Native American Government Contracting
By: Theodore P. Watson, Esq. Government Contact Lawyer and Consultant
Native American Government Contracts: Alaska Natives and Indian Tribes, and Native Hawaiian Organizations have a unique relationship with the United States Government as set forth by the U.S. Congress. These communities lack the infrastructure and economic development opportunities that would typical allow a standard community to grow and prosper. As such, Congress allowed special rules under the SBA 8(a) program. As a practical matter many Native American Tribes lack the knowledge and advice from government contract lawyers and federal consultants that understand the federal procurement process. Native American government contracts are subject to CFR 124.506 which states in pertinent part that:
b) Exemption from competitive thresholds for Participants owned by Indian tribes. SBA may award a sole source 8(a) contract to a Participant concern owned and controlled by an Indian tribe or an ANC Where the anticipated value of the procurement exceeds the applicable Competitive threshold if SBA has not accepted the requirement into the 8(a) BD program as a competitive procurement. There is no requirement that a procurement must be competed whenever possible before it can be accepted on a sole source basis for a tribally-owned or ANC-owned concern, but a procurement may not be removed from competition to award it to a tribally owned or ANC-owned concern on a sole source basis.
Tribal entities are allowed a unique relationship with the federal government. Due to the lack of resources, the tribal governments are allowed special rules in the SBA 8a program. Native American tribes are sometimes referred to as “super 8a firms.”
Some of the unique rules in tribal or native american government contracting include:
- They are exempt from the limits placed on sole source contracts; and
- They can own multiple companies that can join the 8(a) Program.
- The profits generated by these Native corporations provide economic benefits to tribal communities, sometimes numbering in the thousands.
- Profits generated by individually owned businesses benefit only that individual owner.
Other differences between the traditional 8(a) company and the Native American 8(a) firm
1) Native American 8a contractors are eligible for the large sole-source contracts, they can also select whomever they want to manage the 8(a), whereas individual owners must manage the 8(a) on their own. Native corporations must have Boards of Directors, which oversee the 8(a) management team as well as other issues, such as preservation of their culture and distribution of tribal owner benefits.
2) All 8(a)s, including Native corporations, are limited to 9 years in the program.
3) Native corporations can have multiple 8(a)s, but no two subsidiaries can be in the same primary industry code. The reason for this is that Native 8(a)s provide benefits to their tribal owners and community.
Agency Compliance
Although there are very unique rules governing tribal government contracts, contracting agencies fail to aggressively pursue the congressional intent to Native American contractors and to small businesses in general. There is still a question as to whether they are truly given preferential treatment allowed by federal statutes. Government contract lawyers are filing or defending bid protests for Native American bid awards. The amount of government contract awards to Native American tribes arguably shows a different result.
Many agencies and some SBA offices analyze awards to Native American contractors contrary to what the congress has provided for. For example, the obvious question of past performance is introduced by the agency. Thus, having very little past performance, the contracting officer often decides not to award contracts.
Although FAR 9.6 allows for teaming arrangements and joint ventures (which should reduce the government risk of non-performance, the Native American tribes still have yet to get their fair share of federal contracts. The law allows for the contracting officer to consider the past performance of the tribe’s teaming partners. However, most elect not to. The reason for given is that the federal procurement rules do not make it mandatory to do so.
The GAO has ruled many times that the contracting agency can consider a teaming partner or subcontractors past performance when awarding government contracts. Yet, the question remains why aren’t their more awards. Government contracts lawyers should pay special attention to this analysis. Although the agency has wide latitude and authority, such authority is still to congressional legislative intent.
Although the congress has set forth goals and mandates for government contract awards, the reality is that congress will not reap much taxes from small business due to a lack of small business government contract awards. Undoubtedly, this effects the economy.
Partnering ot teaming with Native American tribes can be beneficial to the few government contractors that have been given the opportunity to team with tribal communities. However, more scrutiny should be brought upon the agencies that consistently refuse to award government contracts according to CFR 124.506 (b) and FAR 9.6.
For more question or concerns regarding government contracts for Native American Tribes, contact one of our government contract attorneys at our firm or call (720) 941.7200 or toll free 186-601-5518.
Tags: 13 cfr 124, anc, federal procurement, government contract lawyers for 8a companies, lawyers, native american government contracting, native american government contracts, sba 8a program, super 8a, tribally owned
