[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Rules and Regulations]
[Pages 32482-32535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15793]
[[Page 32481]]
_______________________________________________________________________
Part II
Department of the Interior
Bureau of Indian Affairs
Department of Health and Human Services
Indian Health Service
_______________________________________________________________________
25 CFR Part 900
Indian Self-Determination and Education Assistance Act Amendments;
Final Rule
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules
and Regulations
[[Page 32482]]
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Indian Health Service
25 CFR Part 900
RINs 1076-AD21; 0905-AC98
Indian Self-Determination and Education Assistance Act Amendments
AGENCIES: Departments of the Interior and Health and Human Services.
ACTION: Final rule.
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SUMMARY: The Secretaries of the Department of Interior (DOI) and the
Department of Health and Human Services (DHHS) hereby issue a joint
rule to implement section 107 of the Indian Self-Determination Act, as
amended, including Title I, Pub. L. 103-413, the Indian Self-
Determination Contract Reform Act of 1994. This joint rule, as required
by section 107(a)(2)(A)(ii) of the Act, will permit the Departments to
award contracts and grants to Indian tribes without the unnecessary
burden or confusion associated with having two sets of rules for single
program legislation. In section 107(a)(1) of the Act Congress delegated
to the Departments limited legislative rulemaking authority in certain
specified subject matter areas, and the joint rule addresses only those
specific areas. As required by section 107(d) of the Act, the
Departments have developed this final rule with active tribal
participation, using the guidance of the Negotiated Rulemaking Act.
DATES: This rule will become effective on August 23, 1996.
FOR FURTHER INFORMATION CONTACT: James Thomas, Division of Self-
Determination Services, Bureau of Indian Affairs, Department of the
Interior, Room 4627, 1849 C Street N.W., Washington, DC 20240,
Telephone (202) 208-5727 or Merry Elrod, Division of Self-Determination
Services, Office of Tribal Activities, Indian Health Service, Room 6A-
19, 5600 Fishers Lane, Parklawn Building, Rockville, MD 20857,
Telephone (301) 443-6840/1104/1044.
SUPPLEMENTARY INFORMATION: The 1975 Indian Self-Determination and
Education Assistance Act, Pub. L. 93-638, gave Indian tribes the
authority to contract with the Federal government to operate programs
serving their tribal members and other eligible persons. The Act was
further amended by the Technical Assistance Act and other Acts, Pub. L.
98-250; Pub. L. 100-202; Interior Appropriations Act for Fiscal Year
1988, Pub. L. 100- 446; Indian Self-Determination and Education
Assistance Act Amendments of 1988, Pub. L. 100-472; Indian
Reorganization Act Amendments of 1988, Pub. L. 100-581; miscellaneous
Indian Law Amendments, Pub. L. 101-301; Pub. L. 101-512; Indian Self-
Determination and Education Assistance Act Amendments of 1990, Pub. L.
101-644; Pub. L. 102-184; Pub. L. 103-138; Indian Self- Determination
Act Amendments of 1994, Pub. L. 103-413; and Pub. L. 103-435. Of these,
the most significant were Pub. L. 100-472 (the 1988 Amendments) and
Pub. L. 103-413 (the 1994 Amendments).
The 1988 Amendments substantially revised the Act in order ``to
increase tribal participation in the management of Federal Indian
programs and to help ensure long-term financial stability for tribally-
run programs.'' Senate Report 100-274 at 2. The 1988 Amendments were
also ``intended to remove many of the administrative and practical
barriers that seem to persist under the Indian-Self-Determination
Act.'' Id. at 2. In fashioning the amendments, Congress directed that
the two Departments develop implementing regulations over a 10-month
period with the active participation of tribes and tribal
organizations. In this regard, Congress delegated to the Departments
broad legislative rulemaking authority.
Initially the two Departments worked closely with Indian tribes and
tribal organizations to develop new implementing regulations,
culminating in a joint compromise September 1990 draft regulation
reflecting substantial tribal input. Thereafter, however, the two
Departments continued work on the draft regulation without any further
tribal input. The revised proposed regulation was completed under the
previous administration, and the current administration published the
proposed regulation (1994 NPRM) for public comment on January 20, 1994,
at 59 FR 3166. In so doing, the current administration expressed its
concern over the absence of tribal participation in the regulation
drafting process in the years following August 1990, and invited tribes
to review the 1994 NPRM closely for possible revisions.
Tribal reaction to the January 1994 proposed regulation was
extremely critical. Tribes, tribal organizations, and national Indian
organizations criticized both the content of the 1994 NPRM and its
length, running over 80 pages in the Federal Register. To address
tribal concerns in revising the proposed regulations into final form,
the Departments committed to establish a Federal advisory committee
that would include at least 48 tribal representatives from throughout
the country, and be jointly funded by the two Departments.
In the meantime, Congress renewed its examination into the
regulation drafting process, and the extent to which events since the
1988 amendments, including the lengthy and controversial regulation
development process, justified revisiting the Act anew. This
Congressional review eventually led to the October 1994 amendments.
(Similar efforts by tribal representatives to secure amendments to the
Act in response to the developing regulations had been considered by
Congress in 1990 and 1992.)
The 1994 amendments comprehensively revisit almost every section of
the original Act, including amending the Act to override certain
provisions in the January 1994 NPRM. Most importantly for this new
NPRM, the 1994 amendments also remove Congress' prior delegation to the
Departments of general legislative rulemaking authority. Instead, the
Departments' authority is strictly limited to certain areas, a change
explained in the Senate report that accompanied the final version of
the bill:
Section 105 of the bill addresses the Secretaries' authority to
promulgate interpretative regulations in carrying out the mandates
of the Act. It amends section 107 (a) and (b) of the Act by limiting
the delegated authorization of the Secretaries to promulgate
regulations. This action is a direct result of the failure of the
Secretaries to respond promptly and appropriately to the
comprehensive amendments developed by this committee six years ago.
* * * * *
Section 105(l) amends section 107(a) by delegating to the
Secretary the authority only to promulgate implementing regulations
in certain limited subject matter areas. By and large these areas
correspond to the areas of concern identified by the Departments in
testimony and in discussions. Beyond the areas specified in
subsection (a) * * * no further delegated authority is conferred.
Sen. Rep. No. 103-374 at 14. For this reason, the new rule covers
substantially fewer topics than the January 1994 NPRM.
As specified by Congress, the new rule is limited to regulations
relating to chapter 171 of title 28 of the United States Code, commonly
known as the ``Federal Tort Claims Act;'' the Contract Disputes Act of
1978 (41 U.S.C. 601 et seq.); declination and waiver procedures; appeal
procedures; reassumption procedures; discretionary grant procedures for
grants awarded
[[Page 32483]]
under section 103 of the Act; property donation procedures arising
under section 105(f) of the Act; internal agency procedures relating to
the implementation of this Act; retrocession and tribal organization
relinquishment procedures; contract proposal contents; conflicts of
interest; construction; programmatic reports and data requirements;
procurement standards; property management standards; and financial
management standards. All but three of these permitted regulatory
topics--discretionary grant procedures, internal agency procedures, and
tribal organization relinquishment procedures--are addressed in this
rule.
The 1994 amendments also required that, if the Departments elected
to promulgate regulations, the Departments must use the notice and
comment procedures of the Administrative Procedure Act, and must
promulgate the regulations as a single set of regulations in title 25
of the Code of Federal Regulations. Section 107(a)(2). Finally, the
1994 amendments required that any regulations must be developed with
the direct participation of tribal representatives using as a guide the
Negotiated Rulemaking Act of 1990. This latter requirement is also
explained in the accompanying Senate Report:
To remain consistent with the original intent of the Act and to
ensure that the input received from the tribes and tribal
organizations in the regulation drafting process is not disregarded
as has previously been the case, section 107 also has been amended
by adding a new subsection (d), requiring the Secretaries to employ
the negotiated rulemaking process.
Sen. Rep. No. 103-374 at 14. As a result of the October 1994
amendments and earlier initiatives previously discussed, the
Departments chartered a negotiated rulemaking committee under the
Federal Advisory Committee Act. The committee's purpose was to develop
regulations that implement amendments to the Act.
The advisory committee had 63 members. Forty-eight of these members
represented Indian tribes--two tribal members from each BIA area and
two from each IHS area. Nine members were from the Department of the
Interior and six members were from the Department of Health and Human
Services. Additionally, four individuals from the Federal Mediation and
Conciliation Service served as facilitators. The committee was co-
chaired by four tribal representatives and two Federal representatives.
While the committee was much larger than those usually chartered under
the Negotiated Rulemaking Act, its larger size was justified due to the
diversity of tribal interests and programs available for contracting
under the Act.
In order to complete the regulations within the statutory
timeframe, the committee divided the areas subject to regulation among
six working groups. The workgroups made recommendations to the
committee on whether regulations in a particular area were desirable.
If the committee agreed that regulations were desirable, the workgroups
developed options for draft regulations. The workgroups presented their
options to the full committee, where the committee discussed them and
eventually developed the proposed regulations.
The first meeting of the committee was in April of 1995. At that
meeting, the committee established six workgroups, a meeting schedule,
and a protocol for deliberations. Between April and September of 1995,
the committee met five times to discuss draft regulations produced by
the workgroups. Each of these meetings generally lasted three days.
Additionally, the workgroups met several more times between April and
September to develop recommendations for the committee to consider.
The policy of the Departments was, whenever possible, to afford the
public an opportunity to participate in the rulemaking process. All of
the sessions of the committee were announced in the Federal Register
and were open to the public.
The Departments published draft regulations in a Notice of Proposed
Rulemaking in the Federal Register on January 24, 1996, at 61 FR 2038.
(1996 NPRM) In the 1996 NPRM, the Departments invited the public to
comment on the draft provisions. In addition, the Departments outlined
five areas in which the Committee had not yet reached consensus and
asked for public comments specifically addressing those topics.
Ultimately, the Departments received approximately 76 comments from
Indian tribes and tribal organizations, addressing virtually every
aspect of the proposed regulation. The full committee reconvened in
Denver between April 29, 1996 and May 3, 1996 to review the comments,
to evaluate changes suggested by the comments, and to approve final
regulatory language.
As a result of that meeting, the full committee was able to
transmit a report to the Secretaries which included consensus
regulatory language on all but four issues: internal agency procedures;
contract renewal proposals; conflicts of interest; and construction
management services. Tribal and Federal representatives prepared non-
consensus reports on these four issues, which were submitted to the
Secretaries for a decision. One additional question arose, pertaining
to Sec. 900.3(b)(11) of the regulation, and that was also referred to
the Secretaries. On May 23, 1996 a delegation of tribal representatives
met with the Chiefs of Staff of the two departments to present the
tribal view of the unresolved issues. Decisions have been made based
upon the arguments presented at that meeting, and the regulation
incorporates those decisions.
The Departments commend the ability of the committee to cooperate
and develop a rule that addresses the interests of the tribes and the
Federal agencies. This negotiated rulemaking process has been a model
for developing successful Federal and tribal partnerships in other
endeavors. The consensus process allowed for true bilateral
negotiations between the Federal government and the tribes in the best
spirit of the government-to-government relationship.
In developing regulatory language, consensus was reached on the
regulations which follow under subparts ``A'' through ``P''. In
addition, at the request of tribal and Federal representatives, the
Secretaries agreed to publish additional introductory materials under
subpart ``A.''
Summary of Regulations and Comments Received
The narrative and discussion of comments below is keyed to specific
subparts of the rule. Matters addressed under the heading ``Key Areas
of Disagreement'' in the Notice of Proposed Rulemaking are discussed
under the appropriate Subpart.
Subpart A--Policy
Summary of Subpart
This subpart contains key congressional policies contained in the
Act and adds several Secretarial policies that will guide the
Secretaries' implementation of the Act.
A number of comments recommended that the statement that tribal
records are exempt from disclosure under the Freedom of Information Act
(Sec. 900.2(d)) be further explained to include annual audit reports
prepared by tribal contractors and tribal records archived by the
Federal government. The suggestion regarding archived tribal records
has been adopted. However, section 7502(f) of the Single Audit Act of
1984, 31 U.S.C. 7502(f), and OMB Circular No. A-128, Audits of State
and Local Governments, subparagraph 13(e), state that single audit
reports shall be available for public inspection within
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30 days after the completion of the audit. Therefore, these audit
reports are available for public inspection.
Numerous comments expressed concern over the nonapplicability of
the Privacy Act to tribal medical records, in section 900.2(e).
Although section 108(b) of the Act is binding in this respect, Subpart
C (Sec. 900.8) has been amended to address the confidentiality of
medical records. Indian Tribes and tribal organizations remain free to
adopt their own confidentiality procedures, including procedures that
are similar to Privacy Act procedures.
A large number of comments urged that the NPRM be amended to
include a Secretarial policy to interpret Federal laws and regulations
in a manner that will facilitate the inclusion of programs in contracts
authorized by the Act. In response to these comments, the Committee has
added the language in Secretarial policy statement in Sec. 900.3(b)(8).
This policy is not intended to limit in any manner the scope of
programs, functions, services or activities that are contractible under
section 102(a)(1) of the Act.
Discussion of Comments
Several comments recommended that various policy statements be
clarified to reflect the congressional policy that funds for programs,
services, functions and activities are transferred to tribal
contractors when contracts are awarded under the Act. These comments
have been adopted and appropriate changes made to Sec. 900.3(a)(4),
Sec. 900.3(b)(4) and Sec. 900.3(b)(9).
One comment found the last two words of Sec. 900.3(a)(8) confusing
due to the inclusion of the words ``as appropriate.'' In response,
these words have been deleted in the final rule.
Several comments recommended that the phrase ``and for which funds
are appropriated by Congress'' be deleted from the Secretarial policy
statement set forth in Sec. 900.3(b)(1). The Committee agreed and
deleted this phrase in the final rule.
The Committee revised 900.3(b)(7) (referring to the scope of
programs that are contractible under the Act) to be consistent with the
new policy set forth in 900.3(b)(8).
Several comments urged that Sec. 900.d(b)(9) be amended to
articulate more clearly the Secretaries' duty to commence planning for
the transfer of programs to tribal operation immediately upon receipt
of a contract proposal. In response to the comments, Sec. 900.3(b)(9)
has been revised.
A large number of comments urged that the provision regarding
Federal program guidelines, manuals, or policy directives set forth in
Sec. 900.5 of the NPRM be revised to refer more generally to any
unpublished requirements. In response to these comments, Sec. 900.5 has
been revised in the final rule.
Some comments urged that language be included to identify the
inherent Federal functions that cannot lawfully be carried out by an
Indian tribe or tribal organization, and that therefore may not be
contracted under the Act. The Committee did not adopt these comments
due to the subject-matter limitations on its rulemaking authority set
forth in section 107(a)(1) of the Act. Similarly, the Committee did not
address comments relating to the appropriate uses of program income
generated under the Federal Medicare and Medicaid programs.
One comment expressed concern regarding the absence of clear
provisions for tribal participation in the administration of Federal
Indian programs. No change was made as this concern is already dealt
with in Sec. 900.3(a)(1).
One comment recommended that the Secretary adopt a policy that
Indian tribes participate in the development of the budgets of agencies
other than the Indian Health Service and the Bureau of Indian Affairs.
The Committee did not adopt this proposal due to the subject-matter
limitation set forth in section 107(a)(1) of the Act, and the
limitation in section 106(I) of the Act regarding tribal participation.
One comment urged that the Secretarial policy regarding tribal
participation in budgetary matters set forth in Sec. 900.3(b)(6) be
more clearly articulated as a mandatory duty. Nothing in the new
regulation is intended to change the Department's current consultation
requirements. Accordingly, no change was made in the text of the
regulation.
A few comments urged that the phrase ``for the benefit of Indians
because of their status as Indians'' or the phrase ``for the benefit of
Indians'' be further defined in the regulation. The Committee rejected
suggestions that the concept of ``contractibility'' be further explored
in the regulations due to the specific subject-matter limitations of
section 107(a)(1) of the Act.
Subpart B--Definitions
Summary of Subpart
Subpart B sets forth definitions for key terms used in the balance
of the regulations. Terms unique to one subpart are generally defined
in that subpart, rather than in subpart B.
Summary of Comments
In response to one comment regarding the term ``awarding official''
the definition has been revised and an additional sentence added to
make clear that an ``awarding official'' need not necessarily be a
warranted contracting officer. Who the awarding official is in a
particular situation will depend on to whom the Secretary has delegated
authority to award the contract.
In response to comments regarding the scope of Subpart C (which
deals with ``initial contract proposals''), the term ``initial contract
proposal'' has been added as a new definition in the final rule. The
definition clarifies that the requirements for an ``initial contract
proposal'' do not apply to other proposals such as proposals to renew
contracts governing programs, services, functions or activities that
are already under tribal operation.
In response to one comment regarding the procedural aspects of
reassumption, the definition of ``reassumption'' has been revised to
refer the reader to the notice and other procedures set forth in
Subpart P.
One comment requested that the term ``Indian tribe'' be revised.
The Committee rejected the comment in favor of the definition of this
term already set forth in the statute and repeated in Sec. 900.6 of the
final rule.
Two comments urged that the Secretary add a new definition of the
term ``consultation'' to establish a framework for this activity. The
Committee rejected this proposal as beyond the scope of subjects which
may be regulated under section 107(a)(1) of the Act. Similarly, the
Committee rejected requests that the regulations include a definition
of ``trust responsibility.''
In the NPRM, the public was invited to comment on the disagreement
within the Committee regarding the development of internal agency
procedures. Specifically, as noted in 61 FR at 2039-2040, tribal
representatives on the Committee urged that internal agency procedures
be developed in precisely the same fashion as other regulations
implementing the Indian Self-Determination Act Amendments of 1994,
through the use of the negotiated rulemaking process. Federal
representatives on the Committee supported instead a joint tribal and
Federal commitment to work together to generate a procedural manual
which would promote the purposes underlying the Act and facilitate
contracting by Indian tribes and tribal organizations. The Federal
committee members proposed committing to a firm timeline
[[Page 32485]]
within which to produce such a manual. Further, the Federal Government
committed to ``meaningful consultation'' throughout the manual
development process.
The Departments received many comments from tribal representatives
addressing the issue of internal agency procedures as a subject for
negotiated rulemaking. Those comments consistently supported the tribal
proposal to include a Subpart in the regulation concerning internal
agency procedures.
Many of the comments indicated a belief that all internal agency
procedures under which Indian tribes and tribal organizations exercise
their self-determination should be promulgated by negotiated
rulemaking. Those comments cited sections 107 (a) and (d) of the Act as
authority for their recommendation.
Tribal representatives also indicated a concern that absent formal
rulemaking, Federal agencies might use internal procedures to
circumvent the policies underlying the Act, thwarting the intent to
simplify the contracting process and free Indian tribes from excessive
Federal control. Two comments suggested that negotiating rulemaking
procedures will ensure that Federal agencies would be bound to follow
uniform procedures to implement and interpret the Act and the
regulations.
Two other comments wanted the regulation to state explicitly that
the Secretaries lack authority to interpret the meaning or application
of any provision of the Act or the regulations. Tribal representatives
feared that a myriad of letters containing policy statements and
correspondence interpreting reporting requirements would result if
internal agency procedures are not tied to formal rulemaking.
In response to the Federal proposal as detailed in the NPRM,
several comments stated that it would not be acceptable to develop a
manual in a setting which is less formal and structured than a
negotiated rulemaking committee. In addition, comments objected that
developing such a manual after the publication of a final regulation
would violate the mandatory deadline imposed on the Secretaries by
Congress.
Several comments were suspicious of the government's commitment to
seek tribal consultation on internal agency procedures. They stated
that consultation alone would be insufficient to ensure that Indian
tribes and tribal organizations are accorded the full benefits of the
Act. Without full and active participation, one comment stated, Indian
tribes would be in the position of attempting to change decisions made
in advance by Federal agencies.
The Departments agree to an enhanced consultation process in
developing procedures that do not involve resource allocation issues.
Features of this enhanced process could include facilitation by
professional facilitators, consensus decision-making, opportunity for
comment by tribal entities, and reporting of decisions to the
Secretaries. The Departments will convene a meeting to begin this
process within sixty days of the regulations becoming effective.
Subpart C--Contract Proposal Contents
Summary of Regulation
Subpart C contains provisions relating to initial contract proposal
contents. In this area, the committee opted to have minimal
regulations. Subpart C consists of a checklist of 13 items that must be
addressed in a proposal. In addition, the regulation contains a
provision relating to the availability of technical assistance to
assist Indian tribes and tribal organizations in preparing a contract
proposal, and a provision relating to the identification of Federal
property that the tribe or tribal organization intends to use during
contract performance.
Summary of Comments
Several comments recommended amending Sec. 900.7 to permit the
Secretary to provide technical assistance funding in addition to
technical assistance. To reflect the concerns the two sentences were
added at the end of the section. The first sentence authorizes the
Secretary to make technical assistance grants, and the second
authorizes an Indian tribe or tribal organization to request
reimbursement of pre-award costs for obtaining technical assistance
under the Act.
One comment recommended the insertion of objective standards in
Sec. 900.7 to measure the authenticity of a claim that technical
assistance cannot be provided due to the availability of
appropriations. This recommendation was not adopted because the
provision that technical assistance be subject to the availability of
appropriations comes directly from Section 103(d) of the Act. In
addition, it is clear that if qualified agency personnel are available,
technical assistance will be provided to prepare an initial contract
proposal.
Several comments recommended deleting the word ``must'' and
inserting the word ``should'' in the first sentence of Sec. 900.8. This
recommendation was not adopted because the proposal requirements in
this subsection represent the minimum amount of information required
for the Departments to approve a proposal.
Several comments generally objected to Sec. 900.8 on the grounds
that it requires the production of information that the Federal
Government has no right to know, or that is in excess of statutory
requirements. Although some modifications were made to Sec. 900.8 in
response to comments, it is the consensus of the Committee that the
information included in the final version of Sec. 900.8 is necessary to
protect Indian tribes or tribal organizations, or because it is
essential information required by the Departments in order to be able
to review or decline a contract proposal, to determine whether any of
the statutory declination criteria exist.
A number of comments expressed concern that Sec. 900.8(d) does not
clearly bar the Secretary from revising service area boundaries over
the objections of tribes located in an established service area. This
recommendation was not adopted because it is the intent of this
provision for the applicant to define the service area. This specific
provision was debated at length by the Negotiated Rulemaking Committee,
and the proposed regulatory provision in Sec. 900.8(d) is the
compromise agreed to by consensus of the Committee.
In response to a comment, the words ``an identification'' were
deleted from Sec. 900.8(e), and replaced with the words ``the name,
title,'' for clarification purposes.
In response to a comment, the words ``a description'' were deleted
from Sec. 900.8(g)(3), and replaced with the words ``an
identification'' for clarification purposes.
In response to a comment, Sec. 900.8(g)(7) was amended to read
``minimum staff qualifications proposed by the Indian tribe or tribal
organization, if any'' for clarification purposes.
In response to several comments objecting to the requirement in
Sec. 900.8(g)(4) that financial, procurement, and property management
standards be included in the proposal, reference to these standards was
deleted from this subsection, and a new subsection (g)(8) was added to
require a statement that the Indian tribe or tribal organization meet
minimum procurement, property, and financial management standards set
forth in Subpart F, subject to waivers that may have been granted under
Subpart K.
In response to several comments requesting that the words ``tribal
shares'' be defined, Sec. 900.8(h)(1) was modified by removing these
words and inserting
[[Page 32486]]
``the Indian tribe or tribal organization's share of funds.''
In response to a comment, Sec. 900.8(h)(2) was amended by including
the word ``start-up'' after the word ``one-time'' to make this section
consistent with the Act.
Several comments objected to the use of the word ``budget'' in
Sec. 900.8(h), and to the level of detail required under this
subsection. This subsection was redrafted to delete the word ``budget''
wherever it appears, and replace it with ``amount of funds requested''
or ``funding request.'' In addition, Secs. 900.8(h)(1) (i), (ii), and
(iii) were deleted.
In response to a comment that the information sought in
Sec. 900.8(h)(5) was unnecessary, this subsection was redrafted for
clarification purposes, and the words ``[a]t the option of the Indian
tribe or tribal organization'' were added at the beginning of the
subsection.
A new subparagraph (m) was added to Sec. 900.8 to provide that in
its contract proposal, an Indian tribe or tribal organization must
state that it will implement procedures appropriate to the program
being contracted to assure the confidentiality of information relating
to the financial affairs of individual Indians obtained under a
proposed contract, and of medical records, or as otherwise required by
law. While tribal comments objected to the imposition of regulatory
procedures on confidentiality of personal financial information, many
comments were received from Indian tribes indicating a concern that the
confidentiality of personal medical records in the hands of tribal
contractors be preserved, notwithstanding the opinion of DHHS Office of
General Counsel that the Privacy Act does not apply to such records.
The provision for such an assurance with respect to personal financial
information resulted from a compromise in the Committee between the
Federal and tribal positions.
In response to a comment suggesting that Indian tribes or tribal
organizations should receive a list of Federal property used in
carrying out programs to be contracted, a new question and answer were
added immediately preceding Sec. 900.10. In response to a comment, this
new section also includes a requirement that the condition of the
property be described.
In response to a comment, Sec. 900.11(a)(4) was modified to add the
words ``real and personal'' before the word ``property'' for
clarification purposes.
Several comments requested clarification regarding whether the
contract proposal becomes part of the contract document. In response, a
new question and answer were added to clarify that the contract
proposal becomes part of the final contract only by mutual agreement of
the parties.
Several comments suggested that Subpart C be clarified to address
what is contractible and what is inherently Federal and thus residual.
The Committee did not adopt the suggestion. Federal agency decisions
regarding residual functions are subject to the appeals process.
Subpart D--Review and Approval of Contract Proposals
Summary of Regulation
Although this topic is part of the declination process, it has been
pulled out for separate treatment to facilitate a clearer understanding
of the entire contracting process. In this area, the committee opted to
have minimal regulations. This subpart details what the Secretary must
do upon receiving a contract proposal, the time frames applicable to
Secretarial review, how the 90-day review period can be extended, and
what happens if a proposal is not declined within the 90-day period.
Summary of Comments
One comment indicated that the word ``Secretary'' in this Subpart
does not define where the proposal should actually be submitted.
Subpart B defines the word ``Secretary'' to include either Secretary or
their delegates. It is clear that a proposal should therefore be
submitted to the agency with jurisdiction over the program to be
contracted, i.e., the Bureau of Indian Affairs, the Indian Health
Service, the Bureau of Land Management, the National Park Service, etc.
A comment suggested amending Sec. 900.15(a) to require the
Secretary to return any proposal lacking the required authorizing
resolution(s) to the applicant without further action. This suggestion
was not adopted because Sec. 900.15(b) requires that the applicant be
notified of any missing information. It should be clear, however, that
Section 102(a)(2) of the Act only requires the Secretary to consider a
proposal if ``so authorized by an Indian tribe'' pursuant to the tribal
resolution required under Section 102(a)(1) of the Act. Therefore,
although technically outside of the enumerated declination criteria in
Section 102(a)(2) of the Act, it is also clear that the Act precludes
the approval of any proposal and award of any self-determination
contract absent an authorizing tribal resolution.
Several comments requested that the 15-day timeframe in Sec. 900.15
be cut to 10 days. This suggestion was not adopted because 15 days are
needed to evaluate the application. The word ``request'' was added
before the words ``that the items'' in this subsection for
clarification purposes, and in response to several comments.
Several comments expressed concerns with the failure of this
Subpart to specify what happens when a proposal is approved. The
comments recommended addressing the award and funding of the contract.
In response to these concerns, the question and the answer in
Sec. 900.16 were amended to reflect that the award of the contract
occurs upon approval of the proposal. Also, the committee added the
words ``and add to the contract the full amount of funds pursuant to
Sec. 106(a) of the Act'' were added at the end of Sec. 900.18. Also, a
new section was added to explain what happens when a proposal is
approved.
One comment suggested adding a provision in Sec. 900.18 to provide
that costs incurred after the 90-day period be deemed allowable costs
under the contract and be reimbursed. This suggestion was not adopted
because it is beyond the scope of this Subpart.
A comment inquired whether the 90-day period continues to run if
the Indian tribe is notified that there are missing items, or whether
the 90-day period starts only when there is a complete proposal. The
regulation in Sec. 900.15(b) requires the Secretary to notify the
applicant of any missing items, and to request the applicant to furnish
these items within 15 days. If the applicant fails to submit the
missing items altogether, the Secretary must either approve or decline
the proposal that was received within 90 days of receipt. Similarly, if
the applicant submits the missing items within the 15-day deadline, the
90-day period continues to run from the time of receipt of the original
proposal.
Subpart E--Declination Procedures
Summary of Subpart
This subpart implements sections 102 (a)(2), (a)(4), (b) and (d) of
the Act. It restates the statutory grounds for declining a contract
proposal, clarifies that a proposal cannot be declined based on any
objection that will be overcome through the contract, and details
procedures applicable for partial declinations. Subpart E also informs
Indian tribes and tribal organizations of the requirements the
Secretary must follow when a declination finding is made, contains
provisions for technical
[[Page 32487]]
assistance to Indian tribes and tribal organizations to avoid a
declination finding, and to overcome stated declination grounds after a
declination finding is made.
Summary of Comments
Several comments noted that the proposed regulations fail to
address the continuation of mature contracts, and recommended that this
issue be addressed. This recommendation was not adopted because there
is no statutory authority to issue regulations on the mature contract
process. In addition, the right to mature contracts is addressed in
Section 105(c)(1) of the Act and in the Model Contract under Section
108 of the Act. Continuation of any contract is also addressed in
Sec. 900.32 of the final rule.
One comment recommended that declination of construction contracts
be addressed in this Subpart. This recommendation was not adopted
because this issue is addressed in Sec. 900.123 of the final rule.
Several comments recommended a further explanation of the criteria
in Sec. 900.22. These comments were not adopted because it was decided
not to interpret the declination criteria in the regulation, but to
leave their interpretation to case-by-case adjudication.
One comment suggested adding an applicant's failure to submit the
single agency audit report and/or failure to correct prior audit
deficiencies as a declination ground in Sec. 900.22. This comment was
not adopted because there is no statutory authority to add declination
criteria to those specified in Section 102(a)(2) of the Act.
In response to a comment, the reference to Section 106 of the Act
in Sec. 900.26 was replaced with a reference to Section 102(a) of the
Act.
There were numerous comments objecting to the document disclosure
provisions in Sec. 900.27 of NPRM (now Sec. 900.29). In response to
these objections, Sec. 900.27(a) was amended to delete the words ``when
appropriate'' and replace them with the words ``within 20 days.'' In
addition, Sec. 900.27(c) was deleted in its entirety.
Several comments requested that the Secretary's burden of proof
when declining a proposal in Sec. 900.297(a) be changed to ``clear and
convincing evidence.'' This recommendation was not adopted because it
is different from the statutory burden of proof contained in Section
102(a)(2) of the Act.
A comment requested that the technical assistance to be provided in
Sec. 900.30 be clearly identified. This recommendation was not adopted
because the type of technical assistance required will vary with each
proposal. It is impossible to define generally the type of technical
assistance required for all proposals.
Pursuant to several comments, the word ``substantively'' was
deleted from two places in Sec. 900.32, and replaced by the word
``substantially.''
The Committee received several comments regarding the ability of
the BIA and other agencies of the Department of the Interior to review
contract renewal proposals for declination issues, where the renewal
proposal is substantially similar to the contract previously held by
that Indian tribe or tribal organization. In the past, as a matter of
practice, neither IHS nor the BIA has reviewed contract renewal
proposals for declination issues. Therefore, the Departments have
agreed that IHS and the BIA will not use the declination process in
contract renewals where there is no material or significant change to
the contract. However, as no past practice exists for the non-BIA
agencies within DOI, those agencies will have discretion to use the
declination process in appropriate contract renewal situations. The
regulatory language of Sec. 900.32 has been amended to reflect this
decision.
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
Summary of Subpart
Indian self-determination contracts are unique agreements because,
by definition, they are not procurement contracts, discretionary grants
or cooperative agreements. This means that none of the usual
procurement or grant regulations apply to the management of the Federal
funds provided under these contracts. The absence of established
guidelines presented a special challenge to the committee to develop
standards which would assure appropriate stewardship of the Federal
funds and other assets being transferred through these contracts.
Deliberations on this issue led to the review of OMB Circular A-102 and
the Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments (the ``Common Rule'').
Although an Indian self-determination contract is not a discretionary
grant, the Common Rule provides certain government-to-government
management principles that apply to discretionary Federal grants to
states, local governments, and Indian tribes.
The Common Rule has two-tiered management rules. On one tier, it
generally defers to state law and regulations and accepts a state's
management standards without imposing more detailed requirements. On
the second tier, other local governments and Indian tribes (which vary
greatly in size and structure) must observe the Rule's more detailed
standards for the management of Federal grants.
In the interest of giving greater recognition to the government-to-
government relationship which exists between Indian tribes and the
Federal government, and to transfer greater responsibility to Indian
tribes commensurate with their status, the committee established
standards permitting the management of contract resources in accordance
with tribal laws, regulations and procedures, just as the Common Rule
permits states to manage Federal resources in accordance with state
laws and procedures. Systems established by Indian tribes will govern
the administration of contracts provided that they include the core
management principles or standards adopted from the Common Rule which
the committee determined best meet the needs of Indian tribes and
tribal organizations.
Subpart F contains provisions relating to the following management
standards: (1) Financial Management; (2) Procurement Management and (3)
Property Management. In all of these areas the advisory committee
designed minimal regulations that focus on the minimum standards for
the performance of the three management systems used by Indian tribes
and tribal organizations when carrying out self-determination
contracts.
The standards contained in this subpart are designed to be the
targets which the Indian tribe and tribal organization's management
systems should be designed and implemented to meet. The management
systems themselves are to be designed by the Indian tribe or tribal
organization.
Section 900.36 contains general provisions which apply to all
management system standards contained in this subpart. Subpart F
includes provisions that: (1) Identify the management systems that are
addressed; (2) set forth the requirements imposed; (3) limit the
applicability of OMB circulars; (4) provide that the Indian tribe or
tribal organization has the option to impose these standards upon
subcontractors; (5) identify the difference between a standard and a
system; and (6) specify when the management standards and management
systems are evaluated.
Section Sec. 900.44 contains the standards for financial management
[[Page 32488]]
systems. Subpart F establishes the minimum requirements for seven
elements including: (1) Financial reports; (2) accounting records; (3)
internal control; (4) budget control; (5) allowable costs; (6) source
documentation; and (7) cash management.
Section 900.47 contains standards for procurement management
systems. This subpart establishes the minimum requirements for seven
elements: (1) To ensure that vendors and subcontractors perform in
accordance with the terms of purchase orders or contracts; (2) to
require the Indian tribe or tribal organization to maintain standards
of conduct for employees award contracts to avoid any conflict of
interest; (3) to review proposed procurements to avoid buying
unnecessary or duplicative items; (4) to provide full and open
competition, to the extent feasible in the local area, subject to the
Indian preference and tribal preference provisions of the Act; (5) to
ensure that procurement awards are made only to entities that have the
ability to perform consistent with the terms of the award; (6) to
maintain records on significant history of all major procurements; and
(7) to establish that the Indian tribe or tribal organization is solely
responsible for processing and settling all contractual and
administrative issues arising out of a procurement. In addition, the
regulation provides that each Indian tribe or tribal organization must
establish its own small purchase threshold and definition of ``major
procurement transactions''; establish minimum requirements for
subcontract terms, and include a provision in its subcontracts that
addresses the application of Federal laws, regulations and executive
orders to subcontractors.
Section 900.51 contains the minimum requirements for property
management systems. Subpart F addresses the standards for both
Federally-titled property and property titled to an Indian tribe or
tribal organization, with differences based upon who possesses title to
the property. As a general rule the requirements for property where the
Federal agency retains title are higher than requirements for property
where the Indian tribe or tribal organization holds the title. Subpart
F addresses elements including: (1) Property inventories; (2)
maintenance of property; (3) differences in inventory and control
requirements for property where the Federal agency retains title to the
property; and (4) the disposal requirements for Federal property.
Summary of Comments
A comment requested that the rule clarify the application of Office
of Management & Budget (OMB) Circulars or portions of OMB Circulars
that apply to the operation of Indian Self-Determination Act contracts.
Section 900.37 specifies that the only OMB Circulars that apply to
self-determination contracts are those (1) Incorporated the by Act,
such as OMB Circular A-128, ``Audits of States and Local Governments'';
(2) adopted by these regulations; or (3) agreed to by the Indian tribe
or tribal organization pursuant to negotiations with the Secretary. In
regard to these regulations, Sec. 900.45(e) identifies the appropriate
OMB Circular Cost Principles that should be used in determining the
propriety of contract costs.
