Contract
Capabilities
DoD
Buy Indian Program
Tribal 8(a) Program
Public Law 93-638
Privatization A-76
Health and Safety
Quality Assurance / Quality Control
DoD
BUY INDIAN PROGRAM
The
Buy Indian Act
The Indian
Incentive Program, which originates from the Buy Indian Act, provides
a unique opportunity for prime contractors to receive a 5% bonus payment
on work subcontracted to Ahtna subsidiaries.
The Indian
Incentive Program provides for the payment of 5% of the amount subcontracted
to an Indian organization for Indian-owned economic enterprise, when
authorized under the terms of the contract.
DoD contracts
with Contractors, regardless of size of the company, that contain the
FAR clause 52.226-1, Utilization of the Indian Organization and Indian-Owned
Economics Enterprises, are eligible for incentive payments under the
FY 1999 Program. These contracts require contractors to use their best
efforts to find Indian organizations and Indian-owned economic enterprises
the maximum practicable opportunity to participate in subcontracts awarded
to the fullest extent consistent with efficient performance of the contract(s).
Contracting
officers, subject to the terms and conditions of the contract, shall
authorize an incentive payment of 5% of the Indian organizations or
Indian-owned economic enterprises.
The FY
1999 Appropriations Act makes $8 Million of the amount appropriated
for accounts in Title III available for incentive payment to Prime Contractors.
Eligible
Recipients
Prime Contractors
(regardless of size) submit for incentive payments to DoD Contracting
Officers.
Contractor’s
request should contain:
•
Cite the use of FAR Clause 52.226-1 in DoD contract number
• Copies of pertinent pages of the subcontract
• Copies of contractor’s invoices
• Total payment of subcontract and calculation for 5% rebate
• Subcontractor’s status as an Indian-owned economic enterprise
DoD
Contracting Officers
- Review
and verify documents
received
- Forward
request and verification summary for incentive
payment to DoD SADBU Office
- Provide
point of contact of supporting
offices with an address, telephone
number, and
e-mail address
of the person who will receive
funding
- Provide
e-mail address and telephone
number of DoD
Contracting Officer
- Number
of DoD Contracting
Officer
- For
further information about the Indian Incentive Program,
contact the Office of Small and Disadvantaged Business Utilization
in Washington,
D.C. at: (202) 565-8124
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TRIBAL 8(a) PROGRAM
How
the program works
The 8(a)
program is intended to benefit the client as well as the contractor
through mechanisms that ensure quality performance. Prior to acceptance
into the program, the contractor is subjected to a rigorous review of
its ownership, daily management, operations, experience and financial
status. Only those contractors that can document disadvantaged business
status and demonstrate the viability of the organization are accepted
into the program. Once accepted, the contractor is required to provide
the SBA with a detailed business plan that must be updated annually.
Upon acceptance,
each contractor is assigned North American Industrial Code System based
on the personnel. Performance of the 8(a) contracts is then limited
to those NAICS codes. As a company gains experience and expertise, it
may request additional codes from the SBA based on documentation of
this experience.
Advantages
The Small
Business Administration’s 8(a) program is designed to benefit
the client as well as the contractor by assisting small disadvantaged
businesses and by providing:
- The
ability to pursue sole-source procurements.
- Limited-competition
opportunities in the government arena.
- The
client is ensured that bonding, insurance and other legal requirements
will be met.
Though
sole-source contracts, businesses are given an opportunity to enter
the government contracting arena and gain the experience necessary to
compete in the full and open market. Competitive bidding on limited
opportunities allows 8(a) contractors to gain valuable experience in
various market arenas.
As an Alaska
Native Corporation (ANC), Ahtna and its Subsidiaries are eligible to
receive sole-source contracts greater than $3 million dollars. Per 13
CFR 124.506(b), ANC’s are exempt from competitive threshold limitations.
The 8(a)
program offers many additional advantages to government project managers
as well. By allowing for sole source acquisition, even on major projects,
it streamlines the competitive acquisition process. It allows project
managers the discretion to define a scope of work and to hand pick the
contractor to perform the work.
Subcontracting
One
of the goals of the 8(a) program is to allow non-8(a) contractors to
expand their scope of services. Therefore, the 8(a) contractor is permitted,
with approval of the SBA, to subcontract a portion of this work to other
qualified firms.
While subcontracting
is restricted to maintain the integrity of the program as an opportunity
for disadvantaged businesses, subcontracting limits can be as high as
85%.
Contractors
develop valuable relationships, while the client benefits from a qualified,
experienced, well-rounded team.
Tribal
8(a) Status
- Ahtna
Construction & Primary Products Corporation
- Ahtna
Development Corporation
- Ahtna
Enterprises Corporation
- Ahtna
Government Services Corporation
- Ahtna
Technical Services, Inc.
- Wire-Communications
& Electrical, Inc.
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PUBLIC
LAW 93-638
Indian Self-Determination Contracting
Section
102 of the Amended Act directs the Secretary, upon the request of
any
Indian tribe by tribal resolution, to enter into a self-determination
contract with a tribal organization to plan, conduct and administer
programs or portions thereof, including construction programs. What’s
important to understand is that the relationship of “638” contracting
is Government-to-Government. Indian Self-Determination contracts are,
in general, not procurement contracts.
