Buy Indian Act set-asides might increase following the Department of the Interior’s recent release of a Buy Indian Act National Policy Memorandum.
In the January 2016 Memorandum, the DOI establishes a policy of maximizing the use of the Buy Indian Act and increasing the number of Buy Indian Act set-asides. The Buy Indian Act Memorandum comes in the wake of a GAO Report issued last summer, which criticized the Bureau of Indian Affairs and the Indian Health Service for their implementation of the Buy Indian Act.
In its report, the GAO noted that it is unclear to what extent the Buy Indian Act takes precedence over other set-aside programs. The BIA told the GAO that its contracting officers are required to prioritize the Buy Indian Act, but “this policy is not currently documented.”
The Memorandum provides the missing documentation. It begins by stating that its purpose is to improve implementation of the Buy Indian Act, and “to ensure that the acquisition actions made to Indian Economic Enterprises are maximized to the fullest extent allowed by the Act.” The Memorandum then establishes the following policy:
All acquisitions, including simplified acquisitions, made by IA shall be made under the Buy Indian Act set-aside authority wherever use of that authority is authorized and practicable. Acquisitions include supplies, services, and covered construction (as defined in 48 CFR 1480.201).
Deviations from this policy “must be approved by an authorized official and documented in the contract file.” An “authorized official” depends on the value of the acquisition. The basis for the deviation must be “supported by verifiable evidence” such as market research.
The GAO report also criticized the BIA and IHS for failing to adequately track Buy Indian Act awards and protests of Indian-owned status. The Memorandum addresses these problems, too. It requires supervisory contracting officers to report quarterly on Buy Indian Act deviations, as well as “any challenges to authenticate [Indian Economic Enterprise] ownership.”
When GAO prepares a report on an agency’s shortcomings, the agency usually pledges to fix the problems–but doesn’t always follow through. It is good to see that the BIA is working to address the problems identified by the GAO and better improve implementation of the Buy Indian Act. Hopefully, the National Policy Memorandum will help increase the use of Buy Indian Act set-asides, and help the Buy Indian Act finally achieve its important policy goals.