[Title 25 CFR V]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter V - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AND]
[From the U.S. Government Printing Office]
25INDIANS12004-04-012004-04-01falseBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ANDVCHAPTER VINDIANS
CHAPTER V--BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, AND
INDIAN HEALTH SERVICE, DEPARTMENT OF HEALTH AND HUMAN SERVICES
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Part Page
900 Contracts under the Indian Self-
Determination and Education Assistance
Act..................................... 983
[[Page 983]]
PART 900_CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND EDUCATION
ASSISTANCE ACT--Table of Contents
Subpart A_General Provisions
Sec.
900.1 Authority.
900.2 Purpose and scope.
900.3 Policy statements.
900.4 Effect on existing tribal rights.
900.5 Effect of these regulations on Federal program guidelines, manual,
or policy directives.
Subpart B_Definitions
900.6 Definitions.
Subpart C_Contract Proposal Contents
900.7 What technical assistance is available to assist in preparing an
initial contract proposal?
900.8 What must an initial contract proposal contain?
900.9 May the Secretary require an Indian tribe or tribal organization
to submit any other information beyond that identified in
Sec. 900.8?
900.10 How does an Indian tribe or tribal organization secure a list of
all Federal property currently in use in carrying out the
programs, functions, services, or activities that benefit the
Indian tribe or tribal organization to assist in negotiating a
contract?
900.11 What should an Indian tribe or tribal organization that is
proposing a contract do about specifying the Federal property
that the Indian tribe or tribal organization may wish to use
in carrying out the contract?
900.12 Are the proposal contents requirements the same for renewal of a
contract that is expiring and for securing an annual funding
agreement after the first year of the funding agreement?
900.13 Does the contract proposal become part of the final contract?
Subpart D_Review and Approval of Contract Proposals
900.14 What does this subpart cover?
900.15 What shall the Secretary do upon receiving a proposal?
900.16 How long does the Secretary have to review and approve the
proposal and award the contract, or decline a proposal?
900.17 Can the statutory 90-day period be extended?
900.18 What happens if a proposal is not declined within 90 days after
it is received by the Secretary?
900.19 What happens when a proposal is approved?
Subpart E_Declination Procedures
900.20 What does this subpart cover?
900.21 When can a proposal be declined?
900.22 For what reasons can the Secretary decline a proposal?
900.23 Can the Secretary decline a proposal where the Secretary's
objection can be overcome through the contract?
900.24 Can a contract proposal for an Indian tribe or tribal
organization's share of administrative programs, functions,
services, and activities be declined for any reason other than
the five reasons specified in Sec. 900.22?
900.25 What if only a portion of a proposal raises one of the five
declination criteria?
900.26 What happens if the Secretary declines a part of a proposal on
the ground that the proposal proposes in part to plan,
conduct, or administer a program, function, service or
activity that is beyond the scope of programs covered under
section 102(a) of the Act, or proposes a level of funding that
is in excess of the applicable level determined under section
106(a) of the Act?
900.27 If an Indian tribe or tribal organization elects to contract for
a severable portion of a proposal, does the Indian tribe or
tribal organization lose its appeal rights to challenge the
portion of the proposal that was declined?
900.28 Is technical assistance available to an Indian tribe or tribal
organization to avoid declination of a proposal?
900.29 What is the Secretary required to do if the Secretary decides to
decline all or a portion of a proposal?
900.30 When the Secretary declines all or a portion of a proposal, is
the Secretary required to provide an Indian tribe or tribal
organization with technical assistance?
900.31 When the Secretary declines all or a portion of a proposal, is an
Indian tribe or tribal organization entitled to any appeal?
900.32 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
900.33 Are all proposals to renew term contracts subject to the
declination criteria?
Subpart F_Standards for Tribal or Tribal Organization Management Systems
General
900.35 What is the purpose of this subpart?
[[Page 984]]
900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this subpart?
900.37 What provisions of Office of Management and Budget (OMB)
circulars or the ``common rule'' apply to self-determination
contracts?
900.38 Do these standards apply to the subcontractors of an Indian tribe
or tribal organization carrying out a self-determination
contract?
900.39 What is the difference between a standard and a system?
900.40 When are Indian tribe or tribal organization management standards
and management systems evaluated?
900.41 How long must an Indian tribe or tribal organization keep
management system records?
Standards for Financial Management Systems
900.42 What are the general financial management system standards that
apply to an Indian tribe carrying out a self-determination
contract?
900.43 What are the general financial management system standards that
apply to a tribal organization carrying out a self-
determination contract?
900.44 What minimum general standards apply to all Indian tribe or
tribal organization financial management systems when carrying
out a self-determination contract?
900.45 What specific minimum requirements shall an Indian tribe or
tribal organization's financial management system contain to
meet these standards?
900.46 What requirements are imposed upon the Secretary for financial
management by these standards?
Procurement Management System Standards
900.47 When procuring property or services with self-determination
contract funds, can an Indian tribe or tribal organization
follow the same procurement policies and procedures applicable
to other Indian tribe or tribal organization funds?
900.48 If the Indian tribe or tribal organization does not propose
different standards, what basic standards shall the Indian
tribe or tribal organization follow?
900.49 What procurement standards apply to subcontracts?
900.50 What Federal laws, regulations, and Executive Orders apply to
subcontractors?
Property Management System Standards
900.51 What is an Indian tribe or tribal organization's property
management system expected to do?
900.52 What type of property is the property management system required
to track?
900.53 What kind of records shall the property management system
maintain?
900.54 Should the property management system prescribe internal
controls?
900.55 What are the standards for inventories?
900.56 What maintenance is required for property?
900.57 What if the Indian tribe or tribal organization chooses not to
take title to property furnished or acquired under the
contract?
900.58 Do the same accountability and control procedures described above
apply to Federal property?
900.59 How are the inventory requirements for Federal property different
than for tribal property?
900.60 How does an Indian tribe or tribal organization dispose of
Federal personal property?
Subpart G_Programmatic Reports and Data Requirements
900.65 What programmatic reports and data shall the Indian tribe or
tribal organization provide?
900.66 What happens if the Indian tribe or tribal organization and the
Secretary cannot come to an agreement concerning the type and/
or frequency of program narrative and/or program data
report(s)?
900.67 Will there be a uniform data set for all IHS programs?
900.68 Will this uniform data set be required of all Indian tribe or
tribal organizations contracting with the IHS under the Act?
Subpart H_Lease of Tribally-Owned Buildings by the Secretary
900.69 What is the purpose of this subpart?
900.70 What elements are included in the compensation for a lease
entered into between the Secretary and an Indian tribe or
tribal organization for a building owned or leased by the
Indian tribe or tribal organization that is used for
administration or delivery of services under the Act?
900.71 What type of reserve fund is anticipated for funds deposited into
a reserve for replacement of facilities as specified in Sec.
900.70(c)?
900.72 Who is the guardian of the fund and may the funds be invested?
900.73 Is a lease with the Secretary the only method available to
recover the types of cost described in Sec. 900.70?
900.74 How may an Indian tribe or tribal organization propose a lease to
be compensated for the use of facilities?
[[Page 985]]
Subpart I_Property Donation Procedures
General
900.85 What is the purpose of this subpart?
900.86 How will the Secretary exercise discretion to acquire and donate
BIA or IHS excess property and excess and surplus Federal
property to an Indian tribe or tribal organization?
Government-Furnished Property
900.87 How does an Indian tribe or tribal organization obtain title to
property furnished by the Federal government for use in the
performance of a contract or grant agreement pursuant to
section 105(f)(2)(A) of the Act?
900.88 What should the Indian tribe or tribal organization do if it
wants to obtain title to government-furnished real property
that includes land not already held in trust?
900.89 When may the Secretary elect to reacquire government-furnished
property whose title has been transferred to an Indian tribe
or tribal organization?
900.90 Does government-furnished real property to which an Indian tribe
or tribal organization has taken title continue to be eligible
for facilities operation and maintenance funding from the
Secretary?
Contractor-Purchased Property
900.91 Who takes title to property purchased with funds under a self-
determination contract or grant agreement pursuant to section
105(f)(2)(A) of the Act?
900.92 What should the Indian tribe or tribal organization do if it
wants contractor-purchased real property to be taken into
trust?
900.93 When may the Secretary elect to acquire title to contractor-
purchased property?
900.94 Is contractor-purchased real property to which an Indian tribe or
tribal organization holds title eligible for facilities
operation and maintenance funding from the Secretary?
