[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Proposed Rules]
[Pages 2038-2077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-497]
[[Page 2037]]
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Part III
Department of the Interior
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Bureau of Indian Affairs
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Department of Health and Human Services
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Indian Health Service
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25 CFR Chapter V and Part 900
Indian Self-Determination and Education Assistance Act Amendments;
Proposed Rule
Federal Register / Vol. 61, No. 16 / Wednesday, January 24, 1996 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Indian Health Service
25 CFR Chapter V and Part 900
RINs 1076-AC20; 0905-AC98
Indian Self-Determination and Education Assistance Act Amendments
AGENCIES: Bureau of Indian Affairs, Indian Health Service, Departments
of the Interior and Health and Human Services.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretaries of the Department of Interior (DOI) and the
Department of Health and Human Services (DHHS) propose a joint rule to
implement section 107 of the Indian Self-Determination Act, as amended,
including Title I, Public Law 103-413, the Indian Self-Determination
Contract Reform Act of 1994. A 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 proposed rule with active tribal
participation, using the guidance of the Negotiated Rulemaking Act.
DATES: Comments must be submitted on or before March 25, 1996. We will
send copies of this notice of proposed rulemaking (NPRM) to each tribe.
We especially invite comments from individual tribes, tribal members
and tribal organizations.
ADDRESSES: Written comments to these rules may be sent to Betty J.
Penn, Indian Self-Determination Amendments Regulations Comments, Indian
Health Service, Room 6-34, 5600 Fishers Lane, Parklawn Building,
Rockville, MD 20857. Comments will be made available for public
inspection at this address from 8:30 a.m. to 5:00 p.m., Monday through
Friday beginning approximately 2 weeks after publication. Comments will
also be available for public inspection at the Department of the
Interior, Room 4627, Main Interior Building, 1849 C Street NW,
Washington, DC 20240. These comments will be available at the same time
as in Rockville.
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) 208-3708 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 gave 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, Public Law 98-250; Public Law 100-202;
Interior Appropriations Act for Fiscal Year 1988, Public Law 100-446;
Indian Self-Determination and Education Assistance Act Amendments of
1988, Public Law 100-472; Indian Reorganization Act Amendments of 1988,
Public Law 100-581; miscellaneous Indian Law Amendments, Public Law
101-301; Public Law 101-512; Indian Self-Determination and Education
Assistance Act Amendments of 1990, Public Law 101-644; Public Law 102-
184; Public Law 103-138; Indian Self-Determination Act Amendments of
1994, Public Law 103-413; and Public Law 103-435. Of these, the most
significant were Public Law 100-472 (the 1988 Amendments) and Public
Law 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 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 (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 closely review the NPRM 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 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
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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 Sec. 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 NPRM covers
substantially fewer topics than the January 1994 NPRM. As specified by
Congress, the new NPRM 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 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 two of these
permitted regulatory topics--discretionary grant procedures and tribal
organization relinquishment procedures--are addressed in this NPRM.
The 1994 amendments also require that, if the Departments elect 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
require 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 is to develop
regulations that implement amendments to the Act.
The committee has 63 members. Forty-eight of these members
represent Tribes--two tribal members from each BIA area and two from
each IHS area. Nine members are from the Department of the Interior and
six members are from the Department of Health and Human Services.
Additionally, four individuals from the Federal Mediation and
Conciliation Service served as facilitators. The committee is co-
chaired by four tribal representatives and two Federal representatives.
While the committee is much larger than 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.
The committee agreed to operate based on consensus decisionmaking.
The Departments committed to publish all consensus decisions as the
proposed rule. The committee further agreed that any committee member
or his/her constituents could comment on this proposed rule.
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 is, 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 commend the ability of the committee to cooperate
and develop a proposal that addresses the interests of the tribes and
the Federal agencies. This negotiated rulemaking process is 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, full committee 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 have agreed to propose and publish
additional introductory materials under subpart ``A.'' Where the full
committee could not reach consensus as defined in its protocol, this
preamble includes a brief description of the issue, along with the
Federal and tribal positions when available. The public is invited to
comment on these issues as well as on the proposed regulations.
Where the tribal position is stated it reflects dissatisfaction
with proposed resolution of the issues by the Federal representatives
and preference for alternative language as put forth by the tribes.
Where the Federal position is stated, it represents the official views
of the Departments, as expressed by the designated Federal officials.
The paragraphs below address five areas of disagreement within the
committee. The five areas are: internal agency procedures,
confidentiality, conflicts of interest, and two areas of Secretarial
policy.
Key Areas of Disagreement
Internal Agency Procedures
The tribal representatives of the negotiated rulemaking committee
believe the Act requires that provisions concerning the internal
procedures of the Departments of the Interior and Health and Human
Services must be drafted by the negotiated rulemaking committee and
should be included in the final regulation.
The tribal representatives' goal is to have uniform procedures
among the Federal agencies for the implementation and interpretation of
the Act and these regulations. Further, tribal representatives believe
that, unless the internal agency procedures subpart is
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included in these regulations, the Federal agencies may use internal
agency procedures to limit the effect of the 1994 amendments of the
Act.
Previously, in the House and Senate Reports that accompanied the
final version of the 1994 bill each committee observed:
The recently promulgated proposed regulations severely undercut
Congress' intent in the original Act and those amendments to
liberalize the contracting process and to put these programs firmly
in the hands of the tribes. The proposed January 1994 regulations
erect a myriad of new barriers and restrictions upon contractors
rather than simplifying the contracting process and freeing tribes
from the yoke of excess Federal oversight and control.
Sen. Rep. No. 103-374 at 14; Cong. Rec. at H-11145 (daily ed. Oct.
6, 1994). Tribal representatives believe that internal agency
procedures may be used in this same way again if allowed to be created
outside the negotiated rulemaking process.
For purposes of soliciting comments the tribal representatives
recommend the following regulation provision to address the issue of
internal agency procedures:
Internal Agency Procedures
A. No internal agency procedure, policy, or other issuance which
interprets the meaning or application of any provision of the Act or
these regulations shall be binding upon an Indian tribe or tribal
organization. Any such issuance shall instead:
(1) Fall within the specific area of delegated rulemaking
authority specified in section 107(a) of the Act; and
(2) Be promulgated pursuant to the negotiated rulemaking and
notice and comment procedures of the Act.
B. No issuance which fails to meet these criteria shall have any
force or effect, or be binding on any tribe or tribal organization.
C. No internal agency procedure and no Departmental official or
employee shall impose any requirements, limitation, or condition on
any tribe or tribal organization relating to any matter arising
under the Act. All such matters shall be governed exclusively by the
Act and these regulations.
The Federal 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 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. In addition, the Federal
government would seek meaningful consultation throughout the
development process from representatives of Indian tribes and tribal
organizations.
Conflicts of Interest
The Federal negotiators feel strongly that regulatory provisions
concerning conflicts of interest are needed, especially for the
protection of allottees. The Federal proposal would address two types
of conflicts: Conflicts of the tribe or tribal organization itself (an
``organizational conflict'') and conflicts of individual employees
involved in trust resource management. The Secretary of the Interior
owes a fiduciary duty to trust beneficiaries that cannot be compromised
by contracting to rely on the recommendations and reports of persons
with financial interests adverse to those of the trust beneficiary (the
individual allotted Indian), whether the conflict be that of the tribe
or that of an individual tribal employee.
With respect to organizational conflicts that become known after
contract negotiation, the proposal would require the tribe to disclose
the conflict and negotiate a means of avoiding, mitigating, or
neutralizing the conflict. The conflict would be one between the tribe
and individual Indians, one between the tribe and the United States, or
one between the tribe and others relying on the work to be performed
under the contract. The only conflicts that would be regulated would be
those arising from the tribe/tribal organization's interests associated
with land, resources, trust property, or rights of use, that could
impair the objectivity of the tribe/tribal organization in performing
the contract. The proposal does not address organizational conflicts
known to the Secretary at the time of contract approval. Those can and
should be addressed in negotiation of the contract.
