[Title 25 CFR M]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter M - INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT]
[From the U.S. Government Printing Office]
25INDIANS12004-04-012004-04-01falseINDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACTMSUBCHAPTER MINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
SUBCHAPTER M_INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
PROGRAM
PART 273_EDUCATION CONTRACTS UNDER JOHNSON-O'MALLEY ACT--Table of Contents
Subpart A_General Provisions
Sec.
273.1 Purpose and scope.
273.2 Definitions.
273.3 Revision or amendment of regulations.
273.4 Policy of maximum Indian participation.
Subpart B_Application Process
273.11 Eligible applicants.
273.12 Eligible students.
273.13 Proposals eligible for contracts.
273.14 Preparing the education plan.
273.15 Establishment of Indian Education Committee.
273.16 Powers and duties of Indian Education Committee.
273.17 Programs approved by Indian Education Committee.
273.18 Additional requirements for education plan.
273.19 Obtaining application forms.
273.20 Content of application to contract.
273.21 Tribal request for contract.
273.22 Application approval officials.
273.23 Submitting application to Area Office.
273.24 Area Office review and decision.
273.25 Deadline for Area Office action.
273.26 Submitting application to Central Office.
273.27 Central Office review and decision.
273.28 Deadline for Central Office action.
273.29 Negotiating the contract.
Subpart C_Funding Provisions
273.31 Distribution formula.
273.32 Pro rata requirement.
273.33 Use of funds for operational support.
273.34 Use of other Federal, State and local funds.
273.35 Capital outlay or debt retirement.
273.36 Eligible subcontractors.
273.37 Use of funds outside of schools.
273.38 Equal quality and standard of education.
Subpart D_General Contract Requirements
273.41 Special program provisions to be included in contract.
273.42 Civil Rights Act violations.
273.43 Advance payments.
273.44 Use and transfer of Government property.
273.45 Indian preference.
273.46 Liability and motor vehicle insurance.
273.47 Recordkeeping.
273.48 Audit and inspection.
273.49 Freedom of information.
273.50 Annual reporting.
273.51 Penalties.
273.52 State school laws.
273.53 Applicable procurement regulations.
273.54 Privacy Act requirements.
Subpart E_Contract Revision or Cancellation
273.61 Contract revision or amendment.
273.62 Cancelling a contract for cause.
Subpart F_Appeals
273.71 Contract appeal.
273.72 Appeal from decision to cancel contract for cause.
273.73 Other appeals.
Authority: Secs. 201-203, Pub. L. 93-638, 88 Stat. 2203, 2213-2214
(25 U.S.C. 455-457), unless otherwise noted.
Source: 40 FR 51303, Nov. 4, 1975, unless otherwise noted.
Subpart A_General Provisions
Sec. 273.1 Purpose and scope.
(a) The purpose of the regulations in this part is to set forth the
application and approval process for education contracts under the
Johnson-O'Malley Act. Such contracts shall be for the purpose of
financially assisting those efforts designed to meet the specialized and
unique educational needs of eligible Indian students, including programs
supplemental to the regular school program and school operational
support, where such support is necessary to maintain established State
educational standards.
(b) The application and approval process in this part applies
specifically to contracts with a State, school district, or Indian
corporation.
(c) Contracts with tribal organizations for supplemental and
operational support will be entered into only upon the request of an
Indian tribe(s), and
[[Page 677]]
shall be subject to the provisions of part 900 of this chapter and 41
CFR part 14H-70, except as provided in Sec. 273.11.
(d) Nothing in these regulations shall be construed as:
(1) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by an Indian tribe;
(2) Authorizing or requiring the terminiation of any existing trust
responsibility of the United States with respect to the Indian people;
or,
(3) Permitting significant reduction in services to Indian people as
a result of this part.
(e) Nothing in these regulations shall be construed to mandate an
Indian tribe to request a contract or contracts. Such requests are
strictly voluntary.
[40 FR 51303, Nov. 4, 1975, as amended at 64 FR 13896, Mar. 23, 1999]
Sec. 273.2 Definitions.
As used in this part:
(a) ``Area Director'' means the official in charge of a Bureau of
Indian Affairs Area Office.
(b) ``Bureau'' means the Bureau of Indian Affairs.
(c) ``Commissioner'' means the Commissioner of Indian Affairs, under
the direction and supervision of the Assistant Secretary--Indian
Affairs, who is responsible for the direction of day-to-day operations
of the Bureau of Indian Affairs.
(d) ``Days'' means calendar days.
(e) ``Economic enterprise'' means any commercial, industrial,
agricultural, or business activity that is at least 51 percent Indian
owned, established or organized for the purpose of profit.
(f) ``Education plan'' means a comprehensive plan for the
programmatic and fiscal services of and accountability by a contractor
for the education of eligible Indian students under this part.
(g) ``Indian tribe'' means any Indian tribe, band, nation,
rancheria, pueblo, colony or community, including any Alaska Native
village or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which
is federally recognized as eligible by the U.S. Government through the
Secretary for the special programs and services provided by the
Secretary to Indians because of their status as Indians.
(h) ``Indian corporation'' means a legally established organization
of Indians chartered under State or Federal law and which is not
included within the definition of ``tribal organization'' given in
paragraph (v) of this section.
(i) ``Indian Education Committee'' means one of the entities
specified by Sec. 273.15.
(j) ``Indian'' means a person who is a member of an Indian tribe.
(k) ``Johnson-O'Malley Act'' means the Act of April 16, 1934 (48
Stat. 596), as amended by the Act of June 4, 1936 (49 Stat. 1458, 25
U.S.C. 452-456), and further amended by the Act of January 4, 1975 (88
Stat. 2203).
(l) ``Operational support'' means those expenditures for school
operational costs in order to meet established State educational
standards or State-wide requirements.
(m) ``Pub. L. 93-638'' means the Indian Self-Determination and
Education Assistance Act (Pub. L. 93-638; 88 Stat. 2203).
(n) ``Previously private school'' means a school (other than a
Federal school formerly operated by the Bureau) that is operated
primarily for Indian students from age 3 years through grades 12; and,
which at the time of application is controlled, sanctioned, or chartered
by the government body(s) of an Indian tribe(s).
(o) ``Reservation'' or ``Indian reservation'' means any Indian
tribe's reservation, pueblo, colony, or rancheria, including former
reservations in Oklahoma, Alaska Natives regions established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688), and Indian
allotments.
(p) ``School district'' or ``local education agency'' means that
subdivision of the State which contains the public elementary and
secondary educational institutions providing educational services and is
controlled by a duly elected board, commission, or similarly constituted
assembly.
(q) ``Secretary'' means the Secretary of the Interior.
[[Page 678]]
(r) ``State'' means a State of the United States of America or any
political subdivision of a State.
(s) ``Superintendent'' means the official in charge of a Bureau of
Indian Affairs Agency Office.
(t) ``Supplemental programs'' means those programs designed to meet
the specialized and unique educational needs of eligible Indian students
which may have resulted from socio-economic conditions of the parents,
from cultural or language differences or other factors, and as provided
by Sec. 273.34(b).
(u) ``Tribal government,'' ``tribal governing body'' and ``tribal
Council'' means the recognized governing body of an Indian tribe.
(v) ``Tribal organization,'' means the recognized governing body of
any Indian tribe or any legally established organization of Indians or
tribes which is controlled, sanctioned, or chartered by such governing
body or bodies, 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 a request for a contract must be made by the
Indian tribe that will receive services under the contract; Provided
further, That in any case where a contract is let 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 of such
contract.
(w) ``Assistant Secretary--Indian Affairs'' means the Assistant
Secretary--Indian Affairs who discharges the responsibility of the
Secretary for activities pertaining to Indians and Indian Affairs.
[40 FR 51303, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 43
FR 37445, Aug. 23, 1978; 45 FR 13451, Feb. 29, 1980]
Sec. 273.3 Revision or amendment of regulations.
In order to make any substantive revision or amendments to
regulations in this part, the Secretary shall take the following
actions:
(a) Consult with Indian tribes and national and regional Indian
organizations to the extent practicable about the need for revision or
amendment and consider their views in preparing the proposed revision or
amendment.
(b) Publish the proposed revisions or amendments in the Federal
Register as proposed rulemaking to provide adequate notice to, and
receive comments from, all interested parties.
(c) After consideration of all comments received, publish the
regulations in the Federal Register in final form not less than 30 days
before the date they are made effective.
(d) Annually consult with Indian tribes and national and regional
Indian organizations about the need for revision or amendment, and
consider their views in preparing the revision or amendment.
(e) Nothing in this section shall preclude Indian tribes or national
or regional Indian organizations from initiating request for revisions
or amendments subject to paragraphs (a), (b), and (c) of this section.
Sec. 273.4 Policy of maximum Indian participation.
The meaningful participation in all aspects of educational program
development and implementation by those affected by such programs is an
essential requisite for success. Such participation not only enhances
program responsiveness to the needs of those served, but also provides
them with the opportunity to determine and affect the desired level of
educational achievement and satisfaction which education can and should
provide. Consistent with this concept, maximum Indian participation in
the development, approval and implementation of all programs contracted
under this part shall be required.
Subpart B_Application Process
Sec. 273.11 Eligible applicants.
(a) Any State, school district, tribal organization or Indian
corporation is eligible to apply for contracts for supplemental or
operational support programs. For the purposes of this part, previously
private schools as defined in Sec. 273.2(n) are considered tribal
organizations.
(b) States, school districts, or Indian corporations shall apply for
contracts
[[Page 679]]
for supplemental or operational support programs as required in this
part.
(c) Tribal organizations must comply with the following requirements
to obtain contracts for supplemental programs or operational support:
(1) The application submitted by the tribal organization shall meet
the requirements in Sec. 273.20 in addition to those in Sec. 271.14 of
this chapter.
(2) The requirements in Sec. Sec. 271.1 through 271.27, 271.41
through 271.52, 271.54, 271.61 through 271.66, and 271.81 through 271.84
shall apply to such contracts with tribal organizations.
(3) The provisions in Sec. Sec. 271.71 through 271.77 of this
chapter concerning retrocession and reassumption of programs do not
apply to a tribal organization retroceding a contract for supplemental
programs or operational support as the Bureau does not operate education
programs authorized to be contracted under the Johnson-O'Malley Act.
However, the tribal organization may retrocede such a contract and the
Bureau will then contract with a State, school district, or Indian
corporation under this part for the supplemental programs or operational
support.
(4) The requirements in Sec. Sec. 273.12 through 273.18, 273.20,
273.21, 273.31 through 273.38, 273.41, 273.51 and 273.52 shall apply to
such contracts with tribal organizations.
(5) The requirements in 41 CFR part 14H-70 shall apply to such
contracts with tribal organizations.
[40 FR 51303, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976]
Sec. 273.12 Eligible students.
Indian students, from age 3 years through grade(s) 12, except those
who are enrolled in Bureau or sectarian operated schools, shall be
eligible for benefits provided by a contract pursuant to this part if
they are \1/4\ or more degree Indian blood and recognized by the
Secretary as being eligible for Bureau services. Priority shall be given
to contracts (a) which would serve Indian students on or near
reservations and (b) where a majority of such Indian students will be
members of the tribe(s) of such reservations (as defined in Sec.
273.2(o)).
Sec. 273.13 Proposals eligible for contracts.
(a) Any proposal to contract for funding a program which meets the
definition of a supplemental program given in Sec. 273.2(t) will be
considered an eligible proposal under this part.
(b)(1) To contract for operational support, a public school district
shall be required to establish as part of the proposal that:
(i) It cannot meet the applicable minimum State standards or
requirements without such funds.
(ii) It has made a reasonable tax effort with a mill levy at least
equal to the State average in support of educational programs.
(iii) It has fully utilized all other sources of financial aid,
including all forms of State aid and Pub. L. 874 payments. The State aid
contribution per pupil must be at least equal to the State average.
(iv) There is at least 70 percent eligible Indian enrollment within
the school district.
(v) It shall clearly identify the educational needs of the students
intended to benefit from the contract.
(vi) It has made a good faith effort in computing State and local
contributions without regard to contract funds pursuant to this part.
(vii) It shall not budget or project a deficit by using contract
funds pursuant to this part.
(2) The requirements given in paragraph (b)(1) of this section do
not apply to previously private schools.
(c) At his discretion, the Commissioner may consider as eligible a
proposal to contract under which a school district will be reimbursed
for the full per capita costs of educating Indian students who meet all
of the following:
(1) Are members of recognized Indian tribes.
(2) Do not normally reside in the State in which the school district
is located.
(3) Are residing in Federal boarding facilities for the purpose of
attending public schools within the school district.
[[Page 680]]
Sec. 273.14 Preparing the education plan.
A prospective contractor in consultation with its Indian Education
Committee(s) shall formulate an education plan and submit it to the
appropriate Area Director as a part of the application to contract
required by Sec. 273.20. Such plan shall become a part of any contract
awarded. The education plan shall contain:
(a) The education programs approved by the Indian Education
Committee(s) as required in Sec. 273.17.
(b) Other requirements for the education plan given in Sec. 273.18.
Sec. 273.15 Establishment of Indian Education Committee.
(a) When a school district to be affected by a contract(s) for the
education of Indians pursuant to this part has a local school board not
composed of a majority of Indians, the tribal governing body(s) of the
Indian tribe(s) affected by the contract(s) under this part shall
specify one of the following entities to serve as the Indian Education
Committee for the purpose of this part:
(1) An Indian Education committee to be elected from among the
parents (including persons acting in loco parentis except school
administrators or officials) of eligible Indian students enrolled in the
school(s) affected by a contract(s) under this part; or
(2) A local Indian committee established pursuant to section
305(b)(2)(B)(ii) of the Act of January 23, 1972 (86 Stat. 235) and
existing prior to January 4, 1975; or
(3) An Indian advisory school board or Indian Education Committee
established pursuant to the Johnson-O'Malley Act and existing prior to
January 4, 1975.
(b) When the local school board is not composed of a majority of
Indians and the tribal governing body(s) of the Indian tribe(s) affected
by a contract(s) under this part determine which of the entities
provided for in paragraph (a) of this section is to serve as the Indian
Education Committee for the purpose of this part, it shall notify the
Area Director of such determination by January 15 preceding the school
year for which the contract will be let.
(c) The Indian Education Committee established under paragraph (a)
of this section and its members shall establish procedures under which
the Committee shall serve. Such procedures shall be set forth in the
Committee's organizational documents and by-laws. Each Committee shall
file a copy of its organizational documents and by-laws with the
appropriate Area Director, together with a list of its officers and
members as soon as practicable after the Committee is organized.
(d) The existence of an Indian Education Committee shall not limit
the continuing participation of the rest of the Indian community in all
aspects of programs contracted under this part.
Sec. 273.16 Powers and duties of Indian Education Committee.
(a) Consistent with the purpose of the Indian Education Committee,
each such Committee shall be vested with the authority to:
(1) Participate fully in the planning, development, implementation,
and evaluation of all programs, including both supplemental and
operational support, conducted under a contract or contracts pursuant to
this part. Such participation shall include further authority to:
(i) Recommend curricula, including texts, materials, and teaching
methods to be used in the contracted program or programs.
(ii) Approve budget preparation and execution.
(iii) Recommend criteria for employment in the program.
(iv) Nominate a reasonable number of qualified prospective
educational programmatic staff members from which the contractor would
be required to select.
(v) Evaluate staff performance and program results and recommend
appropriate action to the contractor.
(2) Approve and disapprove all programs to be contracted under this
part. All programs contracted pursuant to this part shall require the
prior approval of the appropriate Indian Education Committee.
(3) Secure a copy of the negotiated contract(s) which include the
program(s) approved by the Indian Education Committee.
[[Page 681]]
(4) Recommend to the Commissioner through the appropriate Bureau
contracting officer cancellation or suspension of a contract(s) which
contains the program(s) approved by the Indian Education Committee if
the contractor fails to permit such Committee to exercise its powers and
duties as specified by this section.
(b) The organizational papers and by-laws of the Indian Education
Committee may include additional powers and duties which would permit
the Committee to:
(1) Participate in negotiations concerning all contracts under this
part.