Once a
resolution and self-determination contract is presented, the Secretary
has 90 days in which to approve the proposed contract. A disapproval
must be made within 60 days and must be based on one or more of the
following findings:
- The
service of function to be contracted is unsatisfactory.
- There
is inadequate protection of trust resources.
- The
project or function cannot be completed or maintained as proposed
in the contract.
When the
Secretary declines to enter into a self-determination contract, the
Secretary must:
- Provide
written reasons for rejection;
- Provide
technical assistance to overcome the objections;
- Provide
a hearing on the record with appeal procedures according to the rules
to be
developed
later by the Secretary.
The following
Section 103 authorizes the Secretary to contract with or make grants
or cooperative agreements to Indian tribes upon request. The authorized
purposes for these contracts, grants and cooperative agreements include:
- Strengthening
or improving tribal government which includes planning, financial
management,
personnel management, development, construction, maintenance or preservation
of facilities.
- Planning,
training and evaluation activities to improve the capacity of a tribe
to contract and manage activities.
- Land acquisitions
in connection with the activities described above.
- This section
also includes a mandatory technical assistance requirement.
When a
technical assistance request is made, the Secretary must provide the
services on a “no cost” basis unless there are no Federal
appropriations. The Secretary is required to provide technical assistance
to:
- Develop
any new self-determination contract.
- Help a
tribe assume responsibility for any complete or partial program authorized
by Section 102(a)(1) of the amended Indian Self-Determination Act.
- Modify
a proposed self-determination contract previously rejected by the Secretary.
- Technical
assistance grants are also available to tribes who in turn seek assistance
from other tribal organizations operating mature “638” contracts.
The next
section of importance for our purpose is Section 105 of the Amended
Act. Section 105 specifically excludes all self-determination contracts
except construction contracts from the Office of Federal Procurement
Policy Act, and the Federal Acquisition Act. Because a construction
contract is still regarded as a procurement contract, the Federal Acquisition
Regulations apply, in part to these contracts.
To determine
the extent of the applicable regulations, the interim internal regulations
of BIA must be consulted. Section 271.51(b) of those regulations states
that the Commissioner of BIA may waive any Federal contracting laws,
executive orders, regulations, rules and other administrative requirements
which he determines are not appropriate for the purposes of the contract
involved or are inconsistent with the Act (see attached regulations).
Section
271.5(c) of the BIA regulations directs that the contracts will be negotiated
on a non-competitive basis without advertising when the contracts are
requested by a tribal governing body.
Conclusion
Public
Law 93-638 provides a contracting process by which an Indian Tribe or
Native Corporation can obtain government contracting opportunities without
the necessity of a competitive bid process. The result of the Amended
Act is to create a “partnering” relationship between the
agency and the Indian Tribe.
The United
States Congress, as well as the Courts have given the Act’s provisions
broad interpretation. This has enabled the agencies and tribes to identify
and engage in creative and innovative methods of expanding Native contracting
opportunities.
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PRIVATIZATION
A-76
Cost
Comparison
-
Any
Number of Positions
-
Government
competes against best value contractor proposal
VS.
Direct Conversion
-
10
or fewer appropriated-fund civilian employees
-
Government
does not compete
-
Requires
completion of Market Analysis
Native
Americans
Firms
with more than 51% Native American ownership are provided preferential
procurement rights through the establishment of laws and directives
especially for this purpose.
As stated
in the FY 1999 DOD Appropriations Acts (Public Law 105-262) and 10 USC
2461 (Sec 8014), the direct conversion of an Air Force commercial activity
with 11 or more civilian employees requires that the procurement be
awarded to a qualified preferential procurement source contractor certified
in the Small Business Administration (SBA) 8(a) business development
program.
Furthermore,
if the awarded procurement is over $3 million (including option years),
the 8(a) contractor must have tribal status as defined in CFR 124.00.
“A commercial activity of any size that is performed by federal
employees may be converted to a preferential performance, without cost
comparisons….if the contract is awarded to a preferential procurement
source at a fair market price. At the agencies discretion, a cost comparison
may be conducted.
The Air
Force revised its policy in May 1998, in recognition of the viability
of this alternative. The revised policy reads, “Regardless of
the number of civilians or military positions, a direct conversion may
be performed if negotiations indicated the conversion to a tribal 8(a)
will be cost effective (i.e., through comparison of current versus contract
operating cost).”
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HEALTH
AND SAFETY
The Ahtna
group is committed to a safe and productive work environment. Our Occupational
illness and injury rates are well below the current national average
despite extremely inclement weather and remote operations.
Our site
health and safety plans ensure hazards are identified and mitigated,
specific site safety reviews are conducted and daily safety and work
plans are held.
Our specialists
bring a total of over 200 years of regulatory compliance experience
in all facets of environmental engineering, construction and waste management
experience in both government and private sector arenas.
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QUALITY
ASSURANCE/QUALITY CONTROL
Ahtna has
implemented a Corporate (QA/QC) program designed to oversee every aspect
of project development from document preparation through construction.
The program
incorporates:
- Peer Review
- Testing
Methodology
- Data Review
- Routine
Calibration of Instruments
- Implementation
of a Three Phase Inspection Program
- Maintenance
Checks & Logs
Our success
is evidenced by Ahtna’s Award of Recognition from the U.S. Navy
for “excellent work habits and ethics” for hazardous and
solid waste removal and disposal project in Adak, Alaska.
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