With respect to contracts for trust resource management, the
proposal would require the tribe/tribal organization to adopt and
enforce standards of conduct to prohibit officers, employees or agents
(including subcontractors) from participating in the review of trust
transactions with those nontribal entities in which they have a
financial interest, employment, or competitive relationship. The
standards would also prohibit acceptance of gratuities.
Contract provisions may be negotiated to take the place of the
proposed regulation. The regulation is proposed to ensure that some
provision will be made to avoid or mitigate conflicts, whether by rule
or contract terms. Such provisions will permit the Secretary of the
Interior to contract for work supportive of his trust management
functions, and avoid the potential for breach of trust liability or the
need to decline on grounds that ``adequate protection of trust
resources is not assured.''
The Federal proposal is as follows:
A. What is an organizational conflict? An organizational
conflict exists when your legal, financial, or resource use
interests (arising from land, interests in land or resources, trust
property, or rights of use) conflict with those of the United States
or any person reliant on the work to be performed under the contract
(including an Indian allottee). An organizational conflict only
arises, however, when your interest is such that it may impair your
objectivity in performing work under the contract.
B. What must a tribe or tribal organization do if an
organizational conflict arises under a contract? You must disclose
the conflict to the Secretary and propose a means of avoiding,
mitigating, or neutralizing the conflict, if the conflict had not
been known to the Secretary when the contract was negotiated. You
must proposed a means of avoiding, mitigating, or neutralizing the
conflict (such as review of your work by a third party,) that is
acceptable to the Secretary.
C. What kinds of organizational conflicts must be addressed? You
must address conflicts between the tribe and the United States, such
as when the tribe has a contract for realty services and a
contaminant survey must be undertaken in connection with its request
that the United States take land into trust. A conflict would exist
because it would be in the tribe's interest for the United States to
take the land into trust, despite the presence of contaminants,
because liability for cleanup would be transferred to the United
States as holder of legal title.
You must address conflicts between a tribe and individual trust
beneficiaries. For
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example, a tribe may hold a contract for real estate services,
including appraisals. If the tribe seeks to buy or lease lands from
an allottee, its performance of the appraisal of such allotted lands
would present such a conflict. To fulfill its trust responsibility
to the individual Indian landowner, the United States would expect
the tribe to hire an independent appraiser to perform (or review)
the appraisal.
The tribe may have conflicting interests with other persons who
rely on its performance under the contract. For example, a cadastral
survey may determine the boundaries between tribal lands and those
of individual Indians, State governments, or private landowners. In
that case, the survey should be reviewed by an independent third
party to assure its objectivity.
D. When must the tribe or tribal organization regulate its
employees or subcontractors to avoid a conflict of interest? You
must maintain written standards of conduct to govern officers,
employees, and agents (including subcontractors) engaged in
functions related to the management of trust assets.
E. What must the Standards of Conduct prohibit or mitigate? The
Standards must prohibit an officer, employee, or agent (including a
subcontractor) from participating in the review, analysis, or
inspection of trust transactions with a party in which such persons
have a financial interest or an employment relationship, or those in
direct competition with such a party. 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
tribe) with an interest in the trust transactions under review. Such
standards must also provide for sanctions or remedies of the
violation of the standards.
F. What types of conflicts involving tribal employees or
contractors would have to be regulated by the tribe? The tribe would
need a tribally-adopted mechanism to ensure that no officer or
employee reviews a trust transaction in which that person has a
personal, financial, or employment interest that conflicts with that
of the trust beneficiary, the tribe or allottee. For example, a
tribal employee who works part-time for an oil company should not be
assigned to inspect an oil and gas lease held by that oil company to
assure absolute loyalty to the Indian beneficiary. For similar
reasons, such an employee should not inspect the leases held by the
oil company's competitors.
Similarly, a tribe which intends to subcontract the performance
of trust-related functions should avoid awarding a contract for oil
and gas royalty audits to an accounting firm that also derives
revenue from the oil and gas companies being audited.
G. May a tribe elect to negotiate the contract provisions on
conflict of interest to take the place of this regulation? Yes. A
tribe and the Secretary may agree to contract provisions that
address the conflict of interest issues specific to the program and
activities contracted. Agreed-upon contract provisions shall be
followed, rather than this regulation.
The tribal representatives of the negotiated rulemaking committee
oppose the regulatory provisions presented by the Federal officials in
the area of ``conflict of interest,'' except those contained in
Sec. 900.48(6) (Procurement Management).
Throughout the meetings two other forms of ``conflict of interest''
regulations have been proposed: organizational conflicts of interest
and personal conflicts of interest. The tribal position on each of
these proposals is discussed below.
Organizational Conflicts of Interest
Tribal members are of the view that, while this issue has been
discussed throughout the meetings, a clear and concise federal proposal
has not been set forth.
The tribal representatives believe the effect of the Federal
proposal is to shift Secretarial trust responsibilities to tribes
through regulation without financial support for the undertaking.
Further, for the nearly 20 years that self-determination contracting
has occurred under the Act, no similar regulation has been needed.
Another concern of tribal representatives is that the Interior
Department has no such provisions controlling its own activities and
that examples of similar conflicts frequently occur within Federal
operation of programs.
For these reasons, tribal representatives strongly believe that no
regulation is necessary in this area of so-called organizational
conflicts of interest.
Personal Conflicts of Interest
In this area, the Federal representatives seek to require that
tribes and tribal organizations adopt internal procedures as a
regulatory scheme to address conflicts of interest by their employees,
agents, and officials when conducting transactions related to trust
resources.
Tribal representatives are highly offended by the nature of the
Federal proposal to dictate internal tribal operations through these
regulations. Further, the Federal officials appear to presume that the
procedures curently employed by tribes and tribal organizations are
insufficient.
To the extent some form of regulation is needed in the area of
personal conflicts of interest involving trust resource transactions, a
revised version of Sec. 900.48(b) might be explored and commented upon.
Alternatively, tribal representatives propose that these conflicts of
interest be subject to negotiation of the parties in each contract.
Confidentiality
The Federal position is that a provision relating to the
confidentiality of information obtained by Indian tribes and tribal
organizations relating to trust resources needs to be included in this
subpart, consistent with the Federal government's trust obligation to
individual Indians to keep such information confidential. The following
paragraph is proposed to address this issue:
A contractor shall hold confidential all information obtained
from any person relating to the financial affairs of individual
Indians, lessees, or permittees, and shall not release this
information without the individual's consent or as otherwise
required by law.
Tribal committee members note that tribes have long maintained
their own confidentiality procedures. Tribal committee members believe
the proposed Federal language is offensive, and an unnecessary issue to
be regulated.
Secretarial Policy
The committee has not reached a consensus in two Secretarial policy
areas.
First, the provision regarding Federal program guidelines, manuals,
or policy directives is drawn largely from paragraph 1(b)(11) of the
model contract in section 108(c)of the Act. Tribal committee members
are of the view that the statutory provision is a non-exclusive list of
the types of Federal documents or issuances that may not be imposed
upon tribes, and point to the statement in the Senate and House reports
that other ``unpublished requirements'' may not be imposed upon tribes.
They therefore seek the addition of other similar documents such as
``advisories, notices, letters, correspondence and reporting
requirements.'' Federal representatives oppose adding any other items
to the statutory list.
The Regulation does not include a provision advanced by tribal
committee members that would adopt, as a Secretarial policy, the policy
that Federal laws and regulations will be interpreted in a manner that
will facilitate the inclusion of programs in contracts authorized by
the Act. Tribal committee members view such a policy as within the
Secretary's legal authority and consistent with the strong policy of
the Act promoting tribal contracting activities.
Federal committee members are of the view such a policy may be
contrary to
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law and beyond the Secretary's authority, since the laws being
interpreted may not necessarily be for the benefit of Indians, and
since specific authority for such a provision is included in Titles III
and IV (self-governance) of the Act, but not Title I.
Other areas of disagreement are noted in the summary of regulations
below.
Summary of Regulations
The narrative below is keyed to specific subparts of the proposed
rule.