One comment asked the Committee to delete Sec. 900.40(a) because it
is overreaching and exceeds statutory requirements. This section was a
fundamental underpinning of the entire Subpart. The negotiators agreed
that the regulations would include standards, to be treated as minimum
requirements, for the administration of contracts. For an initial
contract proposal only, Federal officials may review the standards
proposed by the Indian tribe or tribal organization, to determine that
they meet or exceed these minimum regulatory requirements. Indian
tribes or tribal organizations are responsible for the implementation
of administrative systems that meet the standards and that are subject
to review in accordance with the Single Agency Audit requirements as
provided in Section 5(f) of the Act. In many respects, this dichotomy
between the standards and systems was designed to acknowledge the
unique and special nature of self-determination contacts (non-
procurement intergovernmental agreements) and a shift in the regulatory
emphasis from the unnecessary and burdensome review of systems to an
emphasis on the acceptance of fundamental guiding management
principles. This approach is consistent with provisions in the Act at
Sections 5(b), 102(a)(2), 105 (a)(1) (2) and (3) and 107(a)(1) and in
the Model Contract Section 108(b)(7)(c). For these reasons no change
was made in Sec. 900.40.
It was suggested that the Committee delete the words ``or tribal
organization'' in Sec. 900.42 from both the question and the answer as
this section applies only to Indian tribes. The comment was correct and
the words have been deleted.
The Committee was requested to clarify the period of time that
Indian tribes and tribal organizations must retain records of contract
operations. A new Sec. 900.41 was created to address these issues. That
section specifies that Indian tribes and tribal organizations should
keep: (1) Financial records for three years from the date of the single
audit submission; (2) procurement records for three years from the date
of final payment to the supplier; and (3) property management records
for three years from the date of disposition, replacement or transfer
of the property. In addition, records related to litigation, audit
exceptions and claims should be retained until the action is completed.
One comment suggested that the regulation provide for the Secretary
to obtain consistent and timely financial information to respond to
Congressional inquiries and to otherwise support budget justifications.
Section 900.45(a) was amended by adding a provision that provides for
the submission of a Financial Status Report, SF 269A. The frequency of
submission of the SF 269A remains the subject of negotiation between
the Indian tribe or tribal organization and the Secretary. The
Department expect that the frequency will not be less than once per
year. This change only affects how the information is transmitted to
the government and is consistent with Section 5(f)(2) of the Act.
The committee was asked to specify which of the three Office of
Management and Budget Circulars dealing with cost principles apply to a
tribal organization. In that regard, a tribal organization could be a
chartered entity of a tribe, a non-profit organization, and/or an
educational institution.
Section 900.45(e) has been amended by revising the parenthetical
statement and including a chart to clarify the application of the
Office of Management & Budget circulars. The parenthetical statement
makes clear that which circular is applicable is negotiable with the
Secretary and that current agreements concerning Office of Management &
Budget cost principles need not be renegotiated.
The committee was asked to adopt proposed clarifying language for
Subsection 900.45(g). The regulations were amended to adopt the
suggested language that provides a more accurate description of the
standards for a cash management component of financial management
systems.
One comment suggested adding the following new language to
Sec. 900.45(h):
If an Indian tribe or tribal organization contracts to assume a
program, service, function, or activity which includes a physical
trust asset or natural resource, the
[[Page 32489]]
Indian tribe or tribal organization shall enter upon its financial
management system and provide for an accurate, current, and complete
disclosure of the value of those assets, provide for an accurate,
current and complete disclosure of funds by source and application
utilized to keep the physical trust assets or natural resources in
good repair and maintenance; provide for an accurate, current, and
complete disclosure of any increase or decrease in the valuation of
the asset; and provide for an accurate, current and complete
disclosure of any other costs, function or activity which would
improve, increase, or cause devaluation or decrease in the value of
the physical trust asset or natural resource as would be required to
account for any asset using generally accepted accounting principles
and standards.
The Committee did not include this provision principally because it
is beyond the scope of these regulations. Currently, the United States
does not track the values of natural resources (i.e. national parks or
Indian lands) in this fashion. Therefore, no financial basis exists to
begin the process. The cost of establishing the basis would undermine
and frustrate self-determination contracting. While the proposal has
merits, it would not be possible to implement it effectively until
appropriate guidance is issued on valuation of Federal natural
resources, the United States enters the information in its financial
records, and funds are made available to tribal governments to cover
the cost of implementation. In regard to guidance, the Federal
Accounting Standards Advisory Board has not issued any authoritative
instructions on the valuation of Federal natural resources. This matter
is currently under consideration by the Board.
Another comment asked the Committee to revise Sec. 900.46 to
require the Secretary to be held to a ``strict standard of compliance
with the terms of the contract and the annual funding agreement.''
Further, the comment suggested deleting the words ``In regard to
paragraph (g) of Sec. 900.44 [of the NPRM]'' and ``based upon the
payment schedule provided for in.'' The Committee was asked to add ``in
strict compliance with'' for the last phrase deleted. Section 900.46
was amended to make this section of the regulations consistent with the
statute.
A comment recommended that Sec. 900.48(c) be amended to include
provisions requiring ``cost and price analysis'' in the procurement
standards. Subsection Sec. 900.48(c) was amended by adding the phrase
``and ensure the reasonableness of the price'' at the end of the
subsection. This was done to ensure that cost or price analysis be
considered in all procurements, but to avoid the application of a full
Federal procurement-type cost or price analysis since self-
determination contracts are not subject to the Federal Acquisition
Regulations (FARs). It is the responsibility of the Indian tribe or
tribal organization to design a procurement system based upon the
standards in Subpart F. The amendment will require those systems to
consider the ``reasonableness of price'' when making procurement
purchases.
The Committee was asked to clarify Sec. 900.50, including the
provision of further guidance about the application of tribal law
generally and the application of Tribal Employment Rights Ordinances
(TERO) specifically. Sec. 900.50 was substantially revised, to make
clear that subcontracts by an Indian tribe or tribal organization may
require the subcontractor to comply with certain provisions of the Act
and other Federal laws. The new language informs subcontractors that
they are responsible for identifying and complying with applicable
Federal laws and regulations. The section was further amended to
provide that, to the extent the Secretary and the Indian tribe or
tribal organization identify and specify laws and regulations that are
applicable to subcontracts in the negotiation of the self-
determination contract, those identified and specified provisions will
then be included in subcontracts.
These regulations do not specifically address the application of
tribal law, but establish minimum standards for the operations of
management systems. Indian tribes may exercise discretion and create
higher standards by operation or enactment of tribal law. Similarly, an
Indian tribe may seek a waiver of a standard as noted in Sec. 900.36 of
the regulations. Nothing in the regulations is designed to supersede or
suspend the operation of tribal law that meets these standards. Further
nothing in the regulations affects the operation of tribal law to
activities not paid for by self-determination contract funds.
Sections 7(b) and (c) of the Act authorize the application of
Indian Preference and Tribal Preference (TERO) in the performance of a
self-determination contract. To the extent a TERO ordinance is
consistent with the terms of Section 7(b) and (c) of the Act it can be
made applicable to procurement subcontracts.
Property Management
The Committee was asked to define ``sensitive property'' in
Sec. 900.52, and as a result, a definition of ``sensitive personal
property'' was inserted at Sec. 900.52(b). That definition includes all
firearms and provides that the Indian tribes and tribal organization
are to define such other personal property ``that is subject to theft
and pilferage.'' Since the activities vary from contract to contract to
such a large extent, the committee decided that a locally-created
definition best meets the needs of all contractors.
One comment indicated Sec. 900.60(b) might require revision
regarding the authority of an Indian tribe or tribal organization to
dispose of Federal property. The Committee revised subsection (b) of
Sec. 900.60 by deleting all of subsection (1), that previously allowed
for disposal if the Secretary failed to respond to a disposal request.
As a result, if the Secretary fails to respond to a request from an
Indian tribe or tribal organization within the sixty day period, the
Indian tribe or tribal organization may return the Federal property to
the Secretary. The Secretary is required to accept the property and is
required to reimburse the contractor for all costs associated with the
transfer. This ensures that Indian tribes and tribal organizations have
a process to dispose of unneeded Federal property, and the
reimbursement of transfer costs should provide the Secretary with an
incentive to respond in a timely fashion to disposal requests.
The committee was asked to clarify that the property disposal
procedures in Sec. 900.60 only apply to personal property, because the
answer to the question uses the terms ``personal property'' and
``property.'' Using the term ``property'' which, by definition,
includes both real and personal property, creates ambiguity about
application of the paragraph to the disposal of real property.
Section 900.60 only applies to the disposal of personal property.
The matter has been clarified through editorial revision of the
introductory question, to read as follows: ``How does an Indian tribe
or tribal organization dispose of Federal personal property?''
Subpart G--Programmatic Reports and Data Requirements
Summary of Subpart
This brief subpart provides for the negotiation of all reporting
and data requirements between the Indian tribe or tribal organization
and the Secretary. Failure to reach an agreement on specific reporting
and data requirements is subject to the declination process. Although
the Indian Health Service proposes to develop a uniform data set, that
data set will only be used as a guide for negotiation of specific
requirements.
[[Page 32490]]
Summary of Comments
One comment argued for the revision of Sec. 900.65, that provides
for the submission of programmatic reports and data ``to meet the needs
of the contracting parties.'' The comment was concerned that the
section could be used to force Federal minimum reporting requirements
upon Indian tribes and tribal organizations despite the provision in
Section 5(f) of the Act that make reporting the subject of
negotiations.
Section 900.65 has been amended to address the comment. A new
introductory sentence was added that makes clear that unless there is a
statutory requirement, these regulations create no mandatory reporting
requirements. The negotiation of reporting is to be responsive to the
needs of the parties and appropriate for the purpose of the contract.
This provides the Indian tribe or tribal organization, as well as the
Secretary, with guidance and limits for negotiations. Furthermore,
because of the numerous comments made concerning the Sec. 900.65
provision, ``meet the needs of the contracting parties,'' and the
amendment noted above, Sec. 900.67 was also amended to make it
consistent with Sec. 900.65 by substituting, ``which responds to the
needs of the contracting parties,'' for ``meets the needs of the
contracting parties''.
The Committee was asked to clarify grammar in Sec. 900.68. The
Committee concluded that the word ``for'' was inadvertently included in
the first line of Sec. 900.68. The ``for'' has been and a comma added
between ``set'' and ``applicable'' in the first line. This should
eliminate the confusion.
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
Summary of Subpart
Section 105(l) of the Act authorizes the Secretary to lease
tribally-owned or tribally-leased facilities and allows for the
definition of ``other reasonable expenses'' to be determined by
regulation. This subpart provides a non-exclusive list of cost elements
that may be included as allowable costs under a lease between the
Indian tribe or tribal organization and the Secretary. It further
clarifies that except for ``fair market rental,'' the same types of
costs may be recovered as direct or indirect charges under a self-
determination contract.
The Subpart was substantially revised based upon comments received
following the NPRM. Please note that two sections have been added, and
previous Sec. 900.71 and Sec. 900.72 have now become Sec. 900.73 and
Sec. 900.74 respectively.
Summary of Comments
Comments requested that the Committee specify the type of account
and the guardian of the account for a reserve for replacement of
facilities identified in Sec. 900.70(c).
The final regulation adds two new sections to accomplish this. New
Sec. 900.71 was added to set forth the type of account as a ``special
revenue fund'' or a ``capital project fund.'' New Sec. 900.72 was also
added to provide that the Indian tribe or tribal organization is the
guardian of the fund. It permits fund investments in a manner
consistent with the laws, regulations and policies of the Indian tribe
or tribal organization, subject to lease terms and the self-
determination contract.
The Committee was asked to add landscaping costs to those items of
cost included in Sec. 900.70(e)(1-16). No such addition was made as the
Committee believed that such costs were included in either subsection
(8) or subsection (16) of Sec. 900.70(e).
Likewise, another comment suggested adding profit to those matters
listed in Sec. 900.70(e). In the Committee's view, a lease based upon
fair market value provides for the recovery of profit, adjusted as
appropriate, based upon the Federal Share (if any) of acquisition or
construction. Therefore, no change was made to this provision.
The committee was asked to identify the source of funds for these
lease payments. The source of funds is a subject of negotiation between
the parties to a self-determination contract.
Subpart I--Property Donation Procedures
Summary of Subpart
This subpart establishes procedures to implement section 105(f) of
the Act. Section 900.85 provides a statement of the purpose of the
subpart and explains that while the Secretary has discretion in the
donation of excess and surplus property, ``maximum'' consideration must
be given to an Indian tribe or tribal organization's request.
This subpart also contains a provision for the Secretary to elect
to reacquire property under specific conditions. It clarifies that
certain property is eligible for operation and maintenance funding, as
well as for replacement funding on the same basis as if title to the
property were held by the United States.
Section 900.87 provides for the transfer of property used in
connection with a self-determination contract. It provides slightly
different procedures for personal property versus real property
furnished before the effective date of the 1994 amendments and another
procedure for property furnished after the enactment of the 1994
amendments.
Sections 900.91 and 900.92 address Sec. 105(f)(2)(A) of the Act,
which provides that a tribal contractor automatically takes title to
property acquired with contract funds unless an election is made not to
do so. It also addresses the process for requesting that real property
be placed ``in trust.''
Section 900.97 addresses BIA and IHS excess property donation while
Sec. 900.102 addresses excess or surplus property from other Agencies.
Summary of Comments
The committee was asked to clarify this Subpart as it is confusing
and generally repetitive. The Subpart addresses the methodology that
provides property to Indian tribes and tribal organizations pursuant to
the Indian Self-Determination Act. Because there are several classes of
property, with varying rights and mechanisms, the Subpart must address
each separately. In order to reduce confusion, the final regulations
provide more uniformity depending on the property type.
It was suggested that the Committee restore the language that was
initially adopted by the Committee, but not included, in Sec. 900.86.
The language change in the NPRM accommodates the use of ``plain
English'' and was not intended to change the manner in which the
Secretary exercised discretion. The Committee has reinstated the
originally-approved version by striking the words ``give maximum
weight'' and substituting ``exercise discretion in a way that gives
maximum effect'' following the word ``will'' in the first line of the
answer in Sec. 900.86. A similar amendment can be found at
Sec. 900.97(a).
To ensure clarity, several comments requested that the regulation
specify as to whether property is real property or personal property in
given instances. The Committee has used the word ``property'' in these
regulations to mean both real and personal property except where not
applicable to one or the other type of property. If either the words
``real'' or ``personal'' modify ``property'' that provision is limited
to that type of property.
The committee was asked to change the incorrect reference to 41 CFR
101-47, 202.2(b)(10) in Secs. 900.87 (b)(2) and (c)(2). The miscitation
has been corrected.
In addition, the committee was asked to delete the terms ``justify
and certify''
[[Page 32491]]
in Sec. 900.86 as well as Sec. 900.97 and Sec. 900.104 because these
terms frustrate the statutory intent and limit access to property
needed to carry out self-determination contracts. The Committee amended
the above-noted sections and substituted ``state how'' or ``statement
of how'' for the ``justify and certify'' provision. This was done to
make clear that what is needed is a concise, simple statement of how
the subject property is ``appropriate for use for a purpose of which a
self-determination contract is authorized under the Act,'' the
statutory language. The Committee expects that the deletion of the
terms ``justify or certify'' makes it clear that no detailed submission
will be required by the Secretary or his designee.
Comments requested revision in the process described in Sec. 900.87
pertaining to property that was made available before or after October
25, 1994. The Committee has chosen not to make changes, as the October
25, 1994 date is the result of the 1994 Amendments to the Act. That
date is the effective date of Public Law 103-413. Those amendments
provided at Section 105 of the Act that Indian tribes or tribal
organizations could take title to government-furnished property used in
performance of the contract property unless the Indian tribe or tribal
organization preferred the Secretary to retain title. Prior to October
25, 1994, title to such property remained with the Secretary.
This provision allows an Indian tribe or tribal organization to
receive title to government-furnished property put in use prior to
October 25, 1994. In part, that allows Indian tribes or tribal
organizations greater flexibility with the Property Management
standards in Subpart F above. For these, reasons no further changes
were made in Sec. 900.87.
One comment suggested that the regulation clarify the references to
the value of property subject to reacquisition or acquisition by the
Secretary at the time of retrocession, reassumption, termination or
expiration of the contract. Among the concerns expressed were the value
at the time of reacquisition, whether it was acquisition or
reacquisition, the lack of consideration of depreciation, and the use
of property by multiple contracts when only one or a portion of one
contract triggers this issue. These comments relate to Sections 900.89,
900.93, and 900.100, all of which address this issue depending upon the
class of property.
The Committee took action to make uniform sections 900.89, 900.93,
and 900.100. These new sections all contain an additional subsection
that addresses the issue of property used in multiple contracts. This
new subsection provides that the Secretary and contractor shall
negotiate an ``acceptable arrangement'' for continued sharing and the
title to the property.
In order to address current value (at the time of retrocession,
etc.) the section was revised to ``current fair market'' and another
clause was added, ``less the cost of improvements borne by the Indian
tribe or tribal organization.'' This was done so that where an Indian
tribe or tribal organization has made improvements to a piece of
property, the value of the improvements is factored into arriving at
the $5,000 value threshold. The Committee also reviewed the
depreciation questions but concluded that the current fair market value
approach would adequately take these factors into consideration.
Moreover, since services would be provided to Indian beneficiaries by
the Secretary, the best approach with the reacquired property was
current fair market value.
In regard to Sec. 900.93, one comment proposed a change to the
question by substituting ``reacquire'' for ``acquire.'' Upon review the
Committee concluded that ``acquire'' was the correct term because this
section addresses contractor-purchased property. In that instance, the
Secretary has never had title and ``acquire'' is the proper term.
The revisions to the above-noted sections have also been
incorporated into Subpart P of the regulations. No further comments
will be discussed in this preamble on Sections 900.89, 900.93, or
900.100 since the operative provisions are now uniform.
With regard to Sections 900.96 and 900.103, several comments asked
when the Secretary will notify Indian tribes and tribal organizations
about the availability of excess BIA and IHS personal property and GSA
excess and surplus property. Suggestions of quarterly or semi-annually
were made. At both Sec. 900.96 and Sec. 900.103 the term ``not less
than annually'' has been added. This creates a minimum requirement that
the Secretary must meet yet allows for more frequent notices.
Some comments asked the Committee to provide further instruction in
Sec. 900.97(b) relating to multiple requests by contractors the same
excess or surplus property.
The Committee revised these subsections to clarify what will occur
in that situation. In regard to personal property, the request first
received by the Secretary will have precedence. If the requests are
received by the Secretary on the same date, the requestor with the
lowest transportation costs will prevail.
A technical amendment was made to Sec. 900.97(c) by changing
``piece of real property'' to ``parcel of real property.''
The committee was asked to delete the reference to the Federal
Property Management Regulation, 41 CFR Chapter 101, as that reference
had at Sec. 900.104(b) the potential to incorporate an entirely
different set of regulations, not consistent with the Act. The
references to the Federal Property Management Regulation (FPMR) and 41
CFR Chapter 101 were deleted and ``Section 900.86 of this Subpart'' was
substituted. The Committee made this revision to reflect that these
regulations are unique to self-determination contracts and to avoid any
conflict between these regulations and the FPMR.
Several comments were made concerning the need for the Secretary to
act expeditiously to acquire excess or surplus government property when
the property is frozen by the Indian tribe or tribal organization, in
Sec. 900.104(c). The Committee revised subsection (c) of Sec. 900.104
by harmonizing the several suggestions.
Several comments called for clarification of Sec. 900.107 by
explaining which type of property remains eligible for replacement
funding. The Committee changed the question in Sec. 900.107 and deleted
``Yes'' from the answer. This makes clear that government-furnished
property, contractor-purchased property and excess BIA and IHS property
are eligible for replacement funding consistent with Section 105(f) of
the Act. Only excess or surplus government property from other agencies
is not eligible for such replacement.
Subpart J--Construction Contracts
Summary of Subpart
Subpart J addresses the process by which an Indian tribe or tribal
organization may contract for construction activities or portions
thereof. The subpart is written to inform readers of the breadth and
scope of construction contracting activities conducted by the
Departments, and provides opportunities for Indian tribes or tribal
organizations to choose the degree to which they wish to participate in
those activities. The subpart provides for extensive cooperation and
sharing of information between the Departments and an Indian tribe or
tribal organization throughout the construction process. The subpart
provides for different construction contracting methods, such as award
of
[[Page 32492]]
contracts through subpart J, award of contracts through section 108 of
the Act, and award of grants in lieu of contracts depending on the
degree of Federal involvement and the phase(s) of construction
activities for which the Indian tribe or tribal organization seeks to
contract.
The construction process is described in phases, starting with a
preplanning phase, followed by a planning phase, a design phase, and a
construction phase. Provisions are included so an Indian tribe or
tribal organization can seek a contract through section 108 of the Act
for the planning phase and for construction management services. It is
not required that these functions be pursued through a section 108
contract: if the Indian tribe or tribal organization so elects, these
activities can be part of a subpart J contract.
Definitions are provided that are specific to this subpart and this
subpart establishes new procedures to facilitate tribal contracting,
through such measures as tribal notification and other provisions.
The subpart promotes the exploration of alternative contracting
methods, and eliminates the applicability of the Federal acquisition
regulations except as may be mutually agreed to by the parties.
The subpart describes the process for negotiating a construction
contract, including the process for arriving at a fair and reasonable
price, and details the process for resolving disagreements in the
contracting process. The subpart also sets forth minimum requirements
for contract proposals, and details the respective roles of tribes and
the Secretary.
The subpart promotes tribal flexibility in several areas, including
through periodic payments at least quarterly, and the payment of
contingency funds to be administered by the tribal contractor.
Summary of Comments
Approximately 185 comments were received from non-governmental
representatives, most of these from Nations and tribes rather than
individuals. This preamble reflects the committee response to each
comment in a section-by-section format. References to no action being
taken by the Committee indicate that no change was made to the
regulation.
Several comments proposed that the phrase ``or real property'' be
added after ``Federal facilities.'' The comments were adopted to ensure
that related construction work was covered under Subpart J. The new
phrase adds ``and/or other related work'' after ``demolition.''
Eight comments argued that supportive administrative functions
should be specifically recognized as contractible in the language of
Sec. 900.111. The Committee decided that the language was adequate as
published. One comment proposed adding ``or tribal organization
authorized'' after ``tribe.'' This comment was adopted.
One comment proposed to add a bid award phase. The comment was not
adopted because it is presently included in the individual phases
described in the regulation. Three comments stated that tribal
involvement was not included in the site selection process. Site
selection was adopted and inserted into subsection 900.112(a)(2) and
(3). One comment proposed to add ``assessment and'' after ``initial''
at Sec. 900.112(a)(1) and ``associated activities'' after
``assessments'' at Sec. 900.112(b)(2). Both comments were adopted.
Several comments stated that Sec. 900.113(b) implies that Indian
tribes and tribal organizations will always subcontract with a
consultant rather than using tribal employees to perform certain
functions. This was not the intent of the proposed regulation. The
Committee adopted the proposed language: ``An Indian tribe or tribal
organization's employee or construction management services consultant
(typically an engineer or architect) performs such activities as:'' and
struck ``The construction management services consultant (typically an
engineer or architect) assists and advises the Indian tribe or tribal
organizations in such activities as.''
Five comments suggested that the phrase ``and real property''
should be included at Sec. 900.113(c) after ``Buildings and
Facilities.'' The committee took no action on these comments.
Three comments stated that the critical distinction between
construction contracts and section 108 model agreements are the
requirements which apply to each. The committee took no action on this
comment.
One comment stated that Sec. 900.115(b)(1) should be clarified to
indicate that the term ``Act'' refers to the Office of Federal
Procurement Policy Act. The comment was adopted and the work ``such''
was deleted and the word ``that'' was inserted.
Nine comments suggested that cost reimbursement contracts should
also allocate the risk. The Committee took no action. One comment
suggested replacing ``fixed-price'' with ``negotiated.'' The Committee
adopted ``negotiated'' and inserted it before ``fixed-price'' in both
the question and response.
Two comments stated that subsection 900.117(a)(2) treats the
consequences of the Secretary's failure to act in a way that is very
unfavorable to Indian tribes and, therefore, against the policy of the
Self-Determination Act. The comments argued that the Secretary's
failure to act should render the POR accepted rather than rejected. The
Committee did not agree on this change. Three comments stated that this
section should contain standards or other objective criteria against
which the POR will be reviewed. The Committee concluded that these
criteria will be negotiated between the parties and identified in the
contract. One comment suggested revising the timeframes contained in
the subsection to accommodate a shorter construction period due to
weather concerns. The Committee decided to add a subsection at the end
of Subpart J to address this issue.
Seven comments argued that construction management services may be
performed by tribal employees. The Committee adopted the language
``and/or tribal or tribal organization employees'' after
``consultants.''
The Committee received two comments on subsection 900.120. The
first urged that the 30-day time period be reduced to 14 days. The
Committee did not agree with this change. The second comment
recommended inserting the word ``shall'' in place of ``will'' and
inserting ``By registered mail with return receipt in order to document
mailing after notify.'' This language was adopted.
The Committee received eight comments on subsection 900.121 of the
NPRM. Six suggested inserting the word ``each'' before the word
``phase,'' requiring the Secretary to notify Indian tribes and tribal
organizations before each phase. One comment proposed adding the
following language: ``Failure of the tribe or tribal organization to
notify the Secretary within 45 days after receiving Secretarial notice
described in Sec. 900.120 shall not serve as a bar to the applicant
tribe or tribal organization from contracting for the desired
project.'' Although the proposed language accurately reflects a
Comptroller General's Opinion, the Committee did not agree to this
addition. To resolve the impasse, the Committee struck subsection
900.121 in its entirety.
Eight comments suggested adding language to Sec. 900.121 to clarify
who will be solicited and how. The committee took no action on these
suggestions.
Three comments stated that section 105(m) of the Act establishes a
[[Page 32493]]
negotiation process to be invoked at the tribes' option, and section
105(m) language should be reflected in subsection 900.122 rather than
imposing a mandatory process that may not be applicable in all
situations. The regulation will be interpreted consistently with the
applicable statutory provisions. The reference ``in accordance with
section 900.121(a)'' was stricken since Sec. 900.121 was in its
entirety. One comment suggested changing ``will'' to ``shall'' after
``Secretary'' in Sec. 900.122(a). This change was adopted.
Eight comments stated that the language of this section should be
changed to mirror the requirements found at Sec. 900.29. The Committee
took no action on these comments. One comment suggested adding ``and
provide all documents relied on in making the declination decision'' at
Sec. 900.123(b)(1) after the words ``in writing.'' The Committee agreed
to this language with the addition after the word ``decision'' of
``within 20 days of such decision.'' The Committee did not agree to the
proposed addition of subsection 900.124(b)(1)(I): ``The Secretary shall
be barred from relying on any and all such documents which are not
provided in any defense of this declination decision.'' The regulation
therefore does not address what the Secretary may or may not rely upon,
leaving such matters for decision by administrative bodies or the
courts.
Three comments on Sec. 900.124 stated that the requirements for
grants are not clear. The Committee took no action.
Five comments raised the issue of the applicability of the Contract
Work Hours Act. The Committee agreed that the applicability of the
Contract Work Hours Act and other laws is adequately addressed in
Sec. 900.125(d). Accordingly, the reference to the Contract Work Hours
Act at Sec. 900.125(c)(4) was deleted.
One comment stated that Sec. 900.125(c)(1) requires the contract to
state that the tribal contractor will not alter title to real property
``without permission and instructions from the awarding Agency'' and
is, therefore, inconsistent with section 105(f) of the Act, which
states that title to property furnished by the Federal government for a
contracted program ``shall, unless otherwise requested by the tribe or
tribal organization, vest in the appropriate tribe or tribal
organization.'' The Committee adopted ``elects not to take title
(pursuant to Subpart I) to Federal property used in carrying out the
contract'' at Sec. 900.125(c)(1) after the word ``organization.'' The
Committee also struck the language ``proposes to use Federal property
in carrying out the contract.''
One comment stated that ``engineers'' should be deleted at
Sec. 900.126(a)(1) and Sec. 900.130(c)(1) because the Act does not
require the use of licensed engineers, only architects. The comment was
adopted and the word ``engineers'' was deleted from those sections.
One comment suggested that Sec. 900.125(a)(8) be expanded to
include the following language after the word ``manuals'': ``and the
Secretary shall accept tribal proposals for alternatives which are
consistent with or exceed Federal guidelines or manuals applicable to
construction programs.'' The Committee adopted this language.
One comment stated that Sec. 900.125(b)(8) was overreaching and
required production of information that the Federal government had no
legitimate need to know. The Committee compromised by agreeing to
strike the language as written and to substitute the following: ``(8)
Identify if the tribe or tribal organization has a CMS contract related
to this project,'' and added after the word ``section'' at
Sec. 900.125(b)(4) ``and minimum staff qualifications proposed by the
tribe or tribal organization, if any.''
One comment proposed adding language at Sec. 900.125(d) which would
include tribal laws, ordinances and resolutions. The Committee agreed
and added the sentence ``The parties will make a good faith effort to
identify tribal laws, ordinances and resolutions which may affect
either party in the performance of the contract.''
Three comments questioned the applicability of Sec. 900.126 to cost
reimbursement, fixed-price and non- construction contract construction
activities. The Committee took no action.
Ten comments proposed changes to the provision on contingency
funds. Four suggested the following language: ``the amount of the
contingency provided shall be 10 percent of the contingency funds,
whichever is greater.'' Two comments proposed that 100 percent of the
available contingency should be open for negotiation and one comment
advocated that 100 percent of the available contingency should be
included in the contract. The comments proposed alternative language:
``* * * allow all of the contingency funds to be transferred to the
tribe unless the government could show proof as to why such funds
should not be transferred.'' The Committee compromised on the following
language: ``The amount of the contingency provided shall be 3 percent
of activities being contracted or 50 percent of the available
contingency funds, whichever is greater.'' Additionally, the following
sentence was added to address concerns regarding funding: ``In the
event provision of required contingency funds will cause the project to
exceed available project funds, the discrepancy shall be reconciled in
accordance with Sec. 900.129(e).''
One comment objected to the term ``contract budget,'' and urged the
language be changed to ``funding proposal.'' The Committee took no
action, and noted that the present language was written to accommodate
redistribution of funds within the budget.
One comment stated that the ``fair and reasonable'' language at
Sec. 900.127(a) ``gives too much discretion to government officials to
determine what is fair and reasonable.'' The Committee adopted the
reference to Sec. 900.129 at the end of Sec. 900.127(a).
Three comments raised the question of the applicability of
Sec. 900.128 to cost reimbursement, fixed-price, and non-construction
contract construction activities. The Committee took no action on this
concern, but to clarify changes made at Sec. 900.127(e)(8), the
following language at Sec. 900.128(d)(3): ``including but not limited
to contingency.''
Seven comments stated that Sec. 900.129(e)(1) should be amended to
reflect that only the amount in excess of the available amount may be
declined. The Committee decided not to make the recommended change, but
did adopt the following language after the word ``Act'' at
Sec. 900.129(e)(1): ``or, if the contract has been awarded, dispute the
matter under the Contract Disputes Act.''
One comment urged that Sec. 900.129(e)(2)(i) ``should be modified
to expressly authorize the parties to jointly agree on a lump-sum
advance payment to generate earned interest, in order to bridge the gap
between a fair and reasonable price and the amount available to the
Secretary.'' The Committee added the phrase ``advance payments in
accordance with section 900.132'' at Sec. 900.129(e)(2)(i) after
``contingency funds.''
Three comments raised the applicability of Sec. 900.129 to cost
reimbursement, fixed-price, and non- construction contract construction
activities. The Committee took no action.
Five comments stated that architect and engineer services were
appropriate at the design phase (Sec. 900.130(b)(1)) but not required
at the construction phase and should be deleted. One comment addressed
the language requiring licensed engineers at Secs. 900.130(b)(1) and
(c)(1). The Committee struck ``and
[[Page 32494]]
engineers'' in both places, and inserted the word ``as'' before
``needed.''
Three comments stated that language at Sec. 900.130(c)(5) should be
changed to read: ``The tribe or tribal organization may not issue a
change order which is outside the general scope of work defined in the
contract or which exceeds the contract budget including contingency
funds without Secretarial approval.'' The Committee took no action.
One comment argued that the timing of the independent cost estimate
should be clarified to facilitate negotiations. The Committee took no
action.
Three comments raised the applicability of Sec. 900.130 to cost-
reimbursement, fixed-price and non- construction contract construction
activities. The Committee took no action.
One comment proposed that Sec. 900.130(b)(5) should delete the
Secretarial approval and substitute ``review and provide written
comments.'' In compromise, the Committee adopted language which allows
for Secretarial review and written comments on the project plans and
specifications only at the concept phase, the schematic (or preliminary
design) phase, the design development phase, and the final construction
documents phase, and Secretarial approval of the project plans and
specifications for general compliance with contract requirements only
at the schematic (or preliminary design) phase and the final
construction documents phase, or as otherwise negotiated.
One comment proposed replacing the word ``shall'' at
Sec. 900.130(b)(8) with ``may,'' and striking the last sentence
requiring production of copies of contracts and subcontracts. In
compromise, the Committee struck the following language: ``of contracts
and major subcontracts and modifications * * * and A/E service
deliverables.'' At the end of the first sentence of Sec. 900.130(b)(8)
the Committee adopted the following language: ``including but not
limited to descriptions of contracts, major subcontracts and
modifications implemented during the report period and A/E service
deliverables.''
The Committee struck the following language at
Sec. 900.130(c)(7)(ii): ``of change orders, contracts and major
subcontracts'' and inserted at Sec. 900.130(c)(8) ``contracts, major
subcontracts, modifications.''
One comment argued that Sec. 900.130(e) should require the
Secretary to act ``within 30 days or as negotiated between and agreed
to by the parties.'' Another comment suggested that the word
``sufficient'' replace ``additional'' before''funds are awarded.'' The
Committee took no action on the first comment and adopted the word
``sufficient'' in addition to, rather than in lieu of, ``additional.''
Six comments urged that Sec. 900.131(b)(7) be rewritten as follows:
``The tribe or tribal organization may not issue a change order which
is outside the general scope of work defined in the contract or which
exceeds the contract budget including contingency funds without
Secretarial approval.'' The Committee took no action.
Eight comments recommended the deletion of
Sec. 900.131(b)(11)(i)(A), stating that this section takes authority
from an Indian tribe when the tribe is acting as the contracting
officer for its subcontracts. The Committee took no action.
Eight comments suggested that overhead costs should be included at
Sec. 900.131(b)(11)(i)(D)(iii). The Committee adopted the language
``including but not limited to overhead costs'' before ``reasonable
costs.''
One comment stated that the Secretary's role under Sec. 900.131
generally should be substantially narrower. Specifically, the comment
stated:
The Secretary should not have final approval authority over
planning documents once a contract is set for planning activities,
the Secretary should not retain final approval authority for general
compliance with contract requirements, and the Secretary should not
be able to decline acceptance of the constructed building or
facility. The Secretary should instead be limited to monitoring
contract performance and to invoking such remedies as may be
available to the Secretary under the Contract Disputes Act or under
other provisions of the Self-Determination Act.
The Committee adopted compromise language on this issue at
Sec. 900.130(b)(5).
One comment stated that the independent cost estimate described at
Sec. 900.131(b)4) is a fully contractible function and the report
should be shared with both parties. The Committee took no action on
this comment.
One comment urged that Sec. 900.131(b)(11)(i)(B) is unacceptable
because it allows the Secretary subjective discretion to determine what
is ``materially non-compliant work,'' The Committee took no action on
this comment.
Three comments questioned the applicability of Sec. 900.131 to
cost-reimbursement, fixed-price and non- construction contract
construction activities. The Committee took no action on those
comments.
One comment proposed eliminating the Secretarial approval function
at Sec. 900.131(b)(1) and inserting the word ``maximum'' before the
words ``tribal participation.'' The Committee adopted the word
``comment'' before ``and approval functions'' and ``full'' before
``tribal participation.'' The Committee also adopted the words ``in
writing'' with regard to Secretarial notification of any concerns or
issues that may lead to disapproval and the words ``and documents''
after ``relevant information.'' The Committee struck the language
``accommodate tribal recommendations'' and inserted ``resolve all
issues and concerns of the tribe or tribal organization'' after the
words ``good faith effort to.'' The Committee added ``appropriate''
before the word ``Secretary'' at Sec. 900.131(b)(2).
