September 20, 2021

Volume XI, Number 263

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September 20, 2021

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New Administration’s Prioritization of Native Contracting Could Mean More Economic Development Opportunities for Native-Owned Businesses

The incoming Biden administration has signaled that it plans to prioritize Native economic development, which may continue the trend of increasing and streamlining opportunities for Native-owned businesses through regulation as well as high-level political support for legislative reform. On October 8, 2020, President-Elect Joe Biden released his plan for how his administration will work with Tribal Governments. While many of the elements of the plan are also part of Biden’s larger policy platforms, the Biden-Harris Plan for Tribal Nations contains several proposals that specifically encourage Native American economic development and efforts to invest in Native-owned small businesses.

Native-owned businesses—particularly those owned by Tribes, Alaska Native Corporations (ANCs), and Native Hawaiian Organizations (NHOs)—seeking to take advantage of economic opportunities presented by the new administration should take note of the following objectives of the Plan for Tribal Nations:

  • Provide Native-owned small businesses and other small businesses with an ambitious “restart package” to survive the current economic crisis caused by the COVID-19 pandemic.

  • Increase access to capital for Native-owned businesses by:

    • Creating a Small Business Opportunity Fund that leverages more than $150 billion in new capital and opportunities for Native businesses and other minority-owned small businesses. This fund is intended to spur more than $50 billion in additional public-private venture capital funds by dedicating funding to entrepreneurs who create jobs and growth in lower-income areas, including tribal areas, with an emphasis on reaching businesses owned by Native people and other people of color.

    • Tasking the Treasury Department with supporting Native community participation in the New Markets Tax Credit program and expanding access to $100 billion in low-interest business loans to small businesses, including those owned by Native entrepreneurs, by extending state, local, tribal, and nonprofit lending programs with $20 billion in new capital.

    • Capitalizing Community Development Financial Institutions (CDFIs) by providing increased resources to the Native American CDFI Assistance Program, which has proven to be a successful way to increase capital access across Indian Country.

  • Strengthen implementation of the Buy Indian Act within the Bureau of Indian Affairs (BIA) and Indian Health Service (IHS) to increase procurement opportunities for Nativeowned businesses (more below).

  • Increase funding for the Indian Community Development Block Grant to help fund tribal efforts to expand affordable housing, improve infrastructure, and increase economic opportunities for low-income individuals and communities.

The Plan for Tribal Nations also includes several elements geared towards expanding long-term technical assistance and federal contracting preferences for small disadvantaged businesses (SDBs), including those owned by Native Americans, such as tripling the federal goal for contracting with all SDBs from 5% to a minimum of 15% of all federal procurement dollars by 2025. More specific to Native participation in federal procurement, the Biden administration aims to:

  • Increase and enhance Native participation in federal procurement through formula-based awards; widespread outreach and counseling to small business owners, especially tribal business owners and business owners of color; and transparent, frequent monitoring of contract awards. The Biden administration plans to require prime contractors to develop and fully execute plans to increase subcontracting opportunities for SDBs, including those owned by Native Americans.

  • Improve the Small Business Administration’s (SBA) 8(a) Business Development Program. The Biden administration plans to increase the 8(a) Program’s administrative capacity, encourage greater participation among businesses owned by Native American entrepreneurs, Indian tribes, NHOs, and ANCs, and streamline the application process. Biden also plans to extend the maximum length of time that a firm may participate in the 8(a) Program and create a more supportive off-ramp to help program graduates transition out. The 8(a) Program will require public disclosure of program participant demographics to ensure participation is equitable.

In addition to the Plan for Tribal Nations, other developments benefitting Native-owned businesses are already in the works. On the regulatory side, for example, the SBA continues to streamline the regulations governing the 8(a) Program. On October 16, 2020, the SBA released its final rule consolidating its mentor-protégé programs and making other changes to small business government contracting regulations, including those governing the 8(a) Program, aimed at simplifying or eliminating regulations. Further, on November 10, 2020, the U.S. Department of Health and Human Services proposed new regulations to guide implementation of the Buy Indian Act, which provides the IHS with authority to set-aside procurement contracts for Indian-owned and controlled businesses. The proposed rule establishes acquisition policies and procedures for the IHS that are consistent with those adopted by the BIA, which is the only other federal agency where the Buy Indian Act is applicable. The IHS may use the Buy Indian Act to give preference to Indian Economic Enterprises through set-aside contract awards when acquiring supplies, services, and covered construction to meet IHS requirements.

Finally, the Conference Report for the 2021 National Defense Authorization Act contains, among other language of interest, a provision that would require the SBA to allow for a one-year extension for 8(a) Program participants who were admitted to the Program by September 9, 2020. If signed by President Trump, the SBA will be required to issue regulations to carry out this provision within 15 days.

Going into the 117th Congress, Tribes, ANCs, and NHOs will need to remain vigilant.

While the Native contracting community saw several significant issues arise in the current Congress aimed at improving Native contracting—including the increase in the cap on sole-source awards, efforts to improve the Department of Defense Indian Incentive Program funding mechanism, and the failed attempt to exempt the SBA from the requirements of Category Management—several proposals floated during the 116th Congress would have undermined Native contracting.

One proposal would have dramatically increased sole-source caps for individually-owned small businesses, which would have had significant impacts on the ability of entity-owned businesses (i.e., those businesses owned by tribes, ANCs, and NHOs) to compete for a significant pool of federal contracts. Another proposal would have enabled large venture capital firms to own and potentially control 8(a) firms and women-owned small businesses. Nevertheless, the new administration’s prioritization of Native contracting and procurement, combined with Congress’s interest in these issues in recent years, suggests that we will continue to see legislative activity aimed at boosting Native economic development in the new Congress.

© 2021 Van Ness Feldman LLPNational Law Review, Volume X, Number 352
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About this Author

Melinda L. Meade Meyers Associate Van Ness Feldman DC Endangered Species & Wildlife Litigation & Investigations Native Affairs Public Lands
Of Counsel

Melinda Meade Meyers’ practice focuses on federal regulatory law as it pertains to natural resources.  She represents Alaska Native corporations, concessioners, public lands user groups, zoos and aquariums, and others on regulatory compliance matters, corporate governance, and strategic business decisions related to permitting and government contracting.

Melinda’s expertise includes national park concessions, wildlife and animal law, federal small business contracting, and litigation.  She has experience advocating for clients before various courts and administrative agencies in...

202-298-1995
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