Subpart A--Policy
This subpart contains key congressional policies contained in the
Act and adds several Secretarial policies that will guide the
Secretaries' implementation of the Act.
Subpart B--Definitions
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.
Subpart C--Contract Proposal Contents
Subpart C contains provisions relating to initial contract proposal
contents. In this area, the committee opted to have minimal
regulations. The proposed regulation governing initial contract
proposal contents essentially consists of a checklist of 13 items that
must be addressed in a proposal. In addition, the proposed 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.
Subpart D--Review and Approval of Contract Proposals
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. The proposed regulation governing review and
approval of contract proposals 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.
Subpart E--Declination Procedures
The proposed regulation governing declination procedures implements
Section 102 (a)(2), (a)(4), (b) and (d) of the Act. The proposed
regulation 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. The proposed regulation
also informs Indian tribes and tribal organizations of the requirements
applicable to the Secretary when a declination finding is made,
contains provisions for technical assistance to Indian tribes and
tribal organizations to avoid a declination finding, and to overcome
stated declination grounds after a declination finding is made.
The advisory committee did not reach consensus on how to address
contract renewal proposals. Tribal representatives on the advisory
committee proposed to exempt an Indian tribe's or tribal organization's
contract renewal proposal from being subjected to declination if the
renewal proposal is substantially similar to the Indian tribe's or
tribal organization's prior contract. Tribal representatives are of the
view that if the Secretary wishes to take back control of a program,
the Secretary should follow the Act's ``reassumption'' procedures set
forth in section 109 of the Act.
It is the Federal position that section 102(a)(2) of the Act was
amended in 1994 to specifically subject contract renewal proposals to
the declination criteria, and that nowhere in the Act, as amended, is
there a specific declination exemption for contract renewal proposals
that are substantially similar to an expiring contract.
With respect to the declination document disclosure provisions of
Sec. 900.27(c), tribal committee members are of the view the disclosure
obligation should extend to documents that do not support the decision,
in addition to documents that do. Federal committee members oppose such
an expansion and note that, if an appeal is taken, such documents will
eventually be produced in the discovery process.
Nothing in this regulation is intended to change the IHS's current
practice of not reviewing the renewal of a term contract for
declination issues where no material or significant changes to the
scope or funding of a program, service, activity, or function has been
proposed by the tribe or tribal organization.
Subpart F--Standards for Tribal or Tribal Organization Management
Systems
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.
In drafting subpart F, the committee reviewed OMB Circular A-102
and the Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments (the ``common rule'').
Following this review and analysis, the attached regulations were
developed to implement the Act and best meet the needs of Indian tribes
and tribal organizations. Central to the proposed regulation is a
distinction between the standards that are the subject of this
regulatory process, and the management system operations that implement
those standards. The standards contained in this subpart are designed
to be the targets which the Indian tribe's 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. The proposed
regulations include 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 sub-contractors; (5) identify the difference between a standard
and a system; and (6) specify when the management standards and
management systems are evaluated.
Section 900.41 contains the minimum standards for financial
management systems. The proposed regulations establish 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 the minimum standards for procurement
management systems. The proposed regulations establish the minimum
requirements for seven elements: (1) To ensure that vendors and sub-
contractors 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
[[Page 2043]]
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
proposed 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 sub-contract terms, and include a provision in its
subcontracts that addresses the application of Federal laws,
regulations and Executive Orders to subcontractors.
Section 900.52 contains the minimum requirements for property
management systems. The proposed regulations address 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.
The proposed regulation addresses elements including: (1) Property
inventories; (2) maintenance of property; (3) differences in inventory
and control requirements for property where the Federal agency retains
tile to the property; and (4) the disposal requirements for Federal
property.
Subpart G--Programmatic Reports and Data Requirements
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.
Subpart H--Lease of Tribally-Owned Buildings by the Secretary
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.
Subpart I--Property Donation Procedures
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's 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 section 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. 900.103 addresses excess or surplus property from other Agencies.
Subpart J--Construction Contracts
Subpart J addresses the process by which an Indian tribe or tribal
organization may contract for construction activities or portions
thereof. The subpart is intentionally 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 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, and 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. The
provisions contained in the subpart regarding construction management
services provide an important participative process in construction
activities for Indian tribes or tribal organizations that seek a voice
in securing projects but do not wish to take upon themselves full
responsibility for the entire construction process.
The subpart establishes new procedures to facilitate tribal
contracting, through such measures as tribal notification, a tribal
right of first refusal, 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 than quarterly, and the payment of
contingency funds to be administered by the tribal contractor.
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Subpart K--Waiver Procedures
The proposed regulation governing waiver procedures implements
section 107(e) of the Act, which authorizes the Secretary to make
exceptions in the regulations promulgated to implement the Act or to
waive such regulations under certain circumstances. In addition 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. The proposed
regulation 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, the proposed regulation
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 proposed regulations.
Finally, the proposed regulation implements section 107(b) of the Act
by providing a process for a determination by the Secretary that a law
or regulation has been superseded by the provisions of the Indian Self-
Determination Act, as amended.
Subpart L--Appeals (Other Than Emergency Reassumption and Suspension,
Withholding or Delay in Payment)
The advisory committee decided to develop substantive regulations
governing appeals of pre-award decisions by Federal officials. The
proposed regulation 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 proposed
regulations. The proposed regulation governing pre-award appeals
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 roadmap to the appeals process for Indian tribes and
tribal organizations.
The proposed regulation is divided in two parts: Part I 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; and a catchall
provision relating to any other pre-award decisions except Freedom of
Information Act appeals, and decisions relating to the award of
discretionary grants under section 103 of the Act. Part II 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.
The proposed regulation 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. The proposed
regulation 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 proposed regulation.
Under the proposed 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
of Health and Human Services, if the case relates to the Department of
Health and Human Services.
Part II contains somewhat 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 to immediately
rescind and reassume a program, or a notice of intent to suspend,
withhold, or delay payment under a contract.
Subpart M--Federal Tort Claims Act Coverage
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.
Subpart N--Post-Award Contract Disputes
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.
Subpart O--Retrocession and Reassumption Procedures
Section 107(a)(1) of the Act authorizes the Secretaries to
promulgate certain regulations governing retrocession and reassumption
procedures. Sections 900.230 through 900.234 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 900.235 through 900.245 explain what is meant by
reassumption, 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.
This rule is a significant regulatory action under 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 proposed 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 proposed rule does not have
significant Federalism effects under Executive Order 12612 and will not
interfere with
[[Page 2045]]
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.
Paperwork Reduction Act of 1995
The information collection requirements contained in this proposed
regulation have been negotiated between the Departments and tribal
representatives through the negotiated rulemaking process. The sections
of the regulations requiring the collection of information have been
agreed to by the parties in the negotiation. The subparts summarized
below contain information collection requirements. As required by the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d)), the Departments
of the Interior and Health and Human Services have submitted a copy of
these sections to the Office of Management and Budget (OMB) for its
review:
Subpart C--Contract Proposal Contents
Subpart C contains provisions relating to initial contract proposal
contents. The proposed regulation governing initial contract proposal
contents essentially consists of a checklist of 13 items that must be
addressed in a proposal. These items include basic information about
the respondent and program to be contracted, such as: name and address;
authorizing resolution; date of submission of proposal; description of
geographical service area; estimated number of Indian people to be
served; brief statement of the program, functions, services or
activities to be performed; description of the proposed program;
financial, procurement, and property management standards; description
of reports to be provided; staff qualifications, if any; budget
information; and waiver information, if requested.
In addition, the proposed regulation contains a provision relating
to the availability of technical assistance for Indian tribes and
tribal organizations in preparing contract proposals and a provision
relating to the identification of Federal property that the tribe or
tribal organization intends to use during contract performance. The
parties that would have to comply with the information collection
requirements in these proposed regulations are tribal governments or
tribal organizations authorized by tribal governments. The Departments
need and will use the information to determine eligibility of the
applicant, evaluate applicant capabilities, protect the service
population and safeguard Federal funds and other resources.
