Here is the opinion in Asset Protection & Security v. United States:
Download(PDF): Press Release
Principal Deputy Assistant Secretary – Indian Affairs Lawrence S. Roberts, who leads the Office of the Assistant Secretary – Indian Affairs, today announced the Department’s decision to place a 1.08-acre land parcel owned by the Craig Tribal Association, a federally recognized tribe headquartered in the City of Craig, Alaska, into federal Indian trust status. The decision is the first under the Department’s revised rule for taking tribal land into trust in Alaska.
Some participants in the federal 8(a) Business Development Program, including Alaska Native Corporations, Indian tribes, and Native Hawaiian Organizations, face no limit on the value of sole-source contracts they can receive. Concerns over the rising number of these contracts led to requirements for justification and approval of contracts above $20 million. This raised other concerns regarding the effects of the new requirements on Native American-owned firms and contracting personnel. The new federal requirement may delay the award of these contracts but have little impact on the number of such contracts awarded.
Here are materials in Alaska Oil and Gas Assn. v. Salazar (D. Alaska):
From the opinion:
Plaintiffs contend that the Service proceeded with an unprecedented critical habitat designation despite the Service’s finding that such designation “will not result in any present or anticipated future conservation benefit to the polar bear species ” and is not “ ‘essential’ to the conservation of the species.” Plaintiffs further opine that: (1) such designation will “have significant adverse ramifications for the people who live and work on the North Slope, for Alaska’s oil and gas industry, and for the State of Alaska”; (2) the designation will “leave the species worse off because it is impairing the cooperative relationship that the … [Service] has sought to build with the Alaska Natives”; (3) the Service’s failure to exclude “native-owned lands and rural communities” will “disproportionately harm Alaska Natives and other North Slope Borough residents”; (4) the Service failed “to engage in meaningful consultation with [the State of Alaska and with] Alaska Natives early in the rulemaking process”; (5) the Service’s inclusion of “a one-mile no disturbance zone as part of the barrier island habitat unit of the designation … exceeds its authority under the ESA”; (6) “[t]he Service failed to adequately consider and include in the calculation of the total economic impacts of the designation the substantial indirect incremental economic impacts”; (7) “[t]he Service failed to provide Alaska with an adequate written justification as required by the ESA … for promulgating a … designation that conflicts with the comments submitted to the” Service; (8) the Service failed to address the area exclusion requests by Alaska “and failed to adequately consider whether the benefits of excluding those areas were outweighed by the benefits of including them”; (9) “[t]he Service improperly included areas that it concedes were not occupied by polar bears at the time of the designation”; and (10) “[t]he Service improperly included areas as critical habitat without determining that those areas contained the physical or biological features essential to the conservation of the polar bear.” Plaintiffs seek the invalidation of the Final Rule and request that the Court vacate and remand the Rule.
Federal dollars obligated to tribal 8(a) firms grew from $2.1 billion in fiscal year 2005 to $5.5 billion in 2010, a greater percentage increase than non-tribal 8(a) obligations (160 percent versus 45 percent). Obligations to 8(a) firms owned by Alaska Native Corporations (ANC) represented the majority of tribal obligationsevery year during the period, rising to $4.7 billion in 2010. While tribal 8(a) firms comprised 6.2 percent of total 8(a) firms, their obligations accounted for almost a third of total 8(a) obligations in fiscal year 2010. Over the 6 years, the percentage of competitively awarded obligations to tribal 8(a) firms rose; however, solesource contracts remained the primary source of growth, representing at least 75 percent of all tribal 8(a) obligations in a given year.
Consistent with GAO’s 2006 review of ANC 8(a) contracting, contracting officials said that awarding contracts to tribal firms under the 8(a) program allows officials to award sole-source contracts for any value quickly, easily, and legally, and helps agencies meet their small business goals. However, the officials added that the program offices’ push for awarding follow-on contracts to the same firm also plays a role. GAO’s review of noncompetitive tribal 8(a) contracts shows the methods used to determine price reasonableness in a sole-source environment. In some cases, when agencies moved away from sole-source tribal 8(a) contracts toward competition, agency officials estimated savings as a result.
To ensure that 8(a) firms do not pass along the benefits of their contracts to their subcontractors, regulations limit the amount of work that can be performed by the subcontractors. Of the 87 contracts in GAO’s review, 71 had subcontractors. GAO found that required monitoring of limitations on subcontracting by procuring agencies was not routinely occurring. Similar to what GAO reported in 2006, some contracting officers do not understand that ensuring compliance is their responsibility under partnership agreements with SBA, and the regulations do not make this clear. Further, agency officials did not know how to monitor subcontracting limitations, particularly for indefinite-quantity contracts, as the data are not readily available. Not monitoring the limits on subcontracting can pose a major risk that an improper amount of work is being done by large firms.
In March 2011, SBA revised 8(a) regulations to clarify program rules, correct misinterpretations, and address program issues. Although a positive step, SBA will have difficulty enforcing new regulations pertaining to tribal 8(a) follow-on contracts and joint ventures given the information currently available. SBA told GAO it is currently in the process of developing the requirements for a new 8(a) tracking database. Further, the new regulations do not address some issues GAO has previously raised, such as ANC 8(a) firms under the same parent corporation generating a majority of revenue in the same line of business. SBA regulations do not allow a tribal organization to have more than one 8(a) subsidiary perform most of its work under the same primary business line. GAO also discusses practices that highlight how some tribal 8(a) firms operate, in effect, as large businesses because of their parent corporation’s backing and interconnectedness with sister subsidiaries. SBA has not reviewed these practices to determine whether they are congruent with the business development purpose of the 8(a) program.