The Indian Preference clause set forth in 352.270-2 and the Indian Preference Program clause set forth in 352.270-3 implement section 7(b) of Public Law 93-638 for all HHS activities. Contracting activities shall use the clauses as follows, except that solicitations issued and contracts awarded pursuant to Title I of Public Law 93-638 (25 U.S.C. 450 et seq. ) are exempted:
(a) The Contracting Officer shall insert the clause in 352.270-2, Indian Preference, in solicitations, contracts, and orders when-
(1) The award is (or will be) made pursuant to an act specifically authorizing such awards with Indian organizations; or
(2) The work to be performed is specifically for the benefit of Indians and is in addition to any incidental benefits which might otherwise accrue to the general public.
(b) The Contracting Officer shall insert the clause in 352.270-3, Indian Preference Program, in solicitations, contracts, and orders when-
(1) The dollar amount of the acquisition is expected to equal or exceed $50,000 for nonconstruction work or $100,000 for construction work;
(2) The Indian Preference clause is included in the solicitation, contract, or order; and
(3) The Contracting Officer makes the determination, prior to solicitation, that performance will take place in whole or in substantial part on or near an Indian reservation(s). In addition, the Contracting Officer may insert the Indian Preference Program clause in solicitations, contracts, and orders below the $50,000 or $100,000 level for nonconstruction or construction contracts, respectively, but which meet the requirements of paragraphs (b)(2) and (3) of this section 370.202, and, in the opinion of the Contracting Officer, offer substantial opportunities for Indian employment, training, and subcontracting.