All information is to be collected and reported at the time a tribe
makes initial application to contract a program. Annual reporting and
recordkeeping burden for this collection of information is estimated to
average 34 hours for each response for 50 respondents, including the
time for reviewing instructions, seaching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 1,700
hours.
Subpart G--Programmatic Reports and Data Requirements
Subpart G provides for the negotiation of all reporting and data
requirements between the Indian tribe or tribal organization and the
Secretary. The information collected is directly related to the
operation of the program and will be negotiated on a contract by
contract basis. The Departments need and will use the information to
adequately monitor contract operations to determine if satisfactory
services are being provided.
All information is to be collected and reported during the
operation of the contract based on the terms negotiated in the
contract. Annual reporting and recordkeeping burden for this collection
of information is estimated to average 10 hours for each response for
500 respondents, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Thus, the total annual reporting and recordkeeping burden for this
collection is estimated to be 5,000 hours.
Subpart I--Property Donation Procedures
Subpart I establishes procedures regarding donation of Federal
excess and surplus property to tribes or tribal organizations and
acquisition of property with funds provided under a self-determination
contract. Two areas of this proposed subpart address the procedures to
be followed when tribes or tribal organizations wish to acquire excess
Bureau of Indian Affairs or Indian Health Service property, and excess
or surplus government property from other agencies. The Departments
need and use the information to determine what property the tribes want
to acquire and how the property will be used.
All information is to be collected and reported when a tribe
applies for the identified property. Annual reporting and recordkeeping
burden for this collection of information is estimated to average 8
hours for 100 respondents, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 800 hours.
Subpart J--Construction Contracts
Subpart J addresses the process by which an Indian tribe or tribal
organization may contract for construction activities or portions
thereof. The subpart requires the Indian tribe or tribal organization
to submit descriptions of standards when proposing to contract a
construction project. These standards include use of licensed and
qualified architects and engineers; applicable health and safety
standards; adherence to applicable Federal, state, local or tribal
building codes and engineering standards; structural integrity;
accountability of funds; adequate competition for sub-contracting under
tribal or other applicable law; the commencement, performance and
completion of the contract; adherence to project plans and
specifications (including any applicable Federal construction
guidelines and manuals); the use of proper materials and workmanship;
necessary inspection and testing; and a process for changes,
modifications, stop work and termination of the work when warranted. In
addition to the above, additional information is required when the
tribe or tribal organization is proposing to contract design activities
and construction activities.
The parties that would have to submit information under these
proposed regulations are tribal governments or tribal organizations
authorized by tribal governments. The Departments need and use the
information to determine eligibility of the applicant, evaluate
applicant capabilities, protect the service population and to safeguard
Federal funds and other resources.
All information is to be collected and reported when a tribe makes
initial application to contract a construction activity. Annual
reporting and recordkeeping burden for this collection of information
is estimated to average 80 hours for each response for 30 respondents,
including the time for reviewing instructions, searching
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existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Thus, the total
annual reporting and recordkeeping burden for this collection is
estimated to be 2,400.
Organizations and individuals who wish to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, D.C. 20503; Attention: Interior Desk
Officer.
The Departments consider comments by the public on these proposed
collections of information in:
--Evaluating whether the proposed collections of information are
necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
--Evaluating the accuracy of the Department's estimate of the burden of
the proposed collections of information, including the validity of the
methodology and assumptions used;
--Enhancing the quality, usefulness, and clarity of the information to
be collected; and
--Minimizing the burden or the collection of information on those who
are to respond, including through the use of appropriate automated,
electronic, mechanical, or other forms of information technology, e.g.,
permitting electronic submission of responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Departments on the
proposed regulations.
This rule was drafted by a negotiated rulemaking committee that
included representatives of the Departments of the Interior and Health
and Human Services and of many tribes and tribal organizations.
List of Subjects in 25 CFR Part 900
Indians; Government contracts; Medical care; Construction;
Government property management; financial management; Leasing; Tort
claims; Appeals.
For the reasons given in the preamble, the Departments of the
Interior and Health and Human Services propose to establish a new
chapter V in title 25 of the Code of Federal Regulations consisting of
part 900 to read as set forth below.
Dated: December 5, 1995.
Bruce Babbitt,
Secretary of the Interior.
Dated: December 5, 1995.
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
Sec.
Subpart A--General Provisions
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.
Supart 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 Sec. 900.8(b)?
900.10 What should a tribe or tribal organization that is proposing
a contract do about specifying the Federal property that the tribe
or tribal organization may wish to use in carrying out the contract?
900.11 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?
Subpart D--Review and Approval of Contract Proposals
900.12 What does this subpart cover?
900.13 What shall the Secretary do upon receiving a proposal?
900.14 How long does the Secretary have to review and approve or
decline a proposal?
900.15 Can the statutory 90-day period be extended?
900.16 What happens if a proposal is not declined within 90 days
after it is received by the Secretary?
Subpart E--Declination Procedures
900.18 What does this subpart cover?
900.19 When can a proposal be declined?
900.20 For what reasons can the Secretary decline a proposal?
900.21 Can the Secretary decline a proposal where the Secretary's
objection could be overcome through the contract?
900.22 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 above?
900.23 What if only a portion of a proposal raises one of the five
declination criteria?
900.24 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?
900.25 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?
900.26 Is technical assistance available to an Indian tribe or
tribal organization to avoid declination of a proposal?
900.27 What is the Secretary required to do if the Secretary
decides to decline all or a portion of a proposal?
900.28 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?
900.29 When the Secretary declines all or a portion of a proposal,
is an Indian tribe or tribal organization entitled to any appeal?
900.30 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
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 sub-contractors 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?
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Standards for Financial Management Systems
900.41 What are the general financial management system standards
that apply to an Indian tribe or tribal organization carrying out a
self determination contract?
900.42 What are the general financial management system standards
that apply to a tribal organization carrying out a self-
determination contract?
900.43 What minimum general standards apply to all Indian tribe or
tribal organization financial management systems when carrying out a
self-determination contract?
900.44 What specific minimum requirements shall an Indian tribe or
tribal organization financial management system contain to meet
these standards?
900.45 What requirements are imposed upon the Secretary for
financial management by these standards?
Procurement Management System Standards
900.46 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?
900.47 What procurement standards shall an Indian tribe or tribal
organization have?
900.48 If the Indian tribe or tribal organization does not propose
different standards, what are the basic standards that the Indian
tribe or tribal organization shall 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 Is a lease with the Secretary the only method available to
recover the types of cost described in Sec. 900.70?
900.72 How may a 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 a 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 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 a tribe or
tribal organization?
900.90 Does government-furnished real property to which a 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 Sec. 105
(f)(2)(A)?
900.92 What should the 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 a 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 tribes or tribal organizations learn about BIA and
IHS excess property?
900.97 How can a tribe or tribal organization acquire excess BIA or
IHS property?
900.98 Who takes title to excess BIA or IHS property donated to a
tribe or tribal organization?
900.99 Who takes title to any land that is part of excess BIA or
IHS real property donated to a tribe or tribal organization?
900.100 May the Secretary elect to reacquire excess BIA or IHS
property whose title has been transferred to a tribe or tribal
organization?
900.101 Is excess BIA or IHS real property to which a 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 tribes or tribal organizations learn about property
that has been designated as excess or surplus government property?
900.104 How may a 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 a 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 a tribe or tribal organization?
Property Eligible for Replacement Funding
900.107 Is property that a tribe or tribal organization obtains
title under this subpart eligible for replacement funding?
Subpart J--Construction Contracts
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 fixed price contracts treated the same as cost
reimbursable contracts?
900.117 Do these ``construction contract'' regulations apply to
planning services?
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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 Does the Indian tribe or tribal organization have a right
of first refusal?
900.122 What happens during the preplanning phase and can an Indian
tribe or tribal organization perform any of the activities involved
in this process?
900.123 What does an Indian tribe or tribal organization do if it
wants to secure a construction contract?
900.124 What if the Indian tribe or tribal organization and the
Secretary cannot develop a mutually agreeable contract proposal?
