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 22 U.S.C. § 27:  Buy Indian Act

Comptroller General - Key Excerpts

First, we consider the argument that Chenega is ineligible for award under a procurement conducted as a Buy Indian Act set-aside. Citing a court case and decisions by our Office under Buy Indian Act set-asides, NAID maintains that, in order to be eligible for award under a Buy Indian Act set-aside, a firm must have: (1) at least 51 percent American Indian ownership; (2) American Indians involved in the daily management of the firm; and (3) an American Indian recipient of the majority of the firm’s accrued earnings. Protester’s Comments at 8 (citing Colorado Constr. Corp., B‑290960, Sept. 6, 2002, 2002 CPD para. 162 at 1, and other cases). NAID argues that neither the individual who serves as president and chief executive officer of Chenega, nor the individual who serves as the manager of day-to-day operations, is an American Indian. Id. Therefore, NAID contends that Chenega is not eligible for award. The BIA and Chenega argue that the 3-part test cited by NAID is not required by either the Buy Indian Act or the terms of the RFP. Rather, the BIA emphasizes first that, regardless of whether American Indians are involved in the firm’s management, Chenega is a wholly-owned subsidiary of an Alaska Native Corporation (ANC). See Chenega Revised Proposal at 3 (Cover Letter). As a result, the BIA contends that it reasonably concluded Chenega is an eligible offeror pursuant to the Buy Indian Act. In considering the application of the Buy Indian Act, we have recognized that the BIA is entitled to considerable deference in determining the standards to apply, and the evaluation of whether a particular firm meets those standards. Cheyenne, Inc., B-260328, June 2, 1995, 95-2 CPD para. 117 at 4. Unlike the solicitations in the decisions cited by NAID, the RFP here provided no specific criteria by which eligibility for the set-aside would be determined. Nor does the statute itself require the BIA to use particular criteria. Rather, the operative language simply provides that “[s]o far as may be practicable Indian labor shall be employed, and purchases of the products . . . of Indian industry may be made in open market in the discretion of the Secretary of the Interior.” 25 U.S.C. sect. 47 (2000 & Supp. V 2005). While the protester correctly points out that the BIA has used the 3-part test in solicitations for services and supplies in the past, we believe the general statutory scheme provides sufficient discretion for the BIA to consider Chenega to be an eligible offeror under the Buy Indian Act, simply because it is the wholly-owned subsidiary of an Alaska Native Corporation. Accordingly, we deny this ground of protest. (Native American Industrial Distributors, Inc., B-310737.3; B-310737.4; B-310737.5, April 15, 2008) (pdf)

Comptroller General - Listing of Decisions

For the Government For the Protester
Native American Industrial Distributors, Inc., B-310737.3; B-310737.4; B-310737.5, April 15, 2008 (pdf)  
Colorado Construction Corporation, B-290960, September 6, 2002  (pdf)  (Eligibility)   


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