(2) Make an annual assessment of the learning needs of Indian
children in the community affected.
(3) Have access to all reports, evaluations, surveys, and other
program and budget related documents determined necessary by the
Committee to carry out its responsibilities, subject only to the
provisions of Sec. 273.49.
(4) Request periodic reports and evaluations regarding the Indian
education program.
(5) Hear grievances related to programs in the education plan.
(6) Meet regularly with the professional staff serving Indian
children and with the local education agency.
(7) Hold committee meetings on a regular basis which are open to the
public.
(8) Have such additional powers as are consistent with these
regulations.
Sec. 273.17 Programs approved by Indian Education Committee.
(a) All programs contracted under this part shall:
(1) Be developed and approved in full compliance with the powers and
duties of the Indian Education Committee as set out in Sec. 273.16 and
as may be contained in the Committee's organizational documents and by-
laws.
(2) Be included as a part of the education plan provided for in
Sec. 273.14.
(b) No program contracted pursuant to this part shall be changed
from the time of its original approval by the Indian Education Committee
to the end of the contract period without the prior approval, in
writing, of the Committee.
(c) Programs developed or approved by the Indian Education Committee
pursuant to this part may, at the option of such Committee, include
funds for the performance of Committee duties, including the following:
(1) Members' attendance at regular and special meetings, workshops
and training sessions, as the Committee deems appropriate.
(2) Such other reasonable expenses incurred by the Committee in
performing its primary duties, including the planning, development,
implementation and evaluation of the program.
Sec. 273.18 Additional requirements for education plan.
In addition to incorporating the programs approved by the Indian
Education Committee(s) as required by Sec. 273.14(a), the education
plan prepared by the prospective contractor shall:
(a) Contain educational goals and objectives which adequately
address the educational needs of the Indian students to be served by the
contract.
(b) Incorporate the program or programs developed and approved by
the Indian Education Committee(s). As provided in Sec. 273.17(b),
changes in such programs must have prior written approval of the Indian
Education Committee(s).
(c) Contain procedures for hearing grievances from Indian students,
parents, community members, and tribal representatives relating to the
program(s) contracted under this part. Such procedures shall provide for
adequate advance notice of the hearing.
(d) Identify established State standards and requirements which
shall be maintained in operating programs and services contracted under
this part.
(e) Describe how the State standards and requirements will be
maintained.
(f) Provide that the contractor shall comply in full with the
requirements concerning meaningful participation by the Indian Education
Committee as required by Sec. 273.4.
(g) Provide that education facilities receiving funds shall be open
to visits
[[Page 682]]
and consultations by the Indian Education Committee(s), tribal
representatives, Indian parents in the community, and by duly authorized
representatives of the Federal and State Governments.
(h) Outline procedures of administrative and fiscal management to be
used by the contractor.
(i) Contain justification for requesting funds for operational
support. The public school district must establish in its justification
that it meets the requirements given in Sec. 273.13(b). The information
given should include rec ords of receipt of local, State, and Federal
funds.
(j) Include budget estimates and financial information needed to
determine program costs to contract for services. This includes, but is
not limited to, the following:
(1) State and district average operational cost per pupil.
(2) Other sources of Federal funding the applicant is receiving, the
amount received from each, the programs being funded, and the number of
eligible Indian students served by such funding.
(3) Administrative costs involved, total number of employees, and
total number of Indian employees.
(4) Costs which parents normally are expected to pay for each
school.
(5) Supplemental and operational funds outlined in a separate
budget, by line item, to facilitate accountability.
(6) Total number of employees for each special program and number of
Indian employees for that program.
(k) State the total enrollment of school or district, by age and
grade level.
(l) State the eligible Indian enrollment--total and classification
by tribal affiliation(s) and by age and grade level.
(m) State the total number of school board members and number of
Indian school board members.
(n) List Government equipment needed to carry out the contract.
(o) State the period of contract term requested.
(p) Include the signature of the authorized representative of
applicant.
(q) Provide written information regarding:
(1) Program goals and objectives related to the learning needs of
potential target students.
(2) Procedures and methods to be used in achieving program
objectives, including ways whereby parents, students and communities
have been involved in determining needs and priorities.
(3) Overall program implementation including staffing practices,
parental and community involvement, evaluation of program results, and
dissemination thereof.
(4) Determination of staff and program effectiveness in meeting the
stated needs of target students.
Sec. 273.19 Obtaining application forms.
Application forms, instructions, and related application materials
are available from Agency Superintendents, Area Directors and the
Commissioner. Use of standard application forms will facilitate
processing of applications. However, they are not required if the
information required by Sec. 273.20 is given in the application to
contract.
Sec. 273.20 Content of application to contract.
An application for a contract under this part shall be in writing
and shall contain the following:
(a) Name, address, and telephone number of the proposed contractor.
(b) Name, address, and telephone number of the tribe(s) to be served
by the contract.
(c) Descriptive narrative of the contract proposal.
(d) The education plan required by Sec. 273.14.
(e) A separate budget outlining the Johnson-O'Malley funds for
operational support and/or supplemental programs, by line item, to
facilitate accountability.
(f) A clear identification of what educational needs the Johnson-
O'Malley funds requested for operational support will address.
(g) Documentation of the requirements for operational support in
Sec. 273.13(b)(1).
Sec. 273.21 Tribal request for contract.
(a) An Indian tribal governing body(s) that desires that a contract
be
[[Page 683]]
entered into with a tribal organization must so notify the Area Director
no later than February 1 preceding the school year for which the
contract will be let.
(b) If the tribal governing body's notice is not received by the
date given in paragraph (a) of this section, the Area Director may
contract with the State, school district, or Indian corporation under
this part.
Sec. 273.22 Application approval officials.
(a) Each Area Director is authorized to approve the contract(s)
submitted by the State, school district, or Indian corporation under
this part which will provide services to Indian children within the
jurisdiction of that Area Office.
(b) When a proposed contract(s) will provide services to Indian
children within the jurisdiction of more than one Area Office, the
contract must be approved by the Commissioner.
Sec. 273.23 Submitting application to Area Office.
When services under the proposed contract will be provided to Indian
children within the jurisdiction of a single Area Office, the completed
application shall be submitted to the Area Director of that Area Office.
Sec. 273.24 Area Office review and decision.
Upon receiving a contract application, the Area Director shall:
(a) Notify the applicant in writing that the application has been
received. This notice shall be made within fourteen (14) days after the
Area Office receives the application.
(b) Review the application for completeness and request within 20
days any additional information from the applicant which will be needed
to reach a decision.
(c) On receiving an application for operational support, make formal
written determination and findings supporting the need for such funds.
In arriving at such a determination, the Area Director must be assured
that each local education agency has made a good faith effort in
computing State and local contributions without regard to funds
requested pursuant to this part.
(d) Assess the completed application to determine if the contract
proposal is feasible and if the proposal and the application comply with
the appropriate requirements of the Johnson-O'Malley Act and of the
regulations in this part.
(e) Approve or disapprove the application after fully reviewing and
assessing the application and any additional information submitted by
the applicant.
(f) Promptly notify the applicant in writing of the decision to
approve or disapprove the application. If the application is
disapproved, the notice will give the reasons for disapproval and the
applicant's right to appeal pursuant to part 2 of this chapter.
Sec. 273.25 Deadline for Area Office action.
(a) The Area Director shall approve or disapprove an application for
a contract within sixty (60) days after the Area Office receives the
application and any additional information requested in Sec. 273.24(b).
The sixty (60) day deadline can be extended after obtaining the written
consent of the applicant.
(b) An application under this part cannot be approved before
February 1 preceding the school year for which the contract will be let.
Sec. 273.26 Submitting application to Central Office.
When services under the proposed contract will be provided to Indian
children within the jurisdiction of two or more Area Offices, the
completed application shall be submitted to the Commissioner through the
respective Area Offices.
Sec. 273.27 Central Office review and decision.
Upon receiving a contract application, the Commissioner shall:
(a) Notify the applicant in writing that the application has been
received. This notice shall be made within fourteen (14) days after the
Central Office receives the application.
(b) Review the application for completeness and request within 20
days any additional information from the
[[Page 684]]
applicant which will be needed to reach a decision.
(c) On receiving an application for operational support, make formal
written determination and findings supporting the need for such funds.
In arriving at such a determination, the Commissioner must be assured
that each local education agency has made a good faith effort in
computing State and local contributions without regard to funds
requested pursuant to this part.
(d) Assess the completed application to determine if the contract
proposal is feasible and if the proposal and the application comply with
the appropriate requirements of the Johnson-O'Malley Act and of the
regulations in this part.
(e) Approve or disapprove the application after fully reviewing and
assessing the application and any additional information submitted by
the applicant.
(f) Promptly notify the applicant in writing of the decision to
approve or disapprove the application. If the application is
disapproved, the notice will give the reasons for disapproval and the
applicant's right to appeal pursuant to part 2 of this chapter.
Sec. 273.28 Deadline for Central Office action.
(a) The Commissioner shall approve or disapprove an application for
a contract within sixty (60) days after the Central Office receives the
application, and any additional Information requested in Sec.
273.27(b). The sixty (60) day deadline can be extended after obtaining
the written consent of the applicant.
(b) An application under this part cannot be approved before
February 1 preceding the school year for which the contract will be let.
Sec. 273.29 Negotiating the contract.
After the proposal for a contract has been approved by the Area
Director or Commissioner as provided in Sec. 273.22, the contract will
be negotiated by a Bureau contracting officer assisted by Bureau
education personnel.
Subpart C_Funding Provisions
Sec. 273.31 Distribution formula.
(a) Funds shall be distributed to eligible contractors based upon
the number of eligible Indian students to be served times twenty-five
(25%) percent of the higher of the State or national average per pupil
operating cost. Notwithstanding any other provisions of the law, Federal
funds appropriated for the purpose shall be allotted pro rata in
accordance with the distribution method outlined in this formula.
(b) The Assistant Secretary may make exceptions to the provisions of
paragraph (a) of this section based on the special cultural, linguistic,
social or educational needs of the communities involved including the
actual cost of education in the community only after consultation with
all tribes who may be affected by such exceptions.
(25 U.S.C. 452-456; sec. 202, Pub. L. 93-638, 88 Stat. 2203, and Pub. L.
95-561, sec. 1102 (a) and (b))
[45 FR 9241, Feb. 11, 1980]
Sec. 273.32 Pro rata requirement.
All monies provided by a contract pursuant to this part, shall be
expended only for the benefit of eligible Indian students. Where
students other than eligible Indian students participate in programs
contracted under this part, money expended under such contract shall be
prorated to cover the participation of only the eligible Indian
students, except where the participation of non-eligible students is so
incidental as to be de minimus. Such de minimus participation must be
approved by the Indian Education Committee.
Sec. 273.33 Use of funds for operational support.
All funds for school operational support shall be used to meet
established State educational standards or State-wide requirements.
Sec. 273.34 Use of other Federal, State and local funds.
(a) Contract funds under this part shall supplement, and not
supplant, Federal, State and local funds. Each
[[Page 685]]
contract shall require that the use of these contract funds will not
result in a decrease in State, local, or Federal funds which would be
made available for Indian students if there were no funds under this
part.
(b) State, local and other Federal funds must be used to provide
comparable services to non-Indian and Indian students prior to the use
of contract funds.
(c) Except as hereinafter provided, the school lunch program of the
United States Department of Agriculture (USDA) shall constitute the only
federally-funded school lunch program for Indian students in public
schools. Where Indian students do not qualify to receive free lunches
under the National School Lunch Program of USDA because such students
are non-needy and do not meet the family size and income guidelines for
free USDA lunches, plans prepared pursuant to Sec. 273.18 may provide,
to the extent of funding available for Johnson-O'Malley programs, for
free school lunches for those students who do not qualify for free USDA
lunches but who are eligible students under Sec. 273.12.
[47 FR 57275, Dec. 23, 1982]
Sec. 273.35 Capital outlay or debt retirement.
In no instance shall contract funds provided under this part be used
as payment for capital outlay or debt retirement expenses; except that,
such costs are allowable if they are considered to be a part of the full
per capita cost of educating eligible Indian students who reside in
Federal boarding facilities for the purpose of attending public schools.
Sec. 273.36 Eligible subcontractors.
No contract funds under the Johnson-O'Malley Act shall be made
available by the Bureau directly to other than tribal organizations,
States, school districts and Indian corporations. However, tribal
organizations, States, school districts, and Indian corporations
receiving funds under this part may use the funds to subcontract for
necessary services with any appropriate individual, organization or
corporation.
Sec. 273.37 Use of funds outside of schools.
Nothing in these regulations shall prevent the Commissioner from
contracting with Indian corporations who will expend all or part of the
funds in places other than the public or private schools in the
community affected.
Sec. 273.38 Equal quality and standard of education.
Contracts with State education agencies or school districts
receiving funds under the provisions of this part shall provide
educational opportunities to all Indian children within that school
district on the same terms and under the same conditions that apply to
all other students provided that it will not affect the rights of
eligible Indian children to receive benefits from the supplemental
programs as provided for in this part. School districts receiving funds
under this part must insure that Indian children receive all aid from
the State, and other proper sources other than this contract, which
other schools in the district and other school districts similarly
situated in the State are entitled to receive. In no instance shall
there be discrimination against Indians or schools enrolling such
Indians.
Subpart D_General Contract Requirements
Sec. 273.41 Special program provisions to be included in contract.
All contracts under this part shall contain the following:
(a) The education plan required by Sec. Sec. 273.14 and 273.18 and,
as part of the education plan, the education programs approved by the
Indian Education Committee(s) under Sec. 273.17.
(b) Any formal written determination and findings made by the Area
Director or Commissioner supporting the need for operational support as
required by Sec. Sec. 273.24(c) and 273.27(c).
(c) The provision that State, local, and other Federal Funds shall
be used to provide comparable services to non-Indian and Indian students
prior to the use of Johnson-O'Malley funds for the provision of
supplementary program services to Indian children, as required in Sec.
273.34(b).
[[Page 686]]
Sec. 273.42 Civil Rights Act violations.
In no instance shall there be discrimination against Indians or
schools enrolling such Indians. When informed by a complainant or
through its own discovery that possible violation of title VI of the
Civil Rights Act of 1964 exists within a State school district receiving
funds under this part, the Department of the Interior shall, in
accordance with Federal requirements, notify the Department of Health,
Education, and Welfare of the possible violation of title VI. The
Department of Health, Education, and Welfare will conduct an
investigation into the matters alleged, pursuant to a Memorandum of
Understanding between the Department of the Interior and the Department
of Health, Education, and Welfare. If the report of the investigation
conducted by the Department of Health, Education, and Welfare discloses
a failure or threatened failure to comply with this part, and if the
non-compliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to contract or to continue financial assistance under the Johnson-
O'Malley Act or by any other means authorized by law. As delineated in
43 CFR 17.1, 17.8, and 17.9, such other means may include reference to
the Department of Justice with a recommendation that appropriate legal
proceedings be brought by the United States to secure compliance or by
formal hearing before the Commissioner or, at his discretion, before an
administrative law judge designated in accordance with section 11 of the
Administrative Procedure Act. The Secretary, may, by agreement with one
or more other Federal departments, provide for the conduct of
consolidated or joint hearings as prescribed in 43 CFR 17.8(e).
Sec. 273.43 Advance payments.
Advance payments to States, school districts and Indian corporations
will be made in accordance with the applicable provisions of 41 CFR part
1 as supplemented by 41 CFR part 14 and 41 CFR part 14H except 41 CFR
part 14H-70.
Sec. 273.44 Use and transfer of Government property.
(a) The use of Government-owned facilities for school purposes may
be authorized when not needed for Government activities. Transfer of
title to such facilities (except land) may be arranged under the
provisions of the Act of June 4, 1953 (67 Stat. 41) subject to the
approval of the tribal government if such property is located on a
reservation.