BIA and IHS Excess Property
900.95 What is BIA or IHS excess property?
900.96 How can Indian tribes or tribal organizations learn about BIA and
IHS excess property?
900.97 How can an Indian tribe or tribal organization acquire excess BIA
or IHS property?
900.98 Who takes title to excess BIA or IHS property donated to an
Indian tribe or tribal organization?
900.99 Who takes title to any land that is part of excess BIA or IHS
real property donated to an Indian tribe or tribal
organization?
900.100 May the Secretary elect to reacquire excess BIA or IHS property
whose title has been transferred to an Indian tribe or tribal
organization?
900.101 Is excess BIA or IHS real property to which an Indian tribe or
tribal organization has taken title eligible for facilities
operation and maintenance funding from the Secretary?
Excess or Surplus Government Property of Other Agencies
900.102 What is excess or surplus government property of other agencies?
900.103 How can Indian tribes or tribal organizations learn about
property that has been designated as excess or surplus
government property?
900.104 How may an Indian tribe or tribal organization receive excess or
surplus government property of other agencies?
900.105 Who takes title to excess or surplus Federal property donated to
an Indian tribe or tribal organization?
900.106 If a contract or grant agreement or portion thereof is
retroceded, reassumed, terminated, or expires, may the
Secretary reacquire title to excess or surplus Federal
property of other agencies that was donated to an Indian tribe
or tribal organization?
Property Eligible for Replacement Funding
900.107 What property to which an Indian tribe or tribal organization
obtains title under this subpart is eligible for replacement
funding?
Subpart J_Construction
900.110 What does this subpart cover?
900.111 What activities of construction programs are contractible?
900.112 What are construction phases?
900.113 Definitions.
900.114 Why is there a separate subpart in these regulations for
construction contracts and grants?
900.115 How do self-determination construction contracts relate to
ordinary Federal procurement contracts?
900.116 Are negotiated fixed-price contracts treated the same as cost-
reimbursable contracts?
900.117 Do these ``construction contract'' regulations apply to planning
services?
900.118 Do these ``construction contract'' regulations apply to
construction management services?
900.119 To what extent shall the Secretary consult with affected Indian
tribes before spending funds for any construction project?
900.120 How does an Indian tribe or tribal organization find out about a
construction project?
[[Page 986]]
900.121 What happens during the preplanning phase and can an Indian
tribe or tribal organization perform any of the activities
involved in this process?
900.122 What does an Indian tribe or tribal organization do if it wants
to secure a construction contract?
900.123 What happens if the Indian tribe or tribal organization and the
Secretary cannot develop a mutually agreeable contract
proposal?
900.124 May the Indian tribe or tribal organization elect to use a grant
in lieu of a contract?
900.125 What shall a construction contract proposal contain?
900.126 Shall a construction contract proposal incorporate provisions of
Federal construction guidelines and manuals?
900.127 What can be included in the Indian tribe or tribal
organization's contract budget?
900.128 What funding shall the Secretary provide in a construction
contract?
900.129 How do the Secretary and Indian tribe or tribal organization
arrive at an overall fair and reasonable price for the
performance of a construction contract?
900.130 What role does the Indian tribe or tribal organization play
during the performance of a self-determination construction
contract?
900.131 What role does the Secretary play during the performance of a
self-determination construction contract?
900.132 Once a contract and/or grant is awarded, how will the Indian
tribe or tribal organization receive payments?
900.133 Does the declination process or the Contract Dispute Act apply
to construction contract amendments proposed either by an
Indian tribe or tribal organization or the Secretary?
900.134 At the end of a self-determination construction contract, what
happens to savings on a cost-reimbursement contract?
900.135 May the time frames for action set out in this subpart be
reduced?
900.136 Do tribal employment rights ordinances apply to construction
contracts and subcontracts?
900.137 Do all provisions of the other subparts apply to contracts
awarded under this subpart?
Subpart K_Waiver Procedures
900.140 Can any provision of the regulations under this part be waived?
900.141 How does an Indian tribe or tribal organization get a waiver?
900.142 Does an Indian tribe or tribal organization's waiver request
have to be included in an initial contract proposal?
900.143 How is a waiver request processed?
900.144 What happens if the Secretary makes no decision within the 90-
day period?
900.145 On what basis may the Secretary deny a waiver request?
900.146 Is technical assistance available for waiver requests?
900.147 What appeal rights are available?
900.148 How can an Indian tribe or tribal organization secure a
determination that a law or regulation has been superseded by
the Indian Self-Determination Act, as specified in section
107(b) of the Act?
Subpart L_Appeals
Appeals Other Than Emergency Reassumption and Suspension, Withholding or
Delay in Payment
900.150 What decisions can an Indian tribe or tribal organization appeal
under this subpart?
900.151 Are there any appeals this subpart does not cover?
900.152 How does an Indian tribe or tribal organization know where and
when to file its appeal from decisions made by agencies of DOI
or DHHS?
900.153 Does an Indian tribe or tribal organization have any options
besides an appeal?
900.154 How does an Indian tribe or tribal organization request an
informal conference?
900.155 How is an informal conference held?
900.156 What happens after the informal conference?
900.157 Is the recommended decision always final?
900.158 How does an Indian tribe or tribal organization appeal the
initial decision, if it does not request an informal
conference or if it does not agree with the recommended
decision resulting from the informal conference?
900.159 May an Indian tribe or tribal organization get an extension of
time to file a notice of appeal?
900.160 What happens after an Indian tribe or tribal organization files
an appeal?
900.161 How is a hearing arranged?
900.162 What happens when a hearing is necessary?
900.163 What is the Secretary's burden of proof for appeals from
decisions under Sec. 900.150(a) through Sec. 900.150(g)?
900.164 What rights do Indian tribes, tribal organizations, and the
government have during the appeal process?
900.165 What happens after the hearing?
900.166 Is the recommended decision always final?
900.167 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and
Human Services or the IBIA do?
[[Page 987]]
900.168 Will an appeal hurt the Indian tribe or tribal organization's
position in other contract negotiations?
900.169 Will the decisions on appeals be available for the public to
review?
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspensions, Withholding or Delay of Payments Under a Self-Determination
Contract
900.170 What happens in the case of emergency reassumption or suspension
or withholding or delay of payments?
900.171 Will there be a hearing?
900.172 What happens after the hearing?
900.173 Is the recommended decision always final?
900.174 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and
Human Services or the IBIA do?
900.175 Will an appeal hurt an Indian tribe or tribal organization's
position in other contract negotiations?
900.176 Will the decisions on appeals be available for the public to
review?
Applicability of the Equal Access to Justice Act
900.177 Does the Equal Access to Justice Act (EAJA) apply to appeals
under this subpart?
Subpart M_Federal Tort Claims Act Coverage General Provisions
900.180 What does this subpart cover?
900.181 What definitions apply to this subpart?
900.182 What other statutes and regulations apply to FTCA coverage?
900.183 Do Indian tribes and tribal organizations need to be aware of
areas which FTCA does not cover?
900.184 Is there a deadline for filing FTCA claims?
900.185 How long does the Federal government have to process an FTCA
claim after the claim is received by the Federal agency,
before a lawsuit may be filed?
900.186 Is it necessary for a self-determination contract to include any
clauses about Federal Tort Claims Act coverage?
900.187 Does FTCA apply to a self-determination contract if FTCA is not
referenced in the contract?
900.188 To what extent shall the contractor cooperate with the Federal
government in connection with tort claims arising out of the
contractor's performance?
900.189 Does this coverage extend to subcontractors of self-
determination contracts?
Medical-Related Claims
900.190 Is FTCA the exclusive remedy for a tort claim for personal
injury or death resulting from the performance of a self-
determination contract?
900.191 Are employees of self-determination contractors providing health
services under the self-determination contract protected by
FTCA?
900.192 What employees are covered by FTCA for medical-related claims?
900.193 Does FTCA coverage extend to individuals who provide health care
services under a personal services contract providing services
in a facility that is owned, operated, or constructed under
the jurisdiction of the IHS?
900.194 Does FTCA coverage extend to services provided under a staff
privileges agreement with a non-IHS facility where the
agreement requires a health care practitioner to provide
reciprocal services to the general population?
900.195 Does FTCA coverage extend to the contractor's health care
practitioners providing services to private patients on a fee-
for-services basis when such personnel (not the self-
determination contractor) receive the fee?
900.196 Do covered services include the conduct of clinical studies and
investigations and the provision of emergency services,
including the operation of emergency motor vehicles?