One comment proposed changing Sec. 900.131(b)(4) to read
``Secretary may rely on the Indian tribe's or tribal organization's
cost estimate or the Secretary may'' obtain an independent government
cost estimate that is derived from the final project plans and
specifications, striking the balance of the sentence. The Committee
adopted this comment and, after ``tribal organization,'' added the
following: ``and shall provide all supporting documentation of the
independent cost estimate to the tribe or tribal organization within
the 90-day time limit.''
One comment proposed to strike ``approve'' at Sec. 900.131(b)(5)
and insert ``provide written comments.'' The Committee adopted the
following language after ``the Secretary shall have the authority to
review'': ``for general compliance with the contract requirements and
provide written comments on,'' and struck ``approve for general
compliance with contract requirements.'' After ``final construction
documents phase,'' the Committee also added ``and approve for general
compliance with contract requirements the project plans specifications
only at the schematic phase and final construction documents phase.''
One comment argued that Sec. 900.131(b)(9) be deleted and the
following substituted: ``The Secretary shall be limited to the number
of on-site monitoring visits negotiated between and agreed upon by the
parties.'' The Committee achieved consensus by striking ``retains the
right to'' and inserting ``may'' after ``the Secretary.''
In response to a comment regarding Sec. 900.131(b)(1)(iii), the
Committee inserted ``including but not limited to overhead costs.''
One comment proposed an additional subsection at
Sec. 900.131(b)(13)(vi) to read: ``The Indian tribe or tribal
organization shall be compensated for
[[Page 32495]]
reasonable costs incurred due to termination of the contract.'' The
Committee adopted this comment.
One comment proposed adding ``No further approval or justifying
documentation by the contractor shall be required before expenditure of
funds'' to Sec. 900.134. The Committee adopted this suggestion.
Two additional subsections to Subpart J were adopted by the
Committee. One responds to tribal concerns regarding the short period
of actual time available to engage in construction activities where
weather is an issue. The second clarifies that tribal employment rights
ordinances do apply to construction contracts and subcontracts.
The Committees received comments urging both approval and rejection
of Subpart J as proposed. The Committee only considered comments which
addressed a specific subsection and/or proposed language.
Construction management services: Of the comments received
regarding the proposed rule for construction activities under Public
Law 93-638, many were directed towards the definition of Construction
Management Services (CMS) and Construction Project Management (CPM)
contained as part of the rule. Indeed, one comment, representative of
several Indian tribes, ``. . . objects to the excessively narrow
definition of construction management services (Sec. 900.113(b)) in a
fashion which unlawfully defeats the tribal right to contract for
management services through an ordinary self-determination contract,
contrary to section 4(m) of the Act.'' CMS is a management process for
construction projects that in some instances can provide for project
delivery. Several comments feel that the activities described in the
definition of CPM should be considered CMS activities. The distinction
is important in that the statute provides that self-determination
contracts for CMS can be through the Section 108 Model Agreement and
not through a self-determination construction contract (Subpart J) as
the regulations require for conduct of CPM activities.
The statute does not provide a definition for CMS and efforts to
develop a definition dominated Committee discussion through the
regulation process. At the start of the negotiation process, discussion
departed upon a path that quickly stalled in a quagmire of divided
opinion as to the role, both appropriate and statutorily permissible,
available to the Federal government in self-determination contracts
involving construction. However, at no point was there any dispute
between tribal or Federal representatives that a tribe can contract for
all management functions of a construction contract. The dispute
regarding this issue revolves around the contracting vehicle utilized--
a self-determination contract versus a Section 108 Model Agreement--and
not the contractibility of management functions. Consistent with the
Federal argument for limited Federal involvement in construction
projects was an unwavering view that a Model Agreement, invoked through
provision CMS, could not be used to circumvent other provisions of the
statute dealing with construction.
To move forward, the Committee set aside initial efforts to define
roles and involvement, and instead focused on describing processes
through which tribes could pursue construction activities. From these
scenarios, much discussion ensued and the roles of each party
developed. Through these efforts, the regulations evolved in a manner
that provides for Indian tribes or tribal organizations to contract for
a spectrum of responsibilities, ranging from oversight of Federal
efforts to tribal responsibility for all aspects of the construction
process, through multiple options of contracting methods. From the
standpoint of the tribal representatives that actively and consistently
participated throughout the negotiation process, the practical effect
of the CMS definition is negligible towards the overall goal of
increasing tribal control of the contracting process. The limit of the
Federal involvement, as described in Sec. 900.132 of the regulation, is
a direct reflection of efforts to describe reasonable points of Federal
involvement. Both tribal and Federal representatives of the Committee
charged with developing the regulations agree that the end result
reflects a lessening Federal involvement in and an increase of tribal
control of the construction process through 638 contracting.
However, Federal and tribal committee members did not reach
consensus on the definition of CMS. Tribal and federal representatives
included this issue in their non-consensus reports. The tribal non-
consensus position sought to eliminate the definition of ``construction
project management'' and include a less restrictive definition of
``construction management services'' with conforming changes to the
balance of Subpart J. Tribal representatives are of the view that these
definitions inappropriately limit the scope of construction management
activities which should be contractible outside Subpart J. They are
further of the view that the precise contours of ``construction
management services'' should be worked out on a case-by-case basis as
tribes engage in negotiations with particular agencies over specific
construction projects. Accordingly, the Departments did not change the
definition of CPM.
While the Departments have given careful consideration to the views
of the tribal representatives on this issue, they cannot accept the
tribal proposal. The Departments are persuaded that, as a legal matter,
the Act treats construction contracts governed by Subpart J differently
from contracts for other activities which may be contracted using the
model agreement in section 108 of the Act. The two definitions allow
contracting under a section 108 model, agreement for certain
administrative support, coordination, and monitoring activities.
However, construction project design and construction activities
(including day-to-day on site project management and administration)
are appropriately contracted under Subpart J. Although the tribal
representatives are of a different legal view, we believe that
expanding the definition of ``construction management services'' so
that construction projects may be conducted under a section 108
construction management agreement circumvents the statutory
requirements for a construction contract between the government and the
Indian tribe or tribal organization.
Subpart K--Waiver Procedures
Summary of Subpart
This subpart implements section 107(e) of the Act, which authorizes
the Secretary to make exceptions to the regulations promulgated to
implement the Act or to waive such regulations under certain
circumstances. Section 107(e) of the Act provides that in reviewing
waiver requests, the Secretary shall follow the time line, findings,
assistance, hearing, and appeal procedures set forth in section 102 of
the Act. Subpart K explains how an Indian tribe or tribal organization
applies for a waiver, how the waiver request is processed, the
applicable timeframes for approval or declination of waiver requests,
and whether technical assistance is available. In addition, subpart K
restates the declination criteria of section 102 of the Act, which
apply to waiver requests, and specifies that a denial of a waiver
request is appealable under subpart L of these regulations. Finally,
subpart K implements section 107(b) of the Act by providing a process
for a determination
[[Page 32496]]
by the Secretary that a law or regulation has been superseded by the
provisions of the Indian Self-Determination Act, as amended.
Summary of Comments
Several comments indicated that the scope of Subpart K was unclear.
Some argued that the scope should be narrowed to authorizing only
waivers under Part 900, while others argued that it should be expanded
to include other regulations as well. The language in Sec. 900.140 has
been redrafted to clarify that the statutory waiver authority in
Section 107(e) of the Act is limited to regulations under this Part. It
should be noted that the Secretary of the Interior has the reserved
authority to waive other regulations in 25 CFR if permitted by law. See
25 CFR 1.2.
One comment asked whether the Secretary can delegate his or her
authority to waive regulations to lower administrative levels. The
Secretary does have such authority, but has not chosen to exercise it.
One comment recommended a modifying of the last sentence of
Sec. 900.143 to require a ``clear and convincing'' burden of proof on
the Secretary where a waiver request is denied. This recommendation was
rejected because it is different from the statutory burden of proof in
Section 102(a)(2) of the Act.
One comment objected that the 90-day period in Sec. 900.143 was too
long, and recommended shortening it to 30 days. This recommendation was
rejected because it is contrary to the 90-day time frame in Section
102(a)(2) of the Act. Section 107(e) of the Act specifically provides
that the timeline in Section 102 of the Act applies to the review of
waiver requests.
One comment asked whether waivers can be granted even if they are
against the law. Although such a clarification is unnecessary in this
regulation, the Secretary is not authorized to waive any provision of
the Act that may be restated in these regulations.
One comment stated that Sec. 900.146 should be amended to allow
Indian tribes or tribal organizations the discretion to draw on
expertise from other tribes and/or tribal organizations to meet their
needs. To address this concern, Sec. 900.146 was amended to cross-
reference the provision of technical assistance under Sec. 900.7.
One comment recommended the inclusion of an additional paragraph in
Sec. 900.148 requiring the Secretary to attach a list of all applicable
Federal requirements to each contract. This suggestion was not adopted
because any addition to the contract must be by mutual agreement of the
parties pursuant to Section 108 of the Act.
The Office of Management and Budget (OMB) expressed concern about
recognition of its ultimate responsibility for the approval of waivers
of any principles contained in OMB cost circulars. Therefore, in
reviewing waivers of any cost principles, OMB requests that the
Secretary consult with OMB prior to approving any requests under
Subpart K.
Subpart L--Appeals
Summary of Subpart
The advisory committee decided to develop substantive regulations
governing appeals of pre-award decisions by Federal officials. This
subpart does not govern appeals of post-award decisions subject to the
Contract Disputes Act, since the provisions governing disputes under a
contract can be found in subpart N of these regulations. Subpart L
implements sections 102(b), 102(e), and 109 of the Act, as well as
various other provisions requiring the Secretary to provide an
administrative appeals process when making certain decisions under the
Act. It provides a road map to the appeals process for Indian tribes
and tribal organizations.
The regulation is divided in two parts: the first part concerns
appeals from decisions relating to declination of a proposal, an
amendment of a proposal, or a program redesign; non-emergency
reassumption decisions; decisions to refuse to waive regulations under
section 107(e) of the Act; disagreements over reporting requirements;
decisions relating to mature status conversions; decisions relating to
a request that a law or regulation has been superseded by the Act; and
a catchall provision relating to any other preaward decisions, except
Freedom of Information Act appeals and decisions relating to the award
of discretionary grants under section 103 of the Act. The second part
concerns decisions relating to emergency reassumptions under section
109 of the Act and decisions relating to suspension, withholding, or
delay of payments under section 106(l) of the Act.
Subpart L allows for an informal conference to avoid more time-
consuming and costly formal hearings, but delineates the appeal process
available to Indian tribes and tribal organizations that are either
unhappy with the results of the informal conference or who choose to
bypass the informal process altogether. Subpart L also states that an
Indian tribe or tribal organization may go directly to Federal district
court rather than exhaust the administrative appeal process under this
regulation.
Under the regulation, all appeals must be filed with the Interior
Board of Indian Appeals. Hearings on the record are conducted by an
Administrative Law Judge of the Department of the Interior's Office of
Hearings and Appeals, Hearings Division, who renders a recommended
decision. Objections to this recommended decision may be filed either
with the Interior Board of Indian Appeals, if the case relates to a
Department of the Interior decision, or with the Secretary for Health
and Human Services, if the case relates to the Department of Health and
Human Services.
The second part contains similar provisions concerning emergency
reassumption and suspension decisions, but these decisions are treated
separately because of the statutory requirement that a hearing on the
record be held within ten days of the Secretary's notice of his or her
intent to rescind and reassume a program immediately, or a notice of
intent to suspend, withhold, or delay payment under a contract.
Summary of Comments
Several comments noted that the words ``you'' and ``your'' appear
throughout this Subpart, rather than the words ``Indian tribe'' and
``tribal organization.'' Where appropriate, the words ``you'' and
``your'' have been replaced throughout this Subpart.
Pursuant to several comments, Sec. 900.150 was amended by adding a
new paragraph (j) subjecting decisions relating to requests for
determination that a law or regulation has been superseded by the Act
to the appeal procedures under this Subpart.
One comment objected to having IHS appeals go to the Interior Board
of Indian Appeals (IBIA). This recommendation was not adopted because
to have all appeals heard by a single administrative appeals body so
that the Act and these regulations are uniformly interpreted by both
Departments.
One comment recommended that Indian tribes should be required to go
through the administrative appeal process before going to Federal
district court. This recommendation was not adopted because Section 110
of the Act specifically authorizes direct access to Federal courts.
One comment recommended that there be a mandatory completion time
of six months from the time an Indian tribe or tribal organization
files a notice of appeal to the time for a final decision
[[Page 32497]]
from the IBIA. This recommendation was not adopted because there is no
way for the IBIA to anticipate when all briefings, discovery
extensions, and settlement discussions will be concluded. Flexibility
needs to be maintained during this process. The regulation already
includes time frames for the IBIA to render decisions once all required
filings have been made. See, e.g., Sec. 900.167 and Sec. 900.174.
One comment recommended enlarging the 30-day period in Sec. 900.152
to 90 days. This recommendation was not adopted because Sec. 900.159
already provides for an extension of time.
Several comments requested that Sec. 900.152 be clarified to
provide that Indian tribes may appeal decisions made by agencies of
DHHS besides the IHS. This recommendation was adopted, and the question
in Sec. 900.152 was amended to reflect this clarification.
One comment suggested that Sec. 900.155(b) be redrafted to define
the words ``adequate representation'' and suggested that the section be
redrafted so that the costs of the appeal are chargeable either to the
contract, if the tribe prevails on the appeal, or to the tribe if the
appeal is unsuccessful. These recommendations were not adopted. Federal
agencies reserve the rights to determine what is adequate
representation in specific cases. To force tribes to repay the expense
of appeals either through a charge to the contract or through tribal
funds would be unjust and would discourage appeals which are well
taken.
Many comments objected to a provision in Sec. 900.152 and
Sec. 900.156 which provides that ``the IBIA will determine whether you
are entitled to a hearing.'' This sentence was deleted from these two
sections. As pointed out in many comments, the standards governing
these decisions are set forth in Sec. 900.160.
Several comments objected to the certification requirement in
Sec. 900.158(d) because it is not a statutory requirement of the Act,
and conflicts with the government-to-government relationship between
tribes and U.S. Government. This recommendation was not adopted. The
certification requirements here are the same as in courts and other
administrative appeal forums. The purpose of the requirement is simply
to ensure that the deciding official has been informed that his/her
decision has been appealed, and that the IBIA be informed of this
notification. It is not intended to be a burdensome requirement, but
merely a certification that is obtained for information purposes.
Pursuant to a comment, the words ``good reason'' in Sec. 900.159
were changed to the words ``valid reason.''
One comment recommended deletion of Sec. 900.159 because any
request for an extension should be made within the 30-day time frame in
Sec. 900.158. This recommendation was not adopted because, although a
matter of considerable debate during the Committee's negotiations, it
was agreed that there could be extenuating circumstances that could
prevent a Indian tribe or tribal organization from filing its notice of
appeal within the 30-day time frame in Sec. 900.158.
One comment sought clarification of what happens if the IBIA
determines not to grant an extension. If the IBIA determines that the
appellant does not have a valid reason to extend the deadline, and the
tribe disagrees with this determination, it can appeal that decision to
Federal District Court pursuant to Section 110 of the Act.
Section 900.160(a) was restructured into two sentences for
clarification purposes. The second sentence of Sec. 900.160 now begins
with the words ``[i]f so.
One comment recommended changing the 15-day time frame in
Sec. 900.161(b) to a longer period. This recommendation was not adopted
because it is the Committee's belief that the time frame is adequate to
hold a pre-hearing conference.
Several comments suggested that Sec. 900.163 be amended to impose a
clear and convincing evidence burden of proof on the Secretary. This
recommendation was rejected because it is different from the statutory
burden of proof in Section 102(a)(2) of the Act.
Several comments recommended rewriting the question in Sec. 900.163
to include all appealable issues. This recommendation was not adopted
because the burden of proof is on the appellant to show by a
preponderance of the evidence that the agency erred for issues under
appeals in Secs. 900.150(h), (i), and (j). This is consistent with the
usual Administrative Procedure Act standard.
One comment objected to the agency which is one of the parties to
the appeal making the final decision in Sec. 900.167. The regulatory
provision is consistent with the Act. Section 102(e)(2) of the Act
provides that any decision which represents final agency action shall
be made ``by an official of the Department who holds a position at a
higher organizational level within the Department * * * than the agency
* * * in which the decision was made'' or by an administrative judge.
Several comments noted that Subpart L does not address the
statutory right of Indian tribes to recover attorney fees under the
Equal Access to Justice Act (EAJA). In response to these comments, a
new section was added at the end of Subpart L clarifying that EAJA
applies to administrative appeals under this Subpart, and cross-
referencing the appropriate EAJA regulations.
Subpart M--Federal Tort Claims Act Coverage
Summary of Subpart
Coverage of the Federal Tort Claims Act (FTCA) has been extended to
Indian tribes, tribal organizations and Indian contractors carrying out
contracts, grants, and cooperative agreements under the Act. This
subpart explains which tort claims are covered by the FTCA and which
tort claims are not covered by the FTCA, for both medical and non-
medical related claims. It also provides for tribal assistance in
giving notice of tort claims to the Federal agency involved, and in
providing assistance during the administrative claim or litigation
process.
Summary of Comments
Two comments stated that there should be no distinction between
medical-related and non-medical-related functions under self-
determination contracts for purposes of FTCA coverage, defense or
payment. This comment was rejected because the medical provisions have
a unique history grounded in the Public Health Service Act, and in
Section 102(d) of the Act.
Several comments expressed concern that the proposed regulations
lacked guidance regarding insurance. Insurance is beyond the scope of
FTCA authority for these regulations.
Several comments stated that portions of this Subpart reflect a
fundamental misunderstanding of the scope of the Federal government's
obligation to defend and indemnify tribal contractors for non-tort
claims and claims outside the contract. Another set of comments
requested that Sec. 900.183 be amended to explain that an Indian tribe
or tribal organization may not be sued for claims beyond the scope of
the FTCA arising out of the performance of self-determination contacts.
In amending Sec. 900.183, the Committee determined to narrow the scope
of the regulation strictly to the remedial FTCA provisions of section
102(d) of the Act and section 314 of Public Law 101-512, as required by
section 107(a)(1) of the Act. The Committee therefore chose not to
address the extent to which Indian
[[Page 32498]]
tribes or tribal organizations are protected from suits on other
claims, which is beyond the scope of these regulations.
One comment recommended that ``Indian contractor,'' as defined in
Sec. 900.181(a), should be expanded to include non-medical services as
well as medical services. Although the Eighth Circuit Court of Appeals
(see FGS Constructors, Inc. v. Carlow, 64 F.3d 1230) has interpreted
this provision as applying only to health programs, Sec. 900.181(a)(3)
was added to reflect the desire of some Indian tribes to continue
disputing the scope of this term.
One comment recommended deleting Sec. 900.181(b) since ``contract''
is defined elsewhere. The comment was adopted.
One comment suggested clarifying Sec. 900.183(a) by stating with
specificity which tort claims are barred. The comment was adopted and
this section was changed.
One comment recommended Sec. 900.183(b) be amended by adding a new
subsection including activities performed by an employee which are
outside of the scope of employment. The comment was adopted.
One comment asked what law will be used to implement breach of
contract claims and whether tribal contractors are subject to Federal
employment statutes. The comment was rejected because this subject is
beyond the scope of regulatory authority under section 107(a)(1) of the
Act.
One comment questioned the reference to violations of the U.S.
Constitution in Sec. 900.183(b)(4). The provision was deleted. As
sovereigns pre-existing the Constitution, Indian tribes have
historically been regarded as unconstrained by those constitutional
provisions framed specifically as limitations on Federal and state
authority. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
To the extent applicable, 28 U.S.C. 2679(b)(2) continues to be
relevant.
Several comments asked whether tribal law applied to tort claims.
No change was made because state law applies to the determination of
liability for tort claims under the FTCA.
One comment suggested amending Sec. 900.188(c)(7) to add
``including Federal employees assigned to the contractor,'' after the
word ``employees.'' The comment was adopted and the sentence re-
written.
Two comments recommended that the notice requirements of 28 U.S.C.
2679(c) be referenced in Sec. 900.188(b). Also, one comment suggested
adding the same notice provision to Sec. 900.203. The comments were
adopted.
One comment recommended synchronizing Sec. 900.206 with
Sec. 900.192 so that the list of employees covered for non-medical-
related claims is the same as for medical-related claims. The comment
was adopted.
Subpart N--Post-Award Contract Disputes
Summary of Subpart
Under section 110(d) of the Act, the Contract Disputes Act (CDA)
applies to post-award contract claims. This subpart explains when a CDA
claim can be filed, the contents of a claim, and where to file the
claim. It also explains the difference in the handling of claims over
$100,000 and those less than that amount.
Summary of Comments
Several comments recommended that language from the withdrawn 1994
NPRM regarding the application of the Equal Access to Justice Act be
incorporated into the Subpart. The comments were adopted by adding
Sec. 900.216(c).
Several comments recommended adding paragraph 900.805(k) from the
withdrawn 1994 NPRM regarding using accounting principles as ``guides''
rather ``rigid measures'' in IBCA appeals. The comments were adopted
and a new section was added.
One comment was concerned that Sec. 900.217 was silent regarding
the Tribal Court system alternative for alternative disputes
resolution. A change was made in Sec. 900.217(b) to adopt this
recommendation. Two comments indicated that Sec. 900.217(b) needs to
add the right of the tribe, if it desires, to file in Federal District
Court or the Court of Federal Claims. This concern is already addressed
in Sec. 900.222.
Several comments recommended that Sec. 900.220(b) be revised to
read: ``supporting documents or data are accurate and complete to the
best of the Indian tribe or tribal organization's knowledge and
belief.'' The comments were adopted.
Two comments recommended that Sec. 900.224 be amended so that delay
of the awarding official in making a final decision should be treated
as though the claim were approved, rather than denied. These comments
were rejected because the existing language is statutory.
Several comments recommended adding the following language to
Sec. 900.227: ``If a decision is withdrawn and a new decision
acceptable to the contractor is not issued, the contractor may proceed
with the appeal based on the new decision or, if no new decision is
issued, proceed under Sec. 900.224.'' The comments were adopted and a
new Sec. 900.227(c) was added.
One comment expressed concern that Sec. 900.230(a) requires an
Indian tribe to keep performing its contract in spite of the
possibility that the claim being appealed represents crucial operating
funds from the contact. This is addressed by the limitation of cost
clause of the model contract.
Subpart O--Conflicts of Interest
Summary of Subpart
Section 900.231 defines an organizational conflict of interest, and
Sec. 900.233 defines personal conflicts of interest which could affect
self-determination contracts. The balance of the subpart advises Indian
tribes what must be done in the event a conflict arises. The subpart
also provides that Indian tribes may elect to negotiate specific
conflicts provisions on a contract-by-contract basis.
Summary of Comments
The area of conflict of interests--where an Indian tribe or tribal
organization's and/or their employees' administrations of a self-
determination contract affecting allottees and others could be impaired
by financial bias--raises difficult questions for DOI, including the
proper balance between the Federal-tribal government-to-government
relationship and the Secretary's mandated trust responsibility.
Additional issues include the degree of monitoring required for
conflicts, if any, where the United States contracts with Indian tribes
to perform duties that directly affect the statutory rights of third
parties. In attempting to reconcile these difficult questions, the DOI
has opted for an approach that seeks to minimize intrusion and burden
to Indian tribes and tribal organizations, yet provides for a degree of
accountability where conflicts arise.
The Committee reached consensus on a personal conflict of interest
provision in the procurement management standards in Subpart F. The
Federal committee members believed this section should be supplemented
by a regulation addressing conflicts of the Indian tribe or tribal
organization itself and conflicts of individual employees involved in
trust resource management. These regulations appear in Subpart O of the
final regulation and only apply to contracts awarded by the DOI.
Several comments on the NPRM noted that no provision on conflicts
of interest has previously been adopted in the 20 years of contracting
trust
[[Page 32499]]
programs. The need to address the conflicts issue in some form has
become more apparent as the DOI's experience with 638 contracts has
increased.
Some comments assert that excellent tribal track records make it
clear that no federal regulation is necessary. Several other comments
state that the NPRM proposal suggests that in the absence of regulation
Indian tribes will engage in fraudulent actions. The DOI does not
contend that there is a widespread problem of unmitigated conflicts of
interest. Rather it is adopting the rule in recognition of its
responsibility as trustee to ensure that in a trust relationship, the
acts of its agents are in accordance with high fiduciary standards.
Therefore, the rule is intended to protect trust beneficiaries. Because
the regulation only requires an Indian tribe or tribal organization to
provide notice in the case of an organizational conflicts of interest,
compliance should not be burdensome.
Several comments stated that any potential conflict between a tribe
and allottees is no different than any other relationship between a
government and its citizens, where a government uses its own employees
to value private land to be condemned for government purposes. Several
other comments state the NPRM's ``organizational conflict'' proposal
was vague and nonsensical since the United States retains a residual
component (such as lease approval or taking fee land into trust status)
which gives the DOI ample opportunity to protect the interests of the
United States. A related comment stated that this proposal appeared to
pass on to Indian tribes the costs of the federal government's
continuing responsibilities as trustee, constituting an unauthorized
failure to perform non-delegable functions.
The final regulations do address organizational conflicts, because
there is a significant difference between the obligation of a trustee
to a beneficiary and that of a government to a citizen. In response to
these comments, the DOI significantly altered the organizational
conflicts regulation from the NPRM. First, the final regulation clearly
states that it only applies when the contract affects the interests of
allottees, trust resources or statutory obligations to third parties.
Second, the Indian tribe or tribal organization is only required to
provide notice to the federal government when such a situation arises,
that is not already covered in their 638 contract.
Several Indian tribes commented that Federal regulations must not
dictate internal tribal operations in the area of personal conflicts of
interest. Some of them acknowledge that the federal proposal would not
be particularly burdensome, but state that it is inconsistent with the
federal policy of Indian self-determination.
The personal conflict of interest provisions are narrowly drawn to
cover only trust programs. While there is a strong federal policy of
Indian self-determination, there is also a strong federal policy of
strict adherence to the trust responsibilities arising from treaty and
statute. The self-determination statute does not sever the fiduciary
relationship between the United States and Indian trust beneficiaries.
For this reason the ethical standards involved are not solely an
internal tribal concern.
One comment recommended reliance on tribal codes, supplemented by
negotiated contract provisions, to protect against personal conflicts
of interest. The comment analogized the federal proposal to
unsatisfactory past experiences with BIA ``model codes.''
The rule accommodates tribal codes and negotiated contract
provisions, that the Department agrees would be the ideal manner in
which to address conflicts. However it also provides a rule to apply in
the absence of tribal code or contract terms that adequately protect
trust beneficiaries from conflicts of interest.
Several comments agree that regulations should address the problem
of conflicts of interest arising from familial relations,
organizational relations where elected officials also serve in
programmatic capacities, and financial relations. These comments
suggest that Indian tribes be authorized to employ their own written
codes of standards of conducts. Until the Secretary approves such
codes, the comments suggest terms that should apply that draw upon
standards applicable to federal employees and other government
contractors.
The Department agrees that regulations are needed and has provided
in Sec. 900.236 that it will negotiate conflicts provisions in
contracts, to displace these regulations if there is agreement to
provide equivalent protection to these regulations. The Department's
regulations focus solely on financial interests, and not familial and
organizational relations, believing that the latter is more susceptible
to internal tribal regulation. Because of concerns about tribal
sovereignty, the final regulation does not require Departmental
approval of tribal codes, except as agreed to in individual contract
negotiations.
Some comments described the proposal in the NPRM as presenting
micro-management opportunities for federal agency personnel
inconsistent with a government-to-government relationship. To avoid
micro-management, the final rule was modified, in the case of
organizational conflicts, to require only notice to the DOI when and
Indian tribe or tribal organization learns of the existence of a
conflict. No mitigation plan, as proposed in the 1996 NPRM, is
required. The personal conflicts regulation only requires the Indian
tribe to address the conflict in a manner that enables the Department
to meet its trust responsibilities.
Some comments recommended that Indian tribes and the DOI rely on
contract-by-contract negotiations for addressing conflicts provision.
As mentioned earlier, because of the trust and legal responsibilities
of the Department, the regulations are necessary to address situations
where terms cannot be negotiated in the short time permitted for
negotiation.
Several Indian tribes commented that the Government does not
similarly regulate its own actions, and consult with Indian tribes
concerning conflicts with actions proposed on allottee properties. The
DOI agrees that consultations is appropriate, but recognized that it
has a very high duty to assure that actions taken with respect to
allottee properties are consistent with its fiduciary responsibilities
to those allottees. The rule does not require consultation with
allottees on actions concerning tribal lands, or vice versa.
One comment written on behalf of several individual owners of trust
resources, strongly supported the adoption of minimum standards to
assure the integrity of the performance and administration of trust
resources. The comment suggests that, at a minimum trust resources be
subject to the same conflict standards applied to procurement in the
proposed Sec. 900.48.
The final rule is very similar to the agreed provisions in
Sec. 900.48.
Subpart P--Retrocession and Reassumption Procedures
Summary of Subpart
Section 107(a)(1) of the Act authorizes the Secretaries to
promulgate regulations governing retrocession and reassumption
procedures. Sections 900.240 through 900.245 define retrocession, what
entities are entitled to retrocede, tribal rights for contracting and
funding as a result of retrocession, and tribal obligations regarding
the return of property to the Secretary after retrocession.
Sections 900.246 through 900.256 explain what is meant by
reassumption,
[[Page 32500]]
the two types of reassumption authorized under the Act, necessary
circumstances when using emergency and non-emergency reassumption
authority, and Secretarial responsibilities, including detailed written
notice requirements when reassumption is invoked. The subpart describes
a number of activities after reassumption has been completed, such as
authorization for ``wind up'' costs, tribal obligations regarding the
return of property to the Secretary, and a funding reduction
protection.
Summary of Comments
One comment recommended that the phrase ``may retrocede a
contract'' be added to the end of the answer in Sec. 900.232 to provide
a more complete answer to the question of who may retrocede a contract.
This suggestion adds clarity to the answer, and has been adopted.
Several comments recommended that an additional question and answer
be added to address when a retrocession becomes effective. The
recommended language is contained in the Act, provides meaningful
information to the users of this regulation, and has been adopted and
inserted as a new Sec. 900.233.
Several comments recommended that the term ``fair market'' be added
to the answer in Sec. 900.236 and Sec. 900.246 in describing the value
of property to be returned to the Secretary in the event of a
retrocession or reassumption. While the essence of this recommendation
has been adopted, to remain consistent throughout the regulation the
definition of ``fair market'' as provided in Subpart I will be restated
in this Subpart. (Subpart I states ``current fair market value, less
the cost of improvements borne by the Indian tribe or tribal
organization in excess of $5,000.'') Also, for clarity the word
``requested'' has been added to the answer in Sec. 900.236 in
describing property to be returned to the Secretary.
One comment recommended that the answer provided in Sec. 900.238,
which has (a) and (b) components, be reversed to track the order of the
question and avoid confusion. This recommendation has been adopted to
promote uniformity in this question and answer.
A comment recommended language be added to the answer in
Sec. 900.239 incorporating the option for the award of grants to Indian
tribes from the Secretary for technical assistance to overcome non-
emergency deficiencies. While the exact language suggested is not used,
the recommendation has been adopted since such grants are authorized
under the Act.
Several comments recommended that language be added to
Sec. 900.238(b)(1) dealing with the conditions for emergency
reassumptions. These comments were not adopted because the language now
contained in Sec. 900.238(b)(1) precisely tracks the Act and the
suggested additional language may confuse statutory intent.
One comment recommended that a statement be added to Sec. 900.242
that the Secretary will not rescind a contract until there is a final
decision in any administrative hearing or appeal on a non-emergency
reassumption. This recommendation has been adopted.
Internal Agency Procedures
The Departments' position is that a comprehensive manual for the
internal management of self-determination contracts should not be
developed through the formal rulemaking process. Internal agency
procedures are more appropriately developed outside the negotiated
rulemaking process, to allow flexibility in addressing practical
considerations which arise in the field, and to allow maximum
participation from those agency officials who bear much of the
responsibility for implementing the Act to its fullest capability. The
Federal position supports a joint tribal and Federal commitment to work
together to generate a procedural manual which will promote the
purposes underlying the Indian Self-Determination Act and facilitate
contracting by Indian tribes and tribal organizations.
One goal of the full committee is to have uniform procedures for
the implementation and interpretation of the act and these regulations
which apply to all Federal agencies which administer contracted
programs. The Federal members of the committee propose that the parties
formally agree to work together to develop a manual which guides all
contracting agencies through the contracting process. This is
consistent with the position taken by the work group charged with
making recommendations regarding internal agency procedures.
To that end, Federal committee members would commit to a firm time
line within which to produce a manual.
Administrative Matters
This rule is a significant regulatory action Executive Order 12866
and requires review by the Office of Management and Budget.
The Departments certify that this rule will not have significant
economic effects on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
In accordance with Executive Order 12630 the Department of the
Interior and the Department of Health and Human Services have
determined that this regulation does not have significant takings
implications. The rule does not pertain to the taking of private
property interests, nor does it have an effect on private property.
The Department of the Interior and the Department of Health and
Human Services have determined that this rule does not have significant
Federalism effects under Executive Order 12612 and will not interfere
with the roles, rights, and responsibilities of states.
The Departments of the Interior and Health and Human Services have
determined that this rule does not constitute a major Federal action
significantly affecting the quality of the human environment and that
no detailed statement is required under the National Environmental
policy Act of 1969.
This rule imposes no unfunded mandates on any governmental or
private entity in excess of $100 million annually and is in compliance
with the provisions of the Unfunded Mandates Act of 1995.
Paperwork Reduction Act of 1995
The Office of Management and Budget has approved, under 44 U.S.C.
chapter 35, the information collection requirements in part 900 under
assigned control number 1076-0136. The information for part 900 is
being collected and used by the Departments to determine applicant
eligibility, evaluate applicant capabilities, protect the service
population, safeguard Federal funds and other resources, and permit the
Departments to administer and evaluate contract programs.
The Departments estimate that the average burden of complying with
the collection, broken down by subpart, will be as follows: Subpart C
(Contract Proposal Contents), 222 hours; Subpart F (Standards for
Tribal or Tribal Organization Management Systems), 250 hours; Subpart G
(Programmatic Reports and Data Requirements), 150 hours; Subpart I
(Property Donation Procedures), 10 hours; Subpart J (Construction), 564
hours; Subpart K (Waiver Procedures), 10 hours; and Subpart L
(Appeals), 40 hours.
Responses to the collection of information under this regulation
are required in order for Indian tribes or tribal organizations to
obtain or retain benefits under the Act. However, not every tribal
contractor will need to respond to each request for information
contained in the regulation, as some of the requests pertain to
specific
[[Page 32501]]
situations or to certain types of self-determination contracts.
Moreover, under section 5(f)(2) of the Act, tribal organizations are
given authority to negotiate their individual reporting requirements
with the Secretary on a contract-by-contract basis. Any disagreements
over reporting requirements are subject to the declination criteria and
procedures in section 102 of the Act and subpart E of the regulation.
There is no assurance of confidentiality provided to respondents
concerning this information collection.
The Departments may not conduct or sponsor a collection of
information, nor are Indian tribes or tribal organizations or other
persons required to respond to such collections unless the Departments
display a currently valid OMB control number.
List of Subjects in 25 CFR Part 900
Indians; Administrative practice and procedure, Buildings and
facilities, Claims, Government contracts, Grant programs--Indians,
Health care, Indians--business and finance, Government property
management.
For the reasons given in the preamble, the Departments of the
Interior and Health and Human Services hereby establish a new part 900
in chapter V of title 25 of the Code of Federal Regulations as set
forth below.
Dated: June 14, 1996.
Bruce Babbitt,
Secretary of the Interior.
Dated: June 13, 1996.
Donna Shalala,
Secretary of Health and Human Services.
CHAPTER V--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AND
INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES
PART 900--CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND
EDUCATION ASSISTANCE ACT
Subpart A--General Provisions
Sec.
900.1 Authority.
900.2 Purpose and scope.
900.3 Policy statements.
900.4 Effect on existing tribal rights.
900.5 Effect of these regulations on Federal program guidelines,
manual, or policy directives.
Subpart B--Definitions
900.6 Definitions.
Subpart C--Contract Proposal Contents
900.7 What technical assistance is available to assist in preparing
an initial contract proposal?
900.8 What must an initial contract proposal contain?
900.9 May the Secretary require an Indian tribe or tribal
organization to submit any other information beyond that identified
in 900.8?
900.10 How does an Indian tribe or tribal organization secure a
list of all Federal property currently in use in carrying out the
programs, functions, services, or activities that benefit the Indian
tribe or tribal organization to assist in negotiating a contract?
