§ 1480.403 - Deviations.

1480.403 Deviations.

There are certain instances where the application of the Buy Indian Act to an acquisition may not be appropriate. In these instances, the Contracting Officer must detail the reasons in writing and make a deviation determination.

(a) The following officials may authorize a deviation for an IA acquisition: Sole source acquisitions awarded to an ISBEE or IEE under 1480.401(c)(2) or (d)(2) do not require a deviation determination and comply with the requirements of the Buy Indian Act.

(b) Some acquisitions by their very nature would make such a written determination unnecessary. The following acquisitions do not require a written deviation from the requirements of the Buy Indian Act:

(1) Any sole source acquisition justified and approved in accordance with FAR 6.3 and DIAR 1406.3 constitutes an authorized deviation from the requirements of the Buy Indian Act.

(2) Any order or call placed against an indefinite delivery vehicle that already has an approved deviation from the requirements of the Buy Indian Act.

(c) Deviation determinations are required for all other acquisitions where the Buy Indian Act is applicable and must be approved as follows:

Table 1 to Paragraph (c)

For a proposed contract action

. . .

The following official may authorize a deviation

. . .

Up to $25,000	CO.
Exceeding $25,000 but not exceeding

$550

$700,000

The CCO

One level above the CO or Chief of the Contracting Office (CCO) (or the IA

Procurement Chief

Competition Advocate, absent a CCO).

Exceeding

$550

$700,000 but not exceeding

$11

$13.5 million	IA Competition Advocate.
Exceeding

$11

$13.5 million but not exceeding $57 million

The

head

Head of the

procuring activity,

Contracting Activity or a designee who is a civilian serving in a position in a grade above GS-15 under the General Schedule or in a comparable or higher position under another schedule.
Exceeding $57 million	Department of the Interior Senior Procurement Executive.

(

b

d) Deviations may be authorized prior to issuing the solicitation when

IA

the CO makes the following determinations and

the appropriate official

takes the following actions:

Acquisition type Basis for deviation Necessary actions In pursuit of a simplified or commercial item acquisition in accordance with FAR Parts 12 or 13 and DIAR 1413IA determines after a market survey

(1) The CO determines after market research that there is no reasonable expectation of obtaining offers that will be competitive in terms of market price, quality, and delivery from two or more responsible

ISBEEs (or at least from one such enterprise, if the purchase does not exceed the dollar threshold described in FAR 13.003)The official must: (1) Document the reasons for the deviation in the file; (2) Ascertain the availability of small business suppliers through market research; and (3) If appropriate, compete the purchase using an unrestricted small business set-aside as prescribed in FAR 19.502-2. In pursuit of all other acquisitionsIA determines that there is no reasonable expectation that offers will be received from two or more responsible IEEs at a reasonable and fair market priceThe official must: (1) Provide a written determination in the contract file stating there is no reasonable expectation of receiving offers from two or more responsible IEEs and that award cannot be made at a reasonable and fair market price; and (2) Proceed with the acquisition using the order of precedence established in FAR 8.001.

(c) Deviations may be authorized after issuing solicitations when IA makes the following determinations and the appropriate official takes the following actions:

Acquisition type Basis for deviation Necessary actions In pursuit of a simplified or commercial item acquisition in accordance with FAR Parts 12 or 13 and DIAR 1413Only one offer is received from a responsible ISBEE and the price is unreasonable or no offers are received from a responsible ISBEEThe official must: (1) Document the reasons for the deviation in the file; (2) Ascertain the availability of small business suppliers through market research; and (3) If appropriate, compete the purchase using an unrestricted small business set-aside as prescribed in FAR 19.502-2. In pursuit of all other acquisitionsThe Indian tribe justifies a deviation under 1480.504-1(b)(2)IA must proceed under PL 93-638. (1) All otherwise acceptable offers received from IEEs are unreasonable; (2) Only one offer is received from an IEE and the CO determines the price to be unreasonable; or (3) No responsive offers have been received from IEEs.The official must: (1) Cancel the solicitation; (2) Reject all offers in writing in accordance with FAR 14.404-3; and (3) Complete the acquisition by either: (i) Using negotiation, provided the CO has obtained the approval required by FAR 14.404-1; or (ii) If negotiation with the offerors responding to the canceled solicitation is not authorized, the CO must proceed with a new acquisition using the order of precedence in FAR 8.001.

(d) In response to a set-aside acquisition, when using competitive proposals, proposals may be rejected by a written determination by the CCO that a reasonable price cannot be negotiated.

ISBEE, IEEs, or direct negotiation with an IEE that is a certified 8a business.

(2) The deviation determination is authorized by the official listed at 1480.403(c) for the applicable contract action.

(e) If a deviation determination has been approved, the CO must follow the FAR and DIAR unless specified otherwise.

(f) Acquisitions made under an authorized deviation from the requirements of the Buy Indian Act must be made in conformance with the order of precedence required by FAR 8.002.