900.197 Does FTCA cover employees of the contractor who are paid by the
contractor from funds other than those provided through the
self-determination contract?
900.198 Are Federal employees assigned to a self-determination
contractor under the Intergovernmental Personnel Act or
detailed under section 214 of the Public Health Service Act
covered to the same extent that they would be if working
directly for a Federal agency?
900.199 Does FTCA coverage extend to health care practitioners to whom
staff privileges have been extended in contractor health care
facilities operated under a self-determination contract on the
condition that such practitioner provide health services to
IHS beneficiaries covered by FTCA?
900.200 May persons who are not Indians or Alaska Natives assert claims
under FTCA?
Procedure for Filing Medical-Related Claims
900.201 How should claims arising out of the performance of medical-
related functions be filed?
900.202 What should a self-determination contractor or a contractor's
employee do on receiving such a claim?
[[Page 988]]
900.203 If the contractor or contractor's employee receives a summons
and/or a complaint alleging a tort covered by FTCA, what
should the contractor do?
Non-Medical Related Claims
900.204 Is FTCA the exclusive remedy for a non-medical related tort
claim arising out of the performance of a self-determination
contract?
900.205 To what non-medical-related claims against self-determination
contractors does FTCA apply?
900.206 What employees are covered by FTCA for non-medical-related
claims?
900.207 How are non-medical related tort claims and lawsuits filed for
IHS?
900.208 How are non-medical related tort claims and lawsuits filed for
DOI?
900.209 What should a self-determination contractor or contractor's
employee do on receiving a non-medical related tort claim?
900.210 If the contractor or contractor's employee receives a summons
and/or complaint alleging a non-medical related tort covered
by FTCA, what should an Indian tribe or tribal organization
do?
Subpart N_Post-Award Contract Disputes
900.215 What does this subpart cover?
900.216 What other statutes and regulations apply to contract disputes?
900.217 Is filing a claim under the CDA our only option for resolving
post-award contract disputes?
900.218 What is a claim under the CDA?
900.219 How does an Indian tribe, tribal organization, or Federal agency
submit a claim?
900.220 Does it make a difference whether the claim is large or small?
900.221 What happens next?
900.222 What goes into a decision?
900.223 When does an Indian tribe or tribal organization get the
decision?
900.224 What happens if the decision does not come within that time?
900.225 Does an Indian tribe or tribal organization get paid immediately
if the awarding official decides in its favor?
900.226 What rules govern appeals of cost disallowances?
900.227 Can the awarding official change the decision after it has been
made?
900.228 Is an Indian tribe or tribal organization entitled to interest
if it wins its claim?
900.229 What role will the awarding official play during an appeal?
900.230 What is the effect of a pending appeal?
Subpart O_Conflicts of Interest
900.231 What is an organizational conflict of interest?
900.232 What must an Indian tribe or tribal organization do if an
organizational conflict of interest arises under a contract?
900.233 When must an Indian tribe or tribal organization regulate its
employees or subcontractors to avoid a personal conflict of
interest?
900.234 What types of personal conflicts of interest involving tribal
officers, employees or subcontractors would have to be
regulated by an Indian tribe?
900.235 What personal conflicts of interest must the standards of
conduct regulate?
900.236 May an Indian tribe elect to negotiate contract provisions on
conflict of interest to take the place of this regulation?
Subpart P_Retrocession and Reassumption Procedures
900.240 What does retrocession mean?
900.241 Who may retrocede a contract, in whole or in part?
900.242 What is the effective date of retrocession?
900.243 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
900.244 Will an Indian tribe or tribal organization's retrocession
adversely affect funding available for the retroceded program?
900.245 What obligation does the Indian tribe or tribal organization
have with respect to returning property that was used in the
operation of the retroceded program?
900.246 What does reassumption mean?
900.247 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
900.248 In a non-emergency reassumption, what is the Secretary required
to do?
900.249 What happens if the contractor fails to take corrective action
to remedy the contract deficiencies identified in the notice?
900.250 What shall the second written notice include?
900.251 What is the earliest date on which the contract will be
rescinded in a non-emergency reassumption?
900.252 In an emergency reassumption, what is the Secretary required to
do?
900.253 What shall the written notice include?
900.254 May the contractor be reimbursed for actual and reasonable
``wind up costs'' incurred after the effective date of
rescission?
[[Page 989]]
900.255 What obligation does the Indian tribe or tribal organization
have with respect to returning property that was used in the
operation of the rescinded contract?
900.256 Will a reassumption adversely affect funding available for the
reassumed program?
Authority: 25 U.S.C. 450f et seq.
Source: 61 FR 32501, June 24, 1996, unless otherwise noted.
Editorial Note: Nomenclature changes to part 900 appear at 67 FR
34602, May 15, 2002.
Subpart A_General Provisions
Sec. 900.1 Authority.
These regulations are prepared, issued, and maintained jointly by
the Secretary of Health and Human Services and the Secretary of the
Interior, with the active participation and representation of Indian
tribes, tribal organizations, and individual tribal members pursuant to
the guidance of the Negotiated Rulemaking procedures required by section
107 of the Indian Self-Determination and Education Assistance Act.
Sec. 900.2 Purpose and scope.
(a) General. These regulations codify uniform and consistent rules
for contracts by the Department of Health and Human Services (DHHS) and
the Department of the Interior (DOI) in implementing title I of the
Indian Self-Determination and Education Assistance Act, Public Law 93-
638, 25 U.S.C. 450 et seq., as amended and sections 1 through 9
preceding that title.
(b) Programs funded by other Departments and agencies. Included
under this part are programs administered (under current or future law
or interagency agreement) by the DHHS and the DOI for the benefit of
Indians for which appropriations are made to other Federal agencies.
(c) This part included in contracts by reference. Each contract,
including grants and cooperative agreements in lieu of contracts awarded
under section 9 of the Act, shall include by reference the provisions of
this part, and any amendment thereto, and they are binding on the
Secretary and the contractor except as otherwise specifically authorized
by a waiver under section 107(e) of the Act.
(d) Freedom of Information. Access to records maintained by the
Secretary is governed by the Freedom of Information Act (5 U.S.C. 552)
and other applicable Federal law. Except for previously provided copies
of tribal records that the Secretary demonstrates are clearly required
to be maintained as part of the record keeping systems of the DHHS or
the DOI, or both, records of the contractors (including archived
records) shall not be considered Federal records for the purpose of the
Freedom of Information Act. The Freedom of Information Act does not
apply to records maintained solely by Indian tribes and tribal
organizations.
(e) Privacy Act. Section 108(b) of the Indian Self-Determination Act
states that records of the tribal government or tribal organizations
shall not be considered Federal records for the purposes of the Privacy
Act.
(f) Information collection. The Office of Management and Budget has
approved, under 44 U.S.C. chapter 35, the information collection
requirements in part 900 under assigned control number 1076-0136. The
information for part 900 is being collected and used by the Departments
to determine applicant eligibility, evaluate applicant capabilities,
protect the service population, safeguard Federal funds and other
resources, and permit the Departments to administer and evaluate
contract programs.
Sec. 900.3 Policy statements.
(a) Congressional policy. (1) Congress has recognized the obligation
of the United States to respond to the strong expression of the Indian
people for self-determination by assuring maximum Indian participation
in the direction, planning, conduct and administration of educational as
well as other Federal programs and services to Indian communities so as
to render such programs and services more responsive to the needs and
desires of those communities.
[[Page 990]]
(2) Congress has declared its commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and
responsibility to, individual Indian tribes and to the Indian people as
a whole through the establishment of a meaningful Indian self-
determination policy which will permit an orderly transition from the
Federal domination of programs for, and services to, Indians to
effective and meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services. In
accordance with this policy, the United States is committed to
supporting and assisting Indian tribes in the development of strong and
stable tribal governments, capable of administering quality programs and
developing the economies of their respective communities.
(3) Congress has declared that a major national goal of the United
States is to provide the quantity and quality of educational services
and opportunities which will permit Indian children to compete and excel
in the life areas of their choice, and to achieve the measure of self-
determination essential to their social and economic well-being.
(4) Congress has declared that the programs, functions, services, or
activities that are contracted and funded under this Act shall include
administrative functions of the Department of the Interior and the
Department of Health and Human Services (whichever is applicable) that
support the delivery of services to Indians, including those
administrative activities supportive of, but not included as part of,
the service delivery programs described in this paragraph that are
otherwise contractible. The administrative functions referred to in the
preceding sentence shall be contractible without regard to the
organizational level within the Department that carries out such
functions. Contracting of the administrative functions described herein
shall not be construed to limit or reduce in any way the funding for any
program, function, service, or activity serving any other tribe under
the Act or any other law. The Secretary is not required to reduce
funding for programs, projects, or activities serving a tribe to make
funds available to another Indian tribe or tribal organization under
this Act.