900.125 May the Indian tribe or tribal organization elect to use a
grant in lieu of a contract?
900.126 What shall a construction contract proposal contain?
900.127 Shall a construction contract proposal incorporate
provisions of Federal construction guidelines and manuals?
900.128 What can be included in the Indian tribe's or tribal
organization's contract budget?
900.129 What funding shall the Secretary provide in a construction
contract?
900.130 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?
900.131 What role does the Indian tribe or tribal organization play
during the performance of a self-determination construction
contract?
900.132 What role does the Secretary play during the performance of
a self-determination construction contract?
900.133 Once a contract is awarded, how will the Indian tribe or
tribal organization receive payments?
900.134 Does the declination process or the Contract Disputes Act
apply to construction contract amendments proposed either by an
Indian tribe or tribal organization or the Secretary?
900.135 At the end of a self determination construction contract,
what happens to savings on a cost reimbursement contract?
900.136 Do all provisions of the other subparts apply to contracts
awarded under this subpart?
Subpart K--Waiver Procedures
900.140 Can any provision of these regulations 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?
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 (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?
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?
900.163 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 object 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
Suspension, 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 object 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?
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 receive the fee, not the self-
determination contractor?
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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 a contractor's 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 Does FTCA cover employees of self-determination
contractors?
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 a 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 or tribal organization 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
Secretary's 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 Can the awarding official change the decision after it has
been made?
900.227 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
900.228 What role will the awarding official play during an appeal?
900.229 What is the effect of a pending appeal?
Subpart O--Retrocession and Reassumption Procedures
900.230 What does retrocession mean?
900.231 Who may retrocede a contract, in whole or in part?
900.232 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
900.233 Will an Indian tribe or tribal organization's retrocession
adversely affect funding available for the retroceded program?
900.234 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?
900.235 What does reassumption mean?
900.236 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
900.237 In a non-emergency reassumption, what is the Secretary
required to do?
900.238 What happens if the contractor fails to take corrective
action to remedy the contract deficiencies identified in the notice?
900.239 What shall the second written notice include?
900.240 What is the earliest date on which the contract will be
rescinded?
900.241 In an emergency reassumption, what is the Secretary
required to do?
900.242 What shall the written notice include?
900.243 May the contractor be reimbursed for actual and reasonable
``wind up costs'' incurred after the effective date of recision?
900.244 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?
900.245 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 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 Federal law. Except for previously provided copies
of tribal records that the Secretary demonstrates are clearly required
to be maintained as part of the recording keeping systems of the DHHS
or the DOI, or both, records of the Contractors 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 information collection requirements
contained in these rules have been approved by the Office of Management
and Budget and assigned the following approval numbers: [Approval
numbers
[[Page 2050]]
will appear in this location in the final rule.]
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 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 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) as
appropriate.
(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 and for which funds are appropriated by Congress. 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 responsibility and accountability to
the tribal contractor 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
[[Page 2051]]
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 because of their status as Indians, 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) 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 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.
(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's or tribal organization's intention to contract), the Secretary
shall plan to take 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 insure a
timely transfer of responsibilities 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.
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
such 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, a Contractor is not required to abide by program guidelines,
manuals, or policy directives of the Secretary, unless otherwise agreed
to by the Contractor and the Secretary, or otherwise required by law.
Subpart B--Definitions
Sec. 900.6 Definitions.
Unless otherwise provided in this Part:
Act means Sec. 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 a 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 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.
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.
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 that one contract objective or which are not readily
assignable to the contract objectives specifically benefitted without
effort disproportionate to the results achieved.
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.
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
[[Page 2052]]
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 a tribe or tribal organization
and subject to the availability of appropriations, provide technical
assistance on a non-reimbursable basis to such tribe or tribal
organization to develop a new contract proposal or to provide for the
assumption by the tribe or tribal organization of any program, service,
function, or activity (or portion thereof) that is contractible under
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 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) an identification and signature of the authorized
representative of the 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) a description 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 and financial,
procurement, and property management 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, if any.
(h) a budget which includes at a minimum:
(1) an identification of the funds requested under section
106(a)(1) of the Act, including tribal shares, if any, from any
departmental local, Area, regional, or national level, presented as
follows:
(i) for the IHS, by budget subactivity specified in the annual
budget justification, as may be modified by Congressional action (e.g.,
hospitals and clinics, dental health, community health representatives,
mental health, etc.);
(ii) for the BIA, by programs specified in the annual budget
justification, as may be modified by Congressional action (e.g., social
services, forestry, roads, and law enforcement); and
(iii) for non-BIA DOI bureaus and offices, by the lowest level of
detail set out in the annual budget justification for the bureau or
office (as may be modified by Congressional action).
(2) the amount of direct contract support costs, including one-time
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;
(iv) Travel;
(v) Subcontracts; and
(vi) Other appropriate items of cost.
(3) where the Indian tribe or tribal organization proposes to
recover indirect contract support costs, the budget 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) an identification of anticipated sources of other funding
relied upon to carry out the programs, services, functions, or
activities specified in the contract proposal.
(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 these regulations.
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(b)?
No.
Sec. 900.10 What should a tribe or tribal organization that is
proposing a contract do about specifying the Federal property that the
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;
(4) and other 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
[[Page 2053]]
(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. 900.11 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 in
advance of the expiration date of the contract or existing annual
funding agreement. The proposal shall provide budget information in the
same detail and format as the original proposal and may also identify
any significant proposed changes.
Subpart D--Review and Approval of Contract Proposals
Sec. 900.12 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. 900.13 What shall the Secretary do upon receiving a proposal?
Upon receipt of a proposal, the Secretary shall:
(a) within five 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 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. 900.14 How long does the Secretary have to review and approve or
decline a proposal?
The Secretary has 90 days after receipt of a proposal to review and
approve 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. 900.15 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. 900.16 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. 900.15) is deemed approved and the
Secretary shall award the contract or any amendment or renewal within
that 90-day period.
Subpart E--Declination Procedures
Sec. 900.18 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. 900.30.
Sec. 900.19 When can a proposal be declined?
As explained in Secs. 900.14 and 900.15, a proposal can only be
declined within 90 days after the Secretary receives the proposal,
unless that period is extended with the voluntary and express written
consent of the Indian tribe or tribal organization.
Sec. 900.20 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. 900.21 can the Secretary decline a proposal where the Secretary's
objection could 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. 900.22 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 above?
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. 900.23 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. 900.24 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 106(a) of the Act, or approve a level of
funding that is authorized under section 106(a) of the Act. As noted in
Sec. 900.23, 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. 900.25 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. 900.26 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.
[[Page 2054]]
Sec. 900.27 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. 900.20 exists,
together with a detailed explanation of the reason for the decision to
decline the proposal and, when appropriate, 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. 900.29.
(c) to provide tribes and tribal organizations within 20 days of
issuing a declination decision under Sec. 102(a), all documents that
currently exist that support the declination decision. The provision of
these documents does not preclude or limit the Secretary from providing
or producing additional documents to be used in an appeal as evidence
to support any findings identified in the declination decision (subject
to any discovery time limitation or other evidentiary rules imposed by
the Administrative law judge).
Sec. 900.28 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. 900.29 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. 900.30 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
No. If it is substantively the same as the prior annual funding
agreement (except for mandatory funding increases or budget reductions
as provided in section 106(b) of the Act) the Secretary shall approve
and fund, and may not decline, any portion of a successor annual
funding agreement. Any portion of an annual funding agreement proposal
which is not substantively 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) 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.
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's 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 sub-contractors 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 sub-contractors
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.
Standards for Financial Management Systems
Sec. 900.41 What are the general financial management system
standards that apply to an Indian tribe or tribal organization carrying
out a self-determination contract?
An Indian tribe or tribal organization shall expend and account for
contract funds in accordance with all applicable tribal laws,
regulations, and procedures.
Sec. 900.42 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. 900.43 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
[[Page 2055]]
prohibitions contained in any statute that applies to the self-
determination contract.