(b) In carrying out a contract made under this part, the Area
Director or Commissioner may, with the approval of the tribal
government, permit a contractor to use existing buildings, facilities,
and related equipment and other personal property owned by the Bureau
within his jurisdiction under terms and conditions agreed upon for their
use and maintenance. The property at the time of transfer must conform
to the minimum standards established by the Occupational Safety and
Health Act of 1970 (84 Stat. 1590), as amended (29 U.S.C. 651). Use of
Government property is subject to the following conditions:
(1) When nonexpendable Government property is turned over to public
school authorities or Indian corporations under a use permit, the
permittee shall insure such property against damage by flood, fire, rain
windstorm, vandalism, snow, and tornado in amounts and with companies
satisfactory to the Federal officer in charge of the property. In case
of damage or destruction of the property by flood, fire, rain,
windstorm, vandalism, snow or tornado, the insurance money collected
shall be expended only for repair or replacement of property. Otherwise,
insurance proceeds shall be paid to the Bureau.
(2) If the public school authority is self-insured and can present
evidence of that fact to the Area Director or Commissioner, insurance
for lost or damaged property will not be required. However, the public
school authority will be responsible for replacement of such lost or
damaged property at no cost to the Government or for paying the
Government enough to replace the property.
(3) The permittee shall maintain the property in a reasonable state
of repair
[[Page 687]]
consistent with the intended use and educational purposes.
(c) The contractor may have access to existing Bureau records needed
to carry out a contract under this part, as follows:
(1) The Bureau will make the records available subject to the
provisions of the Freedom of Information Act (5 U.S.C. 552), as amended
by the Act of November 21, 1974 (Pub. L. 93-502, 88 Stat. 1561).
(2) The contractor may have access to needed Bureau records at the
appropriate Bureau office for review and making copies of selected
records.
(3) If the contractor needs a small volume of identifiable Bureau
records, the Bureau will furnish the copies to the contractor.
Sec. 273.45 Indian preference.
(a) Any contract made by the Bureau with a State, school district or
Indian corporation shall provide that the contractor shall, to the
greatest extent feasible, give preference in and opportunities for
employment and training to Indians.
(b) Any contract made by the Bureau with a State, school district or
Indian corporation shall provide that the contractor shall, to the
greatest extent feasible, give preference in the award of subcontracts
to Indian organizations and Indian-owned economic enterprises.
(c) All subcontractors employed by the contractor shall, to the
extent possible, give preference to Indians for employment and training
and shall be required to include in their bid submission a plan to
achieve maximum use of Indian personnel.
(d) In the performance of contracts under this part 273 and subject
to the provisions of part 14H of title 41, a tribal governing body may
develop its own Indian preference requirements to the extent that such
requirements are not inconsistent with the purpose and intent of
paragraphs (a), (b) and (c) of this section.
Sec. 273.46 Liability and motor vehicle insurance.
(a) States, school districts and Indian corporations shall obtain
public liability insurance under contracts entered into with the Bureau
under this part. However, where the Bureau contracting officer
determines that the risk of death, personal injury or property damage
under the contract is small and that the time and cost of procuring the
insurance is great in relation to the risk, the contractor may be
exempted from this requirement.
(b) Notwithstanding paragraph (a) of this section, any contract
which requires or authorizes, either expressly or by implication, the
use of motor vehicles must contain a provision requiring the State,
school district, or Indian corporation to provide liability insurance,
regardless of now small the risk.
(c) If the public school authority is self-insured and can present
evidence of that fact to the Area Director or Commissioner, liability
and motor vehicle insurance will not be required.
Sec. 273.47 Recordkeeping.
A contractor will be required to maintain a recordkeeping system
which will allow the Bureau to meet its legal records program
requirements under the Federal Records Act (44 U.S.C. 3101 et seq.).
Such a record system shall:
(a) Fully reflect all financial transactions involving the receipt
and expenditure of funds provided under the contract in a manner which
will provide accurate, current and complete disclosure of finanical
status; correlation with budget or allowable cost schedules; and clear
audit facilitating data.
(b) Reflect the amounts and sources of funds other than Bureau
contract funds which may be included in the operation of the contract.
(c) Provide for the creation, maintenance and safeguarding of
records of lasting value, including those involving individual rights,
such as permanent records and transcripts.
(d) Provide for the orderly retirement of permanent records in
accordance with General Records Schedules and the Bureau Records Control
Schedule, when there is no established system set up by the State,
school district, or Indian corporation.
[[Page 688]]
Sec. 273.48 Audit and inspection.
(a) During the term of a contract under this part and for three
years after the project or undertaking is completed, the Comptroller
General and the Secretary, or any of their duly authorized
representatives, shall have access, for audit and examination purposes,
to any of the contractor's books, documents, papers, and records which,
in their opinion, may be related or pertinent to the contract or any
subcontract.
(b) The contractor will be responsible for maintaining all documents
such as invoices, purchase orders, canceled checks, balance sheets and
all other records relating to financial transactions in a manner which
will facilitate auditing. The contractor will be responsible for
maintaining files of correspondence and other documents relating to the
administration of the contract properly separated from general records
or cross-referenced to general files.
(c) The contractor receiving funds under this part shall be
responsible for contract compliance.
(d) The records involved in any claim or expenditure that has been
questioned shall be further maintained until final determination has
been made on the questioned expenditures.
(e) All contracts, non-confidential records concerning all students
served by the program, reports, budgets, budget estimates, plans, and
other documents pertaining to preceding and current year administration
of the contract program shall be made available by the contractor and
local school officials to each member of the Indian Education Committee
and to members of the public upon request. The contractor or local
school official shall provide, free of charge, single copies of such
documents upon request.
Sec. 273.49 Freedom of information.
(a) Unless otherwise required by law, the Bureau shall not place
restrictions on contractors which will limit public access to the
contractor's records except when records must remain confidential.
(b) A contractor under this part shall make all reports and
information concerning the contract available to the Indian people which
the contract affects. Reports and information may be withheld from
disclosure only when both of the following conditions exist:
(1) The reports and information fall within one of the following
exempt categories:
(i) Specifically required by statute or Executive Order to be kept
secret.
(ii) Commercial or financial information obtained from a person or
firm on a privileged or confidential basis.
(iii) Personnel, medical, social, psychological, academic
achievement and similar files where disclosure would be a clearly
unwarranted invasion of personal privacy.
(2) Disclosure is prohibited by statue or Executive Order or sound
grounds exist for using the exemption given in paragraph (b)(1) of this
section.
(c) A request to inspect or copy reports and information shall be in
writing and must reasonably describe the reports and information
requested. The request may be delivered or mailed to the contractor.
Within ten (10) working days after receiving the request, the contractor
shall determine whether to grant or deny the request. The requester
shall be notified immediately of the determination.
(d) The time limit for making a determination may be extended up to
an additional ten (10) working days for good reason. The requester shall
be notified in writing of the extension, reasons for the extension, and
date on which the determination is expected to be made.
Sec. 273.50 Annual reporting.
(a) A contractor under this part shall make a detailed annual report
to the approving official before September 15 of each year and covering
the previous school year. The report shall include, but not be limited
to, an accounting of the amounts and purposes for which the contract
funds were expended, information on the conduct of the program, a
quantitative evaluation of the effectiveness of the contract program in
meeting the stated objectives contained in the applicant's educational
plans, and a complete accounting of actual receipts at the end of the
contract period.
[[Page 689]]
(b) In addition to the yearly reporting requirement given in
paragraph (a) of this section, the contractor shall furnish other
contracted-related reports when and as required by the Area Director or
Commissioner.
(c) A contractor under this part shall send copies of the reports
required by paragraphs (a) and (b) of this section to the Indian
Education Committee(s) and to the tribe(s) under the contract at the
same time as the reports are sent to the Bureau.
Sec. 273.51 Penalties.
If any officer, director, agent, or employee of, or connected with,
any contractor or subcontractor under this part embezzles, willfully
misapplies, steals, or obtains by fraud any of the funds or property
connected with the contract or subcontract, he shall be subject to the
following penalties:
(a) If the amount involved does not exceed $100, he shall be fined
not more than $1,000 or imprisoned not more than one year, or both.
(b) If the amount involved exceeds $100, he shall be fined not more
than $10,000 or imprisoned for not more than two years, or both.
Sec. 273.52 State school laws.
In those States where Pub. L. 83-280, 18 U.S.C. 1162 and 28 U.S.C.
1360 do not confer civil jurisdiction, State employees may be permitted
to enter upon Indian tribal lands, reservations, or allotments if the
duly-constituted governing body of the tribe adopts a resolution of
consent for the following purposes:
(a) Inspecting school conditions in the public schools located on
Indian tribal lands, reservations, or allotments.
(b) Enforcing State compulsory school attendance laws against Indian
children, parents or persons standing in loco parentis.
Sec. 273.53 Applicable procurement regulations.
States, school districts, or Indian corporations wanting to contract
with the Bureau under this part must comply with the applicable
requirements in the Federal Procurement Regulations (41 CFR part 1), as
supplemented by the Interior Procurement Regulations (41 CFR part 14),
and the Bureau of Indian Affairs Procurement Regulations (41 CFR part
14H), except 41 CFR part 14H-70.
Sec. 273.54 Privacy Act requirements.
(a) When a contractor operates a system of records to accomplish a
Bureau function, the contractor shall comply with subpart D of 43 CFR
part 2 which implements the Privacy Act (5 U.S.C. 552a). Examples of the
contractor's responsibilities are:
(1) To continue maintaining those systems of records declared by the
Bureau to be subject to the Privacy Act as published in the Federal
Register.
(2) To make such records available to individuals involved.
(3) To disclose an individual's record to third parties only after
receiving permission from the individual to whom the record pertains. 43
CFR 2.56 lists exceptions to this procedure.
(4) To establish a procedure to account for access, disclosures,
denials, and amendments to records.
(5) To provide safeguards for the protection of the records.
(b) The contractor may not:
(1) Discontinue or alter any established systems of records without
prior approval of the appropriate Bureau systems manager.
(2) Deny requests for notification or access of records without
prior approval of the appropriate Bureau systems manager.
(3) Approve or deny requests for amendments of records without prior
approval of the appropriate Bureau systems manager.
(4) Establish a new system of records without prior approval of the
Department of Interior and the Office of Management and Budget.
(5) Collect information about an individual unless it is relevant or
necessary to accomplish a purpose of the Bureau as required by statue or
Executive Order.
(c) The contractor is subject to the penalties provided in section
(i) of 5 U.S.C. 552a.
[[Page 690]]
Subpart E_Contract Revision or Cancellation
Sec. 273.61 Contract revision or amendment.
Any contract made under this part may be revised or amended as
deemed necessary to carry out the purposes of the program being
contracted. A contractor may make a written request for a revision or
amendment of a contract to the Bureau contracting officer. However, no
program approved by the Indian Education Committee shall be altered from
the time of its original approval to the end of the contract period
without the written approval of the Committee.
Sec. 273.62 Cancelling a contract for cause.
(a) Any contract entered into under this part may be cancelled for
cause when the contractor fails to perform the work called for under the
contract or fails to permit an Indian Education Committee to perform its
duties pursuant to this part.
(b) Before cancelling the contract, the Bureau will advise the
contractor in writing of the following:
(1) The reasons why the Bureau is considering cancelling the
contract.
(2) The contractor will be given an opportunity to bring its work up
to an acceptable level.
(c) If the contractor does not overcome the deficiencies in its
contract performance, the Bureau shall cancel the contract for cause.
The Bureau will notify the contractor, in writing, of the cancellation.
The notice shall give the reasons for the cancellation and the right of
the contractor to appeal under subpart C of 43 CFR part 4.
(d) When a contract is cancelled for cause, the Bureau will attempt
to perform the work by another contract.
(e) Any contractor that has a contract cancelled for cause must
demonstrate that the cause(s) which led to the cancellation have been
remedied before it will be considered for another contract.
Subpart F_Appeals
Sec. 273.71 Contract appeal.
A contractor may appeal an adverse decision or action of a Bureau
contracting officer regarding a contract under this part as provided in
subpart C of 43 CFR part 4.
Sec. 273.72 Appeal from decision to cancel contract for cause.
A contractor may appeal the decision of a Bureau official to cancel
a contract under this part for cause. The appeal shall be made as
provided in subpart C of 43 CFR part 4.
Sec. 273.73 Other appeals.
Any decision or action taken by a Bureau official under this part,
other than those given in Sec. Sec. 273.71 and 273.72, may be appealed
as provided in part 2 of this chapter.
PART 275_STAFFING--Table of Contents
Sec.
275.1 Purpose and scope.
275.2 Definitions.
275.3 Methods for staffing.
275.4 Implementing regulations.
Authority: Sec. 502, Pub. L. 91-648, 84 Stat. 1909, 1925 (42 U.S.C.
4762); Sec. 105, Pub. L. 93-638, 88 Stat. 2203, 2208-2210 (25 U.S.C.
450i); 26 U.S.C. 48.
Source: 40 FR 51316, Nov. 4, 1975, unless otherwise noted.
Sec. 275.1 Purpose and scope.
The purpose of this part is to outline methods available to tribes
for utilizing the services of Bureau employees. These regulations are
not intended to prevent an Indian tribe or tribal organization from
staffing their programs by other methods they feel appropriate. However,
when an Indian tribe or tribal organization decides to provide Bureau
employees certain Federal benefits, Civil Service Commission regulations
must be adhered to.
Sec. 275.2 Definitions.
As used in this part:
(a) Act means the Indian Self-Determination and Education Assistance
Act (Pub. L. 93-638, 88 Stat. 2203).
[[Page 691]]
(b) Area Director means the official in charge of a Bureau of Indian
Affairs Area Office.
(c) Bureau means the Bureau of Indian Affairs.
(d) Commissioner means the Commissioner of Indian Affairs, under the
direction and supervision of the Assistant Secretary--Indian Affairs,
who is responsible for the direction of the day-to-day operations of the
Bureau of Indian Affairs.
(e) Days means calendar days.
(f) Indian tribe means any Indian tribe, band, nation, rancheria,
pueblo, colony, or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
federally recognized as eligible by the U.S. Government through the
Secretary for the special programs and services provided by the
Secretary to Indians because of their status as Indians.
(g) Indian means a person who is a member of an Indian tribe.
(h) Superintendent means the official in charge of a Bureau of
Indian Affairs Agency Office.
(i) Tribal Chairman means tribal chairman, governor, chief or other
person recognized by the tribal government as its chief executive
officer.
(j) Tribal government, tribal governing body, and tribal council
means the recognized governing body of any Indian tribe.
(k) Tribal organization means the recognized governing body of any
Indian tribe; or any legally established organization of Indians or
tribes which is controlled, sanctioned, or chartered by such governing
body or bodies 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.
(l) Assistant Secretary--Indian Affairs means the Assistant
Secretary--Indian Affairs who discharges the authority and
responsibility of the Secretary for activities pertaining to Indians and
Indian affairs.
[40 FR 51316, Nov. 4, 1975, as amended at 43 FR 37446, Aug. 23, 1978; 45
FR 13452, Feb. 29, 1980]
Sec. 275.3 Methods for staffing.
(a) An Indian tribal organization may use any of the following three
methods to employ or obtain the services of Bureau employees:
(1) Agreement in accordance with the Intergovernmental Personnel Act
of 1970 (5 U.S.C. 3371-3376). The agreement may be arranged between the
tribal organization, the employee, and the Area Director or
Commissioner. Assistance will be provided by the Area Personnel Office
in complying with Civil Service instructions (Federal Personnel Manual,
chapter 334) for completing an agreement.
(2) Employment of Bureau employees on or before December 31, 1985,
when serving under an appointment not limited to one year or less. A
mutual agreement will be made between a tribal organization and the
employee before leaving Federal employment to retain coverage for any of
the following Federal benefits:
(i) Compensation for work injuries.
(ii) Retirement.
(iii) Health insurance.
(iv) Life insurance.
(3) An agreement by an Indian tribe in accordance with the 1834 Act
(25 U.S.C. 48) may be made in connection with contracts under section
102 of the Act.
(i) The agreement may provide for the tribal government to direct
the day-to-day activities of Bureau employees. Tribal government
direction of Bureau employees means the tribal chairman or other tribal
official, as designated by the tribal governing body, is responsible for
the planning, coordination, and completion of the daily on-the-job
assignments of Bureau employees. The daily assignments of each such
Bureau employee are limited to those that fall within the general range
of duties prescribed in the employee's Bureau position.