(5) Congress has further declared that each provision of the Act and
each provision of contracts entered into thereunder shall be liberally
construed for the benefit of the tribes or tribal organizations to
transfer the funding and the related functions, services, activities,
and programs (or portions thereof), that are otherwise contractible
under the Act, including all related administrative functions, from the
Federal government to the contractor.
(6) Congress has declared that one of the primary goals of the 1994
amendments to the Act was to minimize the reporting requirements
applicable to tribal contractors and to eliminate excessive and
burdensome reporting requirements. Reporting requirements over and above
the annual audit report are to be negotiated with disagreements subject
to the declination procedures of section 102 of the Act.
(7) Congress has declared that there not be any threshold issues
which would avoid the declination, contract review, approval, and appeal
process.
(8) Congress has declared that all self-determination contract
proposals must be supported by the resolution of an Indian tribe(s).
(9) Congress has declared that to the extent that programs,
functions, services, and activities carried out by tribes and tribal
organizations pursuant to contracts entered into under this Act reduce
the administrative or other responsibilities of the Secretary with
respect to the operation of Indian programs and result in savings that
have not otherwise been included in the amount of contract funds
determined under section 106(a) of the Act, the Secretary shall make
such savings available for the provision of additional services to
program beneficiaries, either directly or through contractors, in a
manner equitable to both direct and contracted programs.
(b) Secretarial policy. (1) It is the policy of the Secretary to
facilitate the efforts of Indian tribes and tribal organizations to
plan, conduct and administer programs, functions, services and
activities, or portions thereof, which
[[Page 991]]
the Departments are authorized to administer for the benefit of Indians
because of their status as Indians. The Secretary shall make best
efforts to remove any obstacles which might hinder Indian tribes and
tribal organizations including obstacles that hinder tribal autonomy and
flexibility in the administration of such programs.
(2) It is the policy of the Secretary to encourage Indian tribes and
tribal organizations to become increasingly knowledgeable about the
Departments' programs administered for the benefit of Indians by
providing information on such programs, functions and activities and the
opportunities Indian tribes have regarding them.
(3) It is the policy of the Secretary to provide a uniform and
consistent set of rules for contracts under the Act. The rules contained
herein are designed to facilitate and encourage Indian tribes to
participate in the planning, conduct, and administration of those
Federal programs serving Indian people. The Secretary shall afford
Indian tribes and tribal organizations the flexibility, information, and
discretion necessary to design contractible programs to meet the needs
of their communities consistent with their diverse demographic,
geographic, economic, cultural, health, social, religious and
institutional needs.
(4) The Secretary recognizes that contracting under the Act is an
exercise by Indian tribes of the government-to-government relationship
between the United States and the Indian tribes. When an Indian tribe
contracts, there is a transfer of the responsibility with the associated
funding. The tribal contractor is accountable for managing the day-to-
day operations of the contracted Federal programs, functions, services,
and activities. The contracting tribe thereby accepts the responsibility
and accountability to the beneficiaries under the contract with respect
to use of the funds and the satisfactory performance of the programs,
functions, services and activities funded under the contract. The
Secretary will continue to discharge the trust responsibilities to
protect and conserve the trust resources of Indian tribes and the trust
resources of individual Indians.
(5) The Secretary recognizes that tribal decisions to contract or
not to contract are equal expressions of self-determination.
(6) The Secretary shall maintain consultation with tribal
governments and tribal organizations in the Secretary's budget process
relating to programs, functions, services and activities subject to the
Act. In addition, on an annual basis, the Secretary shall consult with,
and solicit the participation of, Indian tribes and tribal organizations
in the development of the budget for the Indian Health Service and the
Bureau of Indian Affairs (including participation of Indian tribes and
tribal organizations in formulating annual budget requests that the
Secretary submits to the President for submission to Congress pursuant
to section 1105 of title 31, United States Code).
(7) The Secretary is committed to implementing and fully supporting
the policy of Indian self-determination by recognizing and supporting
the many positive and successful efforts and directions of tribal
governments and extending the applicability of this policy to all
operational components within the Department. By fully extending Indian
self-determination contracting to all operational components within the
Department having programs or portions of programs for the benefit of
Indians under section 102(a)(1) (A) through (D) and for the benefit of
Indians because of their status as Indians under section 102(a)(1)(E),
it is the Secretary's intent to support and assist Indian tribes in the
development of strong and stable tribal governments capable of
administering quality programs that meet the tribally determined needs
and directions of their respective communities. It is also the policy of
the Secretary to have all other operational components within the
Department work cooperatively with tribal governments on a government-
to-government basis so as to expedite the transition away from Federal
domination of Indian programs and make the ideals of Indian self-
government and self-determination a reality.
(8) It is the policy of the Secretary that the contractibility of
programs under this Act should be encouraged.
[[Page 992]]
In this regard, Federal laws and regulations should be interpreted in a
manner that will facilitate the inclusion of those programs or portions
of those programs that are for the benefit of Indians under section
102(a)(1) (A) through (D) of the Act, and that are for the benefit of
Indians because of their status of Indians under section 102(a)(1)(E) of
the Act.
(9) It is the Secretary's policy that no later than upon receipt of
a contract proposal under the Act (or written notice of an Indian tribe
or tribal organization's intention to contract), the Secretary shall
commence planning such administrative actions, including but not limited
to transfers or reductions in force, transfers of property, and
transfers of contractible functions, as may be necessary to ensure a
timely transfer of responsibilities and funding to Indian tribes and
tribal organizations.
(10) It is the policy of the Secretary to make available to Indian
tribes and tribal organizations all administrative functions that may
lawfully be contracted under the Act, employing methodologies consistent
with the methodology employed with respect to such functions under
titles III and IV of the Act.
(11) The Secretary's commitment to Indian self-determination
requires that these regulations be liberally construed for the benefit
of Indian tribes and tribal organizations to effectuate the strong
Federal policy of self-determination and, further, that any ambiguities
herein be construed in favor of the Indian tribe or tribal organization
so as to facilitate and enable the transfer of services, programs,
functions, and activities, or portions thereof, authorized by the Act.
Sec. 900.4 Effect on existing tribal rights.
Nothing in these regulations shall be construed as:
(a) Affecting, modifying, diminishing, or otherwise impairing the
sovereign immunity from suit enjoyed by Indian tribes;
(b) Terminating, waiving, modifying, or reducing the trust
responsibility of the United States to the Indian tribe(s) or individual
Indians. The Secretary shall act in good faith in upholding this trust
responsibility;
(c) Mandating an Indian tribe to apply for a contract(s) or grant(s)
as described in the Act; or
(d) Impeding awards by other Departments and agencies of the United
States to Indian tribes to administer Indian programs under any other
applicable law.
Sec. 900.5 Effect of these regulations on Federal program guidelines,
manual, or policy directives.
Except as specifically provided in the Act, or as specified in
subpart J, an Indian tribe or tribal organization is not required to
abide by any unpublished requirements such as program guidelines,
manuals, or policy directives of the Secretary, unless otherwise agreed
to by the Indian tribe or tribal organization and the Secretary, or
otherwise required by law.
Subpart B_Definitions
Sec. 900.6 Definitions.
Unless otherwise provided in this part:
Act means secs. 1 through 9, and title I of the Indian Self-
Determination and Education Assistance Act of 1975, Public Law 93-638,
as amended.
Annual funding agreement means a document that represents the
negotiated agreement of the Secretary to fund, on an annual basis, the
programs, services, activities and functions transferred to an Indian
tribe or tribal organization under the Act.
Appeal means a request by an Indian tribe or tribal organization for
an administrative review of an adverse Agency decision.
Awarding official means any person who by appointment or delegation
in accordance with applicable regulations has the authority to enter
into and administer contracts on behalf of the United States of America
and make determinations and findings with respect thereto. Pursuant to
the Act, this person can be any Federal official, including but not
limited to, contracting officers.
BIA means the Bureau of Indian Affairs of the Department of the
Interior.
[[Page 993]]
Contract means a self-determination contract as defined in section
4(j) of the Act.
Contract appeals board means the Interior Board of Contract Appeals.
Contractor means an Indian tribe or tribal organization to which a
contract has been awarded.