Sec. 900.44 What specific minimum requirements shall an Indian tribe
or tribal organization financial management system contain to meet
these standards?
An Indian tribe or tribal organization 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, as required in the
financial reporting requirements 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 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 tribe's or tribal
organization's applicable OMB cost principles (see OMB Circulars A-87,
A-122, or A-21, available from the Executive Office of the President,
Publications Service, 725--17th Street NW., Washington, DC 20503), as
amended by the Act and these regulations.
(f) Source documentation. The financial management system shall
contain accounting records that are supported by source documentation,
e.g., cancelled 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
establish procedures to ensure the timely receipt of reports from sub-
contractors on their cash balances, expenditures, and disbursements, so
that the Indian tribe or tribal organization may prepare complete and
accurate cash transaction reports as required by the self-determination
contract.
Sec. 900.45 What requirements are imposed upon the Secretary for
financial management by these standards?
In regard to paragraph (g) of Sec. 900.44, 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 based upon the payment schedule
provided for in the self-determination contract and the annual funding
agreement.
Procurement Management System Standards
Sec. 900.46 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?
Yes.
Sec. 900.47 What procurement standards shall an Indian tribe or tribal
organization have?
Indian tribes and tribal organizations shall have standards that
conform with 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 are the basic standards that the
Indian tribe or tribal organization shall follow?
(a) The Indian tribe or tribal organization shall ensure that its
vendors and/or sub-contractors 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 sub-contractor 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. The
Indian tribe or tribal organization should consider consolidating or
breaking out procurements 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 for 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.
[[Page 2056]]
(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 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 sub-contractors?
In addition to the Act, all applicable Federal laws, regulations,
and Executive Orders apply to subcontractors. If an Indian tribe or
tribal organization's contract requires subcontractor compliance with
other Federal laws, regulations, and Executive Orders, then the Indian
tribe or tribal organization should include appropriate provisions in
the subcontracts. The subcontractor is responsible for identifying and
ensuring compliance with applicable Federal laws, regulations, and
Executive Orders not identified in the subcontract.
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 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 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 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:
(1) the Indian tribe or tribal organization may dispose of the
property as it sees fit and inform the Secretary of the disposal; or
(2) 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 2057]]
Subpart G--Programmatic Reports and Data Requirements
Sec. 900.65 What programmatic reports and data shall the Indian tribe
or tribal organization provide?
Each Indian tribe or tribal organization shall negotiate with the
Secretary the type and frequency of program narrative and program data
report(s) required to meet the needs of the contracting parties. The
extent of available resources will be a consideration in the
negotiations.
Sec. 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)?
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 meets 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 for 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
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 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 (h) 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. 900.72 How may a 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 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 give maximum weight to the requests of tribes or
tribal organizations for donation of BIA or IHS excess property and
excess or surplus Federal property, provided that the requesting tribe
or tribal organization shall certify and justify that 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 a 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 a
[[Page 2058]]
tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with each tribe or tribal
organization, shall develop a list of the property used in a self-
determination contract.
(2) The tribe or tribal organization shall indicate any items on
the list to which the tribe or tribal organization wants the Secretary
to retain title.
(3) The Secretary shall provide the tribe or tribal organization
with any documentation needed to transfer title to the remaining listed
property to the tribe or tribal organization.
(b) For government-furnished real property made available to a
tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with the 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(b)(10). If the tribe or tribal organization
desires to take title to any real property on the list, the tribe or
tribal organization shall inform the Secretary, who shall take such
steps as necessary to transfer title to the tribe or tribal
organization.
(c) For government-furnished real and personal property made
available to a tribe or tribal organization on or after October 25,
1994:
(1) The tribe or tribal organization shall take title to all
property unless the 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(b)(10).
Sec. 900.88 What should the 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
a tribe or individual Indian, the 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 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 tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for a
tribe:
(1) The tribe or tribal organization shall submit with its request
a resolution of support from the governing body of the 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 the land
to the Secretary of the Interior and shall also forward the 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 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 a tribe or
tribal organization?
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:
(a) whose title has been transferred to a tribe or tribal
organization;
(b) that is still in use in the program; and
(c) that has a value in excess of $5,000.
Sec. 900.90 Does government-furnished real property to which a 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)?
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 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 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?
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
contractor-purchased property:
(a) whose title has been transferred to a tribe or tribal
organization;
(b) that is still in use in the program; and
(c) that has a value in excess of $5,000.
Sec. 900.94 Is contractor-purchased real property to which a 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 tribes or tribal organizations learn about BIA and
IHS excess property?
The Secretary shall periodically furnish to tribes or 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 a tribe or tribal organization acquire excess BIA
or IHS property?
(a) The tribe or tribal organization shall submit to the
appropriate Secretary a request for specific property that includes a
certification and justification that the property is
[[Page 2059]]
intended for use in connection with a self-determination contract or
grant. The Secretary shall expeditiously process the request and shall
exercise discretion to donate the property in the manner described in
this subpart I.
(b) If more than one request for the same item of personal property
is submitted, the Secretary shall award the item to the first
requester. if there is a tie, 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 piece of real property is
submitted, the Secretary shall award the property to the 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 a
tribe or tribal organization?
The tribe or tribal organization takes title to donated excess BIA
or IHS property. The Secretary shall provide the tribe or tribal
organization with all documentation needed to vest title in the 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 a tribe or tribal organization?
(a) If a tribe or tribal organization requests donation of fee
title to excess real property that includes land not held in trust for
a tribe, the 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 tribe or
tribal organization.
(b) If a 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 a tribe, the
requestor shall submit a resolution of support from the governing body
of the 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 tribe or
tribal organization's request and the tribe's resolution. The Secretary
of the Interior shall expeditiously process all requests in accord with
applicable Federal law and regulations.
(2) The Secretary shall not require the 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 a 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 any item of the property:
(a) whose title has been transferred to a tribe or tribal
organization;
(b) that is still in use in the program; and
(c) that has a value in excess of $5,000.
Sec. 900.101 Is excess BIA or IHS real property to which a 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.
Sec. 900.103 How can tribes or tribal organizations learn about
property that has been designated as excess or surplus government
property?
The Secretary shall periodically furnish to 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 a tribe or tribal organization.
Sec. 900.104 How may a tribe or tribal organization receive excess or
surplus government property of other agencies?
(a) The tribe or tribal organization shall file a request for
specific property with the Secretary, and shall certify and justify
that 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 the Federal Property Management Regulation, 41 CFR Chapter
101.
(c) Upon approval, the Secretary shall immediately request
acquisition of the property from the GSA or the holding agency, as
appropriate. If the tribe or tribal organization informs the Secretary
that a ``freeze'' has been placed on the requested property, the
Secretary shall make every good faith effort to process the request in
order to obtain the property within the ``freeze'' period.
(d) The Secretary shall specify that the property is requested for
donation to a 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 a tribe or tribal organization?
(a) Title to any donated excess or surplus Federal personal
property shall vest in the tribe or tribal organization upon taking
possession.
(b) Legal title to donated excess or surplus Federal real property
shall vest in the tribe or tribal organization upon acceptance by the
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 a
tribe, the 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.
(1) If the 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 tribe or tribal organization.
(2) If the tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for a
tribe:
(i) The tribe or tribal organization shall submit with its request
a resolution of support from the governing body of the tribe in which
the beneficial ownership is to be registered.
(ii) If the donation request of the 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 tribe or
tribal organization's request and the 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
[[Page 2060]]
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 a 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 a tribe or tribal
organization.
Property Eligible for Replacement Funding
Sec. 900.107 Is property that a tribe or tribal organization obtains
title under this subpart eligible for replacement funding?
Yes. Government-furnished property, contractor-purchased property
and excess BIA and IHS property donated to a tribe or tribal
organization to which a 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 Contracts
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 of 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 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 (contact your
funding source for more information regarding the conduct of their
program):
(1) The preplanning phase. The phase during which an initial
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 conducting and preparing a
detailed needs assessment, developing justification documents,
completing and/or verifying master plans, conducting pre-design site
investigations, 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.
(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.