(ii) The agreement to direct day-to-day activities of Bureau
employees shall include all employees:
[[Page 692]]
(A) Whose positions are in the program or portion of the program to
be contracted; or
(B) In a portion of the program to continue under Bureau operation
in connection with a contract for other portions of the program.
(iii) The proposed agreement will be worked out between the tribe,
the Superintendent, and the Area Director and forwarded to the
Commissioner for final approval.
(b) When a contract application under part 900 of this chapter does
not include a proposed agreement for direction of Bureau employees, the
application must be submitted at least 120 days in advance of the
proposed effective date of the contract to allow time for placement of
affected employees.
[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5098, Feb. 4, 1976; 64
FR 13896, Mar. 23, 1999]
Sec. 275.4 Implementing regulations.
Regulations to implement section 105 of the Act will be issued by
the Civil Service Commission. The regulations will cover the situations
described in paragraphs (a)(1) and (a)(2) of Sec. 275.3.
PART 276_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS--Table of Contents
Sec.
276.1 Purpose and scope.
276.2 Definitions.
276.3 Cash depositories.
276.4 Bondings and insurance.
276.5 Recordkeeping.
276.6 Program income.
276.7 Standards for grantee financial management systems.
276.8 Financial reporting requirements.
276.9 Monitoring and reporting program performances.
276.10 Grant payment requirements.
276.11 Property management standards.
276.12 Procurement standards.
276.13 Indian preference in grant administration.
276.14 Budget revision.
276.15 Grant closeout.
276.16 Subgrants and subcontracts to nonprofit organizations.
276.17 Printing.
Appendix A to Part 276--Principles for Determining Costs Applicable to
Grants
Appendix B to Part 276--Financial Reporting Requirements
Authority: 34 CFR 256; Sec. 104, Pub. L. 93-638, 88 Stat. 2203, 2207
(25 U.S.C. 450h).
Source: 40 FR 51316, Nov. 4, 1975, unless otherwise noted.
Sec. 276.1 Purpose and scope.
(a) The purpose of the regulations in this part is to give the
uniform administrative requirements for grants awarded by the Bureau of
Indian Affairs.
(b) The regulations in this part shall apply to all grants awarded
by the Bureau of Indian Affairs unless the part which gives the
application process and special requirements for the specific type of
grant states otherwise.
Sec. 276.2 Definitions.
As used in this part:
(a) Advance by Treasury check means a payment made by a Treasury
check to a grantee upon its request or through the use of predetermined
payment schedules before payments are made by the grantee.
(b) Date of completion means the date when all work under a grant is
completed or the date in the grant award document, or any supplement or
amendment thereto, on which Federal assistance ends.
(c) Disallowed costs means those charges to a grant which the Bureau
or its representative determines to be unallowable.
(d) Economic enterprise means any commercial, industrial,
agricultural or business activity that is at least 51 percent Indian
owned, established or organized for the purpose of profit.
(e) Excess property means property under the control of the Bureau
which, as determined by the Commissioner, is no longer required for its
needs.
(f) Expendable personal property means all tangible personal
property other than nonexpendable property.
(g) Grant closeout means the process by which the Bureau determines
that all applicable administrative actions and all required work of the
grant have been completed by the grantee and the Bureau.
(h) Grantee means the entity which is responsible for administration
of the grant.
(i) Indian tribe means any Indian tribe, band, nation, rancheria,
pueblo,
[[Page 693]]
colony or community, including any Alaska Native village or regional or
village corporation as defined in or established pursuant to the Alaska
Native Claims Settlement Act (85 Stat. 688) which is federally
recognized as eligible by the United States Government through the
Secretary for the special programs and services provided by the
Secretary to Indians because of their status as Indians.
(j) Letter of credit means an instrument certified by an authorized
official of the Bureau which authorizes a grantee to draw funds when
needed from the Treasury, through a Regional Disbursing Office, in
accordance with the provisions of Treasury Circular No. 1075 as modified
and supplemented by a memorandum of understanding between the Bureau of
Government Financial Operation, Department of the Treasury and the
Department of the Interior.
(k) Nonexpendable personal property means tangible personal property
having useful life of more than one year and an acquisition cost of $300
or more per unit. A grantee may use its own definition of nonexpendable
personal property provided that such definition would at least include
all tangible personal property as defined above.
(l) Personal property means property of any kind except real
property. It may be tangible--having physical existence, or intangible--
having no physical existence, such as patents, inventions, and
copyrights.
(m) Real property means land, land improvements, structures and
appurtenances thereto, excluding removable personal property, machinery
and equipment.
(n) Reimbursement by Treasury check means a payment made to a
grantee with a Treasury check upon request for reimbursement from the
grantee.
(o) Suspension of a grant means an action by the Bureau which
temporarily suspends assistance under the grant pending corrective
action by the grantee or pending decision to terminate the grant by the
Bureau.
(p) Termination of a grant means the cancellation of Federal
assistance, in whole or in part, under a grant at any time prior to the
date of completion.
(q) Tribal government, tribal governing body, and tribal council
means the recognized governing body of an Indian tribe.
(r) Tribal organization means the recognized governing body of any
Indian tribe or any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or bodies of
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.
Sec. 276.3 Cash depositories.
(a) Except for situations described in paragraphs (b) and (c) of
this section, the Bureau will not:
(1) Require physical segregation of cash depositories for Bureau
grant funds provided to a grantee.
(2) Establish any eligibility requirements for cash depositories in
which Bureau grant funds are deposited by grantees or their subgrantees.
(b) A separate bank account shall be used when payments under letter
of credit are made on a ``check-paid'' basis in accordance with
agreements entered into by a grantee, the Bureau, and the banking
institutions involved. A check-paid basis letter of credit is one under
which funds are not drawn from the Treasury until the grantee's checks
have been presented to its bank for payment.
(c) Consistent with the national goal of expanding the opportunities
for minority business enterprises, grantees are encouraged to use
minority banks.
Sec. 276.4 Bondings and insurance.
In administering Bureau grants, grantees shall observe their regular
requirements and practices with respect to bonding and insurance. The
Bureau will not impose additional bonding and insurance requirements,
including fidelity bonds, except as provided in paragraphs (a) and (b)
of this section.
(a) The recipient of a Bureau grant which requires contracting for
construction or facility improvement (including any Bureau grant which
provides for alterations or renovations of real property) shall follow
its own requirements and practices relating to
[[Page 694]]
bid guarantees, performance bonds, and payment bonds except for
contracts exceeding $100,000. For contracts exceeding $100,000, the
minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The bid guarantee shall consist of a firm commitment such
as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.
(2) A performance bond on the part of the contractor for 100 percent
of the contract price. A performance bond is one executed in connection
with a contract to secure fulfillment of all the contractor's
obligations under the contract.
(3) A payment bond on the part of the contractor for 100 per cent of
the contract price. A payment bond is one executed in connection with a
contract to assure payment as required by law of all persons supplying
labor and material in the execution of the work provided for in the
contract.
(b) Where, in connection with a Bureau grant, the Bureau also
guarantees the payment of money borrowed by the grantee, the Bureau may
at its discretion require adequate bonding and insurance if the bonding
and insurance requirements of the grantee are not deemed to be
sufficient to protect adequately the interests of the Federal
Government.
Sec. 276.5 Recordkeeping.
(a) The Bureau shall not impose record retention requirements over
and above those established by the grantee except that financial
records, supporting documents, statistical rec ords, and all other
records pertinent to a Bureau grant, or to any subgrant (or negotiated
contract exceeding $2500) under a grant, shall be retained for a period
of three years, with the following qualifications:
(1) The records shall be retained beyond the three-year period if
audit findings have not been resolved.
(2) Records for nonexpendable property which was acquired with
Bureau grant funds shall be retained for three years after its final
disposition.
(3) When grant records are transferred to or maintained by the
Bureau, the three-year retention requirement is not applicable to the
grantee.
(b) The retention period starts from the date of submission of the
final expenditure report or, for grants which are renewed annually, from
the date of the submission of the annual expenditure report.
(c) Grantees are authorized, if they desire, to substitute microfilm
copies in lieu of original records.
(d) The Bureau shall request transfer of certain records to its
custody from grantees when it determines that the records possess long-
term retention value. However, in order to avoid duplicate recordkeeping
the Bureau may make arrangements with the grantee for the grantee to
retain any records which are continuously needed for joint use.
(e) The Secretary of the Interior and the Comptroller General of the
United States, or any of their duly authorized representatives shall
have access to any books, documents, papers, and records of the grantees
and their subgrantees which are pertinent to a specific grant program
for the purpose of making audit, examination, excerpts, transcripts and
copies at government expense.
(f) Unless otherwise required by law, the Bureau shall not place
restrictions on grantees which will limit public access to the grantee's
records created as part of the grant except when rec ords must remain
confidential. Following are some of the reasons for withholding records:
(1) Prevent a clearly unwarranted invasion of personal privacy;
(2) Specifically required by statute or Executive Order to be kept
secret;
(3) Commercial or financial information obtained from a person or
firm on a privileged or confidential basis.
Sec. 276.6 Program income.
(a) No grantee receiving a grant shall be held accountable for
interest earned on grant funds, pending their disbursement for program
purposes.
(b) Proceeds from the sale of real or personal property, either
provided by
[[Page 695]]
the Federal Government or purchased in whole or in part with Federal
funds, shall be handled in accordance with Sec. 276.11.
(c) Royalties received from copyrights and patents produced under
the grant during the grant period shall be retained by the grantee and,
in accordance with the grant agreement, be either added to the funds
already committed to the program or deducted from total allowable
project costs for the purpose of determining the net costs on which the
Bureau share of costs will be based. After termination or completion of
the grant, the Bureau share of royalties in excess of $200 received
annually shall be returned to the Bureau in the absence of other
specific agreements between the Bureau and the grantee. The Bureau share
of royalties shall be computed on the same ratio basis as the Bureau
share of the total project cost.
(d) All other program income earned during the grant period shall be
retained by the grantee and, in accordance with the grant agreement,
shall be either:
(1) Added to funds committed to the project by the Bureau and the
grantee and be used to further eligible program objectives, or
(2) Deducted from the total project costs for the purpose of
determining the net costs on which the Bureau share of costs will be
based.
(e) Grantees shall record the receipt and expenditures of revenues
(such as taxes, special assessments, levies, fines, etc.) as a part of
grant project transactions when such revenues are specifically earmarked
for a grant project in accordance with grant agreements.
Sec. 276.7 Standards for grantee financial management systems.
(a) Grantee financial management systems for grants and subgrantee
financial management systems for subgrants shall provide for:
(1) Accurate, current, and complete disclosure of the financial
results of each grant program in accordance with Federal reporting
requirements and for each subgrant in accordance with the grantees'
requirements. Except when specifically required by law, the Bureau wll
not require financial reporting on the accrual basis from tribal
organizations whose rec ords are not maintained on that basis. However,
when accrual reporting is required by law, tribal organizations whose
records are not maintained on that basis will not be required to convert
their accounting systems to the accrual basis; they may develop the
accrual information through an analysis of the documentation on hand or
on the basis of best estimates.
(2) Records which identify adequately the source and application of
funds for grant--or subgrant--supported activities. These records shall
contain information pertaining to grant or subgrant awards and
authorizations, obligations, unobligated balances, assets, liabilities,
outlays, and income.
(3) Effective control over and accountability for all grant or
subgrant funds, and real and personal property acquired with grant or
subgrant funds. Grantees and subgrantees shall adequately safeguard all
such property and shall assure that it is used solely for authorized
purposes.
(4) Comparison of actual with budgeted amounts for each grant or
subgrant, and, when specifically required by the performance reporting
requirements of the grant or subgrant, relation of financial information
with performance or productivity data, including the production of unit
cost information.
(5) Procedures to minimize the time elapsing between the transfer of
funds from the U.S. Treasury and the disbursement by the grantee,
whenever funds are advanced by the Federal Government. When advances are
made by a letter-of-credit method, the grantees shall make drawdowns
from the U.S. Treasury as close as possible to the time of making the
disbursements. Subgrantees shall institute similar procedures when funds
are advanced by the grantee.
(6) Procedures for determining the allowability and allocability of
costs shall be in accordance with the applicable cost principles
prescribed in appendix A of this part.
(7) Accounting records which are supported by source documentation.
[[Page 696]]
(8) A systematic method to assure timely and appropriate resolution
of audit findings and recommendations.
(b) Grantees shall require subgrantees (recipients of grants which
are passed through by the grantee) to adopt all of the standards in
paragraph (a) of this section.
Sec. 276.8 Financial reporting requirements.
Requirements for grantees to report financial information to the
Bureau, and to request advances and reimbursment when a letter of credit
method is not used, are prescribed in appendix B of this part.
Sec. 276.9 Monitoring and reporting program performances.
(a) Grantees shall constantly monitor the performance under grant-
supported activities to assure that adequate progress is being made
toward achieving the goals of the grant. This review shall be made for
each program, function, or activity of each grant as set forth in the
approved grant application.
(b) Grantees shall submit a performance report for each grant which
briefly presents the following for each program, function, or activity
involved:
(1) A comparison of actual accomplishments to the goals established
for the period. Where the output of grant programs can be readily
quantified, such quantitative data should be related to cost data for
computation of unit costs.
(2) Reasons for slippage in those cases were established goals were
not met.
(3) Other pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(c) Grantees shall submit the performance reports to the Bureau with
the Financial Status Reports (prescribed in appendix B of this part) in
the frequency established by appendix B. The Bureau shall prescribe the
frequency with which the performance reports will be submitted with the
Request for Advance or Reimbursement (prescribed in appendix B) when
that form is used in lieu of the Financial Status Report. In no case
shall the performance reports be required more frequently than quarterly
or less frequently than annually.
(d) Between the required performance reporting dates, events may
occur which have significant impact upon the project or program. In such
cases, the grantee shall inform the Bureau as soon as the following
types of conditions become known:
(1) Problems, delays, or adverse conditions which will materially
affect the ability to attain program objectives, prevent the meeting of
time schedules and goals, or preclude the attainment of project work
units by established time periods. This disclosure shall be accomplished
by a statement of the action taken, or contemplated, and any Bureau
assistance needed to resolve the situation.
(2) Favorable developments or events which enable meeting time
schedules and goals sooner than anticipated or producing more work units
than originally projected.
(e) If any performance review conducted by the grantee discloses the
need for change in the budget estimates in accordance with the criteria
established in Sec. 276.14, the grantee shall submit a request for
budget revision.
(f) The bureau shall make site visits as frequently as practicable
to:
(1) Review program accomplishments and management control systems.
(2) Provide such technical assistance as may be required, or
requested.
Sec. 276.10 Grant payment requirements.
(a) Except for construction grants for which the letter-of-credit
method is optional, the letter-of-credit funding method shall be used by
the Bureau where all of the following conditions exist:
(1) When there is or will be a continuing relationship between a
grantee and the Bureau for at least a 12-month period and the total
amount of advances to be received within that period from the Bureau is
$120,000, or more, as prescribed by Treasury Circular No. 1075.
(2) When the grantee has established or demonstrated to the Bureau
the willingness and ability to establish procedures that will minimize
the time
[[Page 697]]
elapsing between the transfer of funds and their disbursement by the
grantee.
(3) When the grantee's financial management system meets the
standards for fund control and accountability prescribed in Sec. 276.7.
(b) The method of advancing funds by Treasury check shall be used,
in accordance with the provisions of Treasury Circular No. 1075, when
the grantee meets all of the requirements specified in paragraphs (a)(2)
and (3) of this section.
(c) The reimbursement by Treasury check method shall be the
preferred method when the grantee does not meet the requirements
specified in either paragraph (a)(2) or (a)(3), or both. This method may
also be used when the major portion of the program is accomplished
through private market financing or Federal loans, and when the Bureau
grant assistance constitutes a minor portion of the program.