Days means calendar days; except where the last day of any time
period specified in these regulations falls on a Saturday, Sunday, or a
Federal holiday, the period shall carry over to the next business day
unless otherwise prohibited by law.
Department(s) means the Department of Health and Human Services
(HHS) or the Department of the Interior (DOI), or both.
IHS means the Indian Health Service of the Department of Health and
Human Services.
Indian means a person who is a member of an Indian Tribe.
Indian tribe means any Indian tribe, band, nation, or other
organized group, or community, including pueblos, rancherias, colonies
and any Alaska Native Village, or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims
Settlement Act, which is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
Indirect cost rate means the rate(s) arrived at through negotiation
between an Indian tribe or tribal organization and the appropriate
Federal Agency.
Indirect costs means costs incurred for a common or joint purpose
benefiting more than one contract objective or which are not readily
assignable to the contract objectives specifically benefitted without
effort disproportionate to the results achieved.
Initial contract proposal means a proposal for programs, functions,
services, or activities that the Secretary is authorized to perform but
which the Indian tribe or tribal organization is not now carrying out.
Real property means any interest in land together with the
improvements, structures, and fixtures and appurtenances thereto.
Reassumption means rescission, in whole or in part, of a contract
and assuming or resuming control or operation of the contracted program
by the Secretary without consent of the Indian tribe or tribal
organization pursuant to the notice and other procedures set forth in
subpart P.
Retrocession means the voluntary return to the Secretary of a
contracted program, in whole or in part, for any reason, before the
expiration of the term of the contract.
Secretary means the Secretary of Health and Human Services (HHS) or
the Secretary of the Interior (DOI), or both (and their respective
delegates).
Tribal organization means the recognized governing body of any
Indian tribe; any legally established organization of Indians which is
controlled, sanctioned, or chartered by such governing body or which is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities: provided,
that, in any case where a contract is let or a grant made to an
organization to perform services benefiting more than one Indian tribe,
the approval of each such Indian tribe shall be a prerequisite to the
letting or making of such contract or grant.
Trust resources means an interest in land, water, minerals, funds,
or other assets or property which is held by the United States in trust
for an Indian tribe or an individual Indian or which is held by an
Indian tribe or Indian subject to a restriction on alienation imposed by
the United States.
Subpart C_Contract Proposal Contents
Sec. 900.7 What technical assistance is available to assist in preparing
an initial contract proposal?
The Secretary shall, upon request of an Indian tribe or tribal
organization and subject to the availability of appropriations, provide
technical assistance on a non-reimbursable basis to such Indian tribe or
tribal organization to develop a new contract proposal or to provide for
the assumption by the Indian tribe or tribal organization of any
program, service, function, or activity (or portion thereof) that is
[[Page 994]]
contractible under the Act. The Secretary may also make a grant to an
Indian tribe or tribal organization for the purpose of obtaining
technical assistance, as provided in section 103 of the Act. An Indian
tribe or tribal organization may also request reimbursement for pre-
award costs for obtaining technical assistance under sections 106(a) (2)
and (5) of the Act.
Sec. 900.8 What must an initial contract proposal contain?
An initial contract proposal must contain the following information:
(a) The full name, address and telephone number of the Indian tribe
or tribal organization proposing the contract.
(b) If the tribal organization is not an Indian tribe, the proposal
must also include:
(1) A copy of the tribal organization's organizational documents
(e.g., charter, articles of incorporation, bylaws, etc.).
(2) The full name(s) of the Indian tribe(s) with which the tribal
organization is affiliated.
(c) The full name(s) of the Indian tribe(s) proposed to be served.
(d) A copy of the authorizing resolution from the Indian tribe(s) to
be served.
(1) If an Indian tribe or tribal organization proposes to serve a
specified geographic area, it must provide authorizing resolution(s)
from all Indian tribes located within the specific area it proposes to
serve. However, no resolution is required from an Indian tribe located
outside the area proposed to be served whose members reside within the
proposed service area.
(2) If a currently effective authorizing resolution covering the
scope of an initial contract proposal has already been provided to the
agency receiving the proposal, a reference to that resolution.
(e) The name, title, and signature of the authorized representative
of the Indian tribe or tribal organization submitting the contract
proposal.
(f) The date of submission of the proposal.
(g) A brief statement of the programs, functions, services, or
activities that the tribal organization proposes to perform, including:
(1) A description of the geographical service area, if applicable,
to be served.
(2) The estimated number of Indian people who will receive the
benefits or services under the proposed contract.
(3) An identification of any local, Area, regional, or national
level departmental programs, functions, services, or activities to be
contracted, including administrative functions.
(4) A description of the proposed program standards;
(5) An identification of the program reports, data and financial
reports that the Indian tribe or tribal organization will provide,
including their frequency.
(6) A description of any proposed redesign of the programs,
services, functions, or activities to be contracted,
(7) Minimum staff qualifications proposed by the Indian tribe and
tribal organization, if any; and
(8) A statement that the Indian tribe or tribal organization will
meet the minimum procurement, property and financial management
standards set forth in subpart F, subject to any waiver that may have
been granted under subpart K.
(h) The amount of funds requested, including:
(1) An identification of the funds requested by programs, functions,
services, or activities, under section 106(a)(1) of the Act, including
the Indian tribe or tribal organization's share of funds related to such
programs, functions, services, or activities, if any, from any
Departmental local, area, regional, or national level.
(2) An identification of the amount of direct contract support
costs, including one-time start-up or preaward costs under section
106(a)(2) and related provisions of the Act, presented by major
categories such as:
(i) Personnel (differentiating between salary and fringe benefits);
(ii) Equipment;
(iii) Materials and supplies;
(iv) Travel;
(v) Subcontracts; and
(vi) Other appropriate items of cost.
(3) An identification of funds the Indian tribe or tribal
organization requests to recover for indirect contract
[[Page 995]]
support costs. This funding request must include either:
(i) A copy of the most recent negotiated indirect cost rate
agreement; or
(ii) An estimated amount requested for indirect costs, pending
timely establishment of a rate or negotiation of administrative overhead
costs.
(4) To the extent not stated elsewhere in the budget or previously
reported to the Secretary, any preaward costs, including the amount and
time period covered or to be covered; and
(5) At the option of the Indian tribe or tribal organization, an
identification of programs, functions, services, or activities specified
in the contract proposal which will be funded from sources other than
the Secretary.
(i) The proposed starting date and term of the contract.
(j) In the case of a cooperative agreement, the nature and degree of
Federal programmatic involvement anticipated during the term of the
agreement.
(k) The extent of any planned use of Federal personnel and Federal
resources.
(l) Any proposed waiver(s) of the regulations in this part; and
(m) A statement that the Indian tribe or tribal organization will
implement procedures appropriate to the programs, functions, services or
activities proposed to be contracted, assuring the confidentiality of
medical records and of information relating to the financial affairs of
individual Indians obtained under the proposal contract, or as otherwise
required by law.
Sec. 900.9 May the Secretary require an Indian tribe or tribal organization
to submit any other information beyond that identified in Sec. 900.8?
No.
Sec. 900.10 How does an Indian tribe or tribal organization secure a
list of all Federal property currently in use in carrying out the
programs, functions, services, or activities that benefit the Indian
tribe or
tribal organization to assist in negotiating a contract?
The Indian tribe or tribal organization submits a written request to
the Secretary. The Secretary shall provide the requested information,
including the condition of the property, within 60 days.
Sec. 900.11 What should an Indian tribe or tribal organization that
is proposing a contract do about specifying the Federal property
that the Indian tribe or
tribal organization may wish to use in carrying out the
contract?
The Indian tribe or tribal organization is encouraged to provide the
Secretary, as early as possible, with:
(a) A list of the following Federal property intended for use under
the contract:
(1) Equipment;
(2) Furnishings;
(3) Facilities; and
(4) Other real and personal property.
(b) A statement of how the Indian tribe or tribal organization will
obtain each item by transfer of title under section 105(f)(2) of the Act
and section 1(b)(8) of the model agreement set forth in section 108(c)
of the Act, through a temporary use permit, similar arrangement, or
otherwise; and
(c) Where equipment is to be shared by contracted and non-contracted
programs, services, functions, or activities, a proposal outlining
proposed equipment sharing or other arrangements.
Sec. 900.12 Are the proposal contents requirements the same for renewal
of a contract that is expiring and for securing an annual funding agreement
after the
first year of the funding agreement?
