (2) Specific information on:                       February 6, 2012, please do not
                                                 submit written comments by one of the                       (a) The amount and distribution of                 resubmit them. We have incorporated
                                                 following methods:                                       Lost River sucker and shortnose sucker                them into the public record, and we will
                                                   (1) Electronically: Go to the Federal                  habitat;                                              fully consider them in the preparation
                                                 eRulemaking Portal: http://                                 (b) What areas that were occupied at               of our final determination. Our final
                                        In the Search box,                  the time of listing and contain physical              determination concerning revised

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