(d) Unless otherwise required by law, the Bureau shall not withhold
payments for proper charges made by grantees at any time during the
grant period unless:
(1) A grantee has failed to comply with the program objectives,
grant award conditions, or Bureau reporting requirements; or
(2) The grantee is indebted to the United States and collection of
the indebtedness will not impair accomplishment of the objectives of any
grant program sponsored by the United States. Under such conditions, the
Bureau may, upon reasonable notice, inform the grantee that payments
will not be made for obligations incurred after a specified date until
the conditions are corrected or the indebtedness to the Federal
Government is liquidated.
(e) Appendix B of this part provides the procedures for requesting
advances or reimbursements.
[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5099, Feb. 4, 1976]
Sec. 276.11 Property management standards.
(a) Grantees may follow their own property management policies and
procedures if they observe the requirements of this section. With
respect to property covered by this section, the Bureau may not impose
on grantees any requirements (including property reporting
requirements)--not authorized by this part unless specifically required
by Federal law.
(b) Title to real property to be acquired in whole or in part from a
Bureau grant under part 900 of this chapter shall vest in one of the
following manners:
(1) Title may be taken by the United States in trust for the Indian
tribe upon the request of the tribe and when the real property to be
acquired is within the reservation boundaries or adjoins on at least two
sides other trust or restricted lands as prescribed in part 900 of this
chapter.
(2) Fee title to the acquired real property shall vest in the Indian
tribe whenever the acquisition does not meet the criteria in paragraph
(b)(1) of this section, unless for other reasons a tribe requests title
to be taken in the name of the United States. In the absence of
applicable statutory authority governing the disposition of real
property acquired by a tribe, the tribe shall use the real property for
the authorized purposes and in accordance with any other requirements
imposed by the terms and conditions of the original grant. Changes in
use compatible to other tribal programs may be authorized by the Bureau.
When no longer needed for the authorized purposes, the real property
shall be used in accordance with the standards set forth in Sec.
276.11(d)(1) for non-expendable personal property. Accordingly, the
following priority order for use of such property shall be:
(i) Other grants from the Bureau.
(ii) Grants from other Federal agencies.
(iii) Tribal purposes consistent with those authorized for support
by Bureau grants.
(iv) Tribal official activities.
(3) In those instances where the Indian tribe requests, title may be
acquired by the United States. Use of these acquired real property
interests will be subject to the authorized purposes and in accordance
with the provisions of the original grant. Upon a determination that the
real property is no longer needed for the authorized purposes,
disposition may be made by
[[Page 698]]
declaring it excess under provisions of the Act of January 2, 1975 (88
Stat. 1954) and title transferred to the Secretary to be held by the
United States in trust for the tribe. Where real property does not meet
the requirements under the Act of January 2, 1975 (88 Stat. 1954), the
tribe may elect to acquire title under applicable enabling statutory
authorities, or in the absence of statutory authority, request
withholding disposition in aid of legislation, or authorize disposal
under the General Services Administration procedures.
(c) The provisions of paragraphs (b)(2) and (3) of this section
shall also apply when real property is acquired in whole or in part by a
Bureau grant other than that provided under part 900 of this chapter.
However, when such property is acquired by a grantee other than an
Indian tribe, or a tribal governing body, fee simple title to the
property shall vest in the grantee upon acquisition. In the absence of
applicable statutory provisions governing the use or disposition of such
property, it shall be subject to the following requirments, in addition
to any other requirements imposed by the terms and conditions of the
grant:
(1) The grantee shall use the real property for the authorized
purpose of the original grant as long as needed.
(2) The grantee shall obtain approval by the Bureau for the use of
the real property in other projects when the grantee determines that the
property is no longer needed for the original grant purposes. Use in
other projects shall be limited to those under other Federal grant
programs, or programs that have purposes consistent with those
authorized for support by the grantor.
(3) When the real property is no longer needed as provided in
paragraphs (c)(1) and (2) of this section, the grantee shall return all
real property furnished or purchased wholly with Bureau grant funds to
the control of the Bureau. In the case of property purchased in part
with Bureau grant funds, the grantee may be permitted to take title to
the Federal interest therein upon compensating the Federal Government
for its fair share of the property. The Federal share of the property
shall be the amount computed by applying the percentage of the Federal
participation in the total cost of the grant program for which the
property was acquired to the current fair market value of the property.
(d) Standards and procedures governing ownership, use, and
disposition of nonexpendable personal property furnished by the Bureau
or acquired with Bureau funds are set forth below:
(1) Nonexpendable personal property acquired with Bureau funds. When
nonexpendable personal property is acquired by a grantee wholly or in
part with Bureau funds, title will not be taken by the Bureau except as
provided in paragraph (d)(1)(iv) of this section but shall be vested in
the grantee subject to the following restrictions on use and disposition
of the property:
(i) The grantee shall retain the property acquired with Bureau funds
in the grant program as long as there is a need for the property to
accomplish the purpose of the grant program whether or not the program
continues to be supported by Bureau funds. When there is no longer a
need for the property to accomplish the purpose of the grant program,
the grantee shall use the property in connection with the other Federal
grants it has received in the following order of priority:
(A) Other grants from the Bureau needing the property.
(B) Grants of other Federal agencies needing the property.
(ii) When the grantee no longer has need for the property in any of
its Federal grant programs, or programs that have purposes consistent
with those authorized for support by the grantor, the property may be
used for its own official activities in accordance with the following
standards:
(A) Nonexpendable property with an acquisition cost of less than
$500 and used four years or more. The grantee may use the property for
its own official activities without reimbursement to the Federal
government or sell the property and retain the proceeds.
(B) All other nonexpendable property. The grantee may retain the
property for its own use if a fair compensation is made to the Bureau
for the latter's share of the property. The amount of compensation shall
be computed by applying the percentage of
[[Page 699]]
Bureau participation in the grant program to the current fair market
value of the property.
(iii) If the grantee has no need for the property, disposition of
the property shall be made as follows:
(A) Nonexpendable property with an acquisition cost of $1,000 or
less. Except for that property which meets the criteria of paragraph
(d)(1)(ii)(A) of this section, the grantee shall sell the property and
reimburse the Bureau an amount which is computed in accordance with
paragraph (d)(1)(iii) of this section.
(B) Nonexpendable property with an acquisition cost of over $1,000.
The grantee shall request disposition instructions from the Bureau. The
Bureau shall determine whether the property can be used to meet the
Bureau's requirement. If no requirement exists within the Bureau, the
availability of the property shall be reported to the General Services
Administration (GSA) by the Bureau to determine whether a requirement
for the property exists in other Federal agencies. The Bureau shall
issue instructions to the grantee within 120 days and the following
procedures shall govern:
(1) If the grantee is instructed to ship the property elsewhere, the
grantee shall be reimbursed by the benefiting Federal agency with an
amount which is computed by applying the percentage of the grantee's
participation in the grant program to the current fair market value of
the property, plus any shipping or interim storage costs incurred.
(2) If the grantee is instructed to otherwise dispose of the
property, he shall be reimbursed by the Bureau of such costs incurred in
its disposition.
(3) If disposition instructions are not issued within 120 days after
reporting, the grantee shall sell the property and reimburse the Bureau
and amount which is computed by applying the percentage of Bureau
participation in the grant program to the sales proceeds. Further, the
grantee shall be permitted to retain $100 or 10 percent of the proceeds,
whichever is greater, for the grantee's selling and handling expenses.
(iv) Where the Bureau determines that property with an acquisition
cost of $1,000 or more and financed solely with Bureau funds is unique,
different, or costly to replace, it may reserve title to such property,
subject to the following provisions:
(A) The property shall be appropriately identified in the grant
agreement or otherwise made known to the grantee.
(B) The Bureau shall issue disposition instructions within 120 days
after the completion of the need for the property under the grant for
which it was acquired. If the Bureau fails to issue disposition
instructions within 120 days, the grantee shall apply the standards of
paragraphs (d)(1)(i), (d)(1)(ii)(B), and (d)(1)(iii)(B) of this section.
(2) Federally owned nonexpendable personal property. Unless
statutory authority to transfer title has been granted to an agency,
title to Federally owned property (property to which the Federal
Government retains title including excess property made available by the
Bureau to grantees) remains vested by law in the Federal Government.
Upon termination of the grant or need for the property, such property
shall be reported to the Bureau for further Bureau use or, if
appropriate, for reporting to the General Services Administration for
other Federal agency use. Appropriate disposition instructions will be
issued to the grantee after completion of Bureau review.
(e) The grantee's property management standards for nonexpendable
personal property shall also include the following procedural
requirements:
(1) Property records shall be maintained accurately and provide for
a description of the property; manufacturer's serial number or other
identification number; acquisition date and cost; source of the
property; percentage of Federal funds used in the purchase of property;
location, use, and condition of the property; and ultimate disposition
data including sales price or the method used to determine current fair
market value if the grantee reimburses the bureau for its share.
(2) A physical inventory of property shall be taken and the results
reconciled with the property records at least once every two years to
verify the
[[Page 700]]
existence, current use, and continued need for the property.
(3) A control system shall be in effect to insure adequate
safeguards to prevent loss, damage, or theft to the property. Any loss,
damage, or theft of nonexpendable property shall be investigated and
fully documented.
(4) Adequate maintenance procedures shall be implemented to keep the
property in good condition.
(5) Proper sales procedures shall be established for unneeded
property which would provide for competition to the extent practicable
and result in the highest possible return.
(f) When the total inventory value of any unused expendable personal
property exceeds $500 at the expiration of need for any grant purposes,
the grantee may retain the property or sell the property as long as he
compensates the Bureau for its share in the cost. The amount of
compensation shall be computed in accordance with paragraph
(d)(1)(ii)(B) of this section.
(g) Specific standards for control of intangible property are
provided as follows:
(1) If any program produces patentable items, patent rights,
processes, or inventions, in the course of work aided by a Bureau grant,
such fact shall be promptly and fully reported to the Bureau. Unless
there is prior agreement between the grantee and Bureau on disposition
of such items, the Bureau shall determine whether protection on such
invention or discovery shall be sought and how the rights in the
invention or discovery--including rights under any patent issued on it--
shall be allocated and administered in order to protect the public
interest consistent with ``Government Patent Policy'' (President's
memorandum for heads of executive departments and agencies), dated
August 23, 1971, and Statement of Government Patent Policy as printed in
36 FR 16889.
(2) Where the grant results in a book or other copyrightable
material, the author or grantee is eligible to copyright the work if it
is found that (i) the retention of the copyright is not precluded by
statute and (ii) equity or the public interest is best served by doing
so, by reason of special circumstances. If it is found that the public
interest is best served by limiting the term of any copyright to be
obtained, such limits shall be set forth in the grant agreement.
``Developmental'' copyrights may be requested during the development,
testing, or evaluation of copyrightable materials in order to prevent
them from prematurely falling into the public domain. The copyright will
be in accordance with copyright laws. However, the Government shall
receive a royalty-free, nonexclusive and irrevocable license to
reproduce, publish, or otherwise use, and to authorize others to use the
work for Government purposes. A copy of any copyright obtained by a
grantee shall be provided to the Bureau. Program income received as
royalties from copyrights on materials produced under grants is retained
by the grantee during the grant period and is to be used according to
the provisions of Sec. 276.6(c). Specific agreements between the Bureau
and the grantee shall be entered into before the grant is awarded to
determine the uses of the royalty income after the grant is completed or
terminated.
(h) The use of Bureau-owned facilities under the jurisdiction of the
Commissioner by a grantee for purposes of carrying out a grant may be
authorized when the facilities are not needed for Bureau purposes.
[40 FR 51316, Nov. 4, 1975, as amended at 43 FR 37446, Aug. 23, 1978; 64
FR 13897, Mar. 23, 1999]
Sec. 276.12 Procurement standards.
(a) The standards contained in this section do not relieve the
grantee of the contractual responsibilities arising under its contracts.
The grantee is the responsible authority, without recourse to the Bureau
regarding the settlement and satisfaction of all contractual and
administrative issues arising out of procurements entered into, in
support of a grant. This includes but is not limited to: disputes,
claims, protests of award, source evaluation or other matters of a
contractual nature. Matters concerning violation of law are to be
referred to the tribal, Federal or other authority which has proper
jurisdiction.
(b) Grantees may use their own procurement regulations provided that
procurements made with Bureau grant
[[Page 701]]
funds adhere to the standards set forth as follows:
(1) The grantee shall maintain a code or standards of conduct which
shall govern the performance of its officers, employees, or agents in
contracting with and expending Bureau grant funds. Grantee's officers,
employees or agents, shall neither solicit nor accept gratuities,
favors, or anything of monetary value from contractors or potential
contractors. To the extent permissible by law, rules or regulations,
such standards shall provide for penalties, sanctions, or other
disciplinary actions to be applied for violations of such standards by
either the grantee officers, employees, or agents, or by contractors or
their agents.
(2) All procurement transactions regardless of whether negotiated or
advertised and without regard to dollar value shall be conducted in a
manner so as to provide maximum open and free competition. The grantee
should be alert to organizational conflicts of interest or non-
competitive practices among contractors which may restrict or eliminate
competition or otherwise restrain trade. However, this provision will
apply only after the Indian preference requirements prescribed in Sec.
276.13 have been met.
(3) The grantee shall establish procurement procedures which provide
for, as a minimum, the following procedural requirements:
(i) Proposed procurement actions shall be reviewed by grantee
official to avoid purchasing unnecessary or duplicative items. Where
appropriate, an analysis shall be made of lease and purchase
alternatives to determine which would be the most economical, practical
procurement.
(ii) Invitations for bids or requests for proposals shall be based
upon a clear and accurate description of the technical requirements for
the material, product, or service to be procured. In competitive
procurements, such description shall not contain features which unduly
restrict competition. ``Brand name or equal'' description may be used as
a means to define the performance or other salient requirements of a
procurement. When so used, the specific features of the named brand
which must be met by offerors should be clearly specified.
(iii) Positive efforts shall be made by the grantees to use small
business and minority-owned business sources of supplies and services.
Such efforts should allow these sources the maximum feasible opportunity
to compete for contracts to be performed using Bureau grant funds.
However, this provision will apply only after the Indian preference
requirements prescribed in Sec. 276.13 have been met.
(iv) The type of procuring instruments used (i.e., fixed price
contracts, cost reimbursable contracts, etc.) shall be appropriate for
the particular procurement and for promoting the best interest of the
grant program involved. The ``cost-plus-a-percentage-of-cost'' method of
contracting shall not be used.
(v) Formal advertising, with adequate purchase description, sealed
bids, and public openings shall be the required method of procurement
unless negotiation pursuant to paragraph (b)(3)(vi) of this section is
necessary to accomplish sound procurement. However, procurement of
$10,000 or less need not be so advertised. Where such advertised bids
are obtained the awards shall be made to the responsible bidder whose
bid is responsive to the invitation and is most advantageous to the
grantee, price and other factors considered. (Factors such as discounts,
transportation costs, taxes may be considered in determining the lowest
bid.) Invitations for bids shall clearly set forth all requirements
which the bidder must fulfill in order for his bid to be evaluated by
the grantee. Any or all bids may be rejected when it is in the grantee's
interest to do so.
(vi) Procurements may be negotiated if it is impractical and
unfeasible to use formal advertising. Generally, procurements may be
negotiated by the grantee if:
(A) The public exigency will not permit the delay incident to
advertising;
(B) The material or service to be procured is available from only
one person or firm; (all contemplated sole source procurements where the
aggregate expenditure is expected to exceed $5,000 shall be referred to
the Bureau for prior approval).
[[Page 702]]
(C) The total amount involved does not exceed $10,000;
(D) The contract is for personal or professional services, or for
any service to be rendered by a university, college, or other
educational institutions;
(E) No acceptable bids have been received after formal advertising;
(F) The purchases are for highly perishable materials or medical
supplies; for material or services where the prices are established by
law; for technical items or equipment requiring standardization and
interchangeability of parts with existing equipment; for experimental,
developmental or research work; for supplies purchased for authorized
resale; and for technical or specialized supplies requiring substantial
initial investment for manufacture;
(G) Otherwise authorized by law, rules or regulations.
Notwithstanding the existence of circumstances justifying negotiation,
competition shall be obtained to the maximum extent practicable.
