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First, we consider the argument that Chenega
is ineligible for award under a procurement conducted as a Buy
Indian Act set-aside. Citing a court case and decisions by our
Office under Buy Indian Act set-asides, NAID maintains that, in
order to be eligible for award under a Buy Indian Act set-aside,
a firm must have: (1) at least 51 percent American Indian
ownership; (2) American Indians involved in the daily management
of the firm; and (3) an American Indian recipient of the
majority of the firm’s accrued earnings. Protester’s Comments at
8 (citing Colorado Constr. Corp., B‑290960, Sept. 6, 2002, 2002
CPD para. 162 at 1, and other cases). NAID argues that neither
the individual who serves as president and chief executive
officer of Chenega, nor the individual who serves as the manager
of day-to-day operations, is an American Indian. Id. Therefore,
NAID contends that Chenega is not eligible for award. The BIA
and Chenega argue that the 3-part test cited by NAID is not
required by either the Buy Indian Act or the terms of the RFP.
Rather, the BIA emphasizes first that, regardless of whether
American Indians are involved in the firm’s management, Chenega
is a wholly-owned subsidiary of an Alaska Native Corporation
(ANC). See Chenega Revised Proposal at 3 (Cover Letter). As a
result, the BIA contends that it reasonably concluded Chenega is
an eligible offeror pursuant to the Buy Indian Act. In
considering the application of the Buy Indian Act, we have
recognized that the BIA is entitled to considerable deference in
determining the standards to apply, and the evaluation of
whether a particular firm meets those standards. Cheyenne, Inc.,
B-260328, June 2, 1995, 95-2 CPD para. 117 at 4. Unlike the
solicitations in the decisions cited by NAID, the RFP here
provided no specific criteria by which eligibility for the
set-aside would be determined. Nor does the statute itself
require the BIA to use particular criteria. Rather, the
operative language simply provides that “[s]o far as may be
practicable Indian labor shall be employed, and purchases of the
products . . . of Indian industry may be made in open market in
the discretion of the Secretary of the Interior.” 25 U.S.C.
sect. 47 (2000 & Supp. V 2005). While the protester correctly
points out that the BIA has used the 3-part test in
solicitations for services and supplies in the past, we believe
the general statutory scheme provides sufficient discretion for
the BIA to consider Chenega to be an eligible offeror under the
Buy Indian Act, simply because it is the wholly-owned subsidiary
of an Alaska Native Corporation. Accordingly, we deny this
ground of protest. (Native American
Industrial Distributors, Inc., B-310737.3; B-310737.4;
B-310737.5, April 15, 2008) (pdf) |