No. In these situations, an Indian tribe or tribal organization
should submit a renewal proposal (or notification of intent not to
renew) or an annual funding agreement proposal at least 90 days before
the expiration date of the contract or existing annual funding
agreement. The proposal shall provide funding information in the same
detail and format as the original proposal and may also identify any
significant proposed changes.
Sec. 900.13 Does the contract proposal become part of the final contract?
No, unless the parties agree.
[[Page 996]]
Subpart D_Review and Approval of Contract Proposals
Sec. 900.14 What does this subpart cover?
This subpart covers any proposal to enter into a self-determination
contract, to amend an existing self-determination contract, to renew an
existing self-determination contract, or to redesign a program through a
self-determination contract.
Sec. 900.15 What shall the Secretary do upon receiving a proposal?
Upon receipt of a proposal, the Secretary shall:
(a) Within two days notify the applicant in writing that the
proposal has been received;
(b) Within 15 days notify the applicant in writing of any missing
items required by Sec. 900.8 and request that the items be submitted
within 15 days of receipt of the notification; and
(c) Review the proposal to determine whether there are declination
issues under section 102(a)(2) of the Act.
Sec. 900.16 How long does the Secretary have to review and approve the
proposal and award the contract, or decline a proposal?
The Secretary has 90 days after receipt of a proposal to review and
approve the proposal and award the contract or decline the proposal in
compliance with section 102 of the Act and subpart E. At any time during
the review period the Secretary may approve the proposal and award the
requested contract.
Sec. 900.17 Can the statutory 90-day period be extended?
Yes, with written consent of the Indian tribe or tribal
organization. If consent is not given, the 90-day deadline applies.
Sec. 900.18 What happens if a proposal is not declined within 90 days
after it is received by the Secretary?
A proposal that is not declined within 90 days (or within any agreed
extension under Sec. 900.17) is deemed approved and the Secretary shall
award the contract or any amendment or renewal within that 90-day period
and add to the contract the full amount of funds pursuant to section
106(a) of the Act.
Sec. 900.19 What happens when a proposal is approved?
Upon approval the Secretary shall award the contract and add to the
contract the full amount of funds to which the contractor is entitled
under section 106(a) of the Act.
Subpart E_Declination Procedures
Sec. 900.20 What does this subpart cover?
This subpart explains how and under what circumstances the Secretary
may decline a proposal to contract, to amend an existing contract, to
renew an existing contract, to redesign a program, or to waive any
provisions of these regulations. For annual funding agreements, see
Sec. 900.32.
Sec. 900.21 When can a proposal be declined?
As explained in Sec. Sec. 900.16 and 900.17, a proposal can only be
declined within 90 days after the Secretary receives the proposal,
unless that period is extended with the voluntary and express written
consent of the Indian tribe or tribal organization.
Sec. 900.22 For what reasons can the Secretary decline a proposal?
The Secretary may only decline to approve a proposal for one of five
specific reasons:
(a) The service to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function to be contracted for cannot be
properly completed or maintained by the proposed contract;
(d) The amount of funds proposed under the contract is in excess of
the applicable funding level for the contract, as determined under
section 106(a) of the Act; or
(e) The program, function, service, or activity (or a portion
thereof) that is the subject of the proposal is beyond
[[Page 997]]
the scope of programs, functions, services, or activities covered under
section 102(a)(1) of the Act because the proposal includes activities
that cannot lawfully be carried out by the contractor.
Sec. 900.23 Can the Secretary decline a proposal where the Secretary's
objection can be overcome through the contract?
No. The Secretary may not decline to enter into a contract with an
Indian tribe or tribal organization based on any objection that will be
overcome through the contract.
Sec. 900.24 Can a contract proposal for an Indian tribe or tribal
organization's share of administrative programs, functions, services,
and activities be
declined for any reason other than the five reasons specified
in Sec. 900.22?
No. The Secretary may only decline a proposal based upon one or more
of the five reasons listed above. If a contract affects the preexisting
level of services to any other tribe, the Secretary shall address that
effect in the Secretary's annual report to Congress under section
106(c)(6) of the Act.
Sec. 900.25 What if only a portion of a proposal raises one of the five
declination criteria?
The Secretary must approve any severable portion of a proposal that
does not support a declination finding described in Sec. 900.20,
subject to any alteration in the scope of the proposal that the
Secretary and the Indian tribe or tribal organization approve.
Sec. 900.26 What happens if the Secretary declines a part of a proposal
on the ground that the proposal proposes in part to plan, conduct, or
administer a
program, function, service or activity that is beyond the
scope of programs covered under section 102(a) of the Act, or
proposes a level of funding that is in excess of the
applicable level determined under section 106(a) of the Act?
In those situations the Secretary is required, as appropriate, to
approve the portion of the program, function, service, or activity that
is authorized under section 102(a) of the Act, or approve a level of
funding that is authorized under section 106(a) of the Act. As noted in
Sec. 900.25, the approval is subject to any alteration in the scope of
the proposal that the Secretary and the Indian tribe or tribal
organization approve.
Sec. 900.27 If an Indian tribe or tribal organization elects to contract
for a severable portion of a proposal, does the Indian tribe or tribal
organization lose its appeal rights to challenge the portion of the
proposal that was declined?
No, but the hearing and appeal procedures contained in these
regulations only apply to the portion of the proposal that was declined.
Sec. 900.28 Is technical assistance available to an Indian tribe or
tribal organization to avoid declination of a proposal?
Yes. In accordance with section 103(d) of the Act, upon receiving a
proposal, the Secretary shall provide any necessary requested technical
assistance to an Indian tribe or tribal organization, and shall share
all relevant information with the Indian tribe or tribal organization,
in order to avoid declination of the proposal.
Sec. 900.29 What is the Secretary required to do if the Secretary decides
to decline all or a portion of a proposal?
If the Secretary decides to decline all or a severable portion of a
proposal, the Secretary is required:
(a) To advise the Indian tribe or tribal organization in writing of
the Secretary's objections, including a specific finding that clearly
demonstrates that (or that is supported by a controlling legal authority
that) one of the conditions set forth in Sec. 900.22 exists, together
with a detailed explanation of the reason for the decision to decline
the proposal and, within 20 days, any documents relied on in making the
decision; and
(b) To advise the Indian tribe or tribal organization in writing of
the rights described in Sec. 900.31.
[[Page 998]]
Sec. 900.30 When the Secretary declines all or a portion of a proposal,
is the Secretary required to provide an Indian tribe or tribal organization
with technical assistance?
Yes. The Secretary shall provide additional technical assistance to
overcome the stated objections, in accordance with section 102(b) of the
Act, and shall provide any necessary requested technical assistance to
develop any modifications to overcome the Secretary's stated objections.
Sec. 900.31 When the Secretary declines all or a portion of a proposal,
is an Indian tribe or tribal organization entitled to any appeal?
Yes. The Indian tribe or tribal organization is entitled to an
appeal on the objections raised by the Secretary, with an agency hearing
on the record, and the right to engage in full discovery relevant to any
issue raised in the matter. The procedures for appeals are in subpart L
of these regulations. Alternatively, at its option the Indian tribe or
tribal organization has the right to sue in Federal district court to
challenge the Secretary's decision.
Sec. 900.32 Can the Secretary decline an Indian tribe or tribal
organization's proposed successor annual funding agreement?
No. If it is substantially the same as the prior annual funding
agreement (except for funding increases included in appropriations acts
or funding reductions as provided in section 106(b) of the Act) and the
contract is with DHHS or the BIA, the Secretary shall approve and add to
the contract the full amount of funds to which the contractor is
entitled, and may not decline, any portion of a successor annual funding
agreement. Any portion of an annual funding agreement proposal which is
not substantially the same as that which was funded previously (e.g., a
redesign proposal; waiver proposal; different proposed funding amount;
or different program, service, function, or activity), or any annual
funding agreement proposal which pertains to a contract with an agency
of DOI other than the BIA, is subject to the declination criteria and
procedures in subpart E. If there is a disagreement over the
availability of appropriations, the Secretary may decline the proposal
in part under the procedure in subpart E.
Sec. 900.33 Are all proposals to renew term contracts subject to the
declination criteria?
Department of Health and Human Services and the Bureau of Indian
Affairs will not review the renewal of a term contract for declination
issues where no material and substantial change to the scope or funding
of a program, functions, services, or activities has been proposed by
the Indian tribe or tribal organization. Proposals to renew term
contracts with DOI agencies other than the Bureau of Indian Affairs may
be reviewed under the declination criteria.
Subpart F_Standards for Tribal or Tribal Organization Management Systems
General
Sec. 900.35 What is the purpose of this subpart?
