Piliero Mazza & Pargament, PLLC Vol. 5, Issue 10 November/December 2003
Addressing Tribal and Alaska Native Corporation
Legal and Business Issues
The articles shown here are excerpts -- if you'd like to subscribe to Tribal Advocate, please contact Susan Brock at (202) 857-1000 or at
A R T I C L E S
SMALL BUSINESS - SBA Issues Size Standards Final Rule for Facilities Support Services
ON THE HILL - Senator Campbell Introduces Legislationto Provide Expanded Self-Governance to Indian Tribes
GOVERNMENT CONTRACTING - DOD, GSA, NASA and SBA Issue Final Rules on Contract Bundling
EMPLOYMENT - Improperly Drafted Arbitration Provisions May Leave You in a Bind
GAMING - NIGC Proposes Rule Amending Fee Regulations
REGULATIONS - DOD Issues Interim Rule Regarding the Indian Incentive Program
SBA Issues Size Standards Final Rule for Facilities Support Services
The Small Business Administration has adopted a final rule that increases the size standard for the Facilities Support Services industry, North American Industry Classification System (NAICS) code 561210. Contracts awarded for facility support services and its subcategory, base maintenance, under this NAICS code include a broad array of services, such as administrative support, custodial services, facilities repair and maintenance, and technical services. These services often amount to $10 million a year or more in value.
The new rule will increase the current size standard for facilities support services from $6 million to $30 million in annual receipts. Additionally, the size standard for the subcategory of base maintenance will increase from its current level of $23 million to $30 million in annual receipts. These increases reflect SBA’s understanding that the current size standards do not adequately reflect the range of small businesses that should be eligible for federal small business assistance programs in the industry. The SBA believes that increasing the size standards more realistically reflects the needs of the market.
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ON THE HILL
Senator Campbell Introduces Legislationto Provide Expanded Self-Governance to Indian Tribes
On October 3, 2003, the Senate Indian Affairs Committee Chairman Ben Nighthorse Campbell, with co-sponsor Senator Daniel Inouye, introduced S. 1715, the Department of Interior Tribal Self-Governance Act of 2003. The legislation’s purpose is to strengthen the unique government-to-government relationship that exists between the Indian tribes and the United States.
In introducing the legislation, Senator Campbell noted that since the enactment of the Indian Self-Determination and Education Assistance Act of 1975, Congress has delegated to Indian tribes authority to manage federal programs within the Bureau of Indian Affairs (BIA). This bill would amend the Act and expand tribal self-governance for non-BIA federal programs within the Deparment of Interior (DOI), not just BIA, under a "Tribal Self-Governance Program."
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DOD, GSA, NASA and SBA Issue Final Rules on Contract Bundling
On October 20, 2003, the Civilian Agency Acquisition Council, the Defense Acquisition Regulation Council and the Small Business Administration issued final rules amending the Federal Acquisitions Regulations and SBA Regulations with regard to contract bundling. The final rule, which affects the Department of Defense, the General Services Administration, the National Aeronautics and Space Administration and the Small Business Administration, responds to the President’s Small Business Agenda which directed OMB to devise a strategy to unbundle contracts so more federal procurement dollars could be awarded to small businesses.
According to the Small Business Act, contract bundling is the practice of consolidating two or more procurement requirements for goods and services previously provided or performed under smaller separate contracts into a solicitation of offers for a single contract. Because of their size and complex requirements, these consolidated contracts are usually not suitable for performance by small businesses.
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Improperly Drafted Arbitration Provisions May Leave You in a Bind
Many companies are following the trend toward increasing use of alternative dispute resolution procedures, such as arbitration, to resolve contractual disputes. It is a common perception that arbitration provides for a quicker and less expensive resolution of disputes. Although the extent to which arbitration may be preferable to litigation may be debatable, those who choose to agree to arbitration in their contracts should be cautious in drafting those clauses.
Although arbitration can be an effective tool for achieving a prompt resolution of contractual disputes that involve money damages, a more problematic situation arises when one of the parties seeks equitable or injunctive relief. Arbitrators typically have authority to make whatever ruling is necessary to resolve a dispute including declaratory or equitable relief. However, in certain circumstances, a temporary restraining order or a preliminary injunction may be needed by one of the parties to a contract to avoid irreparable harm.
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NIGC Proposes Rule Amending Fee Regulations
The National Indian Gaming Commission proposes to amend its fee regulations so as to more easily adapt to statutory changes enacted by Congress. The Commission receives its funding through fees collected from the Indian gaming operations that it regulates. Under the current regulations, the Commission cannot exceed $8,000,000 in collected fees in any given fiscal year. Because of this monetary cap, each time Congress increases the maximum amount that the Commission can collect the governing regulation has to be amended. To prevent future revisions of this nature, the Commission proposes to revise the regulation, setting the maximum amount as "the statutory maximum imposed by Congress." Comments to this proposed rule are due on November 30, 2003.
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DOD Issues Interim Rule Regarding the Indian Incentive Program
The Department of Defense recently released an interim rule to the Defense Federal Acquisition Regulation Supplement (DFARS) to implement the Indian Incentive Program, at Section 8021 of the DOD Appropriations Act for 2003. Among other things, Section 8021 revises the criteria for providing incentive payments to contractors and subcontractors who subcontract work to Indian organizations and Indian-owned businesses.
The interim rule provides three significant changes to the DFARS Subpart 226.1 First, it requires that contracts and subcontracts awarded to Indian entities meet a $500,000 threshold before incentive payments may be paid. Second, it authorizes incentive payments for subcontracts awarded to Native Hawaiian small businesses. And third, the program now includes contracts and subcontracts awarded for commercial items. The interim rule also does away with the 50-day waiting period that had been required before awarding an incentive payment.
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