900.11 What should an Indian tribe or tribal organization that is
proposing a contract do about specifying the Federal property that
the Indian tribe or tribal organization may wish to use in carrying
out the contract?
900.12 Are the proposal contents requirements the same for renewal
of a contract that is expiring and for securing an annual funding
agreement after the first year of the funding agreement?
900.13 Does the contract proposal become part of the final
contract?
Subpart D--Review and Approval of Contract Proposals
900.14 What does this Subpart cover?
900.15 What shall the Secretary do upon receiving a proposal?
900.16 How long does the Secretary have to review and approve the
proposal and award the contract, or decline a proposal?
900.17 Can the statutory 90-day period be extended?
900.18 What happens if a proposal is not declined within 90 days
after it is received by the Secretary?
900.19 What happens when a proposal is approved?
Subpart E--Declination Procedures
900.20 What does this Subpart cover?
900.21 When can a proposal be declined?
900.22 For what reasons can the Secretary decline a proposal?
900.23 Can the Secretary decline a proposal where the Secretary's
objection can be overcome through the contract?
900.24 Can a contract proposal for an Indian tribe's or tribal
organization's share of administrative programs, functions,
services, and activities be declined for any reason other than the
five reasons specified in Sec. 900.22
900.25 What if only a portion of a proposal raises one of the five
declination criteria?
900.26 What happens if the Secretary declines a part of a proposal
on the ground that the proposal proposes in part to plan, conduct,
or administer a program, function, service or activity that is
beyond the scope of programs covered under section 102(a) of the
Act, or proposes a level of funding that is in excess of the
applicable level determined under section 106(a) of the Act?
900.27 If an Indian tribe or tribal organization elects to contract
for a severable portion of a proposal, does the Indian tribe or
tribal organization lose its appeal rights to challenge the portion
of the proposal that was declined?
900.28 Is technical assistance available to an Indian tribe or
tribal organization to avoid declination of a proposal?
900.29 What is the Secretary required to do if the Secretary
decides to decline all or a portion of a proposal?
900.30 When the Secretary declines all or a portion of a proposal,
is the Secretary required to provide an Indian tribe or tribal
organization with technical assistance?
900.31 When the Secretary declines all or a portion of a proposal,
is an Indian tribe or tribal organization entitled to any appeal?
900.32 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
900.33 Are all proposals to renew term contracts subject to the
declination criteria?
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
General
900.35 What is the purpose of this Subpart?
900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this Subpart?
900.37 What provisions of Office of Management and Budget (OMB)
circulars or the ``common rule'' apply to self-determination
contracts?
900.38 Do these standards apply to the subcontractors of an Indian
tribe or tribal organization carrying out a self-determination
contract?
900.39 What is the difference between a standard and a system?
900.40 When are Indian tribe or tribal organization management
standards and management systems evaluated?
900.41 How long must an Indian tribe or tribal organization keep
management system records?
Standards for Financial Management Systems
900.42 What are the general financial management system standards
that apply to an Indian tribe carrying out a self-determination
contract?
900.43 What are the general financial management system standards
that apply to a tribal organization carrying out a self-
determination contract?
900.44 What minimum general standards apply to all Indian tribe or
tribal organization financial management systems when carrying out a
self-determination contract?
900.45 What specific minimum requirements shall an Indian tribe or
tribal organization's financial management system contain to meet
these standards?
900.46 What requirements are imposed upon the Secretary for
financial management by these standards?
[[Page 32502]]
Procurement Management System Standards
900.47 When procuring property or services with self-determination
contract funds, can an Indian tribe or tribal organization follow
the same procurement policies and procedures applicable to other
Indian tribe or tribal organization funds?
900.48 If the Indian tribe or tribal organization does not propose
different standards, what basic standards shall the Indian tribe or
tribal organization follow?
900.49 What procurement standards apply to subcontracts?
900.50 What Federal laws, regulations, and Executive Orders apply
to sub-contractors?
Property Management System Standards
900.51 What is an Indian tribe or tribal organization's property
management system expected to do?
900.52 What type of property is the property management system
required to track?
900.53 What kind of records shall the property management system
maintain?
900.54 Should the property management system prescribe internal
controls?
900.55 What are the standards for inventories?
900.56 What maintenance is required for property?
900.57 What if the Indian tribe or tribal organization chooses not
to take title to property furnished or acquired under the contract?
900.58 Do the same accountability and control procedures described
above apply to Federal property?
900.59 How are the inventory requirements for Federal property
different than for tribal property?
900.60 How does an Indian tribe or tribal organization dispose of
Federal property?
Subpart G--Programmatic Reports and Data Requirements
900.65 What programmatic reports and data shall the Indian tribe or
tribal organization provide?
900.66 What if the Indian tribe or tribal organization and the
Secretary cannot come to an agreement concerning the type and/or
frequency of program narrative and/or program data report(s)?
900.67 Will there be a uniform data set for all IHS programs?
900.68 Will this uniform data set be required of all Indian tribe
or tribal organizations contracting with the IHS under the Act?
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
900.69 What is the purpose of this Subpart?
900.70 What elements are included in the compensation for a lease
entered into between the Secretary and an Indian tribe or tribal
organization for a building owned or leased by the Indian tribe or
tribal organization that is used for administration or delivery of
services under the Act?
900.71 What type of reserve fund is anticipated for funds deposited
into a reserve for replacement of facilities as specified in
Sec. 900.70(c)?
900.72 Who is the guardian of the fund and may the funds be
invested?
900.73 Is a lease with the Secretary the only method available to
recover the types of cost described in 900.70?
900.74 How may an Indian tribe or tribal organization propose a
lease to be compensated for the use of facilities?
Subpart I--Property Donation Procedures
General
900.85 What is the purpose of this Subpart?
900.86 How will the Secretary exercise discretion to acquire and
donate BIA or IHS excess property and excess and surplus Federal
property to an Indian tribe or tribal organization?
Government-Furnished Property
900.87 How does an Indian tribe or tribal organization obtain title
to property furnished by the Federal government for use in the
performance of a contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
900.88 What should the Indian tribe or tribal organization do if it
wants to obtain title to government-furnished real property that
includes land not already held in trust?
900.89 When may the Secretary elect to reacquire government-
furnished property whose title has been transferred to an Indian
tribe or tribal organization?
900.90 Does government-furnished real property to which an Indian
tribe or tribal organization has taken title continue to be eligible
for facilities operation and maintenance funding from the Secretary?
Contractor-Purchased Property
900.91 Who takes title to property purchased with funds under a
self-determination contract or grant agreement pursuant to section
105(f)(2)(A)?
900.92 What should the Indian tribe or tribal organization do if it
wants contractor-purchased real property to be taken into trust?
900.93 When may the Secretary elect to acquire title to contractor-
purchased property?
900.94 Is contractor-purchased real property to which an Indian
tribe or tribal organization holds title eligible for facilities
operation and maintenance funding from the Secretary?
BIA and IHS Excess Property
900.95 What is BIA or IHS excess property?
900.96 How can Indian tribes or tribal organizations learn about
BIA and IHS excess property?
900.97 How can an Indian tribe or tribal organization acquire
excess BIA or IHS property?
900.98 Who takes title to excess BIA or IHS property donated to an
Indian tribe or tribal organization?
900.99 Who takes title to any land that is part of excess BIA or
IHS real property donated to an Indian tribe or tribal organization?
900.100 May the Secretary elect to reacquire excess BIA or IHS
property whose title has been transferred to an Indian tribe or
tribal organization?
900.101 Is excess BIA or IHS real property to which an Indian tribe
or tribal organization has taken title eligible for facilities
operation and maintenance funding from the Secretary?
Excess or Surplus Government Property of Other Agencies
900.102 What is excess or surplus government property of other
agencies?
900.103 How can Indian tribes or tribal organizations learn about
property that has been designated as excess or surplus government
property?
900.104 How may an Indian tribe or tribal organization receive
excess or surplus government property of other agencies?
900.105 Who takes title to excess or surplus Federal property
donated to an Indian tribe or tribal organization?
900.106 If a contract or grant agreement or portion thereof is
retroceded, reassumed, terminated, or expires, may the Secretary
reacquire title to excess or surplus Federal property of other
agencies that was donated to an Indian tribe or tribal organization?
Property Eligible for Replacement Funding
900.107 What property to which an Indian tribe or tribal
organization obtains title under this Subpart is eligible for
replacement funding?
Subpart J--Construction
900.110 What does this Subpart cover?
900.111 What activities of construction programs are contractible?
900.112 What are construction phases?
900.113 Definitions.
900.114 Why is there a separate subpart in these regulations for
construction contracts and grants?
900.115 How do self-determination construction contracts relate to
ordinary Federal procurement contracts?
900.116 Are negotiated fixed-price contracts treated the same as
cost-reimbursable contracts?
900.117 Do these ``construction contract'' regulations apply to
planning services?
900.118 Do these ``construction contract'' regulations apply to
construction management services?
900.119 To what extent shall the Secretary consult with affected
Indian tribes before spending funds for any construction project?
900.120 How does an Indian tribe or tribal organization find out
about a construction project?
900.121 What happens during the preplanning phase and can an Indian
tribe or tribal organization perform any of the activities involved
in this process?
900.122 What does an Indian tribe or tribal organization do if it
wants to secure a construction contract?
[[Page 32503]]
900.123 What happens if the Indian tribe or tribal organization and
the Secretary cannot develop a mutually agreeable contract proposal?
900.124 May the Indian tribe or tribal organization elect to use a
grant in lieu of a contract?
900.125 What shall a construction contract proposal contain?
900.126 Shall a construction contract proposal incorporate
provisions of Federal construction guidelines and manuals?
900.127 What can be included in the Indian tribe or tribal
organizations contract budget?
900.128 What funding shall the Secretary provide in a construction
contract?
900.129 How do the Secretary and Indian tribe or tribal
organization arrive at an overall fair and reasonable price for the
performance of a construction contract?
900.130 What role does the Indian tribe or tribal organization play
during the performance of a self-determination construction
contract?
900.131 What role does the Secretary play during the performance of
a self-determination construction contract?
900.132 Once a contract and/or grant is awarded, how will the
Indian tribe or tribal organization receive payments?
900.133 Does the declination process or the Contract Dispute Act
apply to construction contract amendments proposed either by an
Indian tribe or tribal organization or the Secretary?
900.134 At the end of a self-determination construction contract,
what happens to savings on a cost-reimbursement contract?
900.135 May the time frames for action set out in this Subpart be
reduced?
900.136 Do tribal employment rights ordinances apply to
construction contracts and subcontracts?
900.137 Do all provisions of the other subparts apply to contracts
awarded under this subpart?
Subpart K--Waiver Procedures
900.140 Can any provision of the regulations under this Part be
waived?
900.141 How does an Indian tribe or tribal organization get a
waiver?
900.142 Does an Indian tribe or tribal organization's waiver
request have to be included in an initial contract proposal?
900.143 How is a waiver request processed?
900.144 What happens if the Secretary makes no decision within the
90-day period?
900.145 On what basis may the Secretary deny a waiver request?
900.146 Is technical assistance available for waiver requests?
900.147 What appeal rights are available?
900.148 How can an Indian tribe or tribal organization secure a
determination that a law or regulation has been superseded by the
Indian Self-Determination Act, as specified in section 107(b) of the
Act?
Subpart L--Appeals
Appeals Other Than Emergency Reassumption and Suspension, Withholding
or Delay in Payment
900.150 What decisions can an Indian tribe or tribal organization
appeal under this Subpart?
900.151 Are there any appeals this part does not cover?
900.152 How does an Indian tribe or tribal organization know where
and when to file its appeal from decisions made by agencies of DOI
or DHHS?
900.153 Does an Indian tribe or tribal organization have any
options besides an appeal?
900.154 How does an Indian tribe or tribal organization request an
informal conference?
900.155 How is an informal conference held?
900.156 What happens after the informal conference?
900.157 Is the recommended decision always final?
900.158 How does an Indian tribe or tribal organization appeal the
initial decision, if it does not request an informal conference or
if it does not agree with the recommended decision resulting from
the informal conference?
900.159 May an Indian tribe or tribal organization get an extension
of time to file a notice of appeal?
900.160 What happens after an Indian tribe or tribal organization
files an appeal?
900.161 How is a hearing arranged?
900.162 What happens when a hearing is necessary?
900.163 What is the Secretary's burden of proof for appeals from
decisions under Sec. 900.150(a) through Sec. 900.150(g)?
900.164 What rights do Indian tribes, tribal organizations, and the
government have during the appeal process?
900.165 What happens after the hearing?
900.166 Is the recommended decision always final?
900.167 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
900.168 Will an appeal hurt the Indian tribe or tribal
organization's position in other contract negotiations?
900.169 Will the decisions on appeals be available for the public
to review?
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspensions, Withholding or Delay of Payments Under a Self-
Determination Contract
900.170 What happens in the case of emergency reassumption or
suspension or withholding or delay of payments?
900.171 Will there be a hearing?
900.172 What happens after the hearing?
900.173 Is the recommended decision always final?
900.174 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
900.175 Will an appeal hurt an Indian tribe or tribal
organization's position in other contract negotiations?
900.176 Will the decisions on appeals be available for the public
to review?
Applicability of the Equal Access to Justice Act
900.177 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Subpart M--Federal Tort Claims Act Coverage General Provisions
900.180 What does this Subpart cover?
900.181 What definitions apply to this subpart?
900.182 What other statutes and regulations apply to FTCA coverage?
900.183 Do Indian tribes and tribal organizations need to be aware
of areas which FTCA does not cover?
900.184 Is there a deadline for filing FTCA claims?
900.185 How long does the Federal government have to process an
FTCA claim after the claim is received by the Federal agency, before
a lawsuit may be filed?
900.186 Is it necessary for a self-determination contract to
include any clauses about Federal Tort Claims Act coverage?
900.187 Does FTCA apply to a self-determination contract if FTCA is
not referenced in the contract?
900.188 To what extent shall the contractor cooperate with the
Federal government in connection with tort claims arising out of the
contractor's performance?
900.189 Does this coverage extend to subcontractors of self-
determination contracts?
Medical-Related Claims
900.190 Is FTCA the exclusive remedy for a tort claim for personal
injury or death resulting from the performance of a self-
determination contract?
900.191 Are employees of self-determination contractors providing
health services under the self-determination contract protected by
FTCA?
900.192 What employees are covered by FTCA for medical-related
claims?
900.193 Does FTCA coverage extend to individuals who provide health
care services under a personal services contract providing services
in a facility that is owned, operated, or constructed under the
jurisdiction of the IHS?
900.194 Does FTCA coverage extend to services provided under a
staff privileges agreement with a non-IHS facility where the
agreement requires a health care practitioner to provide reciprocal
services to the general population?
900.195 Does FTCA coverage extend to the contractor's health care
practitioners providing services to private patients on a fee-for-
services basis when such personnel (not the self-determination
contractor) receive the fee?
[[Page 32504]]
900.196 Do covered services include the conduct of clinical studies
and investigations and the provision of emergency services,
including the operation of emergency motor vehicles?
900.197 Does FTCA cover employees of the contractor who are paid by
the contractor from funds other than those provided through the
self-determination contract?
900.198 Are Federal employees assigned to a self-determination
contractor under the Intergovernmental Personnel Act or detailed
under section 214 of the Public Health Service Act covered to the
same extent that they would be if working directly for a Federal
agency?
900.199 Does FTCA coverage extend to health care practitioners to
whom staff privileges have been extended in contractor health care
facilities operated under a self-determination contract on the
condition that such practitioner provide health services to IHS
beneficiaries covered by FTCA?
900.200 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Procedure for Filing Medical-Related Claims
900.201 How should claims arising out of the performance of
medical-related functions be filed?
900.202 What should a self-determination contractor or a
contractor's employee do on receiving such a claim?
900.203 If the contractor or contractor's employee receives a
summons and/or a complaint alleging a tort covered by FTCA, what
should the contractor do?
Non-Medical Related Claims
900.204 Is FTCA the exclusive remedy for a non-medical related tort
claim arising out of the performance of a self-determination
contract?
900.205 To what non-medical-related claims against self-
determination contractors does FTCA apply?
900.206 What employees are covered by FTCA for non-medical-related
claims?
900.207 How are non-medical related tort claims and lawsuits filed
for IHS?
900.208 How are non-medical related tort claims and lawsuits filed
for DOI?
900.209 What should a self-determination contractor or contractor's
employee do on receiving a non-medical related tort claim?
900.210 If the contractor or contractor's employee receives a
summons and/or complaint alleging a non-medical related tort covered
by FTCA, what should an Indian tribe or tribal organization do?
Subpart N--Post-Award Contract Disputes
900.215 What does this subpart cover?
900.216 What other statutes and regulations apply to contract
disputes?
900.217 Is filing a claim under the CDA our only option for
resolving post-award contract disputes?
900.218 What is a claim under the CDA?
900.219 How does an Indian tribe, tribal organization, or Federal
agency submit a claim?
900.220 Does it make a difference whether the claim is large or
small?
900.221 What happens next?
900.222 What goes into a decision?
900.223 When does an Indian tribe or tribal organization get the
decision?
900.224 What happens if the decision does not come within that
time?
900.225 Does an Indian tribe or tribal organization get paid
immediately if the awarding official decides in its favor?
900.226 What rules govern appeals of cost disallowances?
900.227 Can the awarding official change the decision after it has
been made?
900.228 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
900.229 What role will the awarding official play during an appeal?
900.230 What is the effect of a pending appeal?
Subpart O--Conflicts of Interest
900.231 What is an organizational conflict of interest?
900.232 What must an Indian tribe or tribal organization do if an
organizational conflict of interest arises under a contract?
900.233 When must an Indian tribe or tribal organization regulate
its employees or subcontractors to avoid a personal conflict of
interest?
900.234 What types of personal conflicts of interest involving
tribal officers, employees or subcontractors would have to be
regulated by an Indian tribe?
900.235 What personal conflicts of interest must the standards of
conduct regulate?
900.236 May an Indian tribe elect to negotiate contract provisions
on conflict of interest to take the place of this regulation?
Subpart P--Retrocession and Reassumption Procedures
900.240 What does retrocession mean?
900.241 Who may retrocede a contract, in whole or in part?
900.242 What is the effective date of retrocession?
900.243 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
900.244 Will an Indian tribe or tribal organization's retrocession
adversely affect funding available for the retroceded program?
900.245 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used
in the operation of the retroceded program?
900.246 What does reassumption mean?
900.247 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
900.248 In a non-emergency reassumption, what is the Secretary
required to do?
900.249 What happens if the contractor fails to take corrective
action to remedy the contract deficiencies identified in the notice?
900.250 What shall the second written notice include?
900.251 What is the earliest date on which the contract will be
rescinded in a non-emergency reassumption?
900.252 In an emergency reassumption, what is the Secretary
required to do?
900.253 What shall the written notice include?
900.254 May the contractor be reimbursed for actual and reasonable
``wind up costs'' incurred after the effective date of rescission?
900.255 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used
in the operation of the rescinded contract?
900.256 Will a reassumption adversely affect funding available for
the reassumed program?
Authority: 25 U.S.C. 450f et seq.
Subpart A--General Provisions
Sec. 900.1 Authority.
These regulations are prepared, issued, and maintained jointly by
the Secretary of Health and Human Services and the Secretary of the
Interior, with the active participation and representation of Indian
tribes, tribal organizations, and individual tribal members pursuant to
the guidance of the Negotiated Rulemaking procedures required by
section 107 of the Indian Self-Determination and Education Assistance
Act.
Sec. 900.2 Purpose and scope.
(a) General. These regulations codify uniform and consistent rules
for contracts by the Department of Health and Human Services (DHHS) and
the Department of the Interior (DOI) in implementing title I of the
Indian Self-Determination and Education Assistance Act, Public Law 93-
638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9
preceding that title.
(b) Programs funded by other Departments and agencies. Included
under this part are programs administered (under current or future law
or interagency agreement) by the DHHS and the DOI for the benefit of
Indians for which appropriations are made to other Federal agencies.
(c) This part included in contracts by reference. Each contract,
including grants and cooperative agreements in lieu of contracts
awarded under section 9 of the Act, shall include by reference the
provisions of this part, and any amendment thereto, and they are
binding on the Secretary and the contractor except as otherwise
specifically authorized by a waiver under section 107(e) of the Act.
(d) Freedom of Information. Access to records maintained by the
Secretary is governed by the Freedom of Information Act (5 U.S.C. 552)
and other applicable
[[Page 32505]]
Federal law. Except for previously provided copies of tribal records
that the Secretary demonstrates are clearly required to be maintained
as part of the record keeping systems of the DHHS or the DOI, or both,
records of the contractors (including archived records) shall not be
considered Federal records for the purpose of the Freedom of
Information Act. The Freedom of Information Act does not apply to
records maintained solely by Indian tribes and tribal organizations.
(e) Privacy Act. Section 108(b) of the Indian Self-Determination
Act states that records of the tribal government or tribal
organizations shall not be considered Federal records for the purposes
of the Privacy Act.
(f) Information Collection. The Office of Management and Budget has
approved, under 44 U.S.C. chapter 35, the information collection
requirements in Part 900 under assigned control number 1076-0136. The
information for Part 900 is being collected and used by the Departments
to determine applicant eligibility, evaluate applicant capabilities,
protect the service population, safeguard Federal funds and other
resources, and permit the Departments to administer and evaluate
contract programs.
Sec. 900.3 Policy statements.
(a) Congressional policy.
(1) Congress has recognized the obligation of the United States to
respond to the strong expression of the Indian people for self-
determination by assuring maximum Indian participation in the
direction, planning, conduct and administration of educational as well
as other Federal programs and services to Indian communities so as to
render such programs and services more responsive to the needs and
desires of those communities.
(2) Congress has declared its commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and
responsibility to, individual Indian tribes and to the Indian people as
a whole through the establishment of a meaningful Indian self-
determination policy which will permit an orderly transition from the
Federal domination of programs for, and services to, Indians to
effective and meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services.
In accordance with this policy, the United States is committed to
supporting and assisting Indian tribes in the development of strong and
stable tribal governments, capable of administering quality programs
and developing the economies of their respective communities.
(3) Congress has declared that a major national goal of the United
States is to provide the quantity and quality of educational services
and opportunities which will permit Indian children to compete and
excel in the life areas of their choice, and to achieve the measure of
self-determination essential to their social and economic well-being.
(4) Congress has declared that the programs, functions, services,
or activities that are contracted and funded under this Act shall
include administrative functions of the Department of the Interior and
the Department of Health and Human Services (whichever is applicable)
that support the delivery of services to Indians, including those
administrative activities supportive of, but not included as part of,
the service delivery programs described in this paragraph that are
otherwise contractible. The administrative functions referred to in the
preceding sentence shall be contractible without regard to the
organizational level within the Department that carries out such
functions. Contracting of the administrative functions described herein
shall not be construed to limit or reduce in any way the funding for
any program, function, service, or activity serving any other tribe
under the Act or any other law. The Secretary is not required to reduce
funding for programs, projects, or activities serving a tribe to make
funds available to another Indian tribe or tribal organization under
this Act.
(5) Congress has further declared that each provision of the Act
and each provision of contracts entered into thereunder shall be
liberally construed for the benefit of the tribes or tribal
organizations to transfer the funding and the related functions,
services, activities, and programs (or portions thereof), that are
otherwise contractible under the Act, including all related
administrative functions, from the Federal government to the
contractor.
(6) Congress has declared that one of the primary goals of the 1994
amendments to the Act was to minimize the reporting requirements
applicable to tribal contractors and to eliminate excessive and
burdensome reporting requirements. Reporting requirements over and
above the annual audit report are to be negotiated with disagreements
subject to the declination procedures of section 102 of the Act.
(7) Congress has declared that there not be any threshold issues
which would avoid the declination, contract review, approval, and
appeal process.
(8) Congress has declared that all self-determination contract
proposals must be supported by the resolution of an Indian tribe(s).
(9) Congress has declared that to the extent that programs,
functions, services, and activities carried out by tribes and tribal
organizations pursuant to contracts entered into under this Act reduce
the administrative or other responsibilities of the Secretary with
respect to the operation of Indian programs and result in savings that
have not otherwise been included in the amount of contract funds
determined under Section 106(a) of the Act, the Secretary shall make
such savings available for the provision of additional services to
program beneficiaries, either directly or through contractors, in a
manner equitable to both direct and contracted programs.
(b) Secretarial policy. (1) It is the policy of the Secretary to
facilitate the efforts of Indian tribes and tribal organizations to
plan, conduct and administer programs, functions, services and
activities, or portions thereof, which the Departments are authorized
to administer for the benefit of Indians because of their status as
Indians. The Secretary shall make best efforts to remove any obstacles
which might hinder Indian tribes and tribal organizations including
obstacles that hinder tribal autonomy and flexibility in the
administration of such programs.
(2) It is the policy of the Secretary to encourage Indian tribes
and tribal organizations to become increasingly knowledgeable about the
Departments' programs administered for the benefit of Indians by
providing information on such programs, functions and activities and
the opportunities Indian tribes have regarding them.
(3) It is the policy of the Secretary to provide a uniform and
consistent set of rules for contracts under the Act. The rules
contained herein are designed to facilitate and encourage Indian tribes
to participate in the planning, conduct, and administration of those
Federal programs serving Indian people. The Secretary shall afford
Indian tribes and tribal organizations the flexibility, information,
and discretion necessary to design contractible programs to meet the
needs of their communities consistent with their diverse demographic,
geographic, economic, cultural, health, social, religious and
institutional needs.
(4) The Secretary recognizes that contracting under the Act is an
exercise by Indian tribes of the government-to-government relationship
between the United States and the Indian tribes. When an Indian tribe
contracts, there is a transfer of the responsibility with the
[[Page 32506]]
associated funding. The tribal contractor is accountable for managing
the day-to-day operations of the contracted Federal programs,
functions, services, and activities. The contracting tribe thereby
accepts the responsibility and accountability to the beneficiaries
under the contract with respect to use of the funds and the
satisfactory performance of the programs, functions, services and
activities funded under the contract. The Secretary will continue to
discharge the trust responsibilities to protect and conserve the trust
resources of Indian tribes and the trust resources of individual
Indians.
(5) The Secretary recognizes that tribal decisions to contract or
not to contract are equal expressions of self-determination.
(6) The Secretary shall maintain consultation with tribal
governments and tribal organizations in the Secretary's budget process
relating to programs, functions, services and activities subject to the
Act. In addition, on an annual basis, the Secretary shall consult with,
and solicit the participation of, Indian tribes and tribal
organizations in the development of the budget for the Indian Health
Service and the Bureau of Indian Affairs (including participation of
Indian tribes and tribal organizations in formulating annual budget
requests that the Secretary submits to the President for submission to
Congress pursuant to section 1105 of title 31, United States Code).
(7) The Secretary is committed to implementing and fully supporting
the policy of Indian self-determination by recognizing and supporting
the many positive and successful efforts and directions of tribal
governments and extending the applicability of this policy to all
operational components within the Department. By fully extending Indian
self-determination contracting to all operational components within the
Department having programs or portions of programs for the benefit of
Indians under section 102(a)(1) (A) through (D) and for the benefit of
Indians because of their status as Indians under section 102(a)(1)(E),
it is the Secretary's intent to support and assist Indian tribes in the
development of strong and stable tribal governments capable of
administering quality programs that meet the tribally determined needs
and directions of their respective communities. It is also the policy
of the Secretary to have all other operational components within the
Department work cooperatively with tribal governments on a government-
to-government basis so as to expedite the transition away from Federal
domination of Indian programs and make the ideals of Indian self-
government and self-determination a reality.
(8) It is the policy of the Secretary that the contractibility of
programs under this Act should be encouraged. In this regard, Federal
laws and regulations should be interpreted in a manner that will
facilitate the inclusion of those programs or portions of those
programs that are for the benefit of Indians under section 102(a)(1)
(A) through (D) of the Act, and that are for the benefit of Indians
because of their status of Indians under section 102(a)(1)(E) of the
Act.
(9) It is the Secretary's policy that no later than upon receipt of
a contract proposal under the Act (or written notice of an Indian tribe
or tribal organization's intention to contract), the Secretary shall
commence planning such administrative actions, including but not
limited to transfers or reductions in force, transfers of property, and
transfers of contractible functions, as may be necessary to ensure a
timely transfer of responsibilities and funding to Indian tribes and
tribal organizations.
(10) It is the policy of the Secretary to make available to Indian
tribes and tribal organizations all administrative functions that may
lawfully be contracted under the Act, employing methodologies
consistent with the methodology employed with respect to such functions
under titles III and IV of the Act.
(11) The Secretary's commitment to Indian self-determination
requires that these regulations be liberally construed for the benefit
of Indian tribes and tribal organizations to effectuate the strong
Federal policy of self-determination and, further, that any ambiguities
herein be construed in favor of the Indian tribe or tribal organization
so as to facilitate and enable the transfer of services, programs,
functions, and activities, or portions thereof, authorized by the Act.
Sec. 900.4 Effect on existing tribal rights.
Nothing in these regulations shall be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by Indian tribes;
(b) Terminating, waiving, modifying, or reducing the trust
responsibility of the United States to the Indian tribe(s) or
individual Indians. The Secretary shall act in good faith in upholding
this trust responsibility;
(c) Mandating an Indian tribe to apply for a contract(s) or
grant(s) as described in the Act; or
(d) Impeding awards by other Departments and agencies of the United
States to Indian tribes to administer Indian programs under any other
applicable law.
Sec. 900.5 Effect of these regulations on Federal program guidelines,
manual, or policy directives.
Except as specifically provided in the Act, or as specified in
Subpart J, an Indian tribe or tribal organization is not required to
abide by any unpublished requirements such as program guidelines,
manuals, or policy directives of the Secretary, unless otherwise agreed
to by the Indian tribe or tribal organization and the Secretary, or
otherwise required by law.
Subpart B--Definitions
Sec. 900.6 Definitions.
Unless otherwise provided in this Part:
Act means Secs. 1 through 9, and Title I of the Indian Self-
Determination and Education Assistance Act of 1975, Public Law 93-638,
as amended.
Annual funding agreement means a document that represents the
negotiated agreement of the Secretary to fund, on an annual basis, the
programs, services, activities and functions transferred to an Indian
tribe or tribal organization under the Act.
Appeal means a request by an Indian tribe or tribal organization
for an administrative review of an adverse Agency decision.
Awarding official means any person who by appointment or delegation
in accordance with applicable regulations has the authority to enter
into and administer contracts on behalf of the United States of America
and make determinations and findings with respect thereto. Pursuant to
the Act, this person can be any Federal official, including but not
limited to, contracting officers.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
Contract means a self-determination contract as defined in section
4(j) of the Act.
Contract appeals board means the Interior Board of Contract
Appeals.
Contractor means an Indian tribe or tribal organization to which a
contract has been awarded.
Days means calendar days; except where the last day of any time
period specified in these regulations falls on a Saturday, Sunday, or a
Federal holiday, the period shall carry over to the next business day
unless otherwise prohibited by law.
Department(s) means the Department of Health and Human Services
(HHS) or the Department of the Interior (DOI), or both.
[[Page 32507]]
IHS means the Indian Health Service of the Department of Health and
Human Services.
Indian means a person who is a member of an Indian Tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group, or community, including pueblos, rancherias, colonies
and any Alaska Native Village, or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
Indirect cost rate means the rate(s) arrived at through negotiation
between an Indian tribe or tribal organization and the appropriate
Federal Agency.
Indirect costs means costs incurred for a common or joint purpose
benefiting more than one contract objective or which are not readily
assignable to the contract objectives specifically benefitted without
effort disproportionate to the results achieved.
Initial contract proposal means a proposal for programs, functions,
services, or activities that the Secretary is authorized to perform but
which the Indian tribe or tribal organization is not now carrying out.
Real property means any interest in land together with the
improvements, structures, and fixtures and appurtenances thereto.
Reassumption means rescission, in whole or in part, of a contract
and assuming or resuming control or operation of the contracted program
by the Secretary without consent of the Indian tribe or tribal
organization pursuant to the notice and other procedures set forth in
Subpart P.
Retrocession means the voluntary return to the Secretary of a
contracted program, in whole or in part, for any reason, before the
expiration of the term of the contract.
Secretary means the Secretary of Health and Human Services (HHS) or
the Secretary of the Interior (DOI), or both (and their respective
delegates).
Tribal organization means the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: provided,
that, in any case where a contract is let or a grant made to an
organization to perform services benefiting more than one Indian tribe,
the approval of each such Indian tribe shall be a prerequisite to the
letting or making of such contract or grant.
Trust resources means an interest in land, water, minerals, funds,
or other assets or property which is held by the United States in trust
for an Indian tribe or an individual Indian or which is held by an
Indian tribe or Indian subject to a restriction on alienation imposed
by the United States.
Subpart C--Contract Proposal Contents
Sec. 900.7 What technical assistance is available to assist in
preparing an initial contract proposal?
The Secretary shall, upon request of an Indian tribe or tribal
organization and subject to the availability of appropriations, provide
technical assistance on a non-reimbursable basis to such Indian tribe
or tribal organization to develop a new contract proposal or to provide
for the assumption by the Indian tribe or tribal organization of any
program, service, function, or activity (or portion thereof) that is
contractible under the Act. The Secretary may also make a grant to an
Indian tribe or tribal organization for the purpose of obtaining
technical assistance, as provided in section 103 of the Act. An Indian
tribe or tribal organization may also request reimbursement for pre-
award costs for obtaining technical assistance under sections 106(a)
(2) and (5) of the Act.
Sec. 900.8 What must an initial contract proposal contain?
An initial contract proposal must contain the following
information:
(a) The full name, address and telephone number of the Indian tribe
or tribal organization proposing the contract.
(b) If the tribal organization is not an Indian tribe, the proposal
must also include:
(1) a copy of the tribal organization's organizational documents
(e.g., charter, articles of incorporation, bylaws, etc.).
(2) The full name(s) of the Indian tribe(s) with which the tribal
organization is affiliated.
(c) The full name(s) of the Indian tribe(s) proposed to be served.
(d) A copy of the authorizing resolution from the Indian tribe(s)
to be served.
(1) If an Indian tribe or tribal organization proposes to serve a
specified geographic area, it must provide authorizing resolution(s)
from all Indian tribes located within the specific area it proposes to
serve. However, no resolution is required from an Indian tribe located
outside the area proposed to be served whose members reside within the
proposed service area.
(2) If a currently effective authorizing resolution covering the
scope of an initial contract proposal has already been provided to the
agency receiving the proposal, a reference to that resolution.
(e) The name, title, and signature of the authorized representative
of the Indian tribe or tribal organization submitting the contract
proposal.
(f) The date of submission of the proposal.
(g) A brief statement of the programs, functions, services, or
activities that the tribal organization proposes to perform, including:
(1) A description of the geographical service area, if applicable,
to be served.
(2) The estimated number of Indian people who will receive the
benefits or services under the proposed contract.
(3) An identification of any local, Area, regional, or national
level departmental programs, functions, services, or activities to be
contracted, including administrative functions.
(4) A description of the proposed program standards;
(5) An identification of the program reports, data and financial
reports that the Indian tribe or tribal organization will provide,
including their frequency.
(6) A description of any proposed redesign of the programs,
services, functions, or activities to be contracted,
(7) Minimum staff qualifications proposed by the Indian tribe and
tribal organization, if any; and
(8) A statement that the Indian tribe or tribal organization will
meet the minimum procurement, property and financial management
standards set forth in Subpart F, subject to any waiver that may have
been granted under Subpart K.
(h) The amount of funds requested, including:
(1) An identification of the funds requested by programs,
functions, services, or activities, under section 106(a)(1) of the Act,
including the Indian tribe or tribal organization's share of funds
related to such programs, functions, services, or activities, if any,
from any Departmental local, area, regional, or national level.
(2) An identification of the amount of direct contract support
costs, including one-time start-up or preaward costs under section
106(a)(2) and related provisions of the Act, presented by major
categories such as:
(i) Personnel (differentiating between salary and fringe benefits);
(ii) Equipment;
(iii) Materials and supplies;
[[Page 32508]]
(iv) Travel;
(v) Subcontracts; and
(vi) Other appropriate items of cost.
(3) An identification of funds the Indian tribe or tribal
organization requests to recover for indirect contract support costs.
This funding request must include either:
(i) a copy of the most recent negotiated indirect cost rate
agreement; or
(ii) an estimated amount requested for indirect costs, pending
timely establishment of a rate or negotiation of administrative
overhead costs.
(4) To the extent not stated elsewhere in the budget or previously
reported to the Secretary, any preaward costs, including the amount and
time period covered or to be covered; and
(5) At the option of the Indian tribe or tribal organization, an
identification of programs, functions, services, or activities
specified in the contract proposal which will be funded from sources
other than the Secretary.