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. The
construction management services consultant (typically an engineer or
architect) assists and advises the Indian tribe or tribal organizations
in such activities as:
(1) coordination and information exchange between the Indian tribe
or tribal organization and the Federal government;
(2) preparation of tribal or tribal organization construction
contract proposals;
(3) tribal or tribal organization subcontract scope of work
identification and subcontract preparation, and competitive selection
of tribal 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 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/
[[Page 2061]]
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?
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 administrating 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. 900.132.
(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 such 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 paragraph shall be included in an attachment to the contract
under negotiations between the Secretary and the 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 fixed-price contracts treated the same as cost-
reimbursable contracts?
Yes, except that in fixed-price construction contracts, appropriate
clauses shall be negotiated to properly allocate 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; or
(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 to be 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 assist and advise the Indian tribe or tribal organization
to implement construction contracts, but have no contractual
relationship with or
[[Page 2062]]
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 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 will notify the Indian tribe or tribal
organization(s) to be benefitted of the availability of the funds for
the 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.
(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 Does the Indian tribe or tribal organization have a right
of first refusal?
(a) Yes. An Indian tribe or tribal organization shall notify the
Secretary within 45 days after receiving the Secretarial notice
described in Sec. 900.120 if it wishes to contract one or more phases
of the project. The Indian tribe or tribal organization will notify the
Secretary by registered mail, return receipt requested. Notice by the
Indian tribe or tribal organization does not require submission of a
full contract proposal. After notifying the Secretary and unless
already submitted as part of the Indian tribe or tribal organization's
notification or intent to contract, the Indian tribe or tribal
organization shall prepare a self-determination construction contract
proposal in accordance with this subpart.
(b) Before the start of the contracting process for any phase
during the construction process and unless previously notified by the
Indian tribe or tribal organization of intent to contract for
subsequent stages, the Secretary shall repeat the requirements of
paragraph Sec. 900.120(a).
(c) The Indian tribe's or tribal organization's decision not to
contract under the Act or a prior attempt to contract under the Act
will not bar an Indian tribe or tribal organization from bidding on or
contracting for the construction project under any other act or
process.
Sec. 900.122 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.
[[Page 2063]]
Sec. 900.123 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 in accordance with Sec. 900.121(a). 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 will 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. 900.124 What 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. 900.123, 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 to the tribal
organization;
(2) Provide assistance to the tribal organization to overcome the
stated objections;
(3) Provide the 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 to
the court under section 110(a) of the Act.
Sec. 900.125 May the Indian tribe or tribal organization elect 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 mutually
agreed to by the Secretary and the Indian tribe or tribal 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. 900.126 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 and engineers;
(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 sub-contracting 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);
(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
[[Page 2064]]
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. 900.132; and
(4) Proposed methods to accommodate the responsibilities of the
Indian tribe or tribal organization provided in Sec. 900.131 unless
otherwise addressed in paragraph (a) of this section;
(5) A contract budget as described in Sec. 900.128; and
(6) A period of performance for the conduct of all activities to be
contracted.
(7) A payment schedule as described in Sec. 900.133;
(8) If the Indian tribe or tribal organization is conducting CMS
under this subpart, the Indian tribe or tribal organization will
provide a job description and qualification statement for key
positions.
(9) Current (unrevoked) authorizing resolutions in accordance with
Sec. 900.5(d) from all Indian tribes benefitting from the contract
proposal;
(10) Any responsibilities, in addition to the Federal
responsibilities listed in Sec. 900.132, which the Indian tribe or
tribal organization proposes the Federal government to 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 proposes to use
Federal property 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; and
(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), the Contract Work Hours and Safety Standards Act
(40 U.S.C. 327-333) regarding labor standards for Federally assisted
construction subagreements; and
(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; and
(6) The Indian tribe or tribal organization will comply with all
applicable Federal environmental laws, regulations, and Executive
Orders; and
(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; and
(8) The Indian tribe or tribal organization will assist the
awarding agency in assuring compliance with 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, and
share identified laws, Executive Orders, or regulations with the other
party, and include reference to such laws in the construction contract.
Sec. 900.127 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 then the
Secretary shall accept the tribally proposed standards.
Sec. 900.128 What can be included in the Indian tribe's 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.
(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 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 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
[[Page 2065]]
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 separately identify the
components described in paragraphs (c)(4)(i) and (c)(4)(ii) above.
(e) The Indian tribe's 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), above
(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 per cent of activities being contracted
or 50 per cent of the available contingency funds, whichever is less.
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. 900.129 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 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 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 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.
(3) In establishing a contract budget for a construction project,
the Secretary is not required to separately identify the components
described in clauses (1) and (2) above.
Sec. 900.130 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 tribe or tribal
organization 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
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 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 tribe or tribal organization.
As a
[[Page 2066]]
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)
above 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
(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, 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
(ii) the Secretary and Indian tribe or tribal organization may
agree that the project be executed in phases.
Sec. 900.131 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
engineers 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. 900.41 through Sec. 900.44 and a 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 assure 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 approve for general
compliance with contract requirements and project plans and
specifications only at the concept phase, the schematic phase, the
design development phase, 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 for the construction of the project.
(7) the Indian tribe or tribal organization shall retain project
records and design documents for a minimum of 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, 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 contracts and major subcontracts and modifications, an
initial work and payment schedule and updates as they may occur, and A/
E services deliverables.
(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
engineers and other consultants 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. 900.41 through Sec. 900.44 and a 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;
(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
[[Page 2067]]
change orders, contracts and major subcontracts, 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: 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 take the
action necessary to increase the amount of funds awarded under the
contract, the Indian tribe or tribal organization may suspend
performance of the contract until additional funds are awarded.
Sec. 900.132 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:
(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:
(1) In carrying out the responsibilities of this section, and
specifically in carrying out review and approval functions under this
section, the Secretary shall provide for tribal participation in the
decisionmaking 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 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 making a good faith effort to accommodate
tribal recommendations. The time allowed for Secretarial review 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 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 shall obtain an independent
government cost estimate that is derived from the final project plans
and specifications or the Secretary may rely on Indian tribe or tribal
organizations cost estimate. The Secretary shall obtain, if any, the
cost estimate within 90 days or less of receipt of the final plans and
specifications from the Indian tribe or tribal organization.
(5) If the contracted project involves design activities, the
Secretary shall have the authority to review and approve for general
compliance with contract requirements the project plans and
specifications only at the concept phase, the schematic phase, the
design development 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 retains the right to 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. Objections of the Secretary to the
facility identified during final project inspections shall be provided
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
[[Page 2068]]
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 temporarily suspend
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 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) above.
(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.
Sec. 900.133 Once a contract 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 organizations 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. 900.132(b)(11),
Sec. 900.132(b)(12), or Sec. 900.132(b)(13).
Sec. 900.134 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. 900.123 and
Sec. 900.124 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. 900.135 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.
Sec. 900.136 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 these regulations 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 these regulations, if the Secretary
finds that granting the waiver either is 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
[[Page 2069]]
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 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?
Yes. In accordance with section 102(b) of the Act (and in
accordance with section 103(d), to the extent a waiver request is
included in a proposal for a new self-determination contract), the
Secretary shall provide the Indian tribe or tribal organization with
any necessary requested technical assistance 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 (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; or
(h) a decision to refuse to allow you 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.
Sec. 900.151 Are there any appeals this part does not cover?
Yes. 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?
Every decision in any of the nine areas listed above shall contain
information which shall tell you where and when to file your 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 ____, or appeal this decision
under 25 CFR ____. Should you decide to appeal this decision to the
Interior Board of Indian Appeals (IBIA) under 25 CFR ____, you may
request a hearing on the record. The IBIA will determine whether you
are entitled to such a hearing under 25 CFR ____. An appeal to the
IBIA under 25 CFR ____ 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
[[Page 2070]]
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. You 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. You 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?
You shall file your request for an informal conference with the
office of the person whose decision you are appealing, within 30 days
of the day you receive the decision. You 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 you mail the request,
it will be considered filed on the date you mailed it by certified
mail.
