Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian
Opportunity
U.S. Department of the Interior
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic Development
Division of Economic Development
Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic Development Division of Economic Development
Tribal Economic Development Principles at a Glance Series
The Buy Indian Opportunity
This is the tenth in a series of economic development primers produced by the Division of
Economic Development (DED), Office of Indian Energy and Economic Development (IEED), to
offer answers to fundamental questions about creating jobs and expanding economies in Native
communities.
If you would like to discuss in more detail ways to obtain capital, please contact the Division of
Economic Development at (202) 208-0740.
What is the Buy Indian Act?
The Buy Indian Act, 25 U.S.C. § 47 is a law that authorizes the Department of the Interior,
including the Bureau of Indian Affairs (BIA), the Bureau of Indian Education (BIE), and the
offices of the Assistant Secretary – Indian Affairs (AS-IA), to purchase supplies, services and
certain kinds of construction from qualified Native American vendors (“Indian economic
enterprises”). The Buy Indian Act is implemented by the Department of the Interior Acquisition
Regulation Supplement, Title 48 of the Code of Federal Regulations, Part 1480, which requires
Indian Affairs to use the Buy Indian Act authority to give preference to Indians whenever
authorized and practicable.
Federal preference for purchase of Native American goods and services started with the passage
of the Indian Appropriations Act of 1886 but was not incorporated into a permanent authorizing
statute until 1910.
It became generally accepted during the 1980s that all BIA and Indian Health Service (IHS)
procurement contracts should be awarded in accordance with the Buy Indian Act unless there is
an important reason not to do so.
What opportunities does the Buy Indian Act present for Native and tribal vendors?
The BIA considers all contract dollars to be set asides for Buy Indian Act vendors. The yearly
amounts of new contracts range from 20 to over 60 million dollars. Because the federal
government makes large purchases, Buy Indian procurement can be profitable for the contractors
selected to meet the government’s needs. Where a Native firm is the contractor, the revenues it
earns may enable it to expand operations and increase hiring in a Native community.
What kinds of purchases are covered under the Buy Indian Act?
The Buy Indian Act applies to all purchases made by BIA, BIE, and AS-IA. There is no dollar
minimum or micro-purchase threshold, however, only the contract set asides are being tracked.
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Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic Development Division of Economic Development
What kinds of construction purchases are covered under the Buy Indian Act?
Construction covered under the Buy Indian Act includes construction of roads on Indian-owned
land or on Indian reservations; roads that are primary access routes proposed by tribal
governments, including roads between villages, and roads to landfills, drinking water sources,
and natural resources identified for economic development; roads to airports, harbors, or boat
landings; bridges and sidewalks along these roads; and planning and other needs associated with
these kinds of roads.
Bonding requirements are usually required for construction procurement contracts. These
are particularly burdensome for tribally owned firms because they cannot pledge or put at
risk tribal assets. Does the Buy Indian Act impose bonding requirements?
25 U.S.C. § 47(a) of the Buy Indian Act offers Indian-owned firms that are awarded Buy Indian
construction contracts greater flexibility with respect to bonding requirements. This section,
added in 1988, provides that the Secretary of the Interior may permit an Indian firm to identify
security other than bonding when it is awarded a construction project pursuant to the Buy Indian
Act. This permits the Secretary to waive the bonding requirements of the Miller Act (40 U.S.C.
§§ 3131–3134), which mandate that a prime contractor provide a bond for any federal
construction project. Alternatives to bonding include posting letters of credit, certificates of
deposit, and guarantees from other entities that have stronger balance sheets.
Eligibility
What constitutes an “Indian economic enterprise” under the Buy Indian Act?
An Indian economic enterprise (IEE) means any business activity owned by one or more Indians
or Indian tribes that is established for the purpose of profit provided that: the combined Indian or
tribal ownership must constitute not less than 51 percent of the enterprise; the Indians or Indian
tribes must, together, receive at least a majority of the earnings from the contract; and the
management and daily business operations of an enterprise must be controlled by one or more
individuals who are members of an Indian Tribe. To ensure actual control over the enterprise, the
individuals must possess requisite management or technical capabilities directly related to the
primary industry in which the enterprise conducts business.