(vii) Contracts shall be made only with responsible contractors who
possess the potential ability to perform successfully under the terms
and conditions of a proposed procurement. Consideration shall be given
to such matters as contractor integrity, record of past performance,
financial and technical resources, or accessibility to other necessary
resources.
(viii) Procurement records or files for purchases in amounts over
$10,000 shall provide at least the following pertinent information:
Justification for the use of negotiation in lieu of advertising,
contractor selection, and the basis for the cost or price negotiation.
(ix) A system for contract administration shall be maintained to
assure contractor conformance with terms, conditions, and specifications
of the contract or order, and to assure adequate and timely followup of
all purchases.
(c) In addition to provisions to define a sound and complete
agreement, the grantee shall include the following provisions in all
contracts and subgrants:
(1) Contracts shall contain such contractual provisions or
conditions which will allow for administrative, contractual, or legal
remedies in instances where contractors violate or breach contract
terms, and provide for such sanctions and penalties as may be
appropriate.
(2) All contracts, amounts for which are over $10,000 shall contain
suitable provisions for termination by the grantee including the manner
by which it will be effected and the basis for settlement. In addition,
such contracts shall describe conditions where the contract may be
terminated for default as well as conditions where the contract may be
terminated because of circumstances beyond the control of the
contractor.
(3) In all contracts for construction or facility improvement
awarded over $100,000, grantees shall observe the bonding requirements
provided in Sec. 276.4.
(4) All construction contracts awarded by recipients and their
contractors or subgrantees having a value of more than $10,000, shall
contain a provision requiring compliance with Executive Order 11246,
entitled ``Equal Employment Opportunity,'' as amended by Labor
Regulations (41 CFR part 87). However, this Equal Employment Opportunity
provision will apply only after the Indian preference requirements
prescribed in Sec. 276.13 have been met.
(5) All contracts and subgrants for construction or repair shall
include a provision for compliance with the Copeland ``Anti-Kick Back''
Act (18 U.S.C. 874) as supplemented in Department of Labor regulations
(29 CFR part 3). This Act provides that each contractor or subgrantee
shall be prohibited from inducing, by any means, any person employed in
the construction, completion, or repair of public work, to give up any
part of the compensation to which he is otherwise entitled. The grantee
shall report all suspected or reported violations to the Bureau.
(6) When required by the Federal grant program legislation, all
construction contracts awarded by grantees and subgrantees over $2,000
shall include a provision for compliance with the Davis-Bacon Act (40
U.S.C. 276a to a-7) and as supplemented by Department of Labor
regulations (29 CFR part 5). Under this Act, contractors shall be
required to pay wages to laborers and
[[Page 703]]
mechanics at a rate not less than the minimum wages specified in a wage
determination made by the Secretary of Labor. In addition, contractors
shall be required to pay wages not less often than once a week. The
grantee shall place a copy of the current prevailing wage determination
issued by the Department of Labor in each solicitation and the award of
a contract shall be conditioned upon the acceptance of the wage
determination. The grantee shall report all suspected or reported
violations to the Bureau.
(7) Where applicable, all contracts awarded by grantees and
subgrantees over $2,000 for construction contracts and over $2,500 for
other contracts which involve the employment of mechanics or laborers
shall include a provision for compliance with sections 103 and 107 of
the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) as
supplemented by Department of Labor regulations (29 CFR part 5). Under
section 103 of the Act, each contractor shall be required to compute the
wages of every mechanic and laborer on the basis of a standard work day
of 8 hours and a standard work week of 40 hours. Work in excess of the
standard workday or workweek is permissible if the worker is compensated
at a rate of not less than 1\1/2\ times the basic rate of pay for all
hours worked over 8 hours in any calendar day or 40 hours in the work
week. Section 107 of the Act applies to construction work and provides
that no laborer or mechanic shall be required to work in surroundings or
under working conditions which are unsanitary, hazardous, or dangerous
to his health and safety as determined under construction, safety, and
health standards promulgated by the Secretary of Labor. These
requirements do not apply to the purchases of supplies or materials or
articles ordinarily available on the open market, or contracts for
transportation or transmission of intelligence.
(8) Contracts or agreements, the principal purpose of which is to
create, develop, or improve products, processes or methods; or for
exploration into fields which directly concern public health, safety, or
welfare; or constraints in the field of science or technology in which
there has been little significant experience outside of work funded by
Federal assistance, shall contain a notice to the effect that matters
regarding rights to inventions, and materials generated under the
contract or agreement are subject to the regulations issued by the
Bureau. The contractor shall be advised as to the source of additional
information regarding these matters.
(9) All negotiated contracts (except those of $10,000 or less)
awarded by grantees shall include a provision to the effect that the
grantee, the Bureau, the Comptroller General of the United States, or
any of their duly authorized representatives, shall have access to any
books, documents, papers, and records of the contractor which are
directly pertinent to a specific grant program for the purpose of making
audit, examination, excerpts, and transcriptions.
(10) Contracts and subgrants of amounts over $100,000 shall contain
a provision which requires the recipient to agree to comply with all
applicable standards, orders, or regulations issued pursuant to the
Clean Air Act of 1970 (42 U.S.C. 1251 et seq.) as amended. Violations
shall be reported to the Bureau and the Regional Office of the
Environmental Protection Agency.
Sec. 276.13 Indian preference in grant administration.
Any grant or subgrant shall require that to the greatest extent
feasible:
(a) Preferences and opportunities for training and employment in
connection with the administration of such a grant or subgrant shall be
given to Indians.
(b) Preference in the award of a subgrant, contract or subcontract
in connection with administration of a grant shall be given to Indian
organizations and economic enterprises.
(c) A tribal governing body may develop its own Indian preference
requirements to the extent that such requirements are not inconsistent
with the purpose and intent of paragraphs (a) and (b) of this section
for grants executed under this part.
[[Page 704]]
Sec. 276.14 Budget revision.
Criteria and procedures to be followed by grantees in reporting
deviations from grant budgets and requesting approval for budget
revisions are as follows:
(a) For nonconstruction grants, grantees shall request prior
approvals promptly from the Bureau for budget revisions whenever:
(1) The revision results from changes in the scope or the objective
of the grant-supported program.
(2) The revision indicates the need for additional Bureau funding.
(3) The grant budget is over $100,000 and the cumulative amount of
transfers among direct cost object class budget categories exceeds or is
expected to exceed $10,000, or five percent of the grant budget,
whichever is greater. The same criteria apply to cumulative amount of
transfers among programs, functions, and activities when budgeted
separately for a grant, except that the Bureau shall permit no transfer
which would cause any Federal appropriation, or part thereof, to be used
for purposes other than those intended.
(4) The grant budget is $100,000, or less, and the cumulative amount
of transfers among direct cost object class budget categories exceeds or
is expected to exceed five percent of the grant budget. The same
criteria apply to the cumulative amount of transfers among programs,
functions, and activities when budgeted separately for a grant, except
that the Bureau shall permit no transfer which would cause any Federal
appropriation, or part thereof, to be used for purposes other than those
intended.
(5) The revisions involve the transfer of amounts budgeted for
indirect costs to absorb increases in direct costs.
(6) The revisions pertain to the addition of items requiring
approval in accordance with the provisions of appendix A of this part.
(b) All other changes to nonconstruction grant budgets, except for
the changes described in paragraph (d) of this section do not require
approval. These changes include:
(1) The use of grantee funds in furtherance of program objectives
over and above the grantee minimum share included in the approved grant
budget and
(2) The transfer of amounts budgeted for direct costs to absorb
authorized increases in indirect costs.
(c) For construction grants, grantees shall request prior approval
promptly from the Bureau for budget revisions whenever:
(1) The revision results from changes in the scope or the objective
of the grant-supported programs.
(2) The revision increases the budgeted amounts of Bureau funds
needed to complete the project.
(d) When the Bureau awards a grant which provides support for both
construction and nonconstruction work, the Bureau may require, in the
grant agreement, the grantee to request prior approval before making any
fund or budget transfers between the two types of work supported.
(e) For both construction and nonconstruction grants, the Bureau
shall require tribal grantees to notify the Bureau promptly whenever the
amount of Bureau authorized funds is expected to exceed the needs of the
grantee by more than $5,000 or 5 percent of the Bureau grant, whichever
is greater. This notification will not be required when applications for
additional funding are submitted for continuing grants.
(f) When requesting approval for budget revisions, grantees shall
use the budget forms which were used in the grant application. However,
grantees may request by letter the approvals required by the provisions
of appendix A of this part.
(g) Within 30 days from the date of receipt of the request for
budget revisions, the Bureau shall review the request and notify the
grantee whether or not the budget revisions have been approved. If the
Bureau does not reach a decision prior to the end of the 30-day period
or should the grantee not be notified of the Bureau's decision by the
end of the 30-day period the grantee may appeal directly to the
Commissioner.
Sec. 276.15 Grant closeout.
(a) In closing out Bureau grants, the following shall be observed:
(1) Upon request, the Bureau shall make prompt payments to a grantee
[[Page 705]]
for allowable reimbursable costs under the grant being closed out.
(2) The grantee shall immediately refund to the Bureau any
unencumbered balance of cash advanced to the grantee.
(3) The Bureau shall obtain from the grantee within 90 days after
the date of completion of the grant all financial, peformance, and other
reports required as a condition of the grant. The Bureau may grant
extensions when requested by the grantee.
(4) The Bureau shall make a settlement for any upward or downward
adjustments to the Federal share of costs after these reports are
received.
(5) The grantee shall account for any property acquired with grant
funds, or received from the Government in accordance with the provisions
of Sec. 276.11.
(6) If a final audit has not been performed before the closeout of
the grant, the Bureau shall retain the right to recover an appropriate
amount after fully considering the recommendations on disallowed costs
resulting from the final audit.
(b) Suspension. When a grantee has materially failed to comply with
the terms and conditions of a grant, the Bureau may after reasonable
notice to the grantee, suspend the grant. The notice preceding
suspension shall include the effective date of the suspension, the
reasons for the suspension, the corrective measures necessary for
reinstatement of the grant, and, if there is no immediate threat to
safety, a reasonable time frame for corrective action prior to actual
suspension. No obligations incurred by the grantee during the period of
suspension shall be allowable under the suspended grant, except that the
Bureau may at its discretion allow necessary and proper costs which the
grantee could not reasonably avoid during the period of suspensions if
such costs would otherwise be allowable under the applicable cost
principles specified in appendix A of this part. Appropriate adjustments
to the payments under the suspended grant will be made, either by
withholding the payments or by not allowing the grantee credit for
disbursements which he may make in liquidation of unauthorized
obligations he incurs during the period of suspension. Suspensions shall
remain in effect until the grantee has taken corrective action to the
satisfaction of the Bureau or given assurances satisfactory to the
Bureau that corrective action will be taken, or until the Bureau cancels
the grant.
(c)(1) Cancellation for cause. The Bureau may cancel any grant in
whole, or in part, at any time before the date of completion, whenever
it is determined that the grantee has:
(i) Materially failed to comply with the terms and conditions of the
grant;
(ii) Violated the rights or endangered the health, safety, or
welfare of any persons;
(iii) Been grossly negligent in or has mismanaged the handling or
use of funds provided under the grant.
(2) When it appears that cancellation of a grant shall become
necessary, the Bureau shall promptly notify the grantee in writing of
this possibility. This written notice shall advise the grantee of the
reason for the possible cancellation and the corrective action necessary
to avoid cancellation. The Bureau shall also offer, and provide if
requested by the grantee, any technical assistance which may be required
to effect the corrective action. The grantee shall have 60 days in which
to effect this corrective action before the Bureau provides notice of
intent to cancel the grant as provided in paragraph (c)(3) of this
section.
(3) Upon deciding to cancel for cause, the Bureau shall promptly
notify the grantee in writing of that decision, the reasons for the
cancellation, and the effective date. The Bureau shall also provide a
hearing for the grantee before cancellation, as provided in Sec.
272.51. However, the Bureau may immediately cancel the grant, upon
notice to the grantee, if the Bureau determines that continuance of the
grant poses an immediate threat to safety. In this event, the Bureau
shall provide a hearing for the grantee within ten (10) days of
cancellation.
(4) Payments made to grantees or recoveries by the Bureau under
grants cancelled for cause shall be in accordance with the legal rights
and obligations of the parties.
(d)(1) Cancellation on other grounds. Except as provided in
paragraph (c) of
[[Page 706]]
this section, grants may be cancelled in whole or in part only as
follows:
(i) By the Bureau with the consent of the grantee, in which case the
two parties shall agree upon the cancellation conditions, including the
effective date, and in the case of partial cancellation, the portion to
be cancelled; or
(ii) By the grantee, upon written notice to the Bureau, setting
forth the reasons for the cancellation, the effective date, and, in the
case of partial cancellation, the portion to be cancelled.
(2) When a grant is cancelled in accordance with paragraph (d) of
this section, the grantee shall not incur new obligations for the
cancelled portion after the effective date, and shall cancel as many
outstanding obligations as possible. The Bureau shall allow full credit
to the grantee for the Bureau share of the noncancellable obligations
properly incurred by the grantee before cancellation.
[40 FR 51316, Nov. 4, 1975, as amended at 45 FR 13452, Feb. 29, 1980]
Sec. 276.16 Subgrants and subcontracts to non-profit organizations.
The uniform administrative requirements in this part, including the
cost principles in appendix A, to this part, are applicable to all
subgrants or subcontracts made by a grantee in accordance with the
provisions of this chapter. However, these requirements and cost
principles are applicable as minimum standards for subgrants or
subcontracts made to nonprofit organizations. Accordingly, the grantee
may prescribe additional or more stringent requirements with regard to
subgrants or subcontracts made to non-profit organizations.
Sec. 276.17 Printing.
As permitted by paragraph 36-2(c) in the Government Printing and
Binding Regulations (October 1974, No. 23), published by the Joint
Committee on Printing (JCP), printing required by a grantee in
performing work under a grant is considered ``incidental printing''
(e.g., material which the grantee needs to use to respond to the terms
of the grant). Whenever the incidental printing is likely to exceed the
exclusions in paragraphs 36-3 and 36-4 of the Joint Committee on
Printing (JCP) Printing and Binding Regulations, specific provisions on
printing as may be required shall be included in the grant agreement.
Grantees shall be given the option of using sources other than the
Government Printing Office for incidental printing.
[43 FR 37446, Aug. 23, 1978]
Appendix A to Part 276--Principles for Determining Costs Applicable to
Grants
part i--general
A. Purpose and scope. 1. Objectives. This attachment sets forth
principles for determining the allowable costs of programs administered
by grantees under grants from the Bureau. The principles are for the
purpose of cost determination and are not intended to identify the
circumstances or dictate the extent of Bureau and tribal participation
in the financing of a particular grant. They are designed to provide
that Bureau assisted programs bear their fair share of costs recognized
under these principles, except where restricted or prohibited by law. No
provision for profit or other increment above cost is intended.
2. Policy guides. The application of these principles is based on
the fundamental premises that:
a. Grantees are responsible for the efficient and effective
administration of grant programs through the application of sound
management practices.
b. The grantee assumes the responsibility for seeing that Bureau
assisted program funds have been expended and accounted for consistent
with underlying agreements and program objectives.
c. Each grantee organization, in recognition of its own unique
combination of staff facilities and experience, will have the primary
responsibility for employing whatever form of organization and
management techniques may be necessary to assure proper and efficient
administration.
3. Application. These principles will be applied by the Bureau in
determining costs incurred by grantees under Bureau grants (including
subgrants, contracts by grantees and subcontracts).
B. Definitions. 1. Approval or authorization of the Bureau means
documentation evidencing consent prior to incurring specific cost.
2. Cost allocation plan means the documentation identifying,
accumulating, and distrtibuting allowable costs under grants and
contracts together with the allocation methods used.
[[Page 707]]
3. Cost, as used herein, means cost as determined on a cash,
accrual, or other basis acceptable to the Bureau as a discharge of the
grantee's accountability for Bureau funds.
4. Cost objective means a pool, center, or area established for the
accumulation of cost. Such areas include organizational units,
functions, objects or items of expense as well as ultimate cost
objectives including specific grants, projects, contracts, and other
activities.