(i) The proposed starting date and term of the contract.
(j) In the case of a cooperative agreement, the nature and degree
of Federal programmatic involvement anticipated during the term of the
agreement.
(k) The extent of any planned use of Federal personnel and Federal
resources.
(l) Any proposed waiver(s) of the regulations in this part; and
(m) A statement that the Indian tribe or tribal organization will
implement procedures appropriate to the programs, functions, services
or activities proposed to be contracted, assuring the confidentiality
of medical records and of information relating to the financial affairs
of individual Indians obtained under the proposal contract, or as
otherwise required by law.
Sec. 900.9 May the Secretary require an Indian tribe or tribal
organization to submit any other information beyond that identified in
Sec. 900.8?
No.
Sec. 900.10 How does an Indian tribe or tribal organization secure a
list of all Federal property currently in use in carrying out the
programs, functions, services, or activities that benefit the Indian
tribe or tribal organization to assist in negotiating a contract?
The Indian tribe or tribal organization submits a written request
to the Secretary. The Secretary shall provide the requested
information, including the condition of the property, within 60 days.
Sec. 900.11 What should an Indian tribe or tribal organization that is
proposing a contract do about specifying the Federal property that the
Indian tribe or tribal organization may wish to use in carrying out the
contract?
The Indian tribe or tribal organization is encouraged to provide
the Secretary, as early as possible, with:
(a) A list of the following Federal property intended for use under
the contract:
(1) Equipment;
(2) Furnishings;
(3) Facilities; and
(4) Other real and personal property.
(b) A statement of how the Indian tribe or tribal organization will
obtain each item by transfer of title under Sec. 105(f)(2) of the Act
and section 1(b)(8) of the model agreement set forth in section 108(c)
of the Act, through a temporary use permit, similar arrangement, or
otherwise; and
(c) Where equipment is to be shared by contracted and non-
contracted programs, services, functions, or activities, a proposal
outlining proposed equipment sharing or other arrangements.
Sec. 900.12 Are the proposal contents requirements the same for
renewal of a contract that is expiring and for securing an annual
funding agreement after the first year of the funding agreement?
No. In these situations, an Indian tribe or tribal organization
should submit a renewal proposal (or notification of intent not to
renew) or an annual funding agreement proposal at least 90 days before
the expiration date of the contract or existing annual funding
agreement. The proposal shall provide funding information in the same
detail and format as the original proposal and may also identify any
significant proposed changes.
Sec. 900.13 Does the contract proposal become part of the final
contract?
No, unless the parties agree.
Subpart D--Review and Approval of Contract Proposals
Sec. 900.14 What does this subpart cover?
This Subpart covers any proposal to enter into a self-determination
contract, to amend an existing self-determination contract, to renew an
existing self-determination contract, or to redesign a program through
a self-determination contract.
Sec. 900.15 What shall the Secretary do upon receiving a proposal?
Upon receipt of a proposal, the Secretary shall:
(a) Within two days notify the applicant in writing that the
proposal has been received;
(b) Within 15 days notify the applicant in writing of any missing
items required by Sec. 900.8 and request that the items be submitted
within 15 days of receipt of the notification; and
(c) Review the proposal to determine whether there are declination
issues under section 102(a)(2) of the Act.
Sec. 900.16 How long does the Secretary have to review and approve the
proposal and award the contract, or decline a proposal?
The Secretary has 90 days after receipt of a proposal to review and
approve the proposal and award the contract or decline the proposal in
compliance with section 102 of the Act and subpart E. At any time
during the review period the Secretary may approve the proposal and
award the requested contract.
Sec. 900.17 Can the statutory 90-day period be extended?
Yes, with written consent of the Indian tribe or tribal
organization. If consent is not given, the 90-day deadline applies.
Sec. 900.18 What happens if a proposal is not declined within 90 days
after it is received by the Secretary?
A proposal that is not declined within 90 days (or within any
agreed extension under Sec. 900.17) is deemed approved and the
Secretary shall award the contract or any amendment or renewal within
that 90-day period and add to the contract the full amount of funds
pursuant to Section 106(a) of the Act.
Sec. 900.19 What happens when a proposal is approved?
Upon approval the Secretary shall award the contract and add to the
contract the full amount of funds to which the contractor is entitled
under section 106(a) of the Act.
Subpart E--Declination Procedures
Sec. 900.20 What does this Subpart cover?
This subpart explains how and under what circumstances the
Secretary may decline a proposal to contract, to amend an existing
contract, to renew an existing contract, to redesign a program, or to
waive any provisions of these regulations. For annual funding
agreements, see Sec. 900.32.
Sec. 900.21 When can a proposal be declined?
As explained in Secs. 900.16 and 900.17, a proposal can only be
declined within 90 days after the Secretary receives the proposal,
unless that period
[[Page 32509]]
is extended with the voluntary and express written consent of the
Indian tribe or tribal organization.
Sec. 900.22 For what reasons can the Secretary decline a proposal?
The Secretary may only decline to approve a proposal for one of
five specific reasons:
(a) The service to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function to be contracted for cannot be
properly completed or maintained by the proposed contract;
(d) The amount of funds proposed under the contract is in excess of
the applicable funding level for the contract, as determined under
section 106(a) of the Act; or
(e) The program, function, service, or activity (or a portion
thereof) that is the subject of the proposal is beyond the scope of
programs, functions, services, or activities covered under section
102(a)(1) of the Act because the proposal includes activities that
cannot lawfully be carried out by the contractor.
Sec. 900.23 Can the Secretary decline a proposal where the Secretary's
objection can be overcome through the contract?
No. The Secretary may not decline to enter into a contract with an
Indian tribe or tribal organization based on any objection that will be
overcome through the contract.
Sec. 900.24 Can a contract proposal for an Indian tribe or tribal
organization's share of administrative programs, functions, services,
and activities be declined for any reason other than the five reasons
specified in Sec. 900.22?
No. The Secretary may only decline a proposal based upon one or
more of the five reasons listed above. If a contract affects the
preexisting level of services to any other tribe, the Secretary shall
address that effect in the Secretary's annual report to Congress under
section 106(c)(6) of the Act.
Sec. 900.25 What if only a portion of a proposal raises one of the
five declination criteria?
The Secretary must approve any severable portion of a proposal that
does not support a declination finding described in Sec. 900.20,
subject to any alteration in the scope of the proposal that the
Secretary and the Indian tribe or tribal organization approve.
Sec. 900.26 What happens if the Secretary declines a part of a
proposal on the ground that the proposal proposes in part to plan,
conduct, or administer a program, function, service or activity that is
beyond the scope of programs covered under section 102(a) of the Act,
or proposes a level of funding that is in excess of the applicable
level determined under section 106(a) of the Act?
In those situations the Secretary is required, as appropriate, to
approve the portion of the program, function, service, or activity that
is authorized under section 102(a) of the Act, or approve a level of
funding that is authorized under section 106(a) of the Act. As noted in
Sec. 900.25, the approval is subject to any alteration in the scope of
the proposal that the Secretary and the Indian tribe or tribal
organization approve.
Sec. 900.27 If an Indian tribe or tribal organization elects to
contract for a severable portion of a proposal, does the Indian tribe
or tribal organization lose its appeal rights to challenge the portion
of the proposal that was declined?
No, but the hearing and appeal procedures contained in these
regulations only apply to the portion of the proposal that was
declined.
Sec. 900.28 Is technical assistance available to an Indian tribe or
tribal organization to avoid declination of a proposal?
Yes. In accordance with section 103(d) of the Act, upon receiving a
proposal, the Secretary shall provide any necessary requested technical
assistance to an Indian tribe or tribal organization, and shall share
all relevant information with the Indian tribe or tribal organization,
in order to avoid declination of the proposal.
Sec. 900.29 What is the Secretary required to do if the Secretary
decides to decline all or a portion of a proposal?
If the Secretary decides to decline all or a severable portion of a
proposal, the Secretary is required:
(a) To advise the Indian tribe or tribal organization in writing of
the Secretary's objections, including a specific finding that clearly
demonstrates that (or that is supported by a controlling legal
authority that) one of the conditions set forth in Sec. 900.22 exists,
together with a detailed explanation of the reason for the decision to
decline the proposal and, within 20 days, any documents relied on in
making the decision; and
(b) To advise the Indian tribe or tribal organization in writing of
the rights described in Sec. 900.31.
Sec. 900.30 When the Secretary declines all or a portion of a
proposal, is the Secretary required to provide an Indian tribe or
tribal organization with technical assistance?
Yes. The Secretary shall provide additional technical assistance to
overcome the stated objections, in accordance with section 102(b) of
the Act, and shall provide any necessary requested technical assistance
to develop any modifications to overcome the Secretary's stated
objections.
Sec. 900.31 When the Secretary declines all or a portion of a
proposal, is an Indian tribe or tribal organization entitled to any
appeal?
Yes. The Indian tribe or tribal organization is entitled to an
appeal on the objections raised by the Secretary, with an agency
hearing on the record, and the right to engage in full discovery
relevant to any issue raised in the matter. The procedures for appeals
are in subpart L of these regulations. Alternatively, at its option the
Indian tribe or tribal organization has the right to sue in Federal
district court to challenge the Secretary's decision.
Sec. 900.32 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
No. If it is substantially the same as the prior annual funding
agreement (except for funding increases included in appropriations acts
or funding reductions as provided in section 106(b) of the Act) and the
contract is with DHHS or the BIA, the Secretary shall approve and add
to the contract the full amount of funds to which the contractor is
entitled, and may not decline, any portion of a successor annual
funding agreement. Any portion of an annual funding agreement proposal
which is not substantially the same as that which was funded previously
(e.g., a redesign proposal; waiver proposal; different proposed funding
amount; or different program, service, function, or activity), or any
annual funding agreement proposal which pertains to a contract with an
agency of DOI other than the BIA, is subject to the declination
criteria and procedures in subpart E. If there is a disagreement over
the availability of appropriations, the Secretary may decline the
proposal in part under the procedure in subpart E.
Sec. 900.33 Are all proposals to renew term contracts subject to the
declination criteria?
Department of Health and Human Services and the Bureau of Indian
Affairs will not review the renewal of a term contract for declination
issues where no material and substantial
[[Page 32510]]
change to the scope or funding of a program, functions, services, or
activities has been proposed by the Indian tribe or tribal
organization. Proposals to renew term contracts with DOI agencies other
than the Bureau of Indian Affairs may be reviewed under the declination
criteria.
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
General
Sec. 900.35 What is the purpose of this subpart?
This subpart contains the minimum standards for the management
systems used by Indian tribes or tribal organizations when carrying out
self-determination contracts. It provides standards for an Indian tribe
or tribal organization's financial management system, procurement
management system, and property management system.
Sec. 900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this subpart?
When carrying out self-determination contracts, Indian tribes and
tribal organizations shall develop, implement, and maintain systems
that meet these minimum standards, unless one or more of the standards
have been waived, in whole or in part, under section 107(e) of the Act
and Subpart K.
Sec. 900.37 What provisions of Office of Management and Budget (OMB)
circulars or the ``common rule'' apply to self-determination contracts?
The only provisions of OMB Circulars and the only provisions of the
``common rule'' that apply to self-determination contracts are the
provisions adopted in these regulations, those expressly required or
modified by the Act, and those negotiated and agreed to in a self-
determination contract.
Sec. 900.38 Do these standards apply to the subcontractors of an
Indian tribe or tribal organization carrying out a self-determination
contract?
An Indian tribe or tribal organization may require that some or all
of the standards in this subpart be imposed upon its subcontractors
when carrying out a self-determination contract.
Sec. 900.39 What is the difference between a standard and a system?
(a) Standards are the minimum baseline requirements for the
performance of an activity. Standards establish the ``what'' that an
activity should accomplish.
(b) Systems are the procedural mechanisms and processes for the
day-to-day conduct of an activity. Systems are ``how'' the activity
will be accomplished.
Sec. 900.40 When are Indian tribe or tribal organization management
standards and management systems evaluated?
(a) Management standards are evaluated by the Secretary when the
Indian tribe or tribal organization submits an initial contract
proposal.
(b) Management systems are evaluated by an independent auditor
through the annual single agency audit report that is required by the
Act and OMB Circular A-128.
Sec. 900.41 How long must an Indian tribe or tribal organization keep
management system records?
The Indian tribe or tribal organization must retain financial,
procurement and property records for the minimum periods described
below. Electronic, magnetic or photographic records may be substituted
for hard copies.
(a) Financial records. Financial records include documentation of
supporting costs incurred under the contract. These records must be
retained for three years from the date of submission of the single
audit report to the Secretary.
(b) Procurement records. Procurement records include solicitations,
purchase orders, contracts, payment histories and records applicable of
significant decisions. These records must be retained for three years
after the Indian tribe or tribal organization or subcontractors make
final payment and all other pending matters are closed.
(c) Property management records. Property management records of
real and personal property transactions must be retained for three
years from the date of disposition, replacement, or transfer.
(d) Litigation, audit exceptions and claims. Records pertaining to
any litigation, audit exceptions or claims requiring management systems
data must be retained until the action has been completed.
Standards for Financial Management Systems
Sec. 900.42 What are the general financial management system standards
that apply to an Indian tribe carrying out a self-determination
contract?
An Indian tribe shall expend and account for contract funds in
accordance with all applicable tribal laws, regulations, and
procedures.
Sec. 900.43 What are the general financial management system standards
that apply to a tribal organization carrying out a self-determination
contract?
A tribal organization shall expend and account for contract funds
in accordance with the procedures of the tribal organization.
Sec. 900.44 What minimum general standards apply to all Indian tribe
or tribal organization financial management systems when carrying out a
self-determination contract?
The fiscal control and accounting procedures of an Indian tribe or
tribal organization shall be sufficient to:
(a) Permit preparation of reports required by a self-determination
contract and the Act; and
(b) Permit the tracing of contract funds to a level of expenditure
adequate to establish that they have not been used in violation of any
restrictions or prohibitions contained in any statute that applies to
the self-determination contract.
Sec. 900.45 What specific minimum requirements shall an Indian tribe
or tribal organization's financial management system contain to meet
these standards?
An Indian tribe or tribal organization's financial management
system shall include provisions for the following seven elements.
(a) Financial reports. The financial management system shall
provide for accurate, current, and complete disclosure of the financial
results of self-determination contract activities. This includes
providing the Secretary a completed Financial Status Report, SF 269A,
as negotiated and agreed to in the self-determination contract.
(b) Accounting records. The financial management system shall
maintain records sufficiently detailed to identify the source and
application of self-determination contract funds received by the Indian
tribe or tribal organization. The system shall contain sufficient
information to identify contract awards, obligations and unobligated
balances, assets, liabilities, outlays, or expenditures and income.
(c) Internal controls. The financial management system shall
maintain effective control and accountability for all self-
determination contract funds received and for all Federal real
property, personal property, and other assets furnished for use by the
Indian tribe or tribal organization under the self-determination
contract.
(d) Budget controls. The financial management system shall permit
the comparison of actual expenditures or outlays with the amounts
budgeted by
[[Page 32511]]
the Indian tribe or tribal organization for each self-determination
contract.
(e) Allowable costs. The financial management system shall be
sufficient to determine the reasonableness, allowability, and
allocability of self-determination contract costs based upon the terms
of the self-determination contract and the Indian tribe or tribal
organization's applicable OMB cost principles, as amended by the Act
and these regulations. (The following chart lists certain OMB Circulars
and suggests the entities that may use each, but the final selection of
the applicable circular may differ from those shown, as agreed to by
the Indian tribe or tribal organization and the Secretary. Agreements
between an Indian tribe or tribal organization and the Secretary
currently in place do not require renegotiation.) Copies of these
circulars are available from the Executive Office of the President,
Publications Service, 725 17th Street N. W., Washington, D. C. 20503.
------------------------------------------------------------------------
Type of tribal organization Applicable OMB cost circular
------------------------------------------------------------------------
Tribal Government....................... A-87, ``Cost Principles for
State, Local and Indian
Tribal Governments.''
Tribal private non-profit other than: A-122, ``Cost Principles for
(1) an institution of higher education, Non-Profit Organizations.''
(2) a hospital, or (3) an organization
named in OMB Circular A-122 as not
subject to that circular.
Tribal educational institution.......... A-21, ``Cost Principles for
Educational Institutions.''
------------------------------------------------------------------------
(f) Source documentation. The financial management system shall
contain accounting records that are supported by source documentation,
e.g., canceled checks, paid bills, payroll records, time and attendance
records, contract award documents, purchase orders, and other primary
records that support self-determination contract fund expenditures.
(g) Cash management. The financial management system shall provide
for accurate, current, and complete disclosure of cash revenues
disbursements, cash-on-hand balances, and obligations by source and
application for each Indian tribe or tribal organization, and
subcontractor if applicable, so that complete and accurate cash
transactions may be prepared as required by the self-determination
contract.
Sec. 900.46 What requirements are imposed upon the Secretary for
financial management by these standards?
The Secretary shall establish procedures, consistent with Treasury
regulations as modified by the Act, for the transfer of funds from the
United States to the Indian tribe or tribal organization in strict
compliance with the self-determination contract and the annual funding
agreement.
Procurement Management System Standards
Sec. 900.47 When procuring property or services with self-
determination contract funds, can an Indian tribe or tribal
organization follow the same procurement policies and procedures
applicable to other Indian tribe or tribal organization funds?
Indian tribes and tribal organizations shall have standards that
conform to the standards in this Subpart. If the Indian tribe or tribal
organization relies upon standards different than those described
below, it shall identify the standards it will use as a proposed waiver
in the initial contract proposal or as a waiver request to an existing
contract.
Sec. 900.48 If the Indian tribe or tribal organization does not
propose different standards, what basic standards shall the Indian
tribe or tribal organization follow?
(a) The Indian tribe or tribal organization shall ensure that its
vendors and/or subcontractors perform in accordance with the terms,
conditions, and specifications of their contracts or purchase orders.
(b) The Indian tribe or tribal organization shall maintain written
standards of conduct governing the performance of its employees who
award and administer contracts.
(1) No employee, officer, elected official, or agent of the Indian
tribe or tribal organization shall participate in the selection, award,
or administration of a procurement supported by Federal funds if a
conflict of interest, real or apparent, would be involved.
(2) An employee, officer, elected official, or agent of an Indian
tribe or tribal organization, or of a subcontractor of the Indian tribe
or tribal organization, is not allowed to solicit or accept gratuities,
favors, or anything of monetary value from contractors, potential
contractors, or parties to sub-agreements, with the following
exemptions. The Indian tribe or tribal organization may exempt a
financial interest that is not substantial or a gift that is an
unsolicited item of nominal value.
(3) These standards shall also provide for penalties, sanctions, or
other disciplinary actions for violations of the standards.
(c) The Indian tribe or tribal organization shall review proposed
procurements to avoid buying unnecessary or duplicative items and
ensure the reasonableness of the price. The Indian tribe or tribal
organization should consider consolidating or breaking out procurement
to obtain more economical purchases. Where appropriate, the Indian
tribe or tribal organization shall compare leasing and purchasing
alternatives to determine which is more economical.
(d) The Indian tribe or tribal organization shall conduct all major
procurement transactions by providing full and open competition, to the
extent necessary to assure efficient expenditure of contract funds and
to the extent feasible in the local area.
(1) Indian tribes or tribal organizations shall develop their own
definition for ``major procurement transactions.''
(2) As provided in sections 7 (b) and (c) of the Act, Indian
preference and tribal preferences shall be applied in any procurement
award.
(e) The Indian tribe or tribal organization shall make procurement
awards only to responsible entities who have the ability to perform
successfully under the terms and conditions of the proposed
procurement. In making this judgment, the Indian tribe or tribal
organization will consider such matters as the contractor's integrity,
its compliance with public policy, its record of past performance, and
its financial and technical resources.
(f) The Indian tribe or tribal organization shall maintain records
on the significant history of all major procurement transactions. These
records may include, but are not limited to, the rationale for the
method of procurement, the selection of contract type, the contract
selection or rejection, and the basis for the contract price.
(g) The Indian tribe or tribal organization is solely responsible,
using good administrative practice and sound business judgment, for
processing and settling all contractual and administrative issues
arising out of a procurement. These issues include, but
[[Page 32512]]
are not limited to, source evaluation, protests, disputes, and claims.
(1) The settlement of any protest, dispute, or claim shall not
relieve the Indian tribe or tribal organization of any obligations
under a self-determination contract.
(2) Violations of law shall be referred to the tribal or Federal
authority having proper jurisdiction.
Sec. 900.49 What procurement standards apply to subcontracts?
Each subcontract entered into under the Act shall at a minimum:
(a) Be in writing;
(b) Identify the interested parties, their authorities, and the
purposes of the contract;
(c) State the work to be performed under the contract;
(d) State the process for making any claim, the payments to be
made, and the terms of the contract, which shall be fixed; and
(e) Be subject to sections 7 (b) and (c) of the Act.
Sec. 900.50 What Federal laws, regulations, and Executive Orders
apply to subcontractors?
Certain provisions of the Act as well as other applicable Federal
laws, regulations, and Executive Orders apply to subcontracts awarded
under self-determination contracts. As a result, subcontracts should
contain a provision informing the recipient that their award is funded
with Indian Self-Determination Act funds and that the recipient is
responsible for identifying and ensuring compliance with applicable
Federal laws, regulations, and Executive Orders. The Secretary and the
Indian tribe or tribal organization may, through negotiation, identify
all or a portion of such requirements in the self-determination
contract and, if so identified, these requirements should be identified
in subcontracts.
Property Management System Standards
Sec. 900.51 What is an Indian tribe or tribal organization's property
management system expected to do?
An Indian tribe or tribal organization's property management system
shall account for all property furnished or transferred by the
Secretary for use under a self-determination contract or acquired with
contract funds. The property management system shall contain
requirements for the use, care, maintenance, and disposition of
Federally-owned and other property as follows:
(a) Where title vests in the Indian tribe, in accordance with
tribal law and procedures; or
(b) In the case of a tribal organization, according to the internal
property procedures of the tribal organization.
Sec. 900.52 What type of property is the property management system
required to track?
The property management system of the Indian tribe or tribal
organization shall track:
(a) Personal property with an acquisition value in excess of $5,000
per item;
(b) Sensitive personal property, which is all personal property
that is subject to theft and pilferage, as defined by the Indian tribe
or tribal organization. All firearms shall be considered sensitive
personal property; and
(c) Real property provided by the Secretary for use under the
contract.
Sec. 900.53 What kind of records shall the property management system
maintain?
The property management system shall maintain records that
accurately describe the property, including any serial number or other
identification number. These records should contain information such as
the source, titleholder, acquisition date, cost, share of Federal
participation in the cost, location, use and condition of the property,
and the date of disposal and sale price, if any.
Sec. 900.54 Should the property management system prescribe internal
controls?
Yes. Effective internal controls should include procedures:
(a) For the conduct of periodic inventories;
(b) To prevent loss or damage to property; and
(c) To ensure that property is used for an Indian tribe or tribal
organization's self-determination contract(s) until the property is
declared excess to the needs of the contract consistent with the Indian
tribe or tribal organization's property management system.
Sec. 900.55 What are the standards for inventories?
A physical inventory should be conducted at least once every 2
years. The results of the inventory shall be reconciled with the Indian
tribe or tribal organization's internal property and accounting
records.
Sec. 900.56 What maintenance is required for property?
Required maintenance includes the performance of actions necessary
to keep the property in good working condition, the procedures
recommended by equipment manufacturers, and steps necessary to protect
the interests of the contractor and the Secretary in any express
warranties or guarantees covering the property.
Sec. 900.57 What if the Indian tribe or tribal organization chooses
not to take title to property furnished or acquired under the contract?
If the Indian tribe or tribal organization chooses not to take
title to property furnished by the government or acquired with contract
funds, title to the property remains vested in the Secretary. A list of
Federally-owned property to be used under the contract shall be
included in the contract.
Sec. 900.58 Do the same accountability and control procedures
described above apply to Federal property?
Yes, except that requirements for the inventory and disposal of
Federal property are different.
Sec. 900.59 How are the inventory requirements for Federal property
different than for tribal property?
There are three additional requirements:
(a) The Indian tribe or tribal organization shall conduct a
physical inventory of the Federally-owned property and reconcile the
results with the Indian tribe or tribal organization's property records
annually, rather than every 2 years;
(b) Within 90 days following the end of an annual funding
agreement, the Indian tribe or tribal organization shall certify and
submit to the Secretary an annual inventory of all Federally-owned real
and personal property used in the contracted program; and
(c) The inventory shall report any increase or decrease of $5,000
or more in the value of any item of real property.
Sec. 900.60 How does an Indian tribe or tribal organization dispose
of Federal personal property?
The Indian tribe or tribal organization shall report to the
Secretary in writing any Federally-owned personal property that is worn
out, lost, stolen, damaged beyond repair, or no longer needed for the
performance of the contract.
(a) The Indian tribe or tribal organization shall state whether the
Indian tribe or tribal organization wants to dispose of or return the
property.
(b) If the Secretary does not respond within 60 days, the Indian
tribe or tribal organization may return the property to the Secretary,
who shall accept transfer, custody, control, and responsibility for the
property (together with all associated costs).
[[Page 32513]]
Subpart G--Programmatic Reports and Data Requirements
Sec. 900.65 What programmatic reports and data shall the Indian tribe
or tribal organization provide?
Unless required by statute, there are no mandatory reporting
requirements. Each Indian tribe or tribal organization shall negotiate
with the Secretary the type and frequency of program narrative and
program data report(s) which respond to the needs of the contracting
parties and that are appropriate for the purposes of the contract. The
extent of available resources will be a consideration in the
negotiations.
Sec. 900.66 What happens if the Indian tribe or tribal organization
and the Secretary cannot come to an agreement concerning the type and/
or frequency of program narrative and/or program data report(s)?
Any disagreements over reporting requirements are subject to the
declination criteria and procedures in section 102 of the Act and
subpart E.
Sec. 900.67 Will there be a uniform data set for all IHS programs?
IHS will work with Indian tribe or tribal organization
representatives to develop a mutually defined uniform subset of data
that is consistent with Congressional intent, imposes a minimal
reporting burden, and which responds to the needs of the contracting
parties.
Sec. 900.68 Will this uniform data set be required of all Indian
tribe or tribal organizations contracting with the IHS under the Act?
No. The uniform data set, applicable to the services to be
performed, will serve as the target for the Secretary and the Indian
tribes or tribal organizations during individual negotiations on
program data reporting requirements.
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
Sec. 900.69 What is the purpose of this subpart?
Section 105(l) of the Act requires the Secretary, at the request of
an Indian tribe or tribal organization, to enter into a lease with the
Indian tribe or tribal organization for a building owned or leased by
the tribe or tribal organization that is used for administration or
delivery of services under the Act. The lease is to include
compensation as provided in the statute as well as ``such other
reasonable expenses that the Secretary determines, by regulation, to be
allowable.'' This subpart contains requirements for these leases.
Sec. 900.70 What elements are included in the compensation for a
lease entered into between the Secretary and an Indian tribe or tribal
organization for a building owned or leased by the Indian tribe or
tribal organization that is used for administration or delivery of
services under the Act?
To the extent that no element is duplicative, the following
elements may be included in the lease compensation:
(a) Rent (sublease);
(b) Depreciation and use allowance based on the useful life of the
facility based on acquisition costs not financed with Federal funds;
(c) Contributions to a reserve for replacement of facilities;
(d) Principal and interest paid or accrued;
(e) Operation and maintenance expenses, to the extent not otherwise
included in rent or use allowances, including, but not limited to, the
following:
(1) Water, sewage;
(2) Utilities;
(3) Fuel;
(4) Insurance;
(5) Building management supervision and custodial services;
(6) Custodial and maintenance supplies;
(7) Pest control;
(8) Site maintenance (including snow and mud removal);
(9) Trash and waste removal and disposal;
(10) Fire protection/fire fighting services and equipment;
(11) Monitoring and preventive maintenance of building structures
and systems, including but not limited to:
(i) Heating/ventilation/air conditioning;
(ii) Plumbing;
(iii) Electrical;
(iv) Elevators;
(v) Boilers;
(vi) Fire safety system;
(vii) Security system; and
(viii) Roof, foundation, walls, floors.
(12) Unscheduled maintenance;
(13) Scheduled maintenance (including replacement of floor
coverings, lighting fixtures, repainting);
(14) Security services;
(15) Management fees; and
(16) Other reasonable and necessary operation or maintenance costs
justified by the contractor;
(f) Repairs to buildings and equipment;
(g) Alterations needed to meet contract requirements;
(h) Other reasonable expenses; and
(i) The fair market rental for buildings or portions of buildings
and land, exclusive of the Federal share of building construction or
acquisition costs, or the fair market rental for buildings constructed
with Federal funds exclusive of fee or profit, and for land.
Sec. 900.71 What type of reserve fund is anticipated for funds
deposited into a reserve for replacement of facilities as specified in
Sec. 900.70(c)?
Reserve funds must be accounted for as a capital project fund or a
special revenue fund.
Sec. 900.72 Who is the guardian of the fund and may the funds be
invested?
(a) The Indian tribe or tribal organization is the guardian of the
fund.
(b) Funds may be invested in accordance with the laws, regulations
and policies of the Indian tribe or tribal organization subject to the
terms of the lease or the self-determination contract.
Sec. 900.73 Is a lease with the Secretary the only method available
to recover the types of cost described in Sec. 900.70?
No. With the exception of paragraph (i) in Sec. 900.70, the same
types of costs may be recovered in whole or in part under section
106(a) of the Act as direct or indirect charges to a self-determination
contract.
Sec. 900.74 How may an Indian tribe or tribal organization propose a
lease to be compensated for the use of facilities?
There are three options available:
(a) The lease may be based on fair market rental.
(b) The lease may be based on a combination of fair market rental
and paragraphs (a) through (h) of Sec. 900.70, provided that no element
of expense is duplicated in fair market rental.
(c) The lease may be based on paragraphs (a) through (h) of
Sec. 900.70 only.
Subpart I--Property Donation Procedures
General
Sec. 900.85 What is the purpose of this subpart?
This subpart implements section 105(f) of the Act regarding
donation of Federal excess and surplus property to Indian tribes or
tribal organizations and acquisition of property with funds provided
under a self-determination contract or grant.
Sec. 900.86 How will the Secretary exercise discretion to acquire and
donate BIA or IHS excess property and excess and surplus Federal
property to an Indian tribe or tribal organization?
The Secretary will exercise discretion in a way that gives maximum
effect to the requests of Indian tribes or tribal organizations for
donation of BIA or IHS
[[Page 32514]]
excess property and excess or surplus Federal property, provided that
the requesting Indian tribe or tribal organization shall state how the
requested property is appropriate for use for any purpose for which a
self-determination contract or grant is authorized.
Government-Furnished Property
Sec. 900.87 How does an Indian tribe or tribal organization obtain
title to property furnished by the Federal government for use in the
performance of a contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
(a) For government-furnished personal property made available to an
Indian tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with each Indian tribe or tribal
organization, shall develop a list of the property used in a self-
determination contract.
(2) The Indian tribe or tribal organization shall indicate any
items on the list to which the Indian tribe or tribal organization
wants the Secretary to retain title.
(3) The Secretary shall provide the Indian tribe or tribal
organization with any documentation needed to transfer title to the
remaining listed property to the Indian tribe or tribal organization.
(b) For government-furnished real property made available to an
Indian tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with the Indian tribe or tribal
organization, shall develop a list of the property furnished for use in
a self-determination contract.
(2) The Secretary shall inspect any real property on the list to
determine the presence of any hazardous substance activity, as defined
in 41 CFR 101-47.202.2(b)(10). If the Indian tribe or tribal
organization desires to take title to any real property on the list,
the Indian tribe or tribal organization shall inform the Secretary, who
shall take such steps as necessary to transfer title to the Indian
tribe or tribal organization.
(c) For government-furnished real and personal property made
available to an Indian tribe or tribal organization on or after October
25, 1994:
(1) The Indian tribe or tribal organization shall take title to all
property unless the Indian tribe or tribal organization requests that
the United States retain the title.
(2) The Secretary shall determine the presence of any hazardous
substance activity, as defined in 41 CFR 101-47.202.2(b)(10).
Sec. 900.88 What should the Indian tribe or tribal organization do if
it wants to obtain title to government-furnished real property that
includes land not already held in trust?
If the land is owned by the United States but not held in trust for
an Indian tribe or individual Indian, the Indian tribe or tribal
organization shall specify whether it wants to acquire fee title to the
land or whether it wants the land to be held in trust for the benefit
of a tribe.
(a) If the Indian tribe or tribal organization requests fee title,
the Secretary shall take the necessary action under Federal law and
regulations to transfer fee title.
(b) If the Indian tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for
an Indian tribe:
(1) The Indian tribe or tribal organization shall submit with its
request a resolution of support from the governing body of the Indian
tribe in which the beneficial ownership is to be registered.
(2) If the request is submitted to the Secretary of Health and
Human Services for land under the jurisdiction of that Secretary, the
Secretary shall take all necessary steps to effect a transfer of the
land to the Secretary of the Interior and shall also forward the Indian
tribe or tribal organization's request and the tribe's resolution.
(3) The Secretary of the Interior shall expeditiously process all
requests in accordance with applicable Federal law and regulations.
(4) The Secretary shall not require the Indian tribe or tribal
organization to furnish any information in support of a request other
than that required by law or regulation.
Sec. 900.89 When may the Secretary elect to reacquire government-
furnished property whose title has been transferred to an Indian tribe
or tribal organization?
(a) Except as provided in paragraph (b) of this section, when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) That title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization in excess
of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing contracts or grant agreements and a
contract or grant agreement that is retroceded, reassumed, terminated
or expires and the Secretary wishes to use such property in the
retroceded or reassumed program, the Secretary and the contractor or
grantee using such property shall negotiate an acceptable arrangement
for continued sharing of such property and for the retention or
transfer of title.
Sec. 900.90 Does government-furnished real property to which an
Indian tribe or tribal organization has taken title continue to be
eligible for facilities operation and maintenance funding from the
Secretary?
Yes.
Contractor-Purchased Property
Sec. 900.91 Who takes title to property purchased with funds under a
self-determination contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
The contractor takes title to such property, unless the contractor
chooses to have the United States take title. In that event, the
contractor must inform the Secretary of the purchase and identify the
property and its location in such manner as the contractor and the
Secretary deem necessary. A request for the United States to take title
to any item of contractor-purchased property may be made at any time. A
request for the Secretary to take fee title to real property shall be
expeditiously processed in accordance with applicable Federal law and
regulation.
Sec. 900.92 What should the Indian tribe or tribal organization do if
it wants contractor-purchased real property to be taken into trust?
The contractor shall submit a resolution of support from the
governing body of the Indian tribe in which the beneficial ownership is
to be registered. If the request to take contractor-purchased real
property into trust is submitted to the Secretary of Health and Human
Services, that Secretary shall transfer the request to the Secretary of
the Interior. The Secretary of the Interior shall expeditiously process
all requests in accord with applicable Federal law and regulation.
Sec. 900.93 When may the Secretary elect to acquire title to
contractor-purchased property?
(a) Except as provided in paragraph (b) of this section when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
[[Page 32515]]
(1) Whose title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization, in
excess of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing contracts or grant agreements and a
contract or grant agreement that is retroceded, reassumed, terminated
or expires and the Secretary wishes to use such property in the
retroceded or reassumed program, the Secretary and the contractor or
grantee using such property shall negotiate an acceptable arrangement
for continued sharing of such property and for the retention or
transfer of title.
Sec. 900.94 Is contractor-purchased real property to which an Indian
tribe or tribal organization holds title eligible for facilities
operation and maintenance funding from the Secretary?
Yes.
BIA and IHS Excess Property
Sec. 900.95 What is BIA or IHS excess property?
BIA or IHS excess property means property under the jurisdiction of
the BIA or IHS that is excess to the agency's needs and the discharge
of its responsibilities.
Sec. 900.96 How can Indian tribes or tribal organizations learn about
BIA and IHS excess property?
The Secretary shall not less than annually send to Indian tribes
and tribal organizations a listing of all excess BIA or IHS personal
property before reporting the property to GSA or to any other Federal
agency as excess. The listing shall identify the agency official to
whom a request for donation shall be submitted.
Sec. 900.97 How can an Indian tribe or tribal organization acquire
excess BIA or IHS property?
(a) The Indian tribe or tribal organization shall submit to the
appropriate Secretary a request for specific property that includes a
statement of how the property is intended for use in connection with a
self-determination contract or grant. The Secretary shall expeditiously
process the request and shall exercise discretion in a way that gives
maximum effect to the request of Indian tribes or tribal organizations
for the donation of excess BIA or IHS property.