With respect to an IEE, what is meant by “Indian” and “Indian tribe”?
“Indian” means an enrolled member of a federally recognized tribe or “Native” as defined in the
Alaska Native Claims Settlement Act (43 U.S.C. 1601). “Indian tribe” means an Indian Tribe,
band, nation, or other group or community that is recognized as eligible for the special programs
and services provided the U.S. government because of their status as Indians. This includes any
Alaska Native village or regional or village corporation.
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Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic
Development
Division of Economic Development
How can I find out whether the tribe I am enrolled in is federally recognized?
A list of federally-recognized tribes is published annually in the Federal Register. Below is the
link to the Federal Register Internet site showing the 567 tribes listed in 2017 (Federal Register
/Vol. 82, No. 10 /Tuesday, January 17, 2017 /Notices):
https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2017-00912.pdf
Deviations from the Buy Indian Act
Are there circumstances under which BIA, BIE, and AS-IA purchasers are permitted to
deviate from the Buy Indian requirement?
Yes.
A purchaser may deviate from the Buy Indian Act requirement where the IEE’s offer is not
competitive in terms of price, quality, or delivery.
What must a BIA, BIE, or AS-IA purchaser do in order to deviate from the Buy Indian
policy with respect to a particular transaction?
With the exception of purchase card transactions, any request for deviation from the requirement
that a BIA, BIE, or AS-IA purchaser buy a product or service or pay for construction from an
IEE must be submitted for approval to an authorizing official on a memorandum form and
documented in the contract file. An authorizing official is not required to approve deviations
involving purchase card transactions. However, for these transactions, documentation must be
provided that identifies the rationale for deviating from the Buy Indian policy.
What must a BIA, BIE, or AS-IA purchaser prove in order to obtain approval to deviate
from Buy Indian policy?
The purchaser must conduct market research which shows that he or she cannot reasonably
expect to obtain offers from IEEs that will be competitive in terms of price, quality, and delivery.
Can a BIA, BIE, or AS-IA purchaser deviate from the Buy Indian Policy because the IEE
vendor’s price is too high?
Yes.
The vendor’s price must be reasonable and fair market.
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Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic
Development
Division of Economic Development
How to Find and Bid on Buy Indian Act Opportunities
Must I be certified to bid for a Buy Indian contract?
No.
There is no certification process under the Buy Indian Act regulations. Whenever a Native-
owned or tribally-owned firm responds to a procurement that is set aside under the Buy Indian
Act regulations, it self-certifies that it qualifies as an IEE.
Where can a Native or tribally owned business learn of Buy Indian opportunities?
Buy Indian opportunities are advertised in Federal Business Opportunities, which can be
accessed online at FedBizops.gov. This is a single-entry, government-wide website that identifies
federal procurement contract opportunities with a value of over $25,000. The site also shows
awarded contracts.
Some small businesses also subscribe to bid-matching services which provide leads on potential
procurement contract opportunities that match a company’s qualifications. These subscriptions
may often be obtained free through a local Procurement Technical Assistance Center (PTAC).
See below for more about PTACs.
How must a Native or tribally owned business prepare in order to compete for a Buy
Indian contract?
To compete for a Buy Indian contract, a Native or tribally owned firm must obtain various kinds
of certifications and identities including a DUNS number, CAGE Code, System for Award
Management registration, and NAICS codes. It should also have on hand, and continually
update, a capability statement.
What is a DUNS number?
DUNS stands for “data universal numbering system.” Dun & Bradstreet created this nine-digit
numbering system to establish a unique identity for a particular business. Once a firm obtains
this number, federal procurement officers and other interested parties can locate it in a database
which shows the name of the company, its address, telephone number, number of employees,
and kind of business.