This subpart contains the minimum standards for the management
systems used by Indian tribes or tribal organizations when carrying out
self-determination contracts. It provides standards for an Indian tribe
or tribal organization's financial management system, procurement
management system, and property management system.
Sec. 900.36 What requirements are imposed upon Indian tribes or tribal
organizations by this subpart?
When carrying out self-determination contracts, Indian tribes and
tribal organizations shall develop, implement, and maintain systems that
meet these minimum standards, unless one or more of the standards have
been waived, in whole or in part, under section 107(e) of the Act and
subpart K.
Sec. 900.37 What provisions of Office of Management and Budget (OMB)
circulars or the ``common rule'' apply to self-determination contracts?
The only provisions of OMB Circulars and the only provisions of the
``common rule'' that apply to self-determination contracts are the
provisions
[[Page 999]]
adopted in these regulations, those expressly required or modified by
the Act, and those negotiated and agreed to in a self-determination
contract.
Sec. 900.38 Do these standards apply to the subcontractors of an Indian
tribe or tribal organization carrying out a self-determination contract?
An Indian tribe or tribal organization may require that some or all
of the standards in this subpart be imposed upon its subcontractors when
carrying out a self-determination contract.
Sec. 900.39 What is the difference between a standard and a system?
(a) Standards are the minimum baseline requirements for the
performance of an activity. Standards establish the ``what'' that an
activity should accomplish.
(b) Systems are the procedural mechanisms and processes for the day-
to-day conduct of an activity. Systems are ``how'' the activity will be
accomplished.
Sec. 900.40 When are Indian tribe or tribal organization management
standards and management systems evaluated?
(a) Management standards are evaluated by the Secretary when the
Indian tribe or tribal organization submits an initial contract
proposal.
(b) Management systems are evaluated by an independent auditor
through the annual single agency audit report that is required by the
Act and OMB Circular A-128.
Sec. 900.41 How long must an Indian tribe or tribal organization keep
management system records?
The Indian tribe or tribal organization must retain financial,
procurement and property records for the minimum periods described
below. Electronic, magnetic or photographic records may be substituted
for hard copies.
(a) Financial records. Financial records include documentation of
supporting costs incurred under the contract. These records must be
retained for three years from the date of submission of the single audit
report to the Secretary.
(b) Procurement records. Procurement records include solicitations,
purchase orders, contracts, payment histories and records applicable of
significant decisions. These records must be retained for three years
after the Indian tribe or tribal organization or subcontractors make
final payment and all other pending matters are closed.
(c) Property management records. Property management records of real
and personal property transactions must be retained for three years from
the date of disposition, replacement, or transfer.
(d) Litigation, audit exceptions and claims. Records pertaining to
any litigation, audit exceptions or claims requiring management systems
data must be retained until the action has been completed.
Standards for Financial Management Systems
Sec. 900.42 What are the general financial management system standards
that apply to an Indian tribe carrying out a self-determination contract?
An Indian tribe shall expend and account for contract funds in
accordance with all applicable tribal laws, regulations, and procedures.
Sec. 900.43 What are the general financial management system standards
that apply to a tribal organization carrying out a self-determination
contract?
A tribal organization shall expend and account for contract funds in
accordance with the procedures of the tribal organization.
Sec. 900.44 What minimum general standards apply to all Indian tribe or
tribal organization financial management systems when carrying out a self-
determination contract?
The fiscal control and accounting procedures of an Indian tribe or
tribal organization shall be sufficient to:
(a) Permit preparation of reports required by a self-determination
contract and the Act; and
(b) Permit the tracing of contract funds to a level of expenditure
adequate to establish that they have not been used in violation of any
restrictions or prohibitions contained in any
[[Page 1000]]
statute that applies to the self-determination contract.
Sec. 900.45 What specific minimum requirements shall an Indian tribe or
tribal organization's financial management system contain to meet these
standards?
An Indian tribe or tribal organization's financial management system
shall include provisions for the following seven elements.
(a) Financial reports. The financial management system shall provide
for accurate, current, and complete disclosure of the financial results
of self-determination contract activities. This includes providing the
Secretary a completed Financial Status Report, SF 269A, as negotiated
and agreed to in the self-determination contract.
(b) Accounting records. The financial management system shall
maintain records sufficiently detailed to identify the source and
application of self-determination contract funds received by the Indian
tribe or tribal organization. The system shall contain sufficient
information to identify contract awards, obligations and unobligated
balances, assets, liabilities, outlays, or expenditures and income.
(c) Internal controls. The financial management system shall
maintain effective control and accountability for all self-determination
contract funds received and for all Federal real property, personal
property, and other assets furnished for use by the Indian tribe or
tribal organization under the self-determination contract.
(d) Budget controls. The financial management system shall permit
the comparison of actual expenditures or outlays with the amounts
budgeted by the Indian tribe or tribal organization for each self-
determination contract.
(e) Allowable costs. The financial management system shall be
sufficient to determine the reasonableness, allowability, and
allocability of self-determination contract costs based upon the terms
of the self-determination contract and the Indian tribe or tribal
organization's applicable OMB cost principles, as amended by the Act and
these regulations. (The following chart lists certain OMB Circulars and
suggests the entities that may use each, but the final selection of the
applicable circular may differ from those shown, as agreed to by the
Indian tribe or tribal organization and the Secretary. Agreements
between an Indian tribe or tribal organization and the Secretary
currently in place do not require renegotiation.) Copies of these
circulars are available from the Executive Office of the President,
Publications Service, 725 17th Street N. W., Washington, D. C. 20503.
------------------------------------------------------------------------
Type of tribal organization Applicable OMB cost circular
------------------------------------------------------------------------
Tribal Government...................... A-87, ``Cost Principles for
State, Local and Indian Tribal
Governments.''
Tribal private non-profit other than: A-122, ``Cost Principles for
(1) an institution of higher Non-Profit Organizations.''
education, (2) a hospital, or (3) an
organization named in OMB Circular A-
122 as not subject to that circular.
Tribal educational institution......... A-21, ``Cost Principles for
Educational Institutions.''
------------------------------------------------------------------------
(f) Source documentation. The financial management system shall
contain accounting records that are supported by source documentation,
e.g., canceled checks, paid bills, payroll records, time and attendance
records, contract award documents, purchase orders, and other primary
records that support self-determination contract fund expenditures.
(g) Cash management. The financial management system shall provide
for accurate, current, and complete disclosure of cash revenues
disbursements, cash-on-hand balances, and obligations by source and
application for each Indian tribe or tribal organization, and
subcontractor if applicable, so that complete and accurate cash
transactions may be prepared as required by the self-determination
contract.
[[Page 1001]]
Sec. 900.46 What requirements are imposed upon the Secretary for
financial management by these standards?
The Secretary shall establish procedures, consistent with Treasury
regulations as modified by the Act, for the transfer of funds from the
United States to the Indian tribe or tribal organization in strict
compliance with the self-determination contract and the annual funding
agreement.
Procurement Management System Standards
Sec. 900.47 When procuring property or services with self-determination
contract funds, can an Indian tribe or tribal organization follow the
same procurement
policies and procedures applicable to other Indian tribe or
tribal organization funds?
Indian tribes and tribal organizations shall have standards that
conform to the standards in this subpart. If the Indian tribe or tribal
organization relies upon standards different than those described below,
it shall identify the standards it will use as a proposed waiver in the
initial contract proposal or as a waiver request to an existing
contract.
Sec. 900.48 If the Indian tribe or tribal organization does not propose
different standards, what basic standards shall the Indian tribe or tribal
organization follow?
(a) The Indian tribe or tribal organization shall ensure that its
vendors and/or subcontractors perform in accordance with the terms,
conditions, and specifications of their contracts or purchase orders.
(b) The Indian tribe or tribal organization shall maintain written
standards of conduct governing the performance of its employees who
award and administer contracts.
(1) No employee, officer, elected official, or agent of the Indian
tribe or tribal organization shall participate in the selection, award,
or administration of a procurement supported by Federal funds if a
conflict of interest, real or apparent, would be involved.
(2) An employee, officer, elected official, or agent of an Indian
tribe or tribal organization, or of a subcontractor of the Indian tribe
or tribal organization, is not allowed to solicit or accept gratuities,
favors, or anything of monetary value from contractors, potential
contractors, or parties to sub-agreements, with the following
exemptions. The Indian tribe or tribal organization may exempt a
financial interest that is not substantial or a gift that is an
unsolicited item of nominal value.