(b) If more than one request for the same item of personal property
is submitted, the Secretary shall award the item to the requestor whose
request is received on the earliest date. If two or more requests are
received on the same date, the Secretary shall award the item to the
requestor with the lowest transportation costs. The Secretary shall
make the donation as expeditiously as possible.
(c) If more than one request for the same parcel of real property
is submitted, the Secretary shall award the property to the Indian
tribe or tribal organization whose reservation or trust land is closest
to the real property requested.
Sec. 900.98 Who takes title to excess BIA or IHS property donated to
an Indian tribe or tribal organization?
The Indian tribe or tribal organization takes title to donated
excess BIA or IHS property. The Secretary shall provide the Indian
tribe or tribal organization with all documentation needed to vest
title in the Indian tribe or tribal organization.
Sec. 900.99 Who takes title to any land that is part of excess BIA or
IHS real property donated to an Indian tribe or tribal organization?
(a) If an Indian tribe or tribal organization requests donation of
fee title to excess real property that includes land not held in trust
for an Indian tribe, the Indian tribe or tribal organization shall so
specify in its request for donation. The Secretary shall take the
necessary action under Federal law and regulations to transfer the
title to the Indian tribe or tribal organization.
(b) If an Indian tribe or tribal organization asks the Secretary to
donate excess real property that includes land and requests that fee
title to the land be held by the United States in trust for an Indian
tribe, the requestor shall submit a resolution of support from the
governing body of the Indian tribe in which the beneficial ownership is
to be registered.
(1) If the donation request is submitted to the Secretary of Health
and Human Services, that Secretary shall take all steps necessary to
transfer the land to the Secretary of the Interior with the Indian
tribe or tribal organization's request and the Indian tribe's
resolution. The Secretary of the Interior shall expeditiously process
all requests in accordance with applicable Federal law and regulations.
(2) The Secretary shall not require the Indian tribe or tribal
organization to furnish any information in support of a request other
than that required by law or regulation.
Sec. 900.100 May the Secretary elect to reacquire excess BIA or IHS
property whose title has been transferred to an Indian tribe or tribal
organization?
Yes. When a self-determination contract or grant agreement, or
portion-- thereof, is retroceded, reassumed, terminated, or expires,
the Secretary shall have the option to take title to any item of the
property;
(a) Except as provided in paragraph (b) of this section when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) Whose title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization, in
excess of $5,000.
(b) To the extent that any property referred to in paragraph (a) of
this section is shared between one or more ongoing contracts or grant
agreements and a contract or grant agreement that is retroceded,
reassumed, terminated or expires and the Secretary wishes to use such
property in the retroceded or reassumed program, the Secretary and the
contractor or grantee using such property shall negotiate an acceptable
arrangement for continued sharing of such property and for the
retention or transfer of title.
Sec. 900.101 Is excess BIA or IHS real property to which an Indian
tribe or tribal organization has taken title eligible for facilities
operation and maintenance funding from the Secretary?
Yes.
Excess or Surplus Government Property of Other Agencies
Sec. 900.102 What is excess or surplus government property of other
agencies?
(a) ``Excess government property'' is real or personal property
under the control of a Federal agency, other than BIA and IHS, which is
not required for the agency's needs and the discharge of its
responsibilities.
(b) ``Surplus government property'' means excess real or personal
property that is not required for the needs of and the discharge of the
responsibilities of all Federal agencies that has been declared surplus
by the General Services Administration (GSA).
[[Page 32516]]
Sec. 900.103 How can Indian tribes or tribal organizations learn about
property that has been designated as excess or surplus government
property?
The Secretary shall furnish, not less than annually, to Indian
tribes or tribal organizations listings of such property as may be made
available from time to time by GSA or other Federal agencies, and shall
obtain listings upon the request of an Indian tribe or tribal
organization.
Sec. 900.104 How may an Indian tribe or tribal organization receive
excess or surplus government property of other agencies?
(a) The Indian tribe or tribal organization shall file a request
for specific property with the Secretary, and shall state how the
property is appropriate for use for a purpose for which a self-
determination contract or grant is authorized under the Act.
(b) The Secretary shall expeditiously process such request and
shall exercise discretion to acquire the property in the manner
described in Sec. 900.86 of this Subpart.
(c) Upon approval of the Indian tribe or tribal organization's
request, the Secretary shall immediately request acquisition of the
property from the GSA or the holding agency, as appropriate, by
submitting the necessary documentation in order to acquire the
requested property prior to the expiration of any ``freeze'' placed on
the property by the Indian tribe or tribal organization.
(d) The Secretary shall specify that the property is requested for
donation to an Indian tribe or tribal organization pursuant to
authority provided in section 105(f)(3) of the Act.
(e) The Secretary shall request a waiver of any fees for transfer
of the property in accordance with applicable Federal regulations.
Sec. 900.105 Who takes title to excess or surplus Federal property
donated to an Indian tribe or tribal organization?
(a) Title to any donated excess or surplus Federal personal
property shall vest in the Indian tribe or tribal organization upon
taking possession.
(b) Legal title to donated excess or surplus Federal real property
shall vest in the Indian tribe or tribal organization upon acceptance
by the Indian tribe or tribal organization of a proper deed of
conveyance.
(c) If the donation of excess or surplus Federal real property
includes land owned by the United States but not held in trust for an
Indian tribe, the Indian tribe or tribal organization shall specify
whether it wants to acquire fee title to the land or whether it wants
the land to be held in trust for the benefit of an Indian tribe.
(1) If the Indian tribe or tribal organization requests fee title,
the Secretary shall take the necessary action under Federal law and
regulations to transfer fee title to the Indian tribe or tribal
organization.
(2) If the Indian tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for
an Indian tribe:
(i) The Indian tribe or tribal organization shall submit with its
request a resolution of support from the governing body of the Indian
tribe in which the beneficial ownership is to be registered.
(ii) If the donation request of the Indian tribe or tribal
organization is submitted to the Secretary of Health and Human
Services, that Secretary shall take all necessary steps to acquire the
land and transfer it to the Secretary of the Interior and shall also
forward the Indian tribe or tribal organization's request and the
Indian tribe's resolution.
(iii) The Secretary of the Interior shall expeditiously process all
requests in accord with applicable Federal law and regulations.
(iv) The Secretary shall not require submission of any information
other than that required by Federal law and regulation.
Sec. 900.106 If a contract or grant agreement or portion thereof is
retroceded, reassumed, terminated, or expires, may the Secretary
reacquire title to excess or surplus Federal property of other agencies
that was donated to an Indian tribe or tribal organization?
No. Section 105(f)(3) of the Act does not give the Secretary the
authority to reacquire title to excess or surplus government property
acquired from other agencies for donation to an Indian tribe or tribal
organization.
Property Eligible for Replacement Funding
Sec. 900.107 What property to which an Indian tribe or tribal
organization obtains title under this Subpart is eligible for
replacement funding?
Government-furnished property, contractor-purchased property and
excess BIA and IHS property donated to an Indian tribe or tribal
organization to which an Indian tribe or tribal organization holds
title shall remain eligible for replacement funding to the same extent
as if title to that property were held by the United States.
Subpart J--Construction
Sec. 900.110 What does this subpart cover?
(a) This subpart establishes requirements for issuing fixed-price
or cost-reimbursable contracts to provide: design, construction,
repair, improvement, expansion, replacement, erection of new space, or
demolition and other related work for one or more Federal facilities.
It applies to tribal facilities where the Secretary is authorized by
law to design, construct and/or renovate, or make improvements to such
tribal facilities.
(b) Activities covered by construction contracts under this subpart
are: design and architectural/engineering services, construction
project management, and the actual construction of the building or
facility in accordance with the construction documents, including all
labor, materials, equipment, and services necessary to complete the
work defined in the construction documents.
(1) Such contracts may include the provision of movable equipment,
telecommunications and data processing equipment, furnishings
(including works of art), and special purpose equipment, when part of a
construction contract let under this subpart.
(2) While planning services and construction management services as
defined in Sec. 900.113 may be included in a construction contract
under this subpart, they may also be contracted separately using the
model agreement in section 108 of the Act.
Sec. 900.111 What activities of construction programs are
contractible?
The Secretary shall, upon the request of any Indian tribe or tribal
organization authorized by tribal resolution, enter into a self-
determination contract to plan, conduct, and administer construction
programs or portions thereof.
Sec. 900.112 What are construction phases?
(a) Construction programs generally include the following
activities in phases which can vary by funding source (an Indian tribe
or tribal organization should contact its funding source for more
information regarding the conduct of its program):
(1) The preplanning phase. The phase during which an initial
assessment and determination of project need is made and supporting
information collected for presentation in a project application. This
project application process is explained in more detail in
Sec. 900.122;
(2) The planning phase. The phase during which planning services
are provided. This phase can include
[[Page 32517]]
conducting and preparing a detailed needs assessment, developing
justification documents, completing and/or verifying master plans,
conducting predesign site investigations and selection, developing
budget cost estimates, conducting feasibility studies, and developing a
project Program of Requirements (POR);
(3) The design phase. The phase during which licensed design
professional(s) using the POR as the basis for design of the project,
prepare project plans, specifications, and other documents that are a
part of the construction documents used to build the project. Site
investigation and selection activities are completed in this phase if
not conducted as part of the planning phase.
(4) The construction phase. The phase during which the project is
constructed. The construction phase includes providing the labor,
materials, equipment, and services necessary to complete the work in
accordance with the construction documents prepared as part of the
design phase.
(b) The following activities may be part of phases described in
paragraphs (a)(2), (a)(3), and (a)(4) of this section:
(1) Management; and
(2) Environmental, archeological, cultural resource, historic
preservation, and similar assessments and associated activities.
Sec. 900.113 Definitions.
(a) Construction contract means a fixed-price or cost-reimbursement
self-determination contract for a construction project, except that
such term does not include any contract:
(1) That is limited to providing planning services and construction
management services (or a combination of such services);
(2) For the Housing Improvement Program or roads maintenance
program of the Bureau of Indian Affairs administered by the Secretary
of the Interior; or
(3) For the health facility maintenance and improvement program
administered by the Secretary of Health and Human Services.
(b) Construction management services (CMS) means activities limited
to administrative support services; coordination; and monitoring
oversight of the planning, design, and construction process. An Indian
tribe or tribal organization's employee or construction management
services consultant (typically an engineer or architect) performs such
activities as:
(1) Coordination and information exchange between the Indian tribe
or tribal organization and the Federal government;
(2) Preparation of Indian tribe or tribal organization's
construction contract proposals;
(3) Indian tribe or tribal organization subcontract scope of work
identification and subcontract preparation, and competitive selection
of Indian tribe or tribal organization construction contract
subcontractors (see Sec. 900.110);
(4) Review of work to ensure compliance with the POR and/or the
construction contract. This does not involve construction project
management as defined in paragraph (d) of this section.
(c) Construction programs include programs for the planning,
design, construction, repair, improvement, and expansion of buildings
or facilities, including but not limited to, housing, law enforcement
and detention facilities, sanitation and water systems, roads, schools,
administration and health facilities, irrigation and agricultural work,
water conservation, flood control, and port facilities, and
environmental, archeological, cultural resource, historic preservation,
and conduct of similar assessments.
(d) Construction project management means direct responsibility for
the construction project through day-to-day on-site management and
administration of the project. Activities may include cost management,
project budgeting, project scheduling, procurement services.
(e) Design means services performed by licensed design
professionals related to preparing drawings, specifications, and other
design submissions specified in the contract, as well as services
provided by or for licensed design professionals during the bidding/
negotiating, construction, and operational phases of the project.
(f) Planning services means activities undertaken to support agency
and/or Congressional funding of a construction project. Planning
services may include performing a needs assessment, completing and/or
verifying master plans, developing justification documents, conducting
pre-design site investigations, developing budget cost estimates,
conducting feasibility studies as needed and completion of approved
justification documents and a program of requirements (POR) for the
project.
(g) Program of Requirements (POR) is a planning document developed
during the planning phase for an individual project. It provides
background about the project; site information; programmatic needs;
and, for facilities projects, a detailed room-by-room listing of
spaces, including net and gross sizes, finish materials to be used,
furnishings and equipment, and other information and design criteria on
which to base the construction project documents.
(h) Scope of work means the description of the work to be provided
through a contract issued under this subpart and the methods and
processes to be used to accomplish that work. A scope of work is
typically developed based on criteria provided in a POR during the
design phase, and project construction documents (plans and
specifications) during the construction phase.
Sec. 900.114 Why is there a separate subpart in these regulations for
construction contracts and grants?
There is a separate subpart because the Act differentiates between
construction contracts and the model agreement in section 108 of the
Act which is required for contracting other activities. Construction
contracts are separately defined in the Act and are subject to a
separate proposal and review process.
Sec. 900.115 How do self-determination construction contracts relate
to ordinary Federal procurement contracts?
(a) A self-determination construction contract is a government-to-
government agreement that transfers control of the construction
project, including administrative functions, to the contracting Indian
tribe or tribal organization to facilitate effective and meaningful
participation by the Indian tribe or tribal organization in planning,
conducting, and administering the construction project, and so that the
construction project is responsive to the true needs of the Indian
community. The Secretary's role in the conduct of a contracted
construction project is limited to the Secretary's responsibilities set
out in Sec. 900.131.
(b) Self-determination construction contracts are not traditional
``procurement'' contracts.
(1) With respect to a construction contract (or a subcontract of
such a construction contract), the provisions of the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations
promulgated under that Act, shall apply to a construction contract or
subcontract only to the extent that application of the provision is:
(i) Necessary to ensure that the contract may be carried out in a
satisfactory manner;
(ii) Directly related to the construction activity; and
(iii) Not inconsistent with the Act.
(2) A list of the Federal requirements that meet the requirements
of this
[[Page 32518]]
paragraph shall be included in an attachment to the contract under
negotiations between the Secretary and the Indian tribe or tribal
organization.
(3) Except as provided in paragraph (b)(2) of this section, no
Federal law listed in section 105(3)(C)(ii) of the Act or any other
provision of Federal law (including an Executive order) relating to
acquisition by the Federal government shall apply to a construction
contract that an Indian tribe or tribal organization enters into under
this Act, unless expressly provided in the law.
(c) Provisions of a construction contract under this subpart shall
be liberally construed in favor of the contracting Indian tribe or
tribal organization.
Sec. 900.116 Are negotiated fixed-price contracts treated the same as
cost-reimbursable contracts?
Yes, except that in negotiated fixed-price construction contracts,
appropriate clauses shall be negotiated to allocate properly the
contract risks between the government and the contractor.
Sec. 900.117 Do these ``construction contract'' regulations apply to
planning services?
(a) These regulations apply to planning services contracts only as
provided in this section.
(1) The Indian tribe or tribal organization shall submit to the
Secretary for review and approval the POR documents produced as a part
of a model contract under section 108 of the Act or under a
construction contract under this subpart.
(i) Within 60 days after receipt of the POR from the Indian tribe
or tribal organization for a project that has achieved priority ranking
or that is funded, the Secretary shall:
(A) Approve the POR;
(B) Notify the Indian tribe or tribal organization of and make
available any objections to the POR that the Secretary may have; or
(C) Notify the Indian tribe or tribal organization of the reasons
why the Secretary will be unable either to approve the POR or to notify
the Indian tribe or tribal organization of any objections within 60
days, and state the time within which the notification will be made,
provided that the extended time shall not exceed 60 additional days.
(ii) Within a maximum of 180 days after receipt of a POR from an
Indian tribe or tribal organization for a project that is not funded
and is not described in paragraph (a)(1)(i) of this section, the
Secretary shall:
(A) Approve the POR; or
(B) Notify the Indian tribe or tribal organization of and make
available any objections to the POR; or
(C) Notify the Indian tribe or tribal organization of the reasons
why the Secretary will be unable either to approve the POR or to notify
the Indian tribe or tribal organization of any objections within 180
days, and state the time within which the notification will be made,
provided that the extended time shall not exceed 60 additional days.
(2) Any failure of the Secretary to act on a POR within the
applicable period required in paragraph (a)(1) of this section will be
deemed a rejection of the POR and will authorize the commencement of
any appeal as provided in section 110 of the Act, or, if a model
agreement under section 108 of the Act is used, the disputes provision
of that agreement.
(3) If an Indian tribe or tribal organization elects to provide
planning services as part of a construction contract rather than under
a model agreement as set out in section 108 of the Act, the regulations
in this subpart shall apply.
(b) The parties to the contract are encouraged to consult during
the development of the POR and following submission of the POR to the
Secretary.
Sec. 900.118 Do these ``construction contract'' regulations apply to
construction management services?
No. Construction management services may be contracted separately
under section 108 of the Act. Construction management services
consultants and/or Indian tribe or tribal organization employees assist
and advise the Indian tribe or tribal organization to implement
construction contracts, but have no contractual relationship with or
authority to direct construction contract subcontractors.
(a) If the Indian tribe or tribal organization chooses to contract
solely for construction management services, these services shall be
limited to:
(1) Coordination and exchange of information between the Indian
tribe or tribal organization and the Secretary;
(2) Review of work produced by the Secretary to determine
compliance with:
(i) The POR and design contract during the design stage; or
(ii) The project construction documents during the construction
stage;
(3) Disputes shall be resolved in accordance with the disputes
clause of the CMS contract.
(b) If the Indian tribe or tribal organization conducts CMS under
section 108 of the Act and the Indian tribe or tribal organization
contracts separately under this subpart for all or some of the
activities in Sec. 900.110, the contracted activities shall be limited
to:
(1) Coordination and exchange of information between the Indian
tribe or tribal organization and Secretary;
(2) Preparation of tribal or tribal organization construction
subcontract scope of work identification and subcontract preparation,
and competitive selection of tribal or tribal organization construction
contract subcontractors;
(3) Review of work produced by tribal or tribal organization
construction subcontractors to determine compliance with:
(i) The POR and the design contract during the design stage; or
(ii) The project construction documents during the construction
stage.
Sec. 900.119 To what extent shall the Secretary consult with affected
Indian tribes before spending funds for any construction project?
Before spending any funds for a planning, design, construction, or
renovation project, whether subject to a competitive application and
ranking process or not, the Secretary shall consult with any Indian
tribe or tribal organization(s) that would be significantly affected by
the expenditure to determine and to follow tribal preferences to the
greatest extent feasible concerning: size, location, type, and other
characteristics of the project.
Sec. 900.120 How does an Indian tribe or tribal organization find out
about a construction project?
Within 30 days after the Secretary's allocation of funds for
planning phase, design phase, or construction phase activities for a
specific project, the Secretary shall notify, by registered mail with
return receipt in order to document mailing, the Indian tribe or tribal
organization(s) to be benefitted by the availability of the funds for
each phase of a project. The Secretarial notice of fund allocation
shall offer technical assistance in the preparation of a contract
proposal.
(a) The Secretary shall, within 30 days after receiving a request
from an Indian tribe or tribal organization, furnish the Indian tribe
or tribal organization with all information available to the Secretary
about the project including, but not limited to: construction drawings,
maps, engineering reports, design reports, plans of requirements, cost
estimates, environmental assessments, or environmental impact reports
and archeological reports.
[[Page 32519]]
(b) An Indian tribe or tribal organization is not required to
request this information prior to submitting a notification of intent
to contract or a contract proposal.
(c) The Secretary shall have a continuing responsibility to furnish
information.
Sec. 900.121 What happens during the preplanning phase and can an
Indian tribe or tribal organization perform any of the activities
involved in this process?
(a) The application and ranking process for developing a priority
listing of projects varies between agencies. There are, however, steps
in the selection process that are common to most selection processes.
An Indian tribe or tribal organization that wishes to secure a
construction project should contact the appropriate agency to determine
the specific steps involved in the application and selection process
used to fund specific types of projects. When a priority process is
used in the selection of construction projects, the steps involved in
the application and ranking process are as follows:
(1) Application. The agency solicits applications from Indian
tribes or tribal organizations. In the request for applications, the
Secretary provides specific information regarding the type of project
to be funded, the objective criteria that will be used to evaluate
applications, the points or weight that each criterion will be
assigned, and the time when applications are due. An Indian tribe or
tribal organization may prepare the application (technical assistance
from the agency, within resources available, shall be provided upon
request from an Indian tribe or tribal organization) or may rely upon
the agency to prepare the application.
(2) Ranking/Prioritization. The Secretary evaluates the
applications based on the criteria provided as part of the application
preparation process. The Secretary applies only criteria and weights
assigned to each criteria that were disclosed to the Indian tribe or
tribal organization during the application stage. The applications are
then ranked in order from the application that best meets application
criteria to the application that least meet the application criteria.
(3) Validation. Before final acceptance of a ranked application,
the information, such as demographic information, deficiency levels
reported in application, the condition of existing facilities, and
program housing needs, is validated. During this process, additional
information may be developed by the Indian tribe or tribal organization
in support of the original information or the Secretary may designate a
representative of the Department to conduct an on-site review of the
information contained in the application.
(b) [Reserved]
Sec. 900.122 What does an Indian tribe or tribal organization do if it
wants to secure a construction contract?
(a) The Act establishes a special process for review and
negotiation of proposals for construction contracts which is different
than that for other self-determination contract proposals. The Indian
tribe or tribal organization should notify the Secretary of its intent
to contract. After notification, the Indian tribe or tribal
organization should prepare its contract proposal in accordance with
the sections of this subpart. While developing its construction
contract proposal, the Indian tribe or tribal organization can request
technical assistance from the Secretary. Not later than 30 days after
receiving a request from an Indian tribe or tribal organization, the
Secretary shall provide to the Indian tribe or tribal organization all
information available about the construction project, including
construction drawings, maps, engineering reports, design reports, plans
of requirements, cost estimates, environmental assessments, or
environmental impact reports, and archaeological reports. The
responsibility of the Secretary to furnish this information shall be a
continuing one.
(b) At the request of the Indian tribe or tribal organization and
before finalizing its construction contract proposal, the Secretary
shall provide for a precontract negotiation phase during the
development of a contract proposal. Within 30 days the Secretary shall
acknowledge receipt of the proposal and, if requested by the Indian
tribe or tribal organization, shall confer with the Indian tribe or
tribal organization to develop a negotiation schedule. The negotiation
phase shall include, at a minimum:
(1) The provision of technical assistance under section 103 of the
Act and paragraph (a) of this section;
(2) A joint scoping session between the Secretary and the Indian
tribe or tribal organization to review all plans, specifications,
engineering reports, cost estimates, and other information available to
the parties, for the purpose of identifying all areas of agreement and
disagreement;
(3) An opportunity for the Secretary to revise plans, designs, or
cost estimates of the Secretary in response to concerns raised, or
information provided by, the Indian tribe or tribal organization;
(4) A negotiation session during which the Secretary and the Indian
tribe or tribal organization shall seek to develop a mutually agreeable
contract proposal; and
(5) Upon the request of the Indian tribe or tribal organization,
the use of alternative dispute resolution to resolve remaining areas of
disagreement under the dispute resolution provisions under subchapter
IV of chapter 5 of the United States Code.
Sec. 900.123 What happens if the Indian tribe or tribal organization
and the Secretary cannot develop a mutually agreeable contract
proposal?
(a) If the Secretary and the Indian tribe or tribal organization
are unable to develop a mutually agreeable construction contract
proposal under the procedures in Sec. 900.122, the Indian tribe or
tribal organization may submit a final contract proposal to the
Secretary. Not later than 30 days after receiving the final contract
proposal, the Secretary shall approve the contract proposal and award
the contract, unless, during the period the Secretary declines the
proposal under sections 102(a)(2) and 102(b) of the Act (including
providing opportunity for an appeal under section 102(b)).
(b) Whenever the Secretary declines to enter into a self-
determination contract or contracts under section 102(a)(2) of the Act,
the Secretary shall:
(1) State any objections to the contract proposal (as submitted by
the Indian tribe or tribal organization) in writing and provide all
documents relied on in making the declination decision within 20 days
of such decision to the Indian tribe or tribal organization;
(2) Provide assistance to the Indian tribe or tribal organization
to overcome the stated objections;
(3) Provide the Indian tribe or tribal organization with a hearing
on the record with the right to engage in full discovery relevant to
any issue raised in the matter and the opportunity for appeal on the
objections raised, under the regulations set forth in subpart L, except
that the Indian tribe or tribal organization may, in lieu of filing the
appeal, initiate an action in a Federal district court and proceed
directly under section 110(a) of the Act.
Sec. 900.124 May the Indian tribe or tribal organization to use a
grant in lieu of a contract?
Yes. A grant agreement or a cooperative agreement may be used in
lieu of a contract under sections 102 and 103 of the Act when agreed to
by the Secretary and the Indian tribe or tribal
[[Page 32520]]
organization. Under the grant concept, the grantee will assume full
responsibility and accountability for design and construction
performance within the funding limitations. The grantee will manage and
administer the work with minimal involvement by the government. The
grantee will be expected to have acceptable management systems for
finance, procurement, and property. The Secretary may issue Federal
construction guidelines and manuals applicable to its construction
programs, and the government shall accept tribal proposals for
alternatives which are consistent with or exceed Federal guidelines or
manuals applicable to construction programs.
Sec. 900.125 What shall a construction contract proposal contain?
(a) In addition to the full name, address, and telephone number of
the Indian tribe or tribal organization submitting the construction
proposal, a construction contract proposal shall contain descriptions
of the following standards under which they propose to operate the
contract:
(1) The use of licensed and qualified architects;
(2) Applicable health and safety standards;
(3) Adherence to applicable Federal, State, local, or tribal
building codes and engineering standards;
(4) Structural integrity;
(5) Accountability of funds;
(6) Adequate competition for subcontracting under tribal or other
applicable law;
(7) The commencement, performance, and completion of the contract;
(8) Adherence to project plans and specifications (including any
applicable Federal construction guidelines and manuals and the
Secretary shall accept tribal proposals for alternatives which are
consistent with or exceed Federal guidelines or manuals applicable to
construction programs);
(9) The use of proper materials and workmanship;
(10) Necessary inspection and testing;
(11) With respect to the self-determination contract between the
Indian tribe or tribal organization and Federal government, a process
for changes, modifications, stop work, and termination of the work when
warranted;
(b) In addition to provisions regarding the program standards
listed in paragraph (a) of this section or the assurances listed in
paragraph (c) of this section, the Indian tribe or tribal organization
shall also include in its construction contract proposal the following:
(1) In the case of a contract for design activities, this
statement, ``Construction documents produced as part of this contract
will be produced in accordance with the Program of Requirements and/or
Scope of Work,'' and the POR and/or Scope of Work shall be attached to
the contract proposal. If tribal construction procedures, standards and
methods (including national, regional, state, or tribal building codes
or construction industry standards) are consistent with or exceed
applicable Federal standards then the Secretary shall accept the
tribally proposed standards; and
(2) In the case of a contract for construction activities, this
statement, ``The facility will be built in accordance with the
construction documents produced as a part of design activities. The
project documents, including plans and specifications, are hereby
incorporated into this contract through this reference.'' If tribal
construction procedures, standards and methods (including national,
regional, state, or tribal building codes or construction industry
standards) are consistent with or exceed applicable Federal standards
then the Secretary shall accept the tribally proposed standards; and
(3) Proposed methods to accommodate the responsibilities of the
Secretary provided in Sec. 900.131; and
(4) Proposed methods to accommodate the responsibilities of the
Indian tribe or tribal organization provided in Sec. 900.130 unless
otherwise addressed in paragraph (a) of this section and minimum staff
qualifications proposed by the Indian tribe or tribal organization, if
any;
(5) A contract budget as described in Sec. 900.127; and
(6) A period of performance for the conduct of all activities to be
contracted;
(7) A payment schedule as described in Sec. 900.132;
(8) A statement indicating whether or not the Indian tribe or
tribal organization has a CMS contract related to this project;
(9) Current (unrevoked) authorizing resolutions in accordance with
Sec. 900.5(d) from all Indian tribes benefitting from the contract
proposal; and
(10) Any responsibilities, in addition to the Federal
responsibilities listed in Sec. 900.131, which the Indian tribe or
tribal organization proposes the Federal government perform to assist
with the completion of the scope of work;
(c) The Indian tribe or tribal organization will provide the
following assurances in its contract proposal:
(1) If the Indian tribe or tribal organization elects not to take
title (pursuant to subpart I) to Federal property used in carrying out
the contract, ``The Indian tribe or tribal organization will not
dispose of, modify the use of, or change the terms of the real property
title, or other interest in the site and facilities without permission
and instructions from the awarding agency. The Indian tribe or tribal
organization will record the Federal interest in the title of real
property in accordance with awarding agency directives and will include
a covenant in the title of real property acquired in whole or in part
with Federal assistance funds to assure nondiscrimination during the
useful life of the project''; and
(2) ``The Indian tribe or tribal organization will comply with the
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.)''
which prohibits the use of lead based paint in construction or
rehabilitation of residential structures;
(3) ``The Indian tribe or tribal organization will comply, or has
already complied, with the requirements of Titles II and III of the
Uniform Relocation Assistance and Real Property Acquisition Policies
Act of 1970 (Pub. L. 91-646),'' which provides for fair and equitable
treatment of persons displaced or whose property is acquired as a
result of Federal participation in purchases; and
(4) ``Except for work performed by tribal or tribal organization
employees, the Indian tribe or tribal organization will comply, as
applicable, with the provisions of the Davis-Bacon Act (40 U.S.C. 276c
and 18 U.S.C. 874),'' for Federally assisted construction
subagreements;
(5) ``The Indian tribe or tribal organization will comply with the
flood insurance purchase requirements of section 102(a) of the Flood
Disaster Protection Act of 1973 (Pub. L. 93-234),'' which requires
recipients in a special flood hazard area to participate in the program
and to purchase flood insurance if the total cost of insurable
construction and acquisition is $10,000 or more;
(6) ``The Indian tribe or tribal organization will comply with all
applicable Federal environmental laws, regulations, and Executive
Orders;''
(7) ``The Indian tribe or tribal organization will comply with the
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) related to
protecting the components or potential components of the national wild
and scenic rivers system;''
(8) ``The Indian tribe or tribal organization will assist the
awarding agency in assuring compliance with
[[Page 32521]]
section 106 of the National Historic Preservation Act of 1966, as
amended (16 U.S.C. 470), EO 11593 (identification and preservation of
historic properties), and the Archaeological and Historic Preservation
Act of 1974 (16 U.S.C. 469a-1 et seq.).''
(d) The Indian tribe or tribal organization and the Secretary will
both make a good faith effort to identify any other applicable Federal
laws, Executive Orders, or regulations applicable to the contract,
share them with the other party, and refer to them in the construction
contract. The parties will make a good faith effort to identify tribal
laws, ordinances, and resolutions which may affect either party in the
performance of the contract.
Sec. 900.126 Shall a construction contract proposal incorporate
provisions of Federal construction guidelines and manuals?
Each agency may provide or the Indian tribe or tribal organization
may request Federal construction guidelines and manuals for
consideration by the Indian tribe or tribal organization in the
preparation of its contract proposal. If tribal construction
procedures, standards and methods (including national, regional, State,
or tribal building codes or construction industry standards) are
consistent with or exceed applicable Federal standards, the Secretary
shall accept the tribally proposed standards.
Sec. 900.127 What can be included in the Indian tribe or tribal
organization's contract budget?
(a) The costs incurred will vary depending on which phase (see
Sec. 900.112) of the construction process the Indian tribe or tribal
organization is conducting and the type of contract that will be used.
The total amount awarded under a construction contract shall reflect an
overall fair and reasonable price to the parties (see Sec. 900.129).
(b) Costs for activities under this subpart that have not been
billed, allocated, or recovered under a contract issued under section
108 of the Act should be included.
(c) The Indian tribe or tribal organization's budget should include
the cost elements that reflect an overall fair and reasonable price.
These costs include:
(1) The reasonable costs to the Indian tribe or tribal organization
of performing the contract, taking into consideration the terms of the
contract and the requirements of the Act and any other applicable law;
(2) The costs of preparing the contract proposal and supporting
cost data;
(3) The costs associated with auditing the general and
administrative costs of the Indian tribe or tribal organization
associated with the management of the construction contract; and
(4) In cases where the Indian tribe or tribal organization is
submitting a fixed-price construction contract:
(i) The reasonable costs to the Indian tribe or tribal organization
for general administration incurred in connection with the project that
is the subject of the contract;
(ii) The ability of the contractor that carries out the
construction contract to make a reasonable profit, taking into
consideration the risks associated with carrying out the contract,
local market conditions, and other relevant considerations.
(d) In establishing a contract budget for a construction project,
the Secretary shall not be required to identify separately the
components described in paragraphs (c)(4)(i) and (c)(4)(ii) of this
section.
(e) The Indian tribe or tribal organization's budget proposal
includes a detailed budget breakdown for performing the scope of work
including a total ``not to exceed'' dollar amount with which to perform
the scope of work. Specific budget line items, if requested by the
Indian tribe or tribal organization, can include the following:
(1) The administrative costs the Indian tribe or tribal
organization may incur including:
(i) Personnel needed to provide administrative oversight of the
contract;
(ii) Travel costs incurred, both local travel incurred as a direct
result of conducting the contract and remote travel necessary to review
project status with the Secretary;
(iii) Meeting costs incurred while meeting with community residents
to develop project documents;
(iv) Fees to be paid to consultants, such as demographic
consultants, planning consultants, attorneys, accountants, and
personnel who will provide construction management services;
(2) The fees to be paid to architects and engineers to assist in
preparing project documents and to assist in oversight of the
construction process;
(3) The fees to be paid to develop project surveys including
topographical surveys, site boundary descriptions, geotechnical
surveys, archeological surveys, and NEPA compliance, and;
(4) In the case of a contract to conduct project construction
activities, the fees to provide a part-time or full-time on-site
inspector, depending on the terms of the contract, to monitor
construction activities;
(5) In the case of a contract to conduct project construction
activities, project site development costs;
(6) In the case of a contract to conduct project construction
activities, project construction costs including those costs described
in paragraph (c)(4), of this section;
(7) The cost of securing and installing moveable equipment,
telecommunications and data processing equipment, furnishings,
including works of art, and special purpose equipment when part of a
construction contract;
(8) A contingency amount for unanticipated conditions of the
construction phase of cost-reimbursable contracts. The amount of the
contingency provided shall be 3 percent of activities being contracted
or 50 percent of the available contingency funds, whichever is greater.
In the event provision of required contingency funds will cause the
project to exceed available project funds, the discrepancy shall be
reconciled in accordance with Sec. 900.129(e). Any additional
contingency funds for the construction phase will be negotiated on an
as-needed basis subject to the availability of funds and the nature,
scope, and complexity of the project. Any contingency for other phases
will be negotiated on a contract-by-contract basis. Unused contingency
funds obligated to the contract and remaining at the end of the
contract will be considered savings.
(9) Other costs incurred that are directly related to the conduct
of contract activities.
Sec. 900.128 What funding shall the Secretary provide in a
construction contract?
The Secretary shall provide an amount under a construction contract
that reflects an overall fair and reasonable price to the parties.
These costs include:
(a) The reasonable costs to the Indian tribe or tribal organization
of performing the contract, taking into consideration the terms of the
contract and the requirements of the Act and any other applicable law;
(b) The costs of preparing the contract proposal and supporting
cost data; and
(c) The costs associated with auditing the general and
administrative costs of the tribal organization associated with the
management of the construction contract; and
(d) If the Indian tribe or tribal organization is submitting a
fixed-price construction contract:
(1) The reasonable costs to the Indian tribe or tribal organization
for general administration incurred in connection
[[Page 32522]]
with the project that is the subject of the contract;
(2) The ability of the contractor that carries out the construction
contract to make a reasonable profit, taking into consideration the
risks associated with carrying out the contract, local market
conditions, and other relevant considerations including but not limited
to contingency.
(3) In establishing a contract budget for a construction project,
the Secretary is not required to identify separately the components
described in paragraph (d) (1) and (d) (2) of this sections.
Sec. 900.129 How do the Secretary and Indian tribe or tribal
organization arrive at an overall fair and reasonable price for the
performance of a construction contract?
(a) Throughout the contract award process, the Secretary and Indian
tribe or tribal organization shall share all construction project cost
information available to them in order to facilitate reaching agreement
on an overall fair and reasonable price for the project or part
thereof. In order to enhance this communication, the government's
estimate of an overall fair and reasonable price shall:
(1) Contain a level of detail appropriate to the nature and phase
of the work and sufficient to allow comparisons to the Indian tribe or
tribal organization's estimate;
(2) Be prepared in a format coordinated with the Indian tribe or
tribal organization; and
(3) Include the cost elements contained in section 105(m)(4) of the
Act.
