Lewis, Oberly, Sloan & Associates, P.C.

B-266164 Jan 11, 1996 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest that the awardee does not satisfy Buy Indian Act set-aside eligibility requirements is denied where the Bureau of Indian Affairs reasonably found that the awardee corporation is owned and controlled by a certified Indian. Who will be responsible for the management and conduct of the awarded contract. The protester contends that Griffin is not an Indian economic enterprise as required by the RFP. The RFP was issued as a total set-aside for Indian-owned and controlled concerns pursuant to the Buy Indian Act. The RFP required that each offeror certify that it was an "eligible Indian economic enterprise.". The RFP defined "Indian" as "a person who is a member of an Indian tribe. Or community which is recognized by the U.S. View Decision Matter of: Lewis, Oberly, Sloan & Associates, P.C. File: B-266164 Date: January 11, 1996 Protest that the awardee does not satisfy Buy Indian Act set-aside eligibility requirements is denied where the Bureau of Indian Affairs reasonably found that the awardee corporation is owned and controlled by a certified Indian, who will be responsible for the management and conduct of the awarded contract. Attorneys DECISION Lewis, Oberly, Sloan & Associates protests the award of a contract to Dan D. Griffin, P.C., C.P.A., under request for proposals (RFP) No. 1450-K00-95-002, issued as a total set-aside for Indian-owned and controlled concerns by the Bureau of Indian Affairs (BIA), Department of the Interior, for the performance of compliance audits and internal control reviews for BIA's Office of Trust Funds Management. The protester contends that Griffin is not an Indian economic enterprise as required by the RFP. We deny the protest. The RFP was issued as a total set-aside for Indian-owned and controlled concerns pursuant to the Buy Indian Act, 25 U.S.C. Sec. 47 (1994). The RFP required that each offeror certify that it was an "eligible Indian economic enterprise." The RFP stated that the term "'[e]ligible' means that the majority owner of an Indian economic enterprise . . . meets both the definitions 'Indian' and of 'Indian economic enterprise'" as set forth in this portion of the RFP. The RFP defined "Indian" as "a person who is a member of an Indian tribe, as defined herein," and defined "Indian tribe" as "any Indian tribe, band, nation, rancheria, pueblo, colony, Alaska native village, or community which is recognized by the U.S. Government through the Secretary [of the Interior] as eligible for the special programs and services provided by the Secretary to Indians because of their status as Indians." The RFP defined "Indian Economic Enterprise" as a business entity which: (1) is at least 51 percent owned by one or more individuals qualifying as Indians; (2) has one or more of the Indian owners involved in the daily business management of the enterprise; and (3) has the majority of the enterprise's earnings accrue to such Indian persons. The agency received two offers, those of the protester and Griffin, by the RFP's closing date. In their offers, both the protester and Griffin certified that they were eligible Indian economic enterprises. The proposals were evaluated by a technical evaluation board (TEB), and the agency issued an amendment to the RFP, which, among other things, requested the submission of best and final offers (BAFO). After the BAFOs were evaluated, the TEB recommended that award be made to Griffin. The agency conducted a pre-award survey of Griffin at that firm's office, during which the agency asked Dan Griffin, the owner, a number of questions and requested the submission of certain documents bearing on the firm's eligibility as an Indian economic enterprise. The agency subsequently determined that Griffin was eligible for award, and awarded the firm a contract on September 1, 1995. The protester argues that the agency erred in determining that Griffin is an eligible Indian economic enterprise. Specifically, the protester argues that Mr. Griffin is not an "Indian," as that term is defined in the RFP, and that because Griffin, as provided in its proposal, will subcontract much of the work required by the contract to Arthur Andersen, L.L.P., Griffin will neither manage the contract nor receive the majority of the profit generated by the contract. The Buy Indian Act, 25 U.S.C. Sec. 47, provides that: "So far as may be practicable Indian labor shall be employed, and purchases of the products . . . of Indian industry may be made in the open market in the discretion of the Secretary of the Interior." The Secretary of the Interior, acting through the BIA, has broad discretionary authority to implement this statute; defining the criteria that a firm must meet to be eligible for award under a Buy Indian Act set-aside, and determining the quantum of evidence necessary to establish compliance with those criteria falls within that broad discretion. Tomahawk Constr.