January 27, 2016

Indian-Owned Businesses Should See More Procurement Contracts Under New Buy Indian Policy

Holland & Knight Alert
Philip Baker-Shenk | Kayla Gebeck Carroll


  • The U.S. Department of the Interior's Bureau of Indian Affairs (BIA) recently implemented a new policy expected to increase BIA procurement contracting with Indian-owned businesses.
  • The new policy responds to a 2015 U.S. Government Accountability Office (GAO) report criticizing BIA and Indian Health Service (IHS) mismanagement of procurement under the Buy Indian Act.
  • Indian-owned businesses interested in contracting with BIA or IHS should monitor the Federal Business Opportunities website (https://www.fbo.gov/) to identify opportunities for which there is a Buy Indian set-aside under this rule.

The U.S. Department of the Interior's Bureau of Indian Affairs (BIA) on Jan. 12, 2016, announced a new policy to improve the implementation of the Buy Indian Act of 1910 (Act). The policy, announced in a memorandum by Acting Deputy Assistant Secretary – Indian Affairs (Management) James Burckman, comes in response to a U.S. Government Accountability Office (GAO) report, released in July 2015, that criticized the federal government's enforcement of the Act.

The Buy Indian Act authorized certain federal procurement contracts to be set aside for preferential awards to Indian Economic Enterprises (IEEs) for all procurement contracts issued by the BIA, the Bureau of Indian Education (BIE), the office of the Interior Assistant Secretary – Indian Affairs (AS-IA) and the Indian Health Service (IHS). In 2013, regulations were issued that defined IEEs as those companies which are at least 51 percent Indian-owned.

While the BIA and IHS have obtained services and supplies from IEEs under the Act since 1965,the GAO found that Buy Indian procurements have comprised only a small percentage of BIA and IHS annual contract obligations, the result of limited knowledge and implementation of the set-aside in regional or area offices where contracts are often awarded.

New Policy Highlights

To address the concerns raised by the GAO, the BIA's new policy:

  • directs that all BIA, BIE, Office of the Special Trustee for American Indians (OST) and AS-IA acquisitions be subject to the Buy Indian Act policy whenever "authorized and practicable" – including acquisitions for supplies, administrative and custodial services, and some construction contracts
  • indicates when deviations from the policy may be authorized
  • requires quarterly reporting on Buy Indian Act acquisitions to better monitor deviations and challenges

It is expected that this policy will expand contracting opportunities for IEEs. Those interested in contracting should monitor the Federal Business Opportunities website to identify opportunities where there is a Buy Indian set-aside.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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