5. Federal agency means any department, agency, commission, or
instrumentality in the executive branch of the Federal Government which
makes grants to grantees.
6. Grant means an agreement between the Bureau and a grantee whereby
the Bureau provides funds or aid in kind to carry out specified
programs, services, or activities. The principles and policies stated in
this appendix as applicable to grants in general also apply to any
Federally sponsored cost reimbursement type of agreement performed by a
grantee, including contracts, subcontracts and subgrants.
7. Grant program means those activities and operations of the
grantee which are necessary to carry out the purposes of the grant,
including any portion of the program financed by the grantee.
8. Grantee means the entity which is responsible for administration
of the grant.
9. Services, as used herein, means goods and facilities, as well as
services.
10. Supporting services means auxiliary functions necessary to
sustain the direct effort involved in administering a grant program or
an activity providing service to the grant program. These services may
be centralized in the grantee department or in some other agency, and
include procurement, payroll, personnel functions, maintenance and
operation of space, data processing, accounting, budgeting, auditing,
mail and messenger service, and the like.
C. Basic guidelines. 1. Factors affecting allowability of costs. To
be allowable under a grant program, costs must meet the following
general criteria:
a. Be necessary and reasonable for proper and efficient
administration of the grant program, be allocable thereto under these
principles, and, except as specifically provided herein, not be a
general expense required to carry out the overall responsibilities of a
grantee.
b. Be authorized or not prohibited under applicable laws or
regulations.
c. Conform to any limitations or exclusions set forth in these
principles, Federal laws, or other governing limitations as to types or
amounts of cost items.
d. Be consistent with policies, regulations, and procedures that
apply uniformly to both Federally assisted and other activities of which
the grantee is a part.
e. Be accorded consistent treatment through application of generally
accepted accounting principles appropriate to the circumstances.
f. Not be allocable to or included as a cost of any other Federally
financed program in either the current or a prior period.
g. Be net of all applicable credits.
2. Allocable costs. a. A cost is allocable to a particular cost
objective to the extent of benefits received by such objective.
b. Any cost allocable to a particular grant or cost objective under
the principles provided for in this appendix may not be shifted to other
Federal grant programs to overcome funds deficiencies, avoid
restrictions imposed by law or grant agreements, or for other reasons.
c. Where an allocation of joint cost will ultimately result in
charges to a grant program, an allocation plan will be required as
prescribed in section I.
3. Applicable credits. a. Applicable credits refer to those receipts
or reduction of expenditure-type transactions which offset or reduce
expense items allocable to grants as direct or indirect costs. Examples
of such transactions are: purchase discounts; rebates or allowances;
recoveries or indemnities on losses; sale of publications, equipment,
and scrap; income from personal or incidental services; and adjustments
of overpayments or erroneous charges.
b. Applicable credits may also arise when Bureau funds are received
or are available from sources other than the grant program involved to
finance operations or capital items of the grantee. This includes costs
arising from the use of depreciation of items donated or financed by the
Bureau to fulfill matching requirements under another grant program.
These types of credits should likewise be used to reduce related
expenditures in determining the rates or amounts applicable to a given
grant.
D. Composition of cost. 1. Total cost. The total cost of a grant
program is comprised of allowable direct cost incident to its
performance, plus its allocable portion of allowable indirect costs,
less applicable credits.
2. Classification of costs. There is no universal rule for
classifying certain costs as either direct or indirect under every
accounting system. A cost may be direct with respect to some specific
service or function, but indirect with respect to the grant or other
ultimate cost objective. It is essential, therefore, that each item of
cost be treated consistently either as a direct or an indirect cost.
Specific guides for determining direct and indirect costs allocable
under grant programs are provided in the sections which follow.
E. Direct costs. 1. General. Direct costs are those that can be
identified specifically with a particular cost objective. These costs
may be charged directly to grants, contracts, or
[[Page 708]]
to other programs against which costs are finally lodged. Direct costs
may also be charged to cost objectives used for the other ultimate cost
objective.
2. Application. Typical direct costs chargeable to grant programs
are:
a. Compensation of employees for the time and effort devoted
specifically to the execution of grant programs.
b. Cost of materials acquired, consumed, or expended specifically
for the purpose of the grant.
c. Equipment and other approved capital expenditures.
d. Other items of expense incurred specifically to carry out the
grant agreement.
e. Services furnished specifically for the grant program by other
agencies, provided such charges are consistent with criteria outlined in
section G of these principles.
F. Indirect costs. 1. General. Indirect costs are those (a) incurred
for a common or joint purpose benefiting more than one cost objective,
and (b) not readily assignable to the cost objectives specifically
benefited, without effort disproportionate to the results achieved. The
term ``indirect costs,'' as used herein, applies to costs of this type
originating in the grantee department, as well as those incurred by
other departments in supplying goods, services, and facilities, to the
grantee department. To facilitate equitable distribution of indirect
expenses to the cost objectives served, it may be necessary to establish
a number of pools of indirect cost within a grantee department or in
other agencies providing services to a grantee department. Indirect cost
pools should be distributed to benefiting cost objectives on bases which
will produce an equitable result in consideration or relative benefits
derived.
2. Grantee departmental indirect costs. All grantee departmental
indirect costs, including the various levels of supervision, are
eligible for allocation to grant programs provided they meet the
conditions set forth in this part. In lieu of determining the actual
amount of grantee departmental indirect cost allocable to a grant
program, the following methods may be used:
a. Predetermined fixed rates for indirect costs. A predetermined
fixed rate for computing indirect costs applicable to a grant may be
negotiated annually in situations where the cost experience and other
pertinent facts available are deemed sufficient to enable the
contracting parties to reach an informed judgment (1) as to the probable
level of indirect costs in the grantee department during the period to
be covered by the negotiated rate, and (2) that the amount allowable
under the predetermined rate would not exceed actual indirect cost.
b. Negotiated lump sum for overhead. A negotiated fixed amount in
lieu of indirect costs may be appropriate under circumstances where the
benefits derived from a grantee department's indirect services cannot be
readily determined as in the case of small, self-contained or isolated
activity. When this method is used, a determination should be made that
the amount negotiated will be approximately the same as the actual
indirect cost that may be incurred. Such amounts negotiated in lieu of
indirect costs will be treated as an offset to total indirect expenses
of the grantee department before allocation to remaining activities. The
base on which such remaining expenses are allocated should be
appropriately adjusted.
3. Limitation on indirect costs. a. Bureau grants may be subject to
laws that limit the amount of indirect costs that may be allowed. In
this event, the Bureau will establish procedures which will assure that
the amount actually allowed for indirect costs under each such grant
does not exceed the maximum allowable under the statutory limitation or
the amount otherwise allowable under this appendix, whichever is the
smaller.
b. When the amount allowable under a statutory limitation is less
than the amount otherwise allocable as indirect costs under this
appendix the amount not recoverable as indirect costs under a grant may
not be shifted to another Federally sponsored grant program or contract.
G. Cost incurred by organizations other than the grantee. 1.
General. The cost of service provided by other organizations may only
include allowable direct costs of the service plus a prorata share of
allowable supporting costs and supervision directly required in
performing the service, but not supervision of a general nature such as
that provided by the head of an organization and his staff assistants
not directly involved in operations. However, supervision by the head of
an organization whose sole function is providing the service furnished
would be an eligible cost. Supporting costs include those furnished by
other units of the supplying organizations.
2. Alternative methods of determining indirect cost. In lieu of
determining actual indirect cost related to a particular service
furnished by another organization, either of the following alternative
methods may be used provided only one method is used for a specific
service during the fiscal year involved.
a. Standard indirect rate. An amount equal to ten percent of direct
labor cost in providing the service performed by another organization
(excluding overtime, shift, or holiday premiums and fringe benefits) may
be allowed in lieu of actual allowable indirect cost for that service.
b. Predetermined fixed rate. A predetermined fixed rate for indirect
cost of the unit or activity providing service may be negotiated as set
forth in section F.2.a.
H. Cost incurred by grantee for others. 1. General. The principles
provided in section G will
[[Page 709]]
also be used in determining the cost of services provided by the grantee
to another agency.
I. Cost allocation plan. 1. General. A plan for allocation of costs
will be required to support the distribution of any joint costs related
to the grant program. All costs included in the plan will be supported
by formal accounting records which will substantiate the propriety of
eventual charges.
2. Requirements. The allocation plan of the grantee should cover all
joint costs of the grantees as well as costs to be allocated under plans
of other agencies or organizational units which are to be included in
the costs of federally sponsored programs. The cost allocation plans of
all the agencies rendering services to the grantee, to the extent
feasible, should be presented in a single document. The allocation plan
should contain, but not neessarily be limited to, the following:
a. The nature and extent of services provided and their relevance to
the federally sponsored programs.
b. The items of expense to be included.
c. The methods to be used in distributing cost.
3. Instructions for preparation of cost allocation plans. The
Bureau, in consultation with the other Federal agencies concerned, will
be responsible for developing and issuing the instructions for use by
grantees in preparation of cost allocation plans.
4. Submission of indirect cost proposal and negotiation of indirect
cost rates.
a. A grantee should submit its indirect cost proposal to the Federal
agency which provides the largest dollar volume of contracts and grants.
However, once a Federal agency has handled an indirect cost proposal,
that same Federal agency should continue to act upon the proposal even
though the preponderance of financial interest may have shifted to
another Federal agency, and grantee shall not resubmit its indirect cost
proposal to a second Federal agency.
b. Where the grantee submits its proposal to the Department of
Interior, the proposal should be sent by the Bureau of Indian Affairs to
the cognizant Regional Office of the Department's Office of Audit and
Investigation. The Office of Audit and Investigation is responsible for
the audit and review of the proposals and negotiation of the indirect
cost rates.
c. Grant administrators officers will usually, but are not required
to, accept indirect cost rates negotiated by other Federal agencies.
d. The Bureau of Indian Affairs will provide technical assistance in
developing indirect cost proposals, if needed.
Part II--Standards for Selected Items of Cost
A. Purpose and applicability. 1. Objective. This attachment provides
standards for determining the allowability of selected items of cost.
2. Application. These standards will apply irrespective of whether a
particular item of cost is treated as direct or indirect cost. Failure
to mention a particular item of cost in the standards is not intended to
imply that it is either allowable or unallowable, rather determination
of allowability in each case should be based on the treatment of
standards provided for similar or related items of cost. The
allowability of the selected items of cost is subject to the general
policies and principles stated in part I of this appendix.
B. Allowable costs. 1. Accounting. The cost of establishing and
maintaining accounting and other information systems required for the
management of grant programs is allowable. This includes cost incurred
by central service agencies for these purposes. The cost of maintaining
central accounting records required for overall tribal government
purposes, such as appropriation and fund accounts by the Treasurer,
Comptroller, or similar officials, is considered to be a general expense
of government and is not allowable.
2. Advertising. Advertising media includes newspapers, magazines,
radio and television programs, direct mail, trade papers, and the like.
The advertising costs allowable are those which are solely for:
a. Recruitment of personnel required for the grant program.
b. Solicitation of bids for the procurement of goods and services
required.
c. Disposal of scrap or surplus materials acquired in the
performance of the grant agreement.
d. Other purposes specifically provided for in the grant agreement.
3. Advisory councils. Costs incurred by grantee advisory councils or
committees established pursuant to Bureau requirements to carry out
grant programs are allowable. The cost of like organizations is
allowable when provided for in the grant agreement.
4. Audit service. The cost of audits necessary for the
administration and management of functions related to grant programs is
allowable.
5. Bonding. Costs of premiums on bonds covering employees who handle
grantee funds are allowable.
6. Budgeting. Costs incurred for the development, preparation,
presentation, and execution of budgets are allowable. Costs for services
of a central budget office are generally not allowable since these are
costs of general government. However, where employees of the central
budget office activity
[[Page 710]]
participate in the grantee budget process, the cost of identifiable
services is allowable.
7. Building lease management. The administrative cost for lease
management which includes review of lease proposals, maintenance of a
list of available property for lease, and related activities is
allowable.
8. Central stores. The cost of maintaining and operating a central
store's organization for supplies, equipment, and materials used either
directly or indirectly for grant programs is allowable.
9. Communications. Communication costs incurred for telephone calls
or service, telegraph, teletype service, wide area telephone service
(WATS), centrex, telpak (tie lines), postage, messenger service and
similar expenses are allowable.
10. Compensation for personal services. a. General. Compensation for
personal services includes all remuneration, paid currently or accrued,
for services rendered during the period of performance under the grant
agreement, including but not necessarily limited to wages, salaries, and
supplementary compensation and benefits. The costs of such compensation
are allowable to the extent that total compensation for individual
employees: (1) Is responsible for the services rendered, (2) follows an
appointment made in accordance with tribal government ordinances and
rules and which meets Federal merit system or other requirements, where
applicable; and (3) is determined and supported as provided in b.,
below. Compensation for employees engaged in federally assisted
actvities will be considered reasonable to the extent that it is
consistent with that paid for similar work in other activities of the
tribal government. In cases where the kinds of employees required for
the federally assisted activities are not found in the other activities
of the tribal government, compensation will be considered reasonable to
the extent that it is comparable to that paid for similar work in the
labor market in which the employing government competes for the kind of
employees involved. Compensation surveys providing data representative
of the labor market involved will be an acceptable basis for evaluating
reasonableness.
b. Payroll and distribution of time. Amounts charged to grant
programs for personal services, regardless of whether treated as direct
or indirect costs, will be based on payrolls documented and approved in
accordance with generally accepted practice of the tribal government.
Payrolls must be supported by time and attendance or equivalent records
for individual employees. Salaries and wages of employees chargeable to
more than one grant program or other cost objective will be supported by
appropriate time distribution records. The method used should produce an
equitable distribution of time and effort.
11. Depreciation and use allowance. a. Grantees may be compensated
for the use of their own buildings, capital improvements, and equipment
through use allowances or depreciation. Use allowances are the means of
providing compensation in lieu of depreciation or other equivalent
costs. However, a combination of the two methods may not be used in
connection with a single class of fixed assets.
b. The computation of depreciation or use allowance will be based on
acquisition cost. Where actual cost records have not been maintained, a
reasonable estimate of the original acquisition cost may be used in the
computation. The computation will exclude the cost or any portion of the
cost of buildings and equipment donated or borne directly or indirectly
by the Federal Government through charges to Federal grant programs or
otherwise, irrespective of whether title was originally vested or where
it presently resides. In addition, the computation will also exclude the
cost of land. Depreciation or a use allowance on idle or excess
facilities is not allowable, except when specifically authorized by the
grantor Federal agency.
c. Where the depreciation method is followed, adequate property
records must be maintained, and any generally accepted method of
computing depreciation must be consistently applied for any specific
asset or class of assets for all affected Federally sponsored programs
and must result in equitable charges considering the extent of the use
of the assets for benefit of such programs.
d. In lieu of depreciation, a use allowance for buildings and
improvements may be computed at an annual rate not exceeding two percent
of acquisition cost. The use allowance for equipment (excluding items
properly capitalized as building cost) will be computed at an annual
rate not exceeding six and two-thirds percent of acquisition cost of
usable equipment.
e. No depreciation or use charge may be allowed on any assets that
would be considered as fully depreciated, provided, however, that
reasonable use charges may be negotitated for any such assets if
warranted after taking into consideration the cost of the facility or
item involved, the estimated useful life remaining at time of
negotiation, the effect of any increased maintenance charges or
decreased efficiency due to age, and any other factors pertinent to
utilization of the facility or item for the purpose contemplated.
12. Disbursing service. The cost of disbursing grant program funds
by the Treasurer or other designated officer is allowable. Disbursing
services cover the processing of checks or warrants, from preparation to
redemption, including the necessary records of accountability and
reconciliation of such records with related cash accounts.
