Piliero Mazza & Pargament, PLLC Vol. 3, Issue 6 June 2001
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A R T I C L E S
SMALL BUSINESS FUTA Amendments Elevate Tribes to Governmental Status
GOVERNMENT CONTRACTING Contracting Opportunities Under the General Services Administration's Schedule Program
GOVERNMENT McCaleb's Nomination Brings Mixed Reaction
Alaska SBA and Piliero, Mazza & Pargament Present 8(a) Seminar
On May 8, 2001, the Small Business Administration ("SBA"), in conjunction with Piliero, Mazza & Pargament, held a one-day training seminar for all the 8(a) firms in Alaska. Pamela Mazza and Antonio Franco presented the seminar, which was entitled "Teaming Arrangements in 2001 and Business Development Programs for Small Business." Over 150 firms attended, including Alaska Native Corporations ("ANCs") and a number of representatives from different federal agencies.
The seminar began with a discussion on trends in government contracting and the importance of teaming arrangements for small business in today=s contracting environment. The seminar then focused on potential pitfalls in forming teaming relationships. The importance of clearly written teaming and confidentiality agreements was discussed as well as the different types of teaming arrangements that may be developed. Attendees were advised of the need to avoid "affiliation" under the SBA's "ostensible contractor rule." Under this rule, a prime contractor and subcontractor will be considered "affiliates" of each other if the prime contractor is "unusually reliant" on the subcontractor for contract performance. More often than not, such affiliation results in disqualification of the team for the small business or 8(a) contract. The seminar discussed in detail the body of SBA case law setting forth the various factors that are considered in determining whether companies are affiliated.
Contracting Opportunities Under the General Services Administration's Schedule Program
From time to time the Tribal Advocate has reported on government contracting opportunities that may be available to tribes and Alaska Native Corporations ("ANC"). These opportunities include, for example, programs such as the Small Business Administration's (SBA) Section 8(a) program; the Department of Defense Indian Incentive Program; various mentor- protégé programs; and A-76 outsourcing opportunities.
This article addresses contracting opportunities offered by the General Services Administration's ("GSA") Schedule Program. GSA schedules are quickly becoming one of the most popular means by which agencies fill their requirements for goods and services. The schedules can be an important marketing tool for any firm.
The GSA administers the Federal Supply Schedule program. This program includes numerous schedules offering federal agencies a wide variety of goods and services that are normally available on a commercial basis. GSA negotiates prices and enters into contracts with firms that want to sell goods or services listed on the schedules. Once a contractor obtains a contract from GSA and is placed on a schedule, the agencies place orders directly with the contractor.
Delay in Land Acquisition Regulations May Lead to Greater State and Local Control over Trust Decisions
On April 16, 2001, the Bureau of Indian Affairs ("BIA") extended the effective date of the Land Acquisition Regulations for a third time. This time, the BIA has also asked for comments on whether the final rule, published on January 16, 2001, should be amended. Sources close to the Tribal Advocate have indicated that the extension and request for further comments may have been prompted by a desire to amend the regulations to provide state and local governments with a more active role in the trust acquisition process. Specifically, it has been rumored that state and local governments are lobbying for a provision that would require their consent for the approval of any trust application. Such a provision would essentially provide these governments with veto authority over BIA's trust decisions, and could strike a serious blow to future trust acquisitions for tribes.
Additionally, it appears that the BIA is considering changing the retroactivity provisions in the final rule to make the new regulations applicable to all pending trust applications, regardless of whether the application is complete. As currently stated in the final rule, trust applications that are "complete" by the effective date of the rule will remain subject to the land acquisition regulations in effect at the time the applications were originally filed. (See February 2001 issue of the Tribal Advocate for in depth review of final rule.) If the new regulations are applied to all pending trust applications, tribes would be forced to submit the additional information required under the new rule. This could cause tribes to incur additional expenses and would likely result in substantial delays in applications that may have already been pending for several years.
Supreme Court Issues Decision in Potawatomi Case
On April 30, 2001, the United States Supreme Court issued its decision in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma. As reported in the April 2001 issue of the Tribal Advocate, the Court heard arguments in this case on March 19, 2001. The issue was whether the Tribe waived its immunity from suit in state court when it expressly agreed to arbitrate contract-related disputes with C & L, pursuant to Oklahoma law, and to the enforcement of any arbitration award in a court having jurisdiction.