What is a “CAGE Code”?
This is a unique five-character code that is assigned to suppliers of products and services used by
federal agencies which identifies a facility at a particular location. The first and last characters
are numerals and the remaining characters can be numerals or any letter except for I or O.
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Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic
Development
Division of Economic Development
What is the System for Award Management?
The System for Award Management (SAM) replaced the Central Contractor Registry and serves
as the federal government’s database for procurement purposes. The SAM is a valuable
marketing tool because it is the primary means for federal purchasers to find prospective vendors
and verify their identities and qualifications. To be a seller in the federal space, a Native firm
must register in the SAM (http://www.sam.gov/). Companies are required to update their SAM
profiles every 12 months. To learn more about preparing a profile for and registering on the
SAM, consult the “SAM User Guide”:
https://www.sam.gov/sam/transcript/System_for_Award_Management_v2.7.pdf
What are NAICS codes?
This is an abbreviation for the North American Industry Classification System. The federal
government uses this code to classify businesses based on what kind of products or services they
offer.
What is a capability statement?
This is a summary of a firm’s technical and business expertise and skills that details its
performance history and the specific projects it has undertaken, lists awards and other honors it
has earned, and provides the resumes of its key management personnel. Because a capability
statement is a resume for the firm, it should be regularly updated so that it can be furnished on
short notice to prospective federal and private sector buyers.
Where can a Native or tribally owned firm get help in applying for these certifications and
codes and preparing a capability statement?
You can consult a local or Native American Procurement Technical Assistance Center (PTAC).
PTACs have cooperative agreements with the U.S. Department of Defense to offer free services
to help potential clients who are interested in federal procurement opportunities.
How can a Native or tribally owned firm locate the nearest PTAC?
The link below provides addresses of all of the PTACs in the United States. Users of the web site
can use the map at the bottom of the site to click on the location nearest a tribal community and
the site will identify the Native American PTAC serving that area. A Native firm can also
consult its nearest local or state PTAC.
http://www.dla.mil/SmallBusiness/Pages/ptac.aspx
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Tribal Economic Development Principles-at-a-Glance Series
The Buy Indian Opportunity
Assistant Secretary-Indian Affairs
Office of Indian Energy and Economic
Development
Division of Economic Development
Challenges
What if a business responding to a Buy Indian procurement solicitation claims falsely that
it is an IEE?
Challenges to an IEE’s status may be raised by the contracting officer or other interested party.
The contracting office will render a decision on the challenge which may be appealed to the
Office of Acquisition and Property Management (PAM), Department of the Interior. Firms
submitting a false certification may be suspended or debarred from participating in future
procurements and may also be subject to the penalties enumerated in 31 U.S.C. §§ 3729 to 3731
and 18 U.S.C. § 287.
What can an IEE do if a BIA, BIE, or AS-IA contracting officer awards a contract to a
vendor the IEE believes is not Indian?
The IEE may file a challenge with the contracting officer. To be eligible to make such a
challenge, the IEE must show that it was or could have been a vendor in the transaction being
challenged and that the challenged award would have a direct economic impact on the IEE. The
IEE’s challenge must be in writing and must be accurate, complete, and timely. It must be
specific and contain detailed evidence that the vendor awarded the contract is not an IEE or is
not Indian. The challenge must be submitted to the contracting officer no more than ten days
from when the basis of the challenge was known or should have been known, whichever is
earlier. A challenge may be made orally if it is confirmed in writing within the ten-day period.
Will the challenged vendor have an opportunity to defend him/herself?
Yes.
Within three days after receiving a copy of the challenge, the challenged vendor must file with
the contracting officer a complete statement and supporting evidence in opposition to the
allegations contained in the written challenge. The contracting officer will then have ten days to
determine whether the challenge is credible and respond by certified mail to both the challenger
and the challenged vendor.
A challenged vendor may appeal this decision to the Office of Acquisition and Property
Management, U.S. Department of the Interior.
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