[[Page 711]]
13. Employee fringe benefits. Costs identified under a. and b. below
are allowable to the extent that total compensation for employees is
reasonable as defined in section B.10.
a. Employee benefits in the form of regular compensation paid to
employees during periods of authorized absences from the job, such as
for annual leave, sick leave, court leave, military leave, and the like,
if they are: (1) Provided pursuant to an approved leave system, and (2)
the cost thereof is equitably allocated to all related activities,
including grant programs.
b. Employee benefits in the form of employers' contribution or
expenses for social security, employees' life and health insurance
plans, unemployment insurance coverage, workmen's compensation
insurance, pension plans, severance pay, and the like, provided such
benefits are granted under approved plans and are distributed equitably
to grant programs and in other activities.
14. Employee morale, health and welfare costs. The costs of health
or first-aid clinics and/or infirmaries, recreational facilities,
employees' counseling services, employee information publications, and
any related expenses incurred, are allowable. Income generated from any
of these activities will be offset against expenses.
15. Exhibits. Costs of exhibits relating specifically to the grant
programs are allowable.
16. Legal expenses. The cost of legal expenses required in the
administration of grant programs is allowable. Legal services furnished
by the chief legal officer of a tribal government or his staff solely
for the purpose of discharging his general responsibilities as legal
officer are unallowable. Legal expenses for the prosecution of claims
against the Federal Government are unallowable.
17. Maintenance and repair. Costs incurred for necessary
maintenance, repair, or upkeep of property which neither add to the
permanent value of the property nor appreciably prolong its intended
life, but keep it in an efficient operating condition, are allowable.
18. Materials and supplies. The cost of materials and supplies
necessary to carry out the grant programs is allowable. Purchases made
specifically for the grant program should be charged thereto at their
actual prices after deducting all cash discounts, trade discounts,
rebates, and allowances received by the grantee. Withdrawals from
general stores or stockrooms should be charged at cost under any
recognized method of pricing consistently applied. Incoming
transportation charges are a proper part of material cost.
19. Memberships, subscriptions and professional activities. a.
Memberships. The cost of membership in civic, business, technical and
professional organizations is allowable provided: (1) The benefit from
the membership is related to the grant program, (2) the expenditure is
for agency membership, (3) the cost of the membership is reasonably
related to the value of the services or benefits received, and (4) the
expenditure is not for membership in an organization which devotes a
substantial part of its activities to influencing legislation.
b. Reference material. The cost of books, and subscriptions to
civic, business, professional, and technical periodicals is allowable
when related to the grant program.
c. Meetings and conferences. Costs are allowable when the purpose of
the meeting is the dissemination of technical information relating to
the grant program and they are consistent with regular practices
followed for other activities of the grantee.
20. Motor pools. The costs of a service organization which provides
automobiles to grantees at a mileage or fixed rate and/or provides
vehicle maintenance, inspection and repair services are allowable.
21. Payroll preparation. The cost of preparing payrolls and
maintaining necessary related wage records is allowable.
22. Personnel administration. Costs for the recruitment,
examination, certification, classification, training, establishment of
pay standards, and related activities for grant programs, are allowable.
23. Printing and reproduction. Cost for printing and reproduction
services necessary for grant administration, including but not limited
to forms, reports, manuals, and informational literature, are allowable.
Publication costs of reports or other media relating to grant program
accomplishments or results are allowable when provided for in the grant
agreement.
24. Procurement service. The cost of procurement service, including
solicitation of bids, preparation and award of contracts, and all phases
of contract administration in providing goods, facilities and services
for grant programs, is allowable.
25. Taxes. In general, taxes or payments in lieu of taxes which the
grantee is legally required to pay are allowable.
26. Training and education. The cost of in-service training,
customarily provided for employee development which directly or
indirectly benefits grant programs is allowable. Out-of-service training
involving extended periods of time is allowable only when specifically
authorized by the Bureau.
27. Transportation. Costs incurred for freight, cartage, express,
postage and other transportation costs relating either to goods
purchased, delivered, or moved from one location to another are
allowable.
28. Travel. Travel costs are allowable for expenses for
transportation, lodging, subsistence, and related items incurred by
employees who are in travel status on official business incident to a
grant program. Such costs may be charged on an actual basis, on a per
diem or mileage basis in lieu of actual costs
[[Page 712]]
incurred, or on a combination of the two, provided the method used is
applied to an entire trip, and results in charges consistent with those
normally allowed in like circumstances in non-Federally sponsored
activities. The difference in cost between first-class air
accommodations and less-than-first-class air accommodations is
unallowable except when less-than-first-class air accommodations are not
reasonably available.
C. Costs allowable with approval of the Bureau. 1. Automatic data
processing. The cost of data processing services to grant programs is
allowable. This cost may include rental of equipment or depreciation on
grantee-owned equipment. The acquisition of equipment, whether by
outright purchase, rental-purchase agreement or other method of
purchase, is allowable only upon specific prior approval of the Bureau
as provided under the selected item for capital expenditures. The Bureau
must obtain required Departmental clearances before such approval can be
given.
2. Building space and related facilities. The cost of space in
privately or publicly owned buildings used for the benefit of the grant
program is allowable subject to the conditions stated below. The total
cost of space, whether in a privately or publicly owned building, may
not exceed the rental cost of comparable space and facilities in a
privately owned building in the same locality. The cost of space
procured for grant program usage may not be charged to the program for
periods of nonoccupancy, without authorization of the Bureau.
a. Rental cost. The rental cost of space in a privately owned
building is allowable.
b. Maintenance and operation. The cost of utilities, insurance,
security, janitorial services, elevator service, upkeep of grounds,
normal repairs and alterations and the like, are allowable to the extent
they are not otherwise included in rental or other charges for space.
c. Rearrangements and alterations. Cost incurred for rearrangement
and alteration of facilities required specifically for the grant program
or those that materially increase the value or useful life of the
facilities (section C.3.) are allowable when specifically approved by
the Bureau.
d. Depreciation and use allowances on publicly owned buildings.
These costs are allowable as provided in section B.11.
e. Occupancy of space under rental-purchase or a lease with option-
to-purchase agreement. The cost of space procured under such
arrangements is allowable when specifically approved by the Bureau.
3. Capital expenditures. The cost of facilities, equipment, other
capital assets, and repairs which materially increase the value or
useful life of capital assets is allowable when such procurement is
specifically approved by the Bureau. When assets acquired with Bureau
grant funds are (a) sold, (b) no longer available for use in a Federally
sponsored program or (c) used for purposes not authorized by the Bureau,
the Bureau's equity in the asset will be refunded in the same proportion
as Bureau participation in its cost. In case any assets are traded on
new items, only the net cost of the newly acquired assets is allowable.
4. Insurance and indemnification. a. Costs of insurance required, or
approved and maintained pursuant to the grant agreement, is allowable.
b. Costs of other insurance in connection with the general conduct
of activities is allowable subject to the following limitations:
(1) Types and extent and cost of coverage will be in accordance with
sound business practice.
(2) Costs of insurance or of contributions to any reserve covering
the risk of loss of, or damage to, Federal Government property is
unallowable except to the extent that the Bureau has specifically
required or approved such costs.
c. Contributions to a reserve for a self-insurance program approved
by the Bureau are allowable to the extent that the type of coverage,
extent of coverage, and the rates and premiums would have been allowed
had insurance been purchased to cover the risks.
d. Actual losses which could have been covered by permissible
insurance (through an approved self-insurance program or otherwise) are
unallowable unless expressly provided for in the grant agreement.
However, costs incurred because of losses not covered under nominal
deductible insurance coverage provided in keeping with sound management
practice, and minor losses not covered by insurance, such as spoilage,
breakage and disappearance of small hand tools which occur in the
ordinary course of operations, are available.
e. Indemnification includes securing the grantee against liabilities
to third persons and other losses not compensated by insurance or
otherwise. The Bureau is obligated to indemnify the grantee only to the
extent expressly provided for in the grant agreement, except as provided
in d. above.
5. Management studies. The cost of management studies to improve the
effectiveness and efficiency of grant management for ongoing programs is
allowable except that the cost of studies performed by agencies other
than the grantee or outside consultants is allowable only when
authorized by the Bureau.
6. Preagreement costs. Costs incurred prior to the effective date of
the grant, whether or not they would have been allowable thereunder if
incurred after such date, are allowable when specifically provided for
in the grant agreement.
7. Professional services. Cost of professional services rendered by
individuals or organizations not a part of the grantee is allowable
[[Page 713]]
subject to such prior authorization as may be required by the Bureau.
8. Proposal costs. Costs of preparing proposals on potential Federal
Government grant agreements are allowable when specifically provided for
in the grant agreement.
9. Tribal government officer salaries and expenses. Identifiable
salary and expense costs incurred as a direct result of a tribal
government officer's service to a grant program provided under this
chapter are allowable subject to advance agreement with an approval by
the Bureau. A general limitation in this regard is prescribed in section
D.6.
D. Unallowable costs. 1. Bad debts. Any losses arising from
uncollectible accounts and other claims, and related costs, are
unallowable.
2. Contingencies. Contributions to a contingency reserve or any
similar provision for unforeseen events are unallowable.
3. Contributions and donations. Unallowable.
4. Entertainments. Costs of amusements, social activities, and
incidental costs relating thereto, such as meals, beverages, lodgings,
rentals, transportation, and gratuities, are unallowable.
5. Fines and penalties. Costs resulting from violations of, or
failure to comply with Federal, State and local laws and regulations are
unallowable.
6. Tribal officer salaries and expenses. The salaries and expenses
of tribal government officers are considered a cost of general tribal
government and are unallowable except as prescribed in section C.9.
7. Interest and other financial costs. Interest on borrowing
(however requested), bond discounts, cost of financing and refinancing
operations, and legal and professional fees paid in connection
therewith, are unallowable except when authorized by Federal
legislation.
8. Underrecovery of costs under grant agreements. Any excess of cost
over the Federal contribution under one grant agreement is unallowable
under other grant agreements.
Appendix B to Part 276--Financial Reporting Requirements
A. Purpose and scope. This appendix prescribes requirements for
grantee to report financial information to the Bureau and to request
advances and reimbursement when a letter-of-credit method is not used.
B. Definitions. 1. Accrued expenditures. Accrued expenditures are
the charges incurred by the grantee during a given period requiring the
provision of funds for: (1) Goods and other tangible property received;
(2) services performed by employes, contractors, subgrantees, and other
payees; and (3) amounts becoming owed under programs for which no
current services or performed are required.
2. Accrued income. Accrued income is the earnings during a given
period which is a source of funds resulting from: (1) Services performed
by the grantee; (2) goods and other tangible property delivered to
purchasers; and (3) amounts becoming owed to the grantee for which no
current services or performance are required by the grantee.
3. Disbursements. Disbursements are payments in cash or by check.
4. Bureau funds authorized. Funds authorized represent the total
amount of the Bureau funds authorized for obligations and establish the
ceilings for obligation of Bureau funds. This amount may include any
authorized carryover of unobligated funds from prior fiscal years.
5. Obligations. Obligations are the amounts of orders placed,
contracts and grants awarded, services received, and similar
transactions during a given period, which will require payment during
the same or a future period.
6. Outlays. Outlays represent charges made to the grant project or
program. Outlays can be reported on a cash or accrued expenditure basis.
7. Program income. Program income represents earnings by the grantee
realized from the grant-supported activities. Such earnings exclude
interest income and may include, but will not be limited to, income from
service fees, sale of commodities, usage or rental fees, sale of assets
purchased with grant funds, and royalties on patents and copy-rights.
Program income can be reported on a cash or accrued income basis.
8. Unobligated balance. The unobligated balance is the portion of
the funds authorized by the Bureau which has not been obligated by the
grantee and is determined by deducting the cumulative obligations from
the funds authorized.
9. Unpaid obligations. Unpaid obligations represent the amout of
obligations incurred by the grantee which have not been paid.
C. Standard forms. 1. Only the following forms will be authorized
for obtaining financial information from grantees for grant programs:
a. Financial Status Report. (1) The Bureau shall require grantees to
use a standard Financial Status Report to report the status of funds for
all nonconstruction grant programs. The Bureau may, however, have the
option of not requiring a Federal Status Report when a request for
advance or reimbursement (paragraph 2a) is determined to provide
adequate information to meet their needs, except that a final Financial
Status Report shall be required at the completion of the grant when the
Request for Advance or Reimbursement form is used only for advances.
(2) The Bureau shall prescribe whether the report shall be on a cash
or accrual basis. If the Bureau requires accrual information and the
grantee's accouting records are not normally kept on the accrual basis,
the grantee should develop such information through an
[[Page 714]]
analysis of the documentation on hand or on the basis of best estimates.
(3) The grant agreement shall determine the frequency of the
Financial Status Report for each grant program considering the size and
complexity of the particular program. However, the report shall not be
required more frequently than quarterly or less frequently than
annually. Also, a final report shall be required at the completion of
the grant.
(4) The original and two copies of the Financial Status Report shall
be submitted 30 days after the end of each specified reporting period.
In addition, final reports shall be submitted 90 days after the end of
the grant period or the completion of the project or program. Extensions
to reporting due dates may be approved when requested by the grantee.
b. Report of federal cash transactions. (1) When funds are advanced
to grantees through letters of credit or with Treasury checks, each
grantee shall submit a report of Federal Cash Transactions. The Bureau
shall use this report to monitor cash advanced to grantees and to obtain
disbursement or outlay information for each grant or project from the
grantees.
(2) The grant agreement may require forecasts of Federal cash
requirement in the Remarks section of the report.
(3) When practical and deemed necessary, the Bureau may require
grantees to report in the Remarks section the amount of cash in excess
of three days' requirements in the hands of subgrantees or other
secondary recipients and to provide short narrative explanations of
actions taken by the grantees to reduce the excess balances.
(4) The Bureau shall accept the identical information from the
grantees in a machine-usable format in lieu of the Report of Federal
Cash Transactions.
(5) Grantees shall submit the original and two copies of the Report
of Federal Cash Transactions no later than 15 working days following the
end of each quarter. For those grantees receiving annual grants
totalling one million dollars or more, the Bureau shall require a
monthly report.
(6) The Bureau shall waive the requirement for submission of a
Report of Federal Cash Transactions when monthly advances do not exceed
$10,000 per grantee provided that such advances are monitored through
other forms contained in this appendix or the grantee's accounting
controls are adequate to minimize excessive Federal advances.
2. Except as noted below, only the following forms will be
authorized for the grantees in requesting advances and reimbursements.
a. Request for advance or reimbursement. (1) The ``Request for
Advance or Reimbursement'' form is the standard form for all
nonconstruction grant programs when letters of credit or predetermined
automatic advance methods are not used. The Bureau, however, has the
option of using this form for construction programs in lieu of an
``Outlay Report and Request for Reimbursement for Construction
Programs'' (paragraph 2b) and shall specify in the grant agreement.
(2) Grantees shall be authorized to submit requests for advances or
reimbursement at least monthly when letters of credit are not used.
Grantees shall submit the original and two copies of a Request for
Advance or Reimbursement.
b. Outlay Report and Request for Reimbursement for Construction
Program. (1) The ``Outlay Report and Request for Reimbursement for
Construction Programs'' form is the standard format to be used for
requesting reimbursement for construction programs. The Bureau may,
however, have the option of substituting a ``Request for Advance or
Reimbursement'' form (paragraph 2a) in lieu of this form when the Bureau
determines that the former provides adequate information to meet its
needs as stated in the grant agreement.
(2) Grantees shall be authorized to submit requests for
reimbursement at least monthly when letters of credit are not used.
Grantees shall submit the original and two copies of an ``Outlay Report
and Request for Reimbursement for Construction Programs'' form.
3. When the Bureau needs additional information in using these
forms, the following shall be observed:
a. When necessary to comply with future legislative requirements,
the Bureau shall issue instructions to require grantees to submit such
information under the Remarks section of the reports.
b. When necessary to meet specific program needs, the Bureau shall
submit the proposed reporting requirements to the General Services
Administration for approval under the exception provision of this
appendix.
c. The Bureau, in obtaining information as in paragraphs a and b
above, must also comply with report clearance requirements of the Office
of Management and Budget Circular No. A-40, as revised.
[40 FR 51316, Nov. 4, 1975, as amended at 41 FR 5099, Feb. 4, 1976; 43
FR 37447, Aug. 23, 1978]
[[Page 715]]