(3) These standards shall also provide for penalties, sanctions, or
other disciplinary actions for violations of the standards.
(c) The Indian tribe or tribal organization shall review proposed
procurements to avoid buying unnecessary or duplicative items and ensure
the reasonableness of the price. The Indian tribe or tribal organization
should consider consolidating or breaking out procurement to obtain more
economical purchases. Where appropriate, the Indian tribe or tribal
organization shall compare leasing and purchasing alternatives to
determine which is more economical.
(d) The Indian tribe or tribal organization shall conduct all major
procurement transactions by providing full and open competition, to the
extent necessary to assure efficient expenditure of contract funds and
to the extent feasible in the local area.
(1) Indian tribes or tribal organizations shall develop their own
definition for ``major procurement transactions.''
(2) As provided in sections 7 (b) and (c) of the Act, Indian
preference and tribal preferences shall be applied in any procurement
award.
(e) The Indian tribe or tribal organization shall make procurement
awards only to responsible entities who have the ability to perform
successfully under the terms and conditions of the proposed procurement.
In making this judgment, the Indian tribe or tribal organization will
consider such matters as the contractor's integrity, its compliance with
public policy, its record of past performance, and its financial and
technical resources.
(f) The Indian tribe or tribal organization shall maintain records
on the significant history of all major procurement transactions. These
records may include, but are not limited to,
[[Page 1002]]
the rationale for the method of procurement, the selection of contract
type, the contract selection or rejection, and the basis for the
contract price.
(g) The Indian tribe or tribal organization is solely responsible,
using good administrative practice and sound business judgment, for
processing and settling all contractual and administrative issues
arising out of a procurement. These issues include, but are not limited
to, source evaluation, protests, disputes, and claims.
(1) The settlement of any protest, dispute, or claim shall not
relieve the Indian tribe or tribal organization of any obligations under
a self-determination contract.
(2) Violations of law shall be referred to the tribal or Federal
authority having proper jurisdiction.
Sec. 900.49 What procurement standards apply to subcontracts?
Each subcontract entered into under the Act shall at a minimum:
(a) Be in writing;
(b) Identify the interested parties, their authorities, and the
purposes of the contract;
(c) State the work to be performed under the contract;
(d) State the process for making any claim, the payments to be made,
and the terms of the contract, which shall be fixed; and
(e) Be subject to sections 7 (b) and (c) of the Act.
Sec. 900.50 What Federal laws, regulations, and Executive Orders apply
to subcontractors?
Certain provisions of the Act as well as other applicable Federal
laws, regulations, and Executive Orders apply to subcontracts awarded
under self-determination contracts. As a result, subcontracts should
contain a provision informing the recipient that their award is funded
with Indian Self-Determination Act funds and that the recipient is
responsible for identifying and ensuring compliance with applicable
Federal laws, regulations, and Executive Orders. The Secretary and the
Indian tribe or tribal organization may, through negotiation, identify
all or a portion of such requirements in the self-determination contract
and, if so identified, these requirements should be identified in
subcontracts.
Property Management System Standards
Sec. 900.51 What is an Indian tribe or tribal organization's property
management system expected to do?
An Indian tribe or tribal organization's property management system
shall account for all property furnished or transferred by the Secretary
for use under a self-determination contract or acquired with contract
funds. The property management system shall contain requirements for the
use, care, maintenance, and disposition of Federally-owned and other
property as follows:
(a) Where title vests in the Indian tribe, in accordance with tribal
law and procedures; or
(b) In the case of a tribal organization, according to the internal
property procedures of the tribal organization.
Sec. 900.52 What type of property is the property management system
required to track?
The property management system of the Indian tribe or tribal
organization shall track:
(a) Personal property with an acquisition value in excess of $5,000
per item;
(b) Sensitive personal property, which is all personal property that
is subject to theft and pilferage, as defined by the Indian tribe or
tribal organization. All firearms shall be considered sensitive personal
property; and
(c) Real property provided by the Secretary for use under the
contract.
Sec. 900.53 What kind of records shall the property management system
maintain?
The property management system shall maintain records that
accurately describe the property, including any serial number or other
identification number. These records should contain information such as
the source, titleholder, acquisition date, cost, share of Federal
participation in the cost, location, use and condition of the property,
and the date of disposal and sale price, if any.
[[Page 1003]]
Sec. 900.54 Should the property management system prescribe internal
controls?
Yes. Effective internal controls should include procedures:
(a) For the conduct of periodic inventories;
(b) To prevent loss or damage to property; and
(c) To ensure that property is used for an Indian tribe or tribal
organization's self-determination contract(s) until the property is
declared excess to the needs of the contract consistent with the Indian
tribe or tribal organization's property management system.
Sec. 900.55 What are the standards for inventories?
A physical inventory should be conducted at least once every 2
years. The results of the inventory shall be reconciled with the Indian
tribe or tribal organization's internal property and accounting records.
Sec. 900.56 What maintenance is required for property?
Required maintenance includes the performance of actions necessary
to keep the property in good working condition, the procedures
recommended by equipment manufacturers, and steps necessary to protect
the interests of the contractor and the Secretary in any express
warranties or guarantees covering the property.
Sec. 900.57 What if the Indian tribe or tribal organization chooses not
to take title to property furnished or acquired under the contract?
If the Indian tribe or tribal organization chooses not to take title
to property furnished by the government or acquired with contract funds,
title to the property remains vested in the Secretary. A list of
Federally-owned property to be used under the contract shall be included
in the contract.
Sec. 900.58 Do the same accountability and control procedures described
above apply to Federal property?
Yes, except that requirements for the inventory and disposal of
Federal property are different.
Sec. 900.59 How are the inventory requirements for Federal property
different than for tribal property?
There are three additional requirements:
(a) The Indian tribe or tribal organization shall conduct a physical
inventory of the Federally-owned property and reconcile the results with
the Indian tribe or tribal organization's property records annually,
rather than every 2 years;
(b) Within 90 days following the end of an annual funding agreement,
the Indian tribe or tribal organization shall certify and submit to the
Secretary an annual inventory of all Federally-owned real and personal
property used in the contracted program; and
(c) The inventory shall report any increase or decrease of $5,000 or
more in the value of any item of real property.
Sec. 900.60 How does an Indian tribe or tribal organization dispose
of Federal personal property?
The Indian tribe or tribal organization shall report to the
Secretary in writing any Federally-owned personal property that is worn
out, lost, stolen, damaged beyond repair, or no longer needed for the
performance of the contract.
(a) The Indian tribe or tribal organization shall state whether the
Indian tribe or tribal organization wants to dispose of or return the
property.
(b) If the Secretary does not respond within 60 days, the Indian
tribe or tribal organization may return the property to the Secretary,
who shall accept transfer, custody, control, and responsibility for the
property (together with all associated costs).
Subpart G_Programmatic Reports and Data Requirements
Sec. 900.65 What programmatic reports and data shall the Indian tribe
or tribal organization provide?
Unless required by statute, there are no mandatory reporting
requirements. Each Indian tribe or tribal organization shall negotiate
with the Secretary the type and frequency of program narrative and
program data report(s)
[[Page 1004]]
which respond to the needs of the contracting parties and that are
appropriate for the purposes of the contract. The extent of available
resources will be a consideration in the negotiations.
Sec. 900.66 What happens if the Indian tribe or tribal organization
and the Secretary cannot come to an agreement concerning the type
and/or frequency of
program narrative and/or program data report(s)?
Any disagreements over reporting requirements are subject to the
declination criteria and procedures in section 102 of the Act and
subpart E.
Sec. 900.67 Will there be a uniform data set for all IHS programs?
IHS will work with Indian tribe or tribal organization
representatives to develop a mutually defined uniform subset of data
that is consistent with Congressional intent, imposes a minimal
reporting burden, and which responds to the needs of the contracting
parties.
Sec. 900.68 Will this uniform data set be required of all Indian
tribe or tribal organizations contracting with the IHS under the Act?
No. The uniform data set, applicable to the services to be
performed, will serve as the target for the Secretary and the Indian
tribes or tribal organizations during individual negotiations on program
data reporting requirements.
Subpart H_Lease of Tribally-Owned Buildings by the Secretary
Sec. 900.69 What is the purpose of this subpart?
Section 105(l) of the Act requires the Secretary, at the request of
an Indian tribe or tribal organization, to enter into a lease with the
Indian tribe or tribal organization for a building owned or leased by
the tribe or tribal organization that is used for administration or
delivery of services under the Act. The lease is to include compensation
as provided in the statute as well as ``such other reasonable