“On January 13, 2022 the Secretary of the Department of Health and Human Services (HHS) issued its Final Rule governing the implementation of the Buy Indian Act (Act). This rule clarifies the preference for Indian-owned and controlled businesses and removes barriers by alleviating unnecessary regulatory burdens. If you’re a frequent visitor to our blogs, you may be thinking, ‘wait what, didn’t you just blog about this last November?’ Actually, the subject of the blog about the Buy Indian Act from November was the proposed rules governing the Buy Indian Act issued by the Department of Interior (DOI) covering procurements of the Bureau of Indian Affairs (BIA). HHS’s Final Rules issued on January 13th (Final Rule) supplement and amend regulations guiding implementation of the Buy Indian Act for procurements by the Indian Health Service (IHS)…”
“In 2020 Congress passed the Indian Community Economic Enhancement Act of 2020 (ICEE) that sought to expand contracting opportunities under the Buy Indian Act. ICEE amended the Buy Indian Act to expand the scope of the authority of the DOI and HHS to make acquisitions subject to the set-aside preferences under the Buy Indian Act. To apply this authority, ICEE directs the Secretaries of DOI and HHS to create regulations to implement the objectives of ICEE and to “harmonize the procurement procedures of the Department of the Interior and the Department of Health and Human Services, to the maximum extent practicable.”
Prior to ICEE, the Buy Indian Act provided very little detail as to how Indian set-aside procurements were to be conducted. The extent of the direction included in the Buy Indian Act is a provision which states to ‘[s]o far as may be practicable Indian labor shall be employed, and purchases of the products (including, but not limited to printing, notwithstanding any other law) of Indian industry may be made in open market in the discretion of the Secretary of the Interior.’ 25 U.S.C. § 47. The provision proved to be much more aspirational than directive…”
“Now we’re back where we started. The Final Rule is the IHS’s response to the ICEE directive from Congress. Since the IHS and BIA are the only two agencies authorized to utilize the Buy Indian Act, an overall objective of the Final Rule is to align IHS’ processes with those of the DOI. The goal being to ensure uniformity of the procurement process for offers submitted by Indian owned businesses under solicitations set-aside under the Buy Indian Act.
The Final Rule revises and supplements the FAR and the HHS Acquisition Regulation (HHSAR) and has ten main components:
- Alleviates unnecessary regulatory burden on Indian Economic Enterprises;
- Expands application of the Buy Indian Act to all construction including the planning, design and construction of health care facilities, personnel quarters, and water supply and waste disposal facilities;
- Conforms language of the Buy Indian Act in its acquisition policies and procedures to better align with the BIA to provide consistent implementation and transparency for Indian-owned and -controlled businesses…” Read the full article here.
Source: IHS Issues Final Rules Implementing the Buy Indian Act – By Kevin Wickliffe, February 1, 2022. SmallGovCon.