The Tribe entered into a contract with C & L to construct a roof on a building located on non-reservation land owned by the Tribe. Prior to the commencement of the construction, the Tribe decided to change the roof specifications and was unable to reach a new price agreement with C & L. In light of this dispute, the Tribe contracted with another company to construct the roof. C & L then claimed breach of contract and submitted the dispute to arbitration pursuant to the original contract. Although the Tribe refused to formally participate in the arbitration proceedings, it notified the arbitrator that it had several substantive defenses to C & L's claim. The arbitrator found in favor of C & L and awarded $25,400 in damages. C & L then sought to enforce the award in the District Court for Oklahoma County. Rejecting the Tribe's sovereign immunity arguments, the court entered a judgment confirming the award which was affirmed by the Oklahoma Court of Civil Appeals.
McCaleb's Nomination Brings Mixed Reaction
On April 17, 2001, President Bush nominated Neal McCaleb to serve as the next assistant secretary for Indian Affairs at the Department of the Interior. Should his nomination be confirmed, Mr. McCaleb will head the Bureau of Indian Affairs ("BIA"). Mr. McCaleb, a member of the Chickasaw Tribe, currently serves as the Oklahoma Secretary of Transportation. Tribal response to Mr. McCaleb's appointment has generally been positive, although many have expressed surprise because little is known of his views on many Native American issues.
Although it appears that Mr. McCaleb has little or no experience at the tribal government level, he has served in numerous state and federal positions related to Native American interests. He began his career in public affairs as a member of the Oklahoma Indian Affairs Commission from 1967 to 1972. In 1972, he was appointed by President Nixon to the National Council on Indian Opportunity. Two years later, Mr. McCaleb was elected to the Oklahoma House of Representatives, where he served from 1974 to 1982. He unsuccessfully ran for Governor of Oklahoma in 1982. Mr. McCaleb has also served as the Oklahoma Secretary of Transportation from 1985 to 1990 and from 1995 to the present. Additionally, he has worked as an architect designing roads, buildings and architecture in the Southwest for over 40 years
Drilling Divides Alaska Native Communities
As President Bush attempts to gain congressional support for his plan to open up the Arctic National Wildlife Refuge ("ANWR") to oil and gas development, Alaska Native communities have had decidedly mixed reactions to the proposal. Support and opposition in Alaska is being developed on this issue, with both sides claiming majority support.
President Bush's proposal is supported by the Republican Alaska delegation. Both Senator Murkowski and Representative Young have introduced legislation opening the ANWR for drilling. However, revenue from the proposed ANWR drilling was not included in the budget resolution that recently passed the House and Senate, thus making it harder to ensure that ANWR legislation will pass this year. Additionally, Senator John Kerry (D-MA) has vowed to filibuster any independent legislation authorizing ANWR drilling.
Supreme Court Hears Arguments in Navajo Tax Case
On March 27, 2001, the United States Supreme Court heard arguments in a case that could affect the ability of tribes to impose taxes on non-tribally owned businesses located within reservation boundaries. The case, Atkinson Trading Company, Inc. v. Shirley, involved a hotel occupancy tax imposed by the Navajo Tribe. The suit was brought by the owners of a hotel located on non-Indian owned fee land within the boundaries of the Navajo=s reservation asking the Court to rule that the Tribe had no jurisdiction to impose the tax on the hotel's guests. Under the taxing scheme, hotels within the Tribe's reservation were to collect an 8% tax from their guests and remit it to the Tribe's tax commission.
The Supreme Court's decision in this case will settle a split among the circuit courts of appeal with regard to a tribe's right to impose taxes on non-Indians doing business within a tribe's reservation. Both the Tenth Circuit and Eighth Circuit Courts of Appeal have affirmed the Tribe's right to impose such taxes. However, the Ninth Circuit Court of Appeals has invalidated similar taxes, including one imposed by the Crow Tribe of Montana.
Pam Mazza Receives SBA Advocate Award
The Small Business Administration has selected Pam Mazza, senior partner of Piliero, Mazza & Pargament, as the Minority Small Business Advocate of the Year for the Washington metropolitan area. On May 23, 2001, Ms. Mazza was presented with the award at a special breakfast held for all local winners. This award is given to individuals who have demonstrated a commitment to support minority entrepreneurship through the provision of services and advice to small businesses in an effort to improve conditions in the minority small business community as a whole.
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