(b) The government's cost estimate shall be an independent cost
estimate based on such information as the following:
(1) Prior costs to the government for similar projects adjusted for
comparison to the target location, typically in unit costs, such as
dollars per pound, square meter cost of building, or other unit cost
that can be used to make a comparison;
(2) Actual costs previously incurred by the Indian tribe or tribal
organization for similar projects;
(3) Published price lists, to include regional adjustment factors,
for materials, equipment, and labor; and
(4) Projections of inflation and cost trends, including projected
changes such as labor, material, and transportation costs.
(c) The Secretary shall provide the initial government cost
estimate to the Indian tribe or tribal organization and make
appropriate revisions based on concerns raised or information provided
by the Indian tribe or tribal organization. The Secretary and the
Indian tribe or tribal organization shall continue to revise, as
appropriate, their respective cost estimates based on changed or
additional information such as the following:
(1) Actual subcontract bids;
(2) Changes in inflation rates and market conditions, including
local market conditions;
(3) Cost and price analyses conducted by the Secretary and the
Indian tribe or tribal organization during negotiations;
(4) Agreed-upon changes in the size, scope and schedule of the
construction project; and
(5) Agreed-upon changes in project plans and specifications.
(d) Considering all of the information available, the Secretary and
the Indian tribe or tribal organization shall negotiate the amount of
the construction contract. The objective of the negotiations is to
arrive at an amount that is fair under current market conditions and
reasonable to both the government and the Indian tribe or tribal
organization. As a result, the agreement does not necessarily have to
be in strict conformance with either party's cost estimate nor does
agreement have to be reached on every element of cost, but only on the
overall fair and reasonable price of each phase of the work included in
the contract.
(e) If the fair and reasonable price arrived at under paragraph (d)
of this section would exceed the amount available to the Secretary,
then:
(1) If the Indian tribe or tribal organization elects to submit a
final proposal, the Secretary may decline the proposal under section
105(m)(4)(C)(v) of the Act or if the contract has been awarded, dispute
the matter under the Contract Disputes Act; or
(2) If requested by the Indian tribe or tribal organization:
(i) The Indian tribe or tribal organization and the Secretary may
jointly explore methods of expanding the available funds through the
use of contingency funds, advance payments in accordance with
Sec. 900.132, rebudgeting, or seeking additional appropriations; or
(ii) The Indian tribe or tribal organization may elect to propose a
reduction in project scope to bring the project price within available
funds; or
(iii) The Secretary and Indian tribe or tribal organization may
agree that the project be executed in phases.
Sec. 900.130 What role does the Indian tribe or tribal organization
play during the performance of a self-determination construction
contract?
(a) The Indian tribe or tribal organization is responsible for the
successful completion of the project in accordance with the approved
contract documents.
(b) If the Indian tribe or tribal organization is contracting to
perform design phase activities, the Indian tribe or tribal
organization shall have the following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with
or provide the services of licensed and qualified architects and other
consultants needed to accomplish the self-determination construction
contract.
(2) The Indian tribe or tribal organization shall administer and
disburse funds provided through the contract in accordance with subpart
F, Sec. 900.42 through Sec. 900.45 and implement a property management
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
(3) The Indian tribe or tribal organization shall direct the
activities of project architects, engineers, and other project
consultants, facilitate the flow of information between the Indian
tribe or tribal organization and its subcontractors, resolve disputes
between the Indian tribe or tribal organization and its subcontractors
or between its subcontractors, and monitor the work produced by its
subcontractors to ensure compliance with the POR.
(4) The Indian tribe or tribal organization shall direct the work
of its subcontractors so that work produced is provided in accordance
with the contract budget and contract performance period as negotiated
between and agreed to by the parties.
(5) The Indian tribe or tribal organization shall provide the
Secretary with an opportunity to review and provide written comments on
the project plans and specifications only at the concept phase, the
schematic phase (or the preliminary design), the design development
phase, and the final construction documents phase and approve the
project plans and specifications for general compliance with contract
requirements only at the schematic phase (or the preliminary design)
and the final construction documents phase or as otherwise negotiated.
(6) The Indian tribe or tribal organization shall provide the
Secretary with the plans and specifications after their final review
so, if needed, the Secretary may obtain an independent government cost
estimate in accordance with Sec. 900.131(b)(4) for the construction of
the project.
(7) The Indian tribe or tribal organization shall retain project
records and design documents for a minimum of
[[Page 32523]]
3 years following completion of the contract.
(8) The Indian tribe or tribal organization shall provide progress
reports and financial status reports quarterly, or as negotiated, that
contain a narrative of the work accomplished, including but not limited
to descriptions of contracts, major subcontracts, and modifications
implemented during the report period and A/E service deliverables, the
percentage of the work completed, a report of funds expended during the
reporting period, and total funds expended for the project. The Indian
tribe or tribal organization shall also provide copies, for the
information of the Secretary, of an initial work and payment schedule
and updates as they may occur.
(c) If the Indian tribe or tribal organization is contracting to
perform project construction phase activities, the Indian tribe or
tribal organization shall have the following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with
or provide the services of licensed and qualified architects and other
consultants as needed to accomplish the self-determination construction
contract.
(2) The Indian tribe or tribal organization shall administer and
dispense funds provided through the contract in accordance with subpart
F, Sec. 900.42 through Sec. 900.45 and implement a property management
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
(3) The Indian tribe or tribal organization shall subcontract with
or provide the services of construction contractors or provide its own
forces to conduct construction activities in accordance with the
project construction documents or as otherwise negotiated between and
agreed to by the parties.
(4) The Indian tribe or tribal organization shall direct the
activities of project architects, engineers, construction contractors,
and other project consultants, facilitate the flow of information
between the Indian tribe or tribal organization and its subcontractors,
resolve disputes between itself and its subcontractors or between its
subcontractors, and monitor the work produced by its subcontractors to
assure compliance with the project plans and specifications.
(5) The Indian tribe or tribal organization shall manage or provide
for the management of day-to-day activities of the contract including
the issuance of construction change orders to subcontractors except
that, unless the Secretary agrees:
(i) The Indian tribe or tribal organization may not issue a change
order to a construction subcontractor that will cause the Indian tribe
or tribal organization to exceed its self-determination contract
budget;
(ii) The Indian tribe or tribal organization may not issue a change
order to a construction subcontractor that will cause the Indian tribe
or tribal organization to exceed the performance period in its self-
determination contract budget; or
(iii) The Indian tribe or tribal organization may not issue to a
construction subcontractor a change order that is a significant
departure from the scope or objective of the project.
(6) The Indian tribe or tribal organization shall direct the work
of its subcontractors so that work produced is provided in accordance
with the contract budget and performance period as negotiated between
and agreed to by the parties.
(7) The Indian tribe or tribal organization shall provide to the
Secretary progress and financial status reports.
(i) The reports shall be provided quarterly, or as negotiated, and
shall contain a narrative of the work accomplished, the percentage of
the work completed, a report of funds expended during the reporting
period, and total funds expended for the project.
(ii) The Indian tribe or tribal organization shall also provide
copies, for the information of the Secretary, of an initial schedule of
values and updates as they may occur, and an initial construction
schedule and updates as they occur.
(8) The Indian tribe or tribal organization shall maintain on the
job-site or project office, and make available to the Secretary during
monitoring visits: contracts, major subcontracts, modifications,
construction documents, change orders, shop drawings, equipment cut
sheets, inspection reports, testing reports, and current redline
drawings.
(d) Upon completion of the project, the Indian tribe or tribal
organization shall provide to the Secretary a reproducible copy of the
record plans and a contract closeout report.
(e) For cost-reimbursable projects, the Indian tribe or tribal
organization shall not be obligated to continue performance that
requires an expenditure of more funds than were awarded under the
contract. If the Indian tribe or tribal organization has a reason to
believe that the total amount required for performance of the contract
will be greater than the amount of funds awarded, it shall provide
reasonable notice to the Secretary. If the Secretary does not increase
the amount of funds awarded under the contract, the Indian tribe or
tribal organization may suspend performance of the contract until
sufficient additional funds are awarded.
Sec. 900.131 What role does the Secretary play during the performance
of a self-determination construction contract?
(a) If the Indian tribe or tribal organization is contracting
solely to perform construction management services either under this
subpart or section 108 of the Act, the Secretary has the following
responsibilities:
(1) The Secretary is responsible for the successful completion of
the project in accordance with the approved contract documents. In
fulfilling those responsibilities, the Secretary shall consult with the
Indian tribe or tribal organization on a regular basis as agreed to by
the parties to facilitate the exchange of information between the
Indian tribe or tribal organization and Secretary;
(2) The Secretary shall provide the Indian tribe or tribal
organization with regular opportunities to review work produced to
determine compliance with the following documents:
(i) The POR, during the conduct of design phase activities. The
Secretary shall provide the Indian tribe or tribal organization with an
opportunity to review the project construction documents at the concept
phase, the schematic phase, the design development phase, and the final
construction documents phase, or as otherwise negotiated. Upon receipt
of project construction documents for review, the Indian tribe or
tribal organization shall not take more than 21 days to make available
to the Secretary any comments or objections to the construction
documents as submitted by the Secretary. Resolution of any comments or
objections shall be in accordance with dispute resolution procedures as
agreed to by the parties and contained in the contract; or
(ii) The project construction documents, during conduct of the
construction phase activities. The Indian tribe or tribal organization
shall have the right to conduct monthly or critical milestone on-site
monitoring visits or as negotiated with the Secretary;
(b) If the Indian tribe or tribal organization is contracting to
perform design and/or construction phase activities, the Secretary
shall have the following responsibilities:
[[Page 32524]]
(1) In carrying out the responsibilities of this section, and
specifically in carrying out review, comment, and approval functions
under this section, the Secretary shall provide for full tribal
participation in the decision making process and shall honor tribal
preferences and recommendations to the greatest extent feasible. This
includes promptly notifying the Indian tribe or tribal organization of
any concerns or issues in writing that may lead to disapproval, meeting
with the Indian tribe or tribal organization to discuss these concerns
and issues and to share relevant information and documents, and making
a good faith effort to resolve all issues and concerns of the Indian
tribe or tribal organization. The time allowed for Secretarial review,
comment, and approval shall be no more than 21 days per review unless a
different time period is negotiated and specified in individual
contracts. The 21-day time period may be extended if the Indian tribe
or tribal organization agrees to the extension in writing.
Disagreements over the Secretary's decisions in carrying out these
responsibilities shall be handled under subpart N governing contract
disputes under the Contract Disputes Act.
(2) To the extent the construction project is subject to NEPA or
other environmental laws, the appropriate Secretary shall make the
final determination under such laws. All other environmentally related
functions are contractible.
(3) If the Indian tribe or tribal organization conducts planning
activities under this subpart, the Secretary shall review and approve
final planning documents for the project to ensure compliance with
applicable planning standards.
(4) When a contract or portion of a contract is for project
construction activities, the Secretary may rely on the Indian tribe or
tribal organization's cost estimate or the Secretary may obtain an
independent government cost estimate that is derived from the final
project plans and specifications. The Secretary shall obtain the cost
estimate, if any, within 90 days or less of receiving the final plans
and specifications from the Indian tribe or tribal organization and
shall provide all supporting documentation of the independent cost
estimate to the Indian tribe or tribal organization within the 90 day
time limit.
(5) If the contracted project involves design activities, the
Secretary shall have the authority to review for general compliance
with the contract requirements and provide written comments on the
project plans and specifications only at the concept phase, the
schematic phase, the design development phase and the final
construction documents phase, and approve for general compliance with
contract requirements the project plans and specifications only at the
schematic phase and the final construction documents phase or as
otherwise negotiated.
(6) If the contracted project involves design activities, the
Secretary reserves a royalty-free, nonexclusive, and irrevocable
license to reproduce, publish or otherwise use, for Federal government
purposes:
(i) The copyright in any work developed under a contract or
subcontract of this subpart; and
(ii) Any rights of copyright to which an Indian tribe or tribal
organization or a tribal subcontractor purchases ownership through this
contract.
(7) Changes that require an increase to the negotiated contract
budget or an increase in the negotiated performance period or are a
significant departure from the scope or objective of the project shall
require approval of the Secretary.
(8) Review and comment on specific shop drawings as negotiated and
specified in individual contracts.
(9) The Secretary may conduct monthly on-site monitoring visits, or
alternatively if negotiated with the Indian tribe or tribal
organization, critical milestone on-site monitoring visits.
(10) The Secretary retains the right to conduct final project
inspections jointly with the Indian tribe or tribal organization and to
accept the building or facility. If the Secretary identifies problems
during final project inspections the information shall be provide to
the Indian tribe or tribal organization and shall be limited to items
that are materially noncompliant.
(11) The Secretary can require an Indian tribe or tribal
organization to suspend work under a contract in accordance with this
paragraph. The Secretary may suspend a contract for no more than 30
days unless the Indian tribe or tribal organization has failed to
correct the reason(s) for the suspension or unless the cause of the
suspension cannot be resolved through either the efforts of the
Secretary or the Indian tribe or tribal organization.
(i) The following are reasons the Secretary may suspend work under
a self-determination contract for construction:
(A) Differing site conditions encountered upon commencement of
construction activities that impact health or safety concerns or shall
require an increase in the negotiated project budget;
(B) The Secretary discovers materially non-compliant work;
(C) Funds allocated for the project that is the subject of this
contract are rescinded by Congressional action; or
(D) Other Congressional actions occur that materially affect the
subject matter of the contract.
(ii) If the Secretary wishes to suspend the work, the Secretary
shall first provide written notice and an opportunity for the Indian
tribe or tribal organization to correct the problem. The Secretary may
direct the Indian tribe or tribal organization to suspend temporarily
work under a contract only after providing a minimum of 5 working days'
advance written notice to the Indian tribe or tribal organization
describing the nature of the performance deficiencies or imminent
safety, health or environmental issues which are the cause for
suspending the work.
(iii) The Indian tribe or tribal organization shall be compensated
for reasonable costs, including but not limited to overhead costs,
incurred due to any suspension of work that occurred through no fault
of the Indian tribe or tribal organization.
(iv) Disputes arising as a result of a suspension of the work by
the Secretary shall be subject to the Contract Disputes Act or any
other alternative dispute resolution mechanism as negotiated between
and agreed to by the parties and contained in the contract.
(12) The Secretary can terminate the project for cause in the event
non-compliant work is not corrected through the suspension process
specified in paragraph (11) of this section.
(13) The Secretary retains authority to terminate the project for
convenience for the following reasons:
(i) Termination for convenience is requested by the Indian tribe or
tribal organization;
(ii) Termination for convenience is requested by the Secretary and
agreed to by the Indian tribe or tribal organization;
(iii) Funds allocated for the project that is the subject of the
contract are rescinded by Congressional action;
(iv) Other Congressional actions take place that affect the subject
matter of the contract;
(v) If the Secretary terminates a self-determination construction
contract for convenience, the Secretary shall provide the Indian tribe
or tribal organization 21 days advance written notice of intent to
terminate a contract for convenience; or
(vi) The Indian tribe or tribal organization shall be compensated
for
[[Page 32525]]
reasonable costs incurred due to termination of the contract.
Sec. 900.132 Once a contract and/or grant is awarded, how will the
Indian tribe or tribal organization receive payments?
(a) A schedule for advance payments shall be developed based on
progress, need, and other considerations in accordance with applicable
law. The payment schedule shall be negotiated by the parties and
included in the contract. The payment schedule may be adjusted as
negotiated by the parties during the course of the project based on
progress and need.
(b) Payments shall be made to the Indian tribe or tribal
organization according to the payment schedule contained in the
contract. If the contract does not provide for the length of each
allocation period, the Secretary shall make payments to the Indian
tribe or tribal organization at least quarterly. Each allocation shall
be adequate to provide funds for the contract activities anticipated to
be conducted during the allocation period, except that:
(1) The first allocation may be greater than subsequent allocations
and include mobilization costs, and contingency funds described in
Sec. 900.128(e)(8); and
(2) Any allocation may include funds for payment for materials that
will be used during subsequent allocation periods.
(c) The Indian tribe or tribal organization may propose a schedule
of payment amounts measured by time or measured by phase of the project
(e.g., planning, design, construction).
(d) The amount of each payment allocation shall be stated in the
Indian tribe or tribal organization's contract proposal. Upon award of
the contract, the Secretary shall transfer the amount of the first
allocation to the Indian tribe or tribal organization within 21 days
after the date of contract award. The second allocation shall be made
not later than 7 days before the end of the first allocation period.
(e) Not later than 7 days before the end of each subsequent
allocation period after the second allocation, the Secretary shall
transfer to the Indian tribe or tribal organization the amount for the
next allocation period, unless the Indian tribe or tribal organization
is delinquent in submission of allocation period progress reports and
financial reports or the Secretary takes action to suspend or terminate
the contract in accordance with Sec. 900.131(b)(11),
Sec. 900.131(b)(12), or Sec. 900.131(b)(13).
Sec. 900.133 Does the declination process or the Contract Dispute Act
apply to construction contract amendments proposed either by an Indian
tribe or tribal organization or the Secretary?
The Contract Disputes Act generally applies to such amendments.
However, the declination process and the procedures in Sec. 900.122 and
Sec. 900.123 apply to the proposal by an Indian tribe or tribal
organization when the proposal is for a new project, a new phase or
discreet stage of a phase of a project, or an expansion of a project
resulting from an additional allocation of funds by the Secretary under
Sec. 900.120.
Sec. 900.134 At the end of a self-determination construction contract,
what happens to savings on a cost-reimbursement contract?
The savings shall be used by the Indian tribe or tribal
organization to provide additional services or benefits under the
contract. Unexpended contingency funds obligated to the contract, and
remaining at the end of the contract, are savings. No further approval
or justifying documentation by the Indian tribe or tribal organization
shall be required before expenditure of funds.
Sec. 900.135 May the time frames for action set out in this subpart be
reduced?
Yes. The time frames in this subpart are intended to be maximum
times and may be reduced based on urgency and need, by agreement of the
parties. If the Indian tribe or tribal organization requests reduced
time frames for action due to unusual or special conditions (such as
limited construction periods), the Secretary shall make a good faith
effort to accommodate the requested time frames.
Sec. 900.136 Do tribal employment rights ordinances apply to
construction contracts and subcontracts?
Yes. Tribal employment rights ordinances do apply to construction
contracts and subcontracts pursuant to Sec. 7(b) and Sec. 7(c) of the
Act.
Sec. 900.137 Do all provisions of the other subparts apply to
contracts awarded under this subpart?
Yes, except as otherwise provided in this subpart and unless
excluded as follows: programmatic reports and data requirements,
reassumption, contract review and approval process, contract proposal
contents, and Sec. 900.150 (d) and (e) of these regulations.
Subpart K--Waiver Procedures
Sec. 900.140 Can any provision of the regulations under this Part be
waived?
Yes. Upon the request of an Indian tribe or tribal organization,
the Secretary shall waive any provision of these regulations, including
any cost principles adopted by the regulations under this part, if the
Secretary finds that granting the waiver is either in the best interest
of the Indians served by the contract, or is consistent with the
policies of the Act and is not contrary to statutory law.
Sec. 900.141 How does an Indian tribe or tribal organization get a
waiver?
To obtain a waiver, an Indian tribe or tribal organization shall
submit a written request to the Secretary identifying the regulation to
be waived and the basis for the request. The Indian tribe or tribal
organization shall explain the intended effect of the waiver, the
impact upon the Indian tribe or tribal organization if the waiver is
not granted, and the specific contract(s) to which the waiver will
apply.
Sec. 900.142 Does an Indian tribe or tribal organization's waiver
request have to be included in an initial contract proposal?
No. Although a waiver request may be included in a contract
proposal, it can also be submitted separately.
Sec. 900.143 How is a waiver request processed?
The Secretary shall approve or deny a waiver within 90 days after
the Secretary receives a written waiver request. The Secretary's
decision shall be in writing. If the requested waiver is denied, the
Secretary shall include in the decision a full explanation of the basis
for the decision.
Sec. 900.144 What happens if the Secretary makes no decision within
the 90-day period?
The waiver request is deemed approved.
Sec. 900.145 On what basis may the Secretary deny a waiver request?
Consistent with section 107(e) of the Act, the Secretary may only
deny a waiver request based on a specific written finding. The finding
must clearly demonstrate (or be supported by controlling legal
authority) that if the waiver is granted:
(a) The service to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function to be contracted for cannot be
properly
[[Page 32526]]
completed or maintained by the proposed contract;
(d) The amount of funds proposed under the contract is in excess of
the applicable funding level for the contract, as determined under
section 106(a) of the Act; or
(e) The program, function, service, or activity (or portion of it)
that is the subject of the proposal is beyond the scope of programs,
functions, services, or activities that are contractible under the Act
because the proposal includes activities that cannot lawfully be
carried out by the contractor.
Sec. 900.146 Is technical assistance available for waiver requests?
Yes. Technical assistance is available as provided in section 900.7
to prepare a waiver request or to overcome any stated objection which
the Secretary might have to the request.
Sec. 900.147 What appeal rights are available?
If the Secretary denies a waiver request, the Indian tribe or
tribal organization has the right to appeal the decision and request a
hearing on the record under the procedures for hearings and appeals
contained in subpart L of these regulations. Alternatively, the Indian
tribe or tribal organization may sue in Federal district court to
challenge the Secretary's action.
Sec. 900.148 How can an Indian tribe or tribal organization secure a
determination that a law or regulation has been superseded by the
Indian Self-Determination Act, as specified in section 107(b) of the
Act?
Any Indian tribe or tribal organization may at any time submit a
request to the Secretary for a determination that any law or regulation
has been superseded by the Act and that the law has no applicability to
any contract or proposed contract under the Act. The Secretary is
required to provide an initial decision on such a request within 90
days after receipt. If such a request is denied, the Indian tribe or
tribal organization may appeal under Subpart L of these regulations.
The Secretary shall provide notice of each determination made under
this Subpart to all Indian tribes and tribal organizations.
Subpart L--Appeals
Appeals Other Than Emergency Reassumption and Suspension, Withholding
or Delay in Payment
Sec. 900.150 What decisions can an Indian tribe or tribal organization
appeal under this Subpart?
(a) A decision to decline to award a self-determination contract,
or a portion thereof, under section 102 of the Act;
(b) A decision to decline to award a construction contract, or a
portion thereof, under sections 105(m) and 102 of the Act;
(c) A decision to decline a proposed amendment to a self-
determination contract, or a portion thereof, under section 102 of the
Act;
(d) A decision not to approve a proposal, in whole or in part, to
redesign a program;
(e) A decision to rescind and reassume a self-determination
contract, in whole or in part, under section 109 of the Act except for
emergency reassumptions;
(f) A decision to refuse to waive a regulation under section 107(e)
of the Act;
(g) A disagreement between an Indian tribe or tribal organization
and the Federal government over proposed reporting requirements;
(h) A decision to refuse to allow an Indian tribe or tribal
organization to convert a contract to mature status, under section 4(h)
of the Act;
(i) All other appealable pre-award decisions by a Federal official
as specified in these regulations, whether an official of the
Department of the Interior or the Department of Health and Human
Services; or
(j) A decision relating to a request for a determination that a law
or regulation has been superseded by the Act.
Sec. 900.151 Are there any appeals this subpart does not cover?
This subpart does not cover:
(a) Disputes which arise after a self-determination contract has
been awarded, or emergency reassumption of self-determination contracts
or suspension of payments under self-determination contracts, which are
covered under Sec. 900.170 through Sec. 900.176 of these regulations.
(b) Other post-award contract disputes, which are covered under
Subpart N.
(c) Denials under the Freedom of Information Act, 5 U.S.C. 552,
which may be appealed under 43 CFR 2 for the Department of the Interior
and 45 CFR 5 for the Department of Health and Human Services; and
(d) Decisions relating to the award of discretionary grants under
section 103 of the Act, which may be appealed under 25 CFR 2 for the
Department of the Interior, and under 45 CFR 5 for the Department of
Health and Human Services.
Sec. 900.152 How does an Indian tribe or tribal organization know
where and when to file its appeal from decisions made by agencies of
DOI or DHHS?
Every decision in any of the ten areas listed above shall contain
information which shall tell the Indian tribe or tribal organization
where and when to file the Indian tribe or tribal organization's
appeal. Each decision shall include the following statement:
Within 30 days of the receipt of this decision, you may request
an informal conference under 25 CFR 900.154, or appeal this decision
under 25 CFR 900.158 to the Interior Board of Indian Appeals (IBIA).
Should you decide to appeal this decision, you may request a hearing
on the record. An appeal to the IBIA under 25 CFR 900.158 shall be
filed with the IBIA by certified mail or by hand delivery at the
following address: Board of Indian Appeals, U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203. You shall
serve copies of your Notice of Appeal on the Secretary and on the
official whose decision is being appealed. You shall certify to the
IBIA that you have served these copies.
Sec. 900.153 Does an Indian tribe or tribal organization have any
options besides an appeal?
Yes. The Indian tribe or tribal organization may request an
informal conference. An informal conference is a way to resolve issues
as quickly as possible, without the need for a formal hearing. The
Indian tribe or tribal organization may also choose to sue in U.S.
District Court under section 102(b)(3) and section 110(a) of the Act.
Sec. 900.154 How does an Indian tribe or tribal organization request
an informal conference?
The Indian tribe or tribal organization shall file its request for
an informal conference with the office of the person whose decision it
is appealing, within 30 days of the day it receives the decision. The
Indian tribe or tribal organization may either hand-deliver the request
for an informal conference to that person's office, or mail it by
certified mail, return receipt requested. If the Indian tribe or tribal
organization mails the request, it will be considered filed on the date
the Indian tribe or tribal organization mailed it by certified mail.
[[Page 32527]]
Sec. 900.155 How is an informal conference held?
(a) The informal conference shall be held within 30 days of the
date the request was received, unless the Indian tribe or tribal
organization and the authorized representative of the Secretary agree
on another date.
(b) If possible, the informal conference will be held at the Indian
tribe or tribal organization's office. If the meeting cannot be held at
the Indian tribe or tribal organization's office and is held more than
fifty miles from its office, the Secretary shall arrange to pay
transportation costs and per diem for incidental expenses to allow for
adequate representation of the Indian tribe or tribal organization.
(c) The informal conference shall be conducted by a designated
representative of the Secretary.
(d) Only people who are the designated representatives of the
Indian tribe or tribal organization, or authorized by the Secretary of
Health and Human Services or by the appropriate agency of the
Department of the Interior, are allowed to make presentations at the
informal conference.
Sec. 900.156 What happens after the informal conference?
(a) Within 10 days of the informal conference, the person who
conducted the informal conference shall prepare and mail to the Indian
tribe or tribal organization a written report which summarizes what
happened at the informal conference and a recommended decision.
(b) Every report of an informal conference shall contain the
following language:
Within 30 days of the receipt of this recommended decision, you
may file an appeal of the initial decision of the DOI or DHHS agency
with the Interior Board of Indian Appeals (IBIA) under 25 CFR
900.157. You may request a hearing on the record. An appeal to the
IBIA under 25 CFR 900.157 shall be filed with the IBIA by certified
mail or hand delivery at the following address: Board of Indian
Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard,
Arlington, VA 22203. You shall serve copies of your Notice of Appeal
on the Secretary and on the official whose decision is being
appealed. You shall certify to the IBIA that you have served these
copies.
Sec. 900.157 Is the recommended decision always final?
No. If the Indian tribe or tribal organization is dissatisfied with
the recommended decision, it may still appeal the initial decision
within 30 days of receiving the recommended decision and the report of
the informal conference. If the Indian tribe or tribal organization
does not file a notice of appeal within 30 days, or before the
expiration of the extension it has received under Sec. 900.159, the
recommended decision becomes final.
Sec. 900.158 How does an Indian tribe or tribal organization appeal
the initial decision, if it does not request an informal conference or
if it does not agree with the recommended decision resulting from the
informal conference?
(a) If the Indian tribe or tribal organization decides to appeal,
it shall file a notice of appeal with the IBIA within 30 days of
receiving either the initial decision or the recommended decision.
(b) The Indian tribe or tribal organization may either hand-deliver
the notice of appeal to the IBIA, or mail it by certified mail, return
receipt requested. If the Indian tribe or tribal organization mails the
Notice of Appeal, it will be considered filed on the date the Indian
tribe or tribal organization mailed it by certified mail. The Indian
tribe or tribal organization should mail the notice of appeal to: Board
of Indian Appeals, U.S. Department of the Interior, 4015 Wilson
Boulevard, Arlington, VA 22203.
(c) The Notice of Appeal shall:
(1) Briefly state why the Indian tribe or tribal organization
thinks the initial decision is wrong;
(2) Briefly identify the issues involved in the appeal; and
(3) State whether the Indian tribe or tribal organization wants a
hearing on the record, or whether the Indian tribe or tribal
organization wants to waive its right to a hearing.
(d) The Indian tribe or tribal organization shall serve a copy of
the notice of appeal upon the official whose decision it is appealing.
The Indian tribe or tribal organization shall certify to the IBIA that
it has done so.
(e) The authorized representative of the Secretary of Health and
Human Services or the authorized representative of the Secretary of the
Interior will be considered a party to all appeals filed with the IBIA
under the Act.
Sec. 900.159 May an Indian tribe or tribal organization get an
extension of time to file a notice of appeal?
Yes. If the Indian tribe or tribal organization needs more time, it
can request an extension of time to file its Notice of Appeal within 60
days of receiving either the initial decision or the recommended
decision resulting from the informal conference. The request of the
Indian tribe or tribal organization shall be in writing, and shall give
a reason for not filing its notice of appeal within the 30-day time
period. If the Indian tribe or tribal organization has a valid reason
for not filing its notice of appeal on time, it may receive an
extension from the IBIA.
Sec. 900.160 What happens after an Indian tribe or tribal
organization files an appeal?
(a) Within 5 days of receiving the Indian tribe or tribal
organization's notice of appeal, the IBIA will decide whether the
appeal falls under Sec. 900.150(a) through Sec. 900.150(g). If so, the
Indian tribe or tribal organization is entitled to a hearing.
(1) If the IBIA determines that the appeal of the Indian tribe or
tribal organization falls under Sec. 900.150(h), Sec. 900.150(i), or
Sec. 900.150(j), and the Indian tribe or tribal organization has
requested a hearing, the IBIA will grant the request for a hearing
unless the IBIA determines that there are no genuine issues of material
fact to be resolved.
(2) If the IBIA cannot make that decision based on the information
included in the notice of appeal, the IBIA may ask for additional
statements from the Indian tribe or tribal organization, or from the
appropriate Federal agency. If the IBIA asks for more statements, it
will make its decision within 5 days of receiving those statements.
(b) If the IBIA decides that the Indian tribe or tribal
organization is not entitled to a hearing or if the Indian tribe or
tribal organization has waived its right to a hearing on the record,
the IBIA will ask for the administrative record under 43 CFR 4.335. The
IBIA shall tell the parties that the appeal will be considered under
the regulations at 43 CFR 4, Subpart D, except the case shall be
docketed immediately, without waiting for the 20-day period described
in 43 CFR 4.336.
Sec. 900.161 How is a hearing arranged?
(a) If a hearing is to be held, the IBIA will refer the Indian
tribe or tribal organization's case to the Hearings Division of the
Office of Hearings and Appeals of the U.S. Department of the Interior.
The case will then be assigned to an Administrative Law Judge (ALJ),
appointed under 5 U.S.C. 3105.
(b) Within 15 days of the date of the referral, the ALJ will hold a
pre-hearing conference, by telephone or in person, to decide whether an
evidentiary hearing is necessary, or whether it is possible to decide
the appeal based on the written record. At the pre-hearing conference
the ALJ will provide for:
(1) A briefing and discovery schedule;
(2) A schedule for the exchange of information, including, but not
limited
[[Page 32528]]
to witness and exhibit lists, if an evidentiary hearing is to be held;
(3) The simplification or clarification of issues;
(4) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if an evidentiary hearing is to be
held;
(5) The possibility of agreement disposing of all or any of the
issues in dispute; and
(6) Such other matters as may aid in the disposition of the appeal.
(c) The ALJ shall order a written record to be made of any
conference results that are not reflected in a transcript.
Sec. 900.162 What happens when a hearing is necessary?
(a) The ALJ shall hold a hearing within 60 days of the date of the
order referring the appeal to the ALJ, unless the parties agree to have
the hearing on a later date.
(b) At least 30 days before the hearing, the government agency
shall file and serve the Indian tribe or tribal organization with a
response to the notice of appeal.
(c) If the hearing is held more than 50 miles from the Indian tribe
or tribal organization's office, the Secretary shall arrange to pay
transportation costs and per diem for incidental expenses to allow for
adequate representation of the Indian tribe or tribal organization.
(d) The hearing shall be conducted in accordance with the
Administrative Procedure Act, 5 U.S.C. 556.
Sec. 900.163 What is the Secretary's burden of proof for appeals from
decisions under Sec. 900.150(a) through Sec. 900.150(g)?
For those appeals, the Secretary has the burden of proof (as
required by section 102(e)(1) of the Act) to establish by clearly
demonstrating the validity of the grounds for declining the contract
proposal.
Sec. 900.164 What rights do Indian tribes, tribal organizations, and
the government have during the appeal process?
Both the Indian tribe or tribal organization and the government
agency have the same rights during the appeal process. These rights
include the right to:
(a) Be represented by legal counsel;
(b) Have the parties provide witnesses who have knowledge of the
relevant issues, including specific witnesses with that knowledge, who
are requested by either party;
(c) Cross-examine witnesses;
(d) Introduce oral or documentary evidence, or both;
(e) Require that oral testimony be under oath;
(f) Receive a copy of the transcript of the hearing, and copies of
all documentary evidence which is introduced at the hearing;
(g) Compel the presence of witnesses, or the production of
documents, or both, by subpoena at hearings or at depositions;
(h) Take depositions, to request the production of documents, to
serve interrogatories on other parties, and to request admissions; and
(i) Any other procedural rights under the Administrative Procedure
Act, 5 U.S.C. 556.
Sec. 900.165 What happens after the hearing?
(a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send
all the parties a recommended decision, by certified mail, return
receipt requested. The recommended decision shall contain the ALJ's
findings of fact and conclusions of law on all the issues. The
recommended decision shall also state that the Indian tribe or tribal
organization has the right to object to the recommended decision.
(b) If the appeal involves the Department of Health and Human
Services, the recommended decision shall contain the following
statement:
Within 30 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Secretary
of Health and Human Services under 25 CFR 900.165(b). An appeal to
the Secretary under 25 CFR 900.165(b) shall be filed at the
following address: Department of Health and Human Services, 200
Independence Ave. S.W., Washington, DC, 20201. You shall serve
copies of your notice of appeal on the official whose decision is
being appealed. You shall certify to the Secretary that you have
served this copy. If neither party files an objection to the
recommended decision within 30 days, the recommended decision will
become final.
(c) If the appeal involves the Department of the Interior, the
recommended decision shall contain the following statement:
Within 30 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Interior
Board of Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to
the IBIA under 25 CFR 900.165(c) shall be filed at the following
address: Board of Indian Appeals, 4015 Wilson Boulevard, Arlington,
VA 22203. You shall serve copies of your notice of appeal on the
Secretary of the Interior, and on the official whose decision is
being appealed. You shall certify to the IBIA that you have served
these copies. If neither party files an objection to the recommended
decision within 30 days, the recommended decision will become final.
Sec. 900.166 Is the recommended decision always final?
No. Any party to the appeal may file precise and specific written
objections to the recommended decision, or any other comments, within
30 days of receiving the recommended decision. Objections shall be
served on all other parties. The recommended decision shall become
final 30 days after the Indian tribe or tribal organization receives
the ALJ's recommended decision, unless a written statement of
objections is filed with the Secretary of Health and Human Services or
the IBIA during the 30-day period. If no party files a written
statement of objections within 30 days, the recommended decision shall
become final.
Sec. 900.167 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
(a) The Secretary of Health and Human Services or the IBIA has 20
days from the date it receives any timely written objections to modify,
adopt, or reverse the recommended decision. If the Secretary of Health
and Human Services or the IBIA does not modify or reverse the
recommended decision during that time, the recommended decision
automatically becomes final.
(b) When reviewing the recommended decision, the IBIA or the
Secretary may consider and decide all issues properly raised by any
party to the appeal, based on the record.
(c) The decision of the Secretary or the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are
modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
Sec. 900.168 Will an appeal hurt the Indian tribe or tribal
organization's position in other contract negotiations?
No. A pending appeal will not affect or prevent the negotiation or
award of another contract.
Sec. 900.169 Will the decisions on appeals be available for the
public to review?
Yes. The Secretary shall publish all final decisions from the ALJs,
the IBIA, and the Secretary of Health and Human Services.
