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380.502–2 shall be 100 percent during the shall be used as specified in 370.202(b). period covered by a Buy Indian con- All requirements set forth in Subpart tract unless a deviation from that 100 370.2 which are applicable to the inpercent requirement is approved on an stant Buy Indian acquisition shall be individual basis by the cognizant Area followed by the contracting officer, or Program Office Director of the In- e.g., sections 370.204 and 370.205. dian Health Service. Such a deviation, (e) Subcontracting. Not more than 50 which may be to not less than 51 per- percent of the work to be performed cent, must be accompanied by an ap under a prime contract awarded pursupropriate justification for the devi- ant to the Buy Indian Act shall be subation.

contracted to other than Indian firms. (b) Joint ventures. An Indian firm may For this purpose, work to be performed enter into a joint venture with other does not include the provision of mateentities for specific projects as long as rials, supplies, or equipment. the Indian firm is the managing part- (1) Wage rates. A determination of the ner. However, the joint venture must minimum wage rates by the Secretary be approved by the contracting officer of Labor as required by the Davisprior to the award of a contract under Bacon Act (40 U.S.C. 276a-5) shall be inthe Buy Indian Act.

cluded in all contracts awarded under (c) Bonds. In the case of contracts for the Buy Indian Act for over $2,000 for the construction, alteration, or repair construction, alteration, or repair, inof public buildings or pubic works, per- cluding painting and decorating, of formance and payment bonds are re- public buildings and public works, exquired by the Miller Act (40 U.S.C. cept contracts with Indian tribes or 270a) and Part 28 of the Federal Acqui- public nonprofit organizations serving sition Regulation (48 CFR Ch. 1). In the as governmental instrumentalities of case of contracts with Indian tribes or an Indian tribe. The wage rate deterpublic nonprofit organizations serving mination is to be included in contracts as governmental instrumentalities of with private business entities even if an Indian tribe, bonds are not required. they are owned by an Indian tribe or However, bonds are required when deal- members of an Indian tribe and in coning with private business entities nection with joint ventures with, or which are owned by an Indian tribe or subcontractors of, an Indian tribe or a members of an Indian tribe. Bonds may public nonprofit organization serving be required of private business entities as a governmental instrumentality of which are joint ventures with, or sub- an Indian tribe. contractors of, an Indian tribe or a public nonprofit organization serving

PHS 380.504 Competition. as a governmental instrumentality of (a) Contracts to be awarded under the an Indian tribe. A bid guarantee or bid Buy Indian Act shall be subject to combond is required only when a perform- petition among Indians or Indian conance or payment bond is required.

cerns to the maximum extent that (d) Indian preference in employment, competition is determined by the contraining and subcontracting. Contracts tracting officer to be practicable, purawarded under the Buy Indian Act are suant to FAR 14.101 and FAR 15.105. subject to the requirements of section When competition is determined not to 7(b) of the Indian Self-Determination be practicable, a Justification for Nonand Education Assistance Act (Pub. L. competitive Acquisition shall be pre93-638), which requires that preference pared in accordance with 315.7105 and be given to Indians in employment, subsequently retained in the contract training, and subcontracting. Subpart file. 370.2 and the contract clauses in (b) Notwithstanding the provisions of 352.270–2 and 352.270-3 represent the De- Subpart 315.71, a request for approval partment's implementation of section of noncompetitive acquisitions to be 7(b). The Indian Preference clause set negotiated under the Buy Indian Act forth in 352.270–2 shall be included in may, if $25,000 or less, be approved by all Buy Indian solicitations and result- the chief of the contracting office,or, if ant contracts. The Indian Preference over $25,000, by the cognizant Area or Program clause set forth in 352.2703 Program Office Director. Approval

shall be in the form of a Justification for Noncompetitive Acquisition.

(c) Solicitations must be synopsized and publicized in the Commerce Business Daily (see FAR 5.2 and Subpart 305.2) and copies of the synopses sent to the tribal office of the Indian tribal government directly concerned with the proposed acquisition as well as to Indian concerns and others having a legitimate interest. The synopsis should state that the acquisition is restricted to Indian firms under the Buy Indian Act.

PHS 380.505 Responsibility determina

tions. (a) A contract may be awarded under the Buy Indian Act only if it is first determined that the project or function to be contracted for is likely to be satisfactorily performed under such a contract and that the project or function is likely to be properly completed or maintained under that contract.

(b) The determination called for by paragraph (a), to be made prior to the award of a contract, will be made in writing by the contracting officer reflecting an analysis of the standards set forth in FAR 9.104-1, 309.104-1 of this Chapter and PHS 380.502–2.


(Parts 400 to 499)


Part 401 402 403

Page 225 231


Agriculture Acquisition Regulation System
Definitions of words and terms
Improper business practices and personal conflicts

of interest .......
Administrative matters

232 233


405 406 407 408 409 410

Publicizing contract actions
Competition requirements
Acquisition planning
Required sources of supplies and services
Contractor qualifications
Specifications, standards, and other purchase de-

Contract delivery or performance

236 236 236 237 237


411 412




414 415

Small purchase and other simplified purchase pro

Sealed bidding
Contracting by negotiation
Types of contracts
Special contracting methods

242 242 243 246 251


417 418



Small business and small disadvantaged business

Labor surplus area concerns

253 258

420 421

Part 422




Application of labor laws to government acquisi-
tions .....

Environment, conservation, and occupational safe-

Protection of privacy and freedom of information
Foreign acquisition

424 425 426

261 261 261




265 266

427 [Reserved]
428 Bonds and insurance
429 [Reserved]
430 Cost accounting standards
431 [Reserved]
432 Contract financing
433 Protests, disputes and appeals

434 Major system acquisition
435 Research and development contracting
436 Construction and architect-engineer contracts
437 Service contracting
438 [Reserved)
439 Management, acquisition, and use of information

resources 440-441 [Reserved]

268 270 270 273





442 Contract administration
443-444 [Reserved)
445 Government property
446 Quality assurance ....
447 Transportation
448 Value engineering
449 Termination of contracts
450 Extraordinary contractual actions
451 [Reserved]

276 277 278 279 279 280



452 453

Solicitation provisions and contract clauses

281 313

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