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
your office, and is held more than fifty miles from your 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 your designated representatives, 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 you 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 with the Interior Board
of Indian Appeals (IBIA) under 25 CFR ____. You may request a
hearing on the record. The IBIA will determine whether you are
entitled to such a hearing under 25 CFR ____. An appeal to the IBIA
under 25 CFR ____ 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 you are dissatisfied with the recommended decision, you may
still appeal the initial decision within 30 days of receiving the
recommended decision and the report of the informal conference. If you
do not file a notice of appeal within 30 days or the extension you have
been granted 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 you decide to appeal, you shall file a notice of appeal with
the IBIA within 30 days of receiving either the initial decision or the
recommended decision.
(b) You may either hand-deliver the notice of appeal to the IBIA,
or mail it by certified mail, return receipt requested. If you mail the
Notice of Appeal, it will be considered filed on the date you mailed it
by certified mail. You 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 you think the initial decision is wrong;
(2) Briefly identify the issues involved in the appeal; and
(3) State whether you want a hearing on the record, or whether you
want to waive your right to a hearing.
(d) You shall serve a copy of the notice of appeal upon the
official whose decision you are appealing. You shall certify to the
IBIA that you have 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 you need more time, you can request an extension of time to
file your Notice of Appeal within 60 days of receiving either the
initial decision or the recommended decision resulting from the
informal conference. Your request shall be in writing, and shall give a
good reason for not filing your notice of appeal within the 30-day time
period. If you have a good reason for not filing your notice of appeal
on time, you may receive an extension from the IBIA.
Sec. 900.160 What happens after an Indian tribe or tribal
organization files an appeal?
(a) Within five days of receiving your notice of appeal, the IBIA
will decide whether your appeal falls under Sec. 900.150(a) through
Sec. 900.150(g) and you are entitled to a hearing.
(1) If the IBIA determines that your appeal falls under Sec. 900(h)
or Sec. 900.150(i) and you have requested a hearing, the IBIA will
grant your request for a hearing unless it 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 five days of receiving those statements.
(b) If the IBIA decides that you are not entitled to a hearing or
if you have waived your 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 your 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;
[[Page 2071]]
(2) a schedule for the exchange of information, including, but not
limited 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 you 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 you have 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 ____. An appeal to the
Secretary under 25 CFR ____ 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 ____. An appeal to the
IBIA under 25 CFR ____ 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 object 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 2072]]
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspension, 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 (1) above, 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 Indian tribe's or tribal organization's office, 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 you have 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 ____. An appeal to the
Secretary under 25 CFR ____ 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 ____. An appeal to the
IBIA under 25 CFR ____ 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 object 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.
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?
(a) 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
geographically defined service areas; and
(iii) which are selected and identified through tribal resolution
as the local provider of Indian health care services; or
(2) subject to the approval of the IHS Director after consultation
with the DHHS Office of General Counsel, tribes and tribal
organizations which meet in all respects the requirements of the Indian
Self-Determination Act to contract directly with the Federal
[[Page 2073]]
Government but which choose through tribal resolution to sub-contract
to carry out IHS service programs within geographically defined service
areas with another Indian tribe or tribal organization which contracts
directly with IHS.
(b) Self-determination contract or contract means contracts, annual
funding agreements, grants and cooperative agreements under Title I of
the Act.
Sec. 900.182 What other statutes and regulations apply to FTCA
coverage?
A number of other statutes and regulations, 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 barred by FTCA and therefore may not be made
against the United States, an Indian tribe or tribal organization? Any
claim 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 but may be pursued
under other provisions of law?
(1) Except as provided in Sec. 900.181(a)(1) and Sec. 900.189,
claims against sub-contractors 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;
(4) a claim which is brought for violation of the Constitution of
the United States; or
(5) a claim which is brought for a violation of a statute of the
United States under which an action against an individual is otherwise
authorized.
(c) What remedies are 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) 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) 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. This includes, but is not limited to, the performance of any
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 eye witnesses;
(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 whether any person involved was cited for violating
a Federal, State or tribal law, ordinance, or regulation;
(7) the contractor's determination whether any of its employees
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; and
(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.
(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 riconstrucghts and
claims (except those against 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 tort claim and
to represent the contractor in or take
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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 the 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. All such claims shall be filed against the
United States and are subject to the limitations and restrictions of
that Act.
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; and
(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).
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 a 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, as long as the contractor's health care practitioners do not
receive additional compensation 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 receive the fee, not the self-
determination contractor?
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.
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 a contractor's 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 who otherwise are eligible for services
from IHS in accordance with Federal law and regulations, 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 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?
You 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.
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?
You 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;
[[Page 2075]]
(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; and
(d) any comments or opinions that the employees who treated the
claimant believe to be pertinent to the allegations contained in the
claim.
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?
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 shall 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 Does FTCA cover employees of self-determination
contractors?
Yes. A contractor and its employees carrying out a self-
determination contract are considered part of the Public Health Service
or the Department of the Interior, as the case may be, for FTCA
purposes.
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 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, you 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, you should immediately notify the
Assistant Solicitor, Procurement and Patents, Office of the Solicitor,
Department of the Interior, Room 6511, 1849 C Street NW., Washington,
DC 20240.
Sec. 900.210 If the contractor or contractor's employee receives a
summons and/or complaint alleging a non-medical related tort covered by
FTCA, what should a tribe or tribal organization do?
(a) If the contract is with the DHHS, you 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.
(b) If the contract is with the Department of the Interior, you
should immediately notify the Assistant Solicitor, Procurement and
Patents, Office of the Solicitor, Department of the Interior, Room
6511, 1849 C Street NW., 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); and
(b) If the matter is submitted to the Interior Board of Contract
Appeals, 43 CFR 4, subpart C, Secs. 4.110-126.
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, 5 U.S.C. 581 et seq., and section
108(1)(b)(12) of the 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
(c) Written notice of the claim is given to the awarding official
by the senior official designated in the contract.
Sec. 900.219 How does an Indian tribe or tribal organization submit a
claim?
(a) If you are an Indian tribe or tribal organization, you shall
submit your 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) If you are a Federal agency, you shall submit your 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. 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;
(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.
[[Page 2076]]
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
Secretary's decision?
(a) If the claim is for more than $100,000, the awarding official
shall issue the decision within sixty 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
required time, 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), above.
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 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 an appeal or suit is filed, the awarding official may modify
or withdraw his or her final decision.
Sec. 900.227 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
Yes. If you win the claim, you 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 you are 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.
Sec. 900.228 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. 900.229 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 0--Retrocession and Reassumption Procedures
Sec. 900.230 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. 900.231 Who may retrocede a contract, in whole or in part?
An Indian tribe or tribal organization authorized by an Indian
tribe.
[[Page 2077]]
Sec. 900.232 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. 900.233 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. 900.234 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 Secretary deliver to
the Secretary all property and equipment provided under the contract
which have a per item value in excess of $5,000 at the time of the
retrocession.
Sec. 900.235 What does reassumption mean?
Reassumption means recision, 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. 900.236 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
(a) 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.
(b) 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.
Sec. 900.237 In a non-emergency reassumption, what is the Secretary
required to do?
(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; and
(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.
Sec. 900.238 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. 900.239 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. 900.240 What is the earliest date on which the contract will be
rescinded?
The contract will not be rescinded by the Secretary before the
completion of any administrative hearing or appeal.
Sec. 900.241 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. 900.242 What shall the written notice include?
(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 recision; and
(d) a request for the return of property, if any.
Sec. 900.243 May the contractor be reimbursed for actual and
reasonable ``wind up costs'' incurred after the effective date of
recision?
Yes.
Sec. 900.244 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 recision, 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
have a per item value in excess of $5,000 at the time of the recision.
Sec. 900.245 Will a reassumption adversely affect funding available
for the reassumed program?
No. The Secretary shall provide not less than the same level of
funding that would have been provided if there had been no
reassumption.
[FR Doc. 96-497 Filed 1-23-96; 8:45 am]
BILLING CODE 4310-02-P; 4160-16-P
