Title 48

SECTION 326.603

326.603 Requirements.

(a) Indian ownership. Indian ownership shall constitute at least 51 percent of an Indian firm during the period covered by a Buy Indian contract.

(b) Joint ventures. An Indian firm may enter into a joint venture with other entities for specific projects as long as the Indian firm is the managing partner. However, the contracting officer shall approve the joint venture prior to the award of a contract under the Buy Indian Act.

(c) Bonds. In the case of contracts for the construction, alteration, or repair of public buildings or public works, the Miller Act (40 U.S.C. 3131 et seq.) and Federal Acquisition Regulation (FAR) part 28 require performance and payment bonds. Bonds are not required in the case of contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe. However, bonds are required when dealing with private business entities owned by an Indian tribe or members of an Indian tribe. The contracting officer may require bonds of private business entities that are joint ventures with, or subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe. A bid guarantee or bid bond is required only when a performance or payment bond is required.

(d) Indian preference in employment, training and subcontracting. Contracts awarded under the Buy Indian Act are subject to the requirements of section 7(b) of the Indian Self-Determination and Education Assistance Act 25 U.S.C. 450e, which requires giving preference to Indians in employment, training, and subcontracting. The contracting officer shall include the Indian Preference clause specified at 326.505(a) in all Buy Indian solicitations and resultant contracts. The contracting officer shall use the Indian Preference Program clause specified at 326.505(b). The contracting officer shall follow all requirements specified in subpart 326.6 which apply to a Buy Indian acquisition (e.g., 326.604 and 326.605).

(e) Subcontracting. A contractor shall not subcontract more than 50 percent of the work under a prime contract awarded pursuant to the Buy Indian Act to non-Indian firms. For this purpose, contract work does not include the provision of materials, supplies, or equipment.

(f) Wage rates. The contracting officer shall include a determination of the minimum wage rates by the Secretary of Labor as required by the Davis-Bacon Act (40 U.S.C. 276a) in all contracts awarded under the Buy Indian Act for over $2,000 for construction, alteration, or repair, including painting and decorating, of public buildings and public works, except contracts with Indian tribes or public nonprofit organizations serving as governmental instrumentalities of an Indian tribe.

The contracting officer shall include the wage rate determination in contracts with private business entities, even when owned by an Indian tribe or a member of an Indian tribe and in connection with joint ventures with, or subcontractors of, an Indian tribe or a public nonprofit organization serving as a governmental instrumentality of an Indian tribe.

[80 FR 72151, Nov. 18, 2015, as amended at 85 FR 72911, Nov. 16, 2020]