[[Page 32529]]
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspensions, Withholding or Delay of Payments Under a Self-
Determination Contract
Sec. 900.170 What happens in the case of emergency reassumption or
suspension or withholding or delay of payments?
(a) This subpart applies when the Secretary gives notice to an
Indian tribe or tribal organization that the Secretary intends to:
(1) Immediately rescind a contract or grant and reassume a program;
or
(2) Suspend, withhold, or delay payment under a contract.
(b) When the Secretary advises an Indian tribe or tribal
organization that the Secretary intends to take an action referred to
in paragraph (a)(1) of this section, the Secretary shall also notify
the Deputy Director of the Office of Hearings and Appeals, Department
of the Interior, 4015 Wilson Boulevard, Arlington, VA 22203.
Sec. 900.171 Will there be a hearing?
Yes. The Deputy Director of the Office of Hearings and Appeals
shall appoint an Administrative Law Judge (ALJ) to hold a hearing.
(a) The hearing shall be held within 10 days of the date of the
notice referred to in Sec. 900.170 unless the Indian tribe or tribal
organization agrees to a later date.
(b) If possible, the hearing will be held at the office of the
Indian tribe or tribal organization. If the hearing is held more than
50 miles from the office of the Indian tribe or tribal organization,
the Secretary shall arrange to pay transportation costs and per diem
for incidental expenses. This will allow for adequate representation of
the Indian tribe or tribal organization.
Sec. 900.172 What happens after the hearing?
(a) Within 30 days after the end of the hearing or any post-hearing
briefing schedule established by the ALJ, the ALJ shall send all
parties a recommended decision by certified mail, return receipt
requested. The recommended decision shall contain the ALJ's findings of
fact and conclusions of law on all the issues. The recommended decision
shall also state that the Indian tribe or tribal organization has the
right to object to the recommended decision.
(b) If the appeal involves the Department of Health and Human
Services, the recommended decision shall contain the following
statement:
Within 15 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Secretary
of Health and Human Services under 25 CFR 900.165(b). An appeal to
the Secretary under 25 CFR 900.165(b) shall be filed at the
following address: Department of Health and Human Services, 200
Independence Ave. S.W., Washington, DC 20201. You shall serve copies
of your notice of appeal on the official whose decision is being
appealed. You shall certify to the Secretary that you have served
this copy. If neither party files an objection to the recommended
decision within 15 days, the recommended decision will become final.
(c) If the appeal involves the Department of the Interior, the
recommended decision shall contain the following statement:
Within 15 days of the receipt of this recommended decision, you
may file an objection to the recommended decision with the Interior
Board of Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to
the IBIA under 25 CFR 900.165(c) shall be filed at the following
address: Board of Indian Appeals, 4015 Wilson Boulevard, Arlington,
VA 22203. You shall serve copies of your notice of appeal on the
Secretary of the Interior, and on the official whose decision is
being appealed.
You shall certify to the IBIA that you have served these copies. If
neither party files an objection to the recommended decision within 15
days, the recommended decision will become final.
Sec. 900.173 Is the recommended decision always final?
No. Any party to the appeal may file precise and specific written
objections to the recommended decision, or any other comments, within
15 days of receiving the recommended decision. You shall serve a copy
of your objections on the other party. The recommended decision will
become final 15 days after the Indian tribe or tribal organization
receives the ALJ's recommended decision, unless a written statement of
objections is filed with the Secretary of Health and Human Services or
the IBIA during the 15-day period. If no party files a written
statement of objections within 15 days, the recommended decision will
become final.
Sec. 900.174 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human
Services or the IBIA do?
(a) The Secretary or the IBIA has 15 days from the date he/she
receives timely written objections to modify, adopt, or reverse the
recommended decision. If the Secretary or the IBIA does not modify or
reverse the recommended decision during that time, the recommended
decision automatically becomes final.
(b) When reviewing the recommended decision, the IBIA or the
Secretary may consider and decide all issues properly raised by any
party to the appeal, based on the record.
(c) The decision of the Secretary or of the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are
modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
Sec. 900.175 Will an appeal hurt an Indian tribe or tribal
organization's position in other contract negotiations?
No. A pending appeal will not affect or prevent the negotiation or
award of another contract.
Sec. 900.176 Will the decisions on appeals be available for the
public to review?
Yes. The Secretary shall publish all final decisions from the ALJs,
the IBIA, and the Secretary of Health and Human Services.
Applicability of the Equal Access to Justice Act
Sec. 900.177 Does the Equal Access to Justice Act (EAJA) apply to
appeals under this subpart?
Yes. EAJA claims against the DOI or the DHHS will be heard by the
IBIA under 43 CFR 4.601-4.619. For DHHS, appeals from the EAJA award
will be according to 25 CFR 900.165(b).
Subpart M--Federal Tort Claims Act Coverage General Provisions
Sec. 900.180 What does this subpart cover?
This subpart explains the applicability of the Federal Tort Claims
Act (FTCA). This section covers:
(a) Coverage of claims arising out of the performance of medical-
related functions under self-determination contracts;
(b) Coverage of claims arising out of the performance of non-
medical-related functions under self-determination contracts; and
(c) Procedures for filing claims under FTCA.
Sec. 900.181 What definitions apply to this subpart?
Indian contractor means:
(1) In California, subcontractors of the California Rural Indian
Health Board, Inc. or, subject to approval of the IHS Director after
consultation with the DHHS Office of General Counsel, subcontractors of
an Indian tribe or tribal organization which are:
(i) Governed by Indians eligible to receive services from the
Indian Health Service;
(ii) Which carry out comprehensive IHS service programs within
[[Page 32530]]
geographically defined service areas; and
(iii) Which are selected and identified through tribal resolution
as the local provider of Indian health care services.
(2) Subject to the approval of the IHS Director after consultation
with the DHHS Office of General Counsel, Indian tribes and tribal
organizations which meet in all respects the requirements of the Indian
Self-Determination Act to contract directly with the Federal Government
but which choose through tribal resolution to subcontract to carry out
IHS service programs within geographically defined service areas with
another Indian tribe or tribal organization which contracts directly
with IHS.
(3) Any other contractor that qualifies as an ``Indian contractor''
under the Indian Self-Determination Act.
Sec. 900.182 What other statutes and regulations apply to FTCA
coverage?
A number of other statutes and regulations apply to FTCA coverage,
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-
2680) and related Department of Justice regulations in 28 CFR part 14.
Sec. 900.183 Do Indian tribes and tribal organizations need to be
aware of areas which FTCA does not cover?
Yes. There are claims against self-determination contractors which
are not covered by FTCA, claims which may not be pursued under FTCA,
and remedies that are excluded by FTCA. General guidance is provided
below as to these matters but is not intended as a definitive
description of coverage, which is subject to review by the Department
of Justice and the courts on a case-by-case basis.
(a) What claims are expressly barred by FTCA and therefore may not
be made against the United States, an Indian tribe or tribal
organization? Any claim under 28 U.S.C. 2680, including claims arising
out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights, unless otherwise
authorized by 28 U.S.C. 2680(h).
(b) What claims may not be pursued under FTCA?
(1) Except as provided in Sec. 900.181(a)(1) and Sec. 900.189,
claims against subcontractors arising out of the performance of
subcontracts with a self-determination contractor;
(2) claims for on-the-job injuries which are covered by workmen's
compensation;
(3) claims for breach of contract rather than tort claims; or
(4) claims resulting from activities performed by an employee which
are outside the scope of employment.
(c) What remedies are expressly excluded by FTCA and therefore are
barred?
(1) Punitive damages, unless otherwise authorized by 28 U.S.C.
2674; and
(2) other remedies not permitted under applicable state law.
Sec. 900.184 Is there a deadline for filing FTCA claims?
Yes. Claims shall be filed within 2 years of the date of accrual.
(28 U.S.C. 2401).
Sec. 900.185 How long does the Federal government have to process an
FTCA claim after the claim is received by the Federal agency, before a
lawsuit may be filed?
Six months.
Sec. 900.186 Is it necessary for a self-determination contract to
include any clauses about Federal Tort Claims Act coverage?
No, it is optional. At the request of Indian tribes and tribal
organizations, self-determination contracts shall include the following
clauses to clarify the scope of FTCA coverage:
(a) The following clause may be used for all contracts:
For purposes of Federal Tort Claims Act coverage, the contractor
and its employees (including individuals performing personal
services contracts with the contractor to provide health care
services) are deemed to be employees of the Federal government while
performing work under this contract. This status is not changed by
the source of the funds used by the contractor to pay the employee's
salary and benefits unless the employee receives additional
compensation for performing covered services from anyone other than
the contractor.
(b) The following clause is for IHS contracts only:
Under this contract, the contractor's employee may be required
as a condition of employment to provide health services to non-IHS
beneficiaries in order to meet contractual obligations. These
services may be provided in either contractor or non-contractor
facilities. The employee's status for Federal Tort Claims Act
purposes is not affected.
Sec. 900.187 Does FTCA apply to a self-determination contract if FTCA
is not referenced in the contract?
Yes.
Sec. 900.188 To what extent shall the contractor cooperate with the
Federal government in connection with tort claims arising out of the
contractor's performance?
(a) The contractor shall designate an individual to serve as tort
claims liaison with the Federal government.
(b) As part of the notification required by 28 U.S.C. 2679(c), the
contractor shall notify the Secretary immediately in writing of any
tort claim (including any proceeding before an administrative agency or
court) filed against the contractor or any of its employees that
relates to performance of a self-determination contract or subcontract.
(c) The contractor, through its designated tort claims liaison,
shall assist the appropriate Federal agency in preparing a
comprehensive, accurate, and unbiased report of the incident so that
the claim may be properly evaluated. This report should be completed
within 60 days of notification of the filing of the tort claim. The
report should be complete in every significant detail and include as
appropriate:
(1) The date, time and exact place of the accident or incident;
(2) A concise and complete statement of the circumstances of the
accident or incident;
(3) The names and addresses of tribal and/or Federal employees
involved as participants or witnesses;
(4) The names and addresses of all other eyewitnesses;
(5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
(6) A statement as to whether any person involved was cited for
violating a Federal, State or tribal law, ordinance, or regulation;
(7) The contractor's determination as to whether any of its
employees (including Federal employees assigned to the contractor)
involved in the incident giving rise to the tort claim were acting
within the scope of their employment in carrying out the contract at
the time the incident occurred;
(8) Copies of all relevant documentation, including available
police reports, statements of witnesses, newspaper accounts, weather
reports, plats and photographs of the site or damaged property, such as
may be necessary or useful for purposes of claim determination by the
Federal agency; and
(9) Insurance coverage information, copies of medical bills, and
relevant employment records.
(d) The contractor shall cooperate with and provide assistance to
the U.S. Department of Justice attorneys assigned to defend the tort
claim, including, but not limited to, case preparation, discovery, and
trial.
(e) If requested by the Secretary, the contractor shall make an
assignment and subrogation of all the contractor's rights and claims
(except those against
[[Page 32531]]
the Federal government) arising out of a tort claim against the
contractor.
(f) If requested by the Secretary, the contractor shall authorize
representatives of the Secretary to settle or defend any claim and to
represent the contractor in or take charge of any action. If the
Federal government undertakes the settlement or defense of any claim or
action the contractor shall provide all reasonable additional
assistance in reaching a settlement or asserting a defense.
Sec. 900.189 Does this coverage extend to subcontractors of self-
determination contracts?
No. Subcontractors or subgrantees providing services to a Public
Law 93-638 contractor or grantee are generally not covered. The only
exceptions are Indian contractors such as those under subcontract with
the California Rural Indian Health Board to carry out IHS programs in
geographically defined service areas in California and personal
services contracts under Sec. 900.193 (for Sec. 900.183(b)(1)) or
Sec. 900.183(b) (for Sec. 900.190).
Medical-Related Claims
Sec. 900.190 Is FTCA the exclusive remedy for a tort claim for
personal injury or death resulting from the performance of a self-
determination contract?
Yes, except as explained in Sec. 900.183(b). No claim may be filed
against a self-determination contractor or employee for personal injury
or death arising from the performance of medical, surgical, dental, or
related functions by the contractor in carrying out self-determination
contracts under the Act. Related functions include services such as
those provided by nurses, laboratory and x-ray technicians, emergency
medical technicians and other health care providers including
psychologists and social workers. All such claims shall be filed
against the United States and are subject to the limitations and
restrictions of the FTCA.
Sec. 900.191 Are employees of self-determination contractors providing
health services under the self-determination contract protected by
FTCA?
Yes. For the purpose of Federal Tort Claims Act coverage, an Indian
tribe or tribal organization and its employees performing medical-
related functions under a self-determination contract are deemed a part
of the Public Health Service if the employees are acting within the
scope of their employment in carrying out the contract.
Sec. 900.192 What employees are covered by FTCA for medical-related
claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out
a contract;
(d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the
services are provided in facilities not owned by the contractor); and
(e) Federal employees assigned to the contract.
Sec. 900.193 Does FTCA coverage extend to individuals who provide
health care services under a personal services contract providing
services in a facility that is owned, operated, or constructed under
the jurisdiction of the IHS?
Yes. The coverage extends to individual personal services
contractors providing health services in such a facility, including a
facility owned by an Indian tribe or tribal organization but operated
under a self-determination contract with IHS.
Sec. 900.194 Does FTCA coverage extend to services provided under a
staff privileges agreement with a non-IHS facility where the agreement
requires a health care practitioner to provide reciprocal services to
the general population?
Yes. Those services are covered, as long as the contractor's health
care practitioners do not receive additional compensation from a third
party for the performance of these services and they are acting within
the scope of their employment under a self-determination contract.
Reciprocal services include:
(a) Cross-covering other medical personnel who temporarily cannot
attend their patients;
(b) Assisting other personnel with surgeries or other medical
procedures;
(c) Assisting with unstable patients or at deliveries; or
(d) Assisting in any patient care situation where additional
assistance by health care personnel is needed.
Sec. 900.195 Does FTCA coverage extend to the contractor's health care
practitioners providing services to private patients on a fee-for-
services basis when such personnel (not the self-determination
contractor) receive the fee?
No.
Sec. 900.196 Do covered services include the conduct of clinical
studies and investigations and the provision of emergency services,
including the operation of emergency motor vehicles?
Yes, if the services are provided in carrying out a self-
determination contract. (An emergency motor vehicle is a vehicle,
whether government, contractor, or employee-owned, used to transport
passengers for medical services.)
Sec. 900.197 Does FTCA cover employees of the contractor who are paid
by the contractor from funds other than those provided through the
self-determination contract?
Yes, as long as the services out of which the claim arose were
performed in carrying out the self-determination contract.
Sec. 900.198 Are Federal employees assigned to a self-determination
contractor under the Intergovernmental Personnel Act or detailed under
section 214 of the Public Health Service Act covered to the same extent
that they would be if working directly for a Federal agency?
Yes.
Sec. 900.199 Does FTCA coverage extend to health care practitioners to
whom staff privileges have been extended in contractor health care
facilities operated under a self-determination contract on the
condition that such practitioner provide health services to IHS
beneficiaries covered by FTCA?
Yes, health care practitioners with staff privileges in a facility
operated by a contractor are covered when they perform services to IHS
beneficiaries. Such personnel are not covered when providing services
to non-IHS beneficiaries.
Sec. 900.200 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Yes. Non-Indian individuals served under the contract whether or
not on a fee-for-service basis, may assert claims under this Subpart.
Procedure for Filing Medical-Related Claims
Sec. 900.201 How should claims arising out of the performance of
medical-related functions be filed?
Claims should be filed on Standard Form 95 (Claim for Damage,
Injury or Death) or by submitting comparable written information
(including a definite amount of monetary damage claimed) with the
Chief, PHS Claims Branch, Room 18-20, Parklawn Building, 5600 Fishers
Lane, Rockville, MD 20857, or at such other address as shall have been
provided to the contractor in writing.
Sec. 900.202 What should a self-determination contractor or a
contractor's employee do on receiving such a claim?
They should immediately forward the claim to the PHS Claims Branch
at the address indicated in Sec. 900.201 and notify the contractor's
tort claims liaison.
[[Page 32532]]
Sec. 900.203 If the contractor or contractor's employee receives a
summons and/or a complaint alleging a tort covered by FTCA, what should
the contractor do?
As part of the notification required by 28 U.S.C. 2679(c), the
contractor should immediately inform the Chief, Litigation Branch,
Business and Administrative Law Division, Office of General Counsel,
Department of Health and Human Services, 330 Independence Avenue SW.,
Room 5362, Washington, DC 20201, and the contractor's tort claims
liaison, and forward the following materials:
(a) Four copies of the claimant's medical records of treatment,
inpatient and outpatient, and any related correspondence, as well as
reports of consultants;
(b) A narrative summary of the care and treatment involved;
(c) The names and addresses of all personnel who were involved in
the care and treatment of the claimant;
(d) Any comments or opinions that the employees who treated the
claimant believe to be pertinent to the allegations contained in the
claim; and
(e) Other materials identified in Sec. 900.188(c).
Non-Medical Related Claims
Sec. 900.204 Is FTCA the exclusive remedy for a non-medical related
tort claim arising out of the performance of a self-determination
contract?
Yes. Except as explained in Sec. 900.183(b), no claim may be filed
against a self-determination contractor or employee based upon
performance of non-medical-related functions under a self-determination
contract. Claims of this type must be filed against the United States
under FTCA.
Sec. 900.205 To what non-medical-related claims against self-
determination contractors does FTCA apply?
It applies to:
(a) All tort claims arising from the performance of self-
determination contracts under the authority of the Act on or after
October 1, 1989; and
(b) Any tort claims first filed on or after October 24, 1989,
regardless of when the incident which is the basis of the claim
occurred.
Sec. 900.206 What employees are covered by FTCA for non-medical-
related claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out
a contract;
(d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the
services are provided in facilities not owned by the contractor); and
(e) Federal employees assigned to the contract.
Sec. 900.207 How are non-medical related tort claims and lawsuits
filed for IHS?
Non-medical-related tort claims and lawsuits arising out of the
performance of self-determination contracts with the Indian Health
Service should be filed in the manner described in Sec. 900.201 (for
both Sec. 900.207 and Sec. 900.208).
Sec. 900.208 How are non-medical related tort claims and lawsuits
filed for DOI?
Non-medical-related claims arising out of the performance of self-
determination contracts with the Secretary of the Interior should be
filed in the manner described in Sec. 900.201 with the Assistant
Solicitor, Procurement and Patents, Office of the Solicitor, Department
of the Interior, Room 6511, 1849 C Street NW., Washington, DC 20240.
Sec. 900.209 What should a self-determination contractor or
contractor's employee do on receiving a non-medical related tort claim?
(a) If the contract is with DHHS, they should immediately forward
the claim to the PHS Claims Branch at the address indicated in
Sec. 900.201 and notify the contractor's tort claims liaison.
(b) If the contract is with DOI, they should immediately notify the
Assistant Solicitor, Procurement and Patents, Office of the Solicitor,
Department of the Interior, Room 6511, 1849 C Street N.W., Washington,
DC 20240.
Sec. 900.210 If the contractor or contractor's employee receives a
summons and/or complaint alleging a non-medical related tort covered by
FTCA, what should an Indian tribe or tribal organization do?
(a) If the contract is with the DHHS, they should immediately
inform the Chief, Litigation Branch, Business and Administrative Law
Division, Office of General Counsel, Department of Health and Human
Services, 330 Independence Avenue S.W., Room 5362, Washington, DC 20201
and the contractor's tort claims liaison.
(b) If the contract is with the Department of the Interior, they
should immediately notify the Assistant Solicitor, Procurement and
Patents, Office of the Solicitor, Department of the Interior, Room
6511, 1849 C Street N.W., Washington, DC 20240, and the contractor's
tort claims liaison.
Subpart N--Post-Award Contract Disputes
Sec. 900.215 What does this subpart cover?
(a) This subpart covers:
(1) All HHS and DOI self-determination contracts, including
construction contracts; and
(2) All disputes regarding an awarding official's decision relating
to a self-determination contract.
(b) This subpart does not cover the decisions of an awarding
official that are covered under subpart L.
Sec. 900.216 What other statutes and regulations apply to contract
disputes?
(a) The Contract Disputes Act of 1978 (CDA), Public Law 95-563 (41
U.S.C. 601 as amended);
(b) If the matter is submitted to the Interior Board of Contract
Appeals, 43 CFR 4.110-126; and
(c) The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C.
2412 and regulations at 43 CFR 4.601 through 4.619 (DOI) and 45 CFR 13
(DHHS).
Sec. 900.217 Is filing a claim under the CDA our only option for
resolving post-award contract disputes?
No. The Federal government attempts to resolve all contract
disputes by agreement at the awarding official's level. These are
alternatives to filing a claim under the CDA:
(a) Before issuing a decision on a claim, the awarding official
should consider using informal discussions between the parties,
assisted by individuals who have not substantially participated in the
matter, to aid in resolving differences.
(b) In addition to filing a CDA claim, or instead of filing a CDA
claim, the parties may choose to use an alternative dispute resolution
mechanism, pursuant to the provisions of the Administrative Dispute
Resolution Act, Public Law 101-552, as amended, 5 U.S.C. 581 et seq.,
or the options listed in section 108(1)(b)(12) of the Indian Self-
Determination Act, as applicable.
Sec. 900.218 What is a claim under the CDA?
(a) A claim is a written demand by one of the contracting parties,
asking for one or more of the following:
(1) Payment of a specific sum of money under the contract;
(2) Adjustment or interpretation of contract terms; or
(3) Any other claim relating to the contract.
(b) However, an undisputed voucher, invoice, or other routing
request for payment is not a claim under the CDA. A voucher, invoice,
or routing request for payment may be converted into a CDA claim if:
(1) It is disputed as to liability or amount; or
(2) It is not acted upon in a reasonable time and written notice of
the claim is given to the awarding official by the
[[Page 32533]]
senior official designated in the contract.
Sec. 900.219 How does an Indian tribe, tribal organization, or
Federal agency submit a claim?
(a) An Indian tribe or tribal organization shall submit its claim
in writing to the awarding official. The awarding official shall
document the contract file with evidence of the date the claim was
received.
(b) A Federal agency shall submit its claim in writing to the
contractor's senior official, as designated in the contract.
Sec. 900.220 Does it make a difference whether the claim is large or
small?
Yes. The Contract Disputes Act requires that an Indian tribe or
tribal organization making a claim for more than $100,000 shall certify
that:
(a) The claim is made in good faith,
(b) Supporting documents or data are accurate and complete to the
best of the Indian tribe or tribal organization's knowledge and belief;
(c) The amount claimed accurately reflects the amount believed to
be owed by the Federal government; and
(d) The person making the certification is authorized to do so on
behalf of the Indian tribe or tribal organization.
Sec. 900.221 What happens next?
(a) If the parties do not agree on a settlement, the awarding
official will issue a written decision on the claim.
(b) The awarding official shall always give a copy of the decision
to the Indian tribe or tribal organization by certified mail, return
receipt requested, or by any other method which provides a receipt.
Sec. 900.222 What goes into a decision?
A decision shall:
(a) Describe the claim or dispute;
(b) Refer to the relevant terms of the contract;
(c) Set out the factual areas of agreement and disagreement;
(d) Set out the actual decision, based on the facts, and outline
the reasoning which supports the decision; and
(e) Contain the following language:
This is a final decision. You may appeal this decision to the
Interior Board of Contract Appeals (IBCA), U.S. Department of the
Interior, 4015 Wilson Boulevard, Arlington, VA 22203. If you decide
to appeal, you shall, within 90 days from the date you receive this
decision, mail or otherwise furnish written notice to the IBCA and
provide a copy to the individual from whose decision the appeal is
taken. The notice shall indicate that an appeal is intended, and
refer to the decision and contract number. Instead of appealing to
the IBCA, you may bring an action in the U.S. Court of Federal
Claims or in the United States District Court within 12 months of
the date you receive this notice.
Sec. 900.223 When does an Indian tribe or tribal organization get the
decision?
(a) If the claim is for more than $100,000, the awarding official
shall issue the decision within 60 days of the day he or she receives
the claim. If the awarding official cannot issue a decision that
quickly, he or she shall tell you when the decision will be issued.
(b) If the claim is for $100,000 or less, and you want a decision
within 60 days, you shall advise the awarding official in writing that
you want a decision within that period. If you advise the awarding
official in writing that you do want a decision within 60 days, the
awarding official shall issue the decision within 60 days of the day he
or she receives your written notice.
(c) If your claim is for $100,000 or less and you do not advise the
awarding official that you want a decision within 60 days, or if your
claim exceeds $100,000 and the awarding official has notified you of
the time within which a decision will be issued, the awarding official
shall issue a decision within a reasonable time. What is ``reasonable''
depends upon the size and complexity of your claim, and upon the
adequacy of the information you have given to the awarding official in
support of your claim.
Sec. 900.224 What happens if the decision does not come within that
time?
If the awarding official does not issue a decision within the time
required under Sec. 900.223, the Indian tribe or tribal organization
may treat the delay as though the awarding official has denied the
claim, and proceed according to Sec. 900.222(e),
Sec. 900.225 Does an Indian tribe or tribal organization get paid
immediately if the awarding official decides in its favor?
Yes. Once the awarding official decides that money should be paid
under the contract, the amount due, minus any portion already paid,
should be paid as promptly as possible, without waiting for either
party to file an appeal. Any payment which is made under this
subsection will not affect any other rights either party might have. In
addition, it will not create a binding legal precedent as to any future
payments.
Sec. 900.226 What rules govern appeals of cost disallowances?
In any appeal involving a disallowance of costs, the Board of
Contract Appeals will give due consideration to the factual
circumstances giving rise to the disallowed costs, and shall seek to
determine a fair result without rigid adherence to strict accounting
principles. The determination of allowability shall assure fair
compensation for the work or service performed, using cost and
accounting data as guides, but not rigid measures, for ascertaining
fair compensation.
Sec. 900.227 Can the awarding official change the decision after it
has been made?
(a) The decision of the awarding official is final and conclusive,
and not subject to review by any forum, tribunal or government agency,
unless an appeal or suit is timely commenced as authorized by the
Contract Disputes Act. Once the decision has been made, the awarding
official may not change it, except by agreement of the parties, or
under the following limited circumstances:
(1) If evidence is discovered which could not have been discovered
through due diligence before the awarding official issued the decision;
(2) If the awarding official learns that there has been fraud,
misrepresentation, or other misconduct by a party;
(3) If the decision is beyond the scope of the awarding official's
authority;
(4) If the claim has been satisfied, released or discharged; or
(5) For any other reason justifying relief from the decision.
(b) Nothing in this subpart shall be interpreted to discourage
settlement discussions or prevent settlement of the dispute at any
time.
(c) If a decision is withdrawn and a new decision is issued that is
not acceptable to the contractor, the contractor may proceed with the
appeal based on the new decision. If no new decision is issued, the
contractor may proceed under Sec. 900.224.
(d) If an appeal or suit is filed, the awarding official may modify
or withdraw his or her final decision.
Sec. 900.228 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
Yes. If an Indian tribe or tribal organization wins the claim, it
will be entitled to interest on the amount of the award. The interest
will be calculated from the date the awarding official receives the
claim until the day it is paid. The interest rate will be the rate
which the Secretary of the Treasury sets for the Renegotiation Board
under the Renegotiation Act of 1951, Public Law 92-41, 26 U.S.C. 1212
and 26 U.S.C. 7447.
[[Page 32534]]
Sec. 900.229 What role will the awarding official play during an
appeal?
(a) The awarding official shall provide any data, documentation,
information or support required by the IBCA for use in deciding a
pending appeal.
(b) Within 30 days of receiving an appeal or learning that an
appeal has been filed, the awarding official shall assemble a file
which contains all the documents which are pertinent to the appeal,
including:
(1) The decision and findings of fact from which the appeal is
taken;
(2) The contract, including specifications and pertinent
modifications, plans and drawings;
(3) All correspondence between the parties which relates to the
appeal, including the letter or letters of claims in response to which
the decision was issued;
(4) Transcripts of any testimony taken during the course of the
proceedings, and affidavits or statements of any witnesses on the
matter in dispute, which were made before the filing of the notice of
appeal with the IBCA; and
(5) Any additional information which may be relevant.
Sec. 900.230 What is the effect of a pending appeal?
(a) Indian tribes and tribal organizations shall continue
performance of a contract during the appeal of any claims to the same
extent they would had there been no dispute.
(b) A pending dispute will not affect or bar the negotiation or
award of any subsequent contract or negotiation between the parties.
Subpart O--Conflicts of Interest
Sec. 900.231 What is an organizational conflict of interest?
An organizational conflict of interest arises when there is a
direct conflict between the financial interests of the contracting
Indian tribe or tribal organization and:
(a) The financial interests of beneficial owners of Indian trust
resources;
(b) The financial interests of the United States relating to trust
resources, trust acquisitions, or lands conveyed or to be conveyed
pursuant to the Alaska Native Claims Settlement Act 43 U.S.C. 1601 et
seq.; or
(c) An express statutory obligation of the United States to third
parties. This section only applies if the conflict was not addressed
when the contract was first negotiated. This section only applies where
the financial interests of the Indian tribe or tribal organization are
significant enough to impair the Indian tribe or tribal organization's
objectivity in carrying out the contract, or a portion of the contract.
Sec. 900.232 What must an Indian tribe or tribal organization do if an
organizational conflict of interest arises under a contract?
This section only applies if the conflict was not addressed when
the contract was first negotiated. When an Indian tribe or tribal
organization becomes aware of an organizational conflict of interest,
the Indian tribe or tribal organization must immediately disclose the
conflict to the Secretary.
Sec. 900.233 When must an Indian tribe or tribal organization regulate
its employees or subcontractors to avoid a personal conflict of
interest?
An Indian tribe or tribal organization must maintain written
standards of conduct to govern officers, employees, and agents
(including subcontractors) engaged in functions related to the
management of trust assets.
Sec. 900.234 What types of personal conflicts of interest involving
tribal officers, employees or subcontractors would have to be regulated
by an Indian tribe?
The Indian tribe or tribal organization would need a tribally-
approved mechanism to ensure that no officer, employee, or agent
(including a subcontractor) of the Indian tribe or tribal organization
reviews a trust transaction in which that person has a financial or
employment interest that conflicts with that of the trust beneficiary,
whether the tribe or an allottee. Interests arising from membership in,
or employment by, an Indian tribe or rights to share in a tribal claim
need not be regulated.
Sec. 900.235 What personal conflicts of interest must the standards of
conduct regulate?
The standards must prohibit an officer, employee, or agent
(including a subcontractor) from participating in the review, analysis,
or inspection of trust transactions involving an entity in which such
persons have a direct financial interest or an employment relationship.
It must also prohibit such officers, employees, or agents from
accepting any gratuity, favor, or anything of more than nominal value,
from a party (other than the Indian tribe) with an interest in the
trust transactions under review. Such standards must also provide for
sanctions or remedies for violation of the standards.
Sec. 900.236 May an Indian tribe elect to negotiate contract
provisions on conflict of interest to take the place of this
regulation?
Yes. An Indian tribe and the Secretary may agree to contract
provisions, concerning either personal or organizational conflicts,
that address the issues specific to the program and activities
contracted in a manner that provides equivalent protection against
conflicts of interest to these regulations. Agreed-upon contract
provisions shall be followed, rather than the related provisions of
this regulation. For example, the Indian tribe and the Secretary may
agree that using the Indian tribe's own written code of ethics
satisfies the objectives of the personal conflicts provisions of this
regulation, in whole or in part.
Subpart P--Retrocession and Reassumption Procedures
Sec. 900.240 What does retrocession mean?
A retrocession means the return to the Secretary of a contracted
program, in whole or in part, for any reason, before the expiration of
the term of the contract.
Sec. 900.241 Who may retrocede a contract, in whole or in part?
An Indian tribe or tribal organization authorized by an Indian
tribe may retrocede a contract.
Sec. 900.242 What is the effective date of retrocession?
The retrocession is effective on the date which is the earliest
date among:
(a) One year from the date of the Indian tribe or tribal
organization's request;
(b) The date the contract expires; or
(c) A mutually agreed-upon date.
Sec. 900.243 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
An Indian tribe or tribal organization's retrocession shall not
negatively affect:
(a) Any other contract to which it is a party;
(b) Any other contracts it may request; and
(c) Any future request by the Indian tribe or tribal organization
to contract for the same program.
Sec. 900.244 Will an Indian tribe or tribal organization's
retrocession adversely affect funding available for the retroceded
program?
No. The Secretary shall provide not less than the same level of
funding that would have been available if there had been no
retrocession.
Sec. 900.245 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used in
the operation of the retroceded program?
On the effective date of any retrocession, the Indian tribe or
tribal organization shall, at the request of the
[[Page 32535]]
Secretary, deliver to the Secretary all requested property and
equipment provided under the contract which have a per item current
fair market value, less the cost of improvements borne by the Indian
tribe or tribal organization, in excess of $5,000 at the time of the
retrocession.
Sec. 900.246 What does reassumption mean?
Reassumption means rescission, in whole or in part, of a contract
and assuming or resuming control or operation of the contracted program
by the Secretary without consent of the Indian tribe or tribal
organization. There are two types of reassumption: emergency and non-
emergency.
Sec. 900.247 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
(a) A reassumption is considered an emergency reassumption if an
Indian tribe or tribal organization fails to fulfill the requirements
of the contract and this failure poses:
(1) An immediate threat of imminent harm to the safety of any
person; or
(2) Imminent substantial and irreparable harm to trust funds, trust
lands, or interest in such lands.
(b) A reassumption is considered a non-emergency reassumption if
there has been:
(1) A violation of the rights or endangerment of the health,
safety, or welfare of any person; or
(2) Gross negligence or mismanagement in the handling or use of:
(i) Contract funds;
(ii) Trust funds;
(iii) Trust lands; or
(iv) Interests in trust lands under the contract.
Sec. 900.248 In a non-emergency reassumption, what is the Secretary
required to do?
The Secretary must:
(a) Notify the Indian tribes or tribal organizations served by the
contract and the contractor in writing by certified mail of the details
of the deficiencies in contract performance;
(b) Request specified corrective action to be taken within a
reasonable period of time, which in no case may be less than 45 days;
and
(c) Offer and provide, if requested, the necessary technical
assistance and advice to assist the contractor to overcome the
deficiencies in contract performance. The Secretary may also make a
grant for the purpose of obtaining such technical assistance as
provided in section 103 of the Act.
Sec. 900.249 What happens if the contractor fails to take corrective
action to remedy the contract deficiencies identified in the notice?
The Secretary shall provide a second written notice by certified
mail to the Indian tribes or tribal organizations served by the
contract and the contractor that the contract will be rescinded, in
whole or in part.
Sec. 900.250 What shall the second written notice include?
The second written notice shall include:
(a) The intended effective date of the reassumption;
(b) The details and facts supporting the intended reassumption; and
(c) Instructions that explain the Indian tribe or tribal
organization's right to a formal hearing within 30 days of receipt of
the notice.
Sec. 900.251 What is the earliest date on which the contract will be
rescinded in a non-emergency reassumption?
The contract will not be rescinded by the Secretary before the
issuance of a final decision in any administrative hearing or appeal.
Sec. 900.252 In an emergency reassumption, what is the Secretary
required to do?
(a) Immediately rescind, in whole or in part, the contract;
(b) Assume control or operation of all or part of the program; and
(c) Give written notice to the contractor and the Indian tribes or
tribal organizations served.
Sec. 900.253 What shall the written notice include?
The written notice shall include the following:
(a) A detailed statement of the findings which support the
Secretary's determination;
(b) A statement explaining the contractor's right to a hearing on
the record under Sec. 900.160 and Sec. 900.161 within 10 days of the
emergency reassumption or such later date as the contractor may
approve;
(c) An explanation that the contractor may be reimbursed for actual
and reasonable ``wind up costs'' incurred after the effective date of
the rescission; and
(d) A request for the return of property, if any.
Sec. 900.254 May the contractor be reimbursed for actual and
reasonable ``wind up costs'' incurred after the effective date of
rescission?
Yes.
Sec. 900.255 What obligation does the Indian tribe or tribal
organization have with respect to returning property that was used in
the operation of the rescinded contract?
On the effective date of any rescission, the Indian tribe or tribal
organization shall, at the request of the Secretary, deliver to the
Secretary all property and equipment provided under the contract which
has a per item current fair market value, less the cost of improvements
borne by the Indian tribe or tribal organization, in excess of $5,000
at the time of the retrocession.
Sec. 900.256 Will a reassumption adversely affect funding available
for the reassumed program?
No. The Secretary shall provide at least the same level of funding
that would have been provided if there had been no reassumption.
[FR Doc. 96-15793 Filed 6-21-96; 8:45 am]
BILLING CODE 4310-02-P
