Wednesday, April 14, 2010


Alert sent from NACA: The Department of Defense is moving quickly to develop rules implementing Section 811 of the National Defense Authorization Act of 2010 (Pub. L. No. 111-84). However, tribal consultations are necessary to evaluate any substantial direct effects of the procurement regulations that were not considered by Congress prior to enactment of Section 811.

We urge your tribe to sent a letter to OMB Director Orszag and Defense Secretary Gates urging them to engage in tribal consultations as required by Executive Order 13175 and cc your members of Congress. A draft letter is attached to this Legislative Alert. Tribal Consultation is a requirement for all agencies engaging in actions which may have tribal implications. Even if your tribe is not engaged in federal contracting, all agencies must be held accountable by tribes to engage in tribal consultation before taking an agency action. Please join us in urging the OMB, Department of Defense and Congress to comply with the Executive Order and Obama Presidential Memorandum signed November 5, 2009.

Section 811 of the Act requires all Federal agencies to provide written justification and approval for all sole-source awards above $20 million made pursuant to Section 8(a) of the Small Business Act. This new requirement changes long-standing small business statutory provisions, presently in 10 U.S.C. § 2304(f)(2), that exempt all 8(a) procurements from justification and approval requirements. Section 811 will have a direct impact on 8(a) firms owned by Tribes, Alaska Native Corporations, and Native Hawaiian organizations which are currently the only contractors in the 8(a) program eligible to receive sole-source contracts over $20 million. The revised justification and approval process that shall be applied government-wide will almost certainly create new regulatory burdens on these tribal-owned firms and could potentially discourage contracting officers from making sole-source awards to tribal-owned firms above this size as permitted under the Small Business Act. Because of these new regulations will be policies that have serious tribal implications, the agencies must consult with tribes before developing an interim or final regulation.

For more information, please contact Lael Echo-Hawk at or by phone at 202.756.2676.

Lael Echo-Hawk, Esq.
Legislative Director
Native American Contractors Association
1514 P St. N.W. Suite 2
Washington, DC 20005
P. (202) 758.2676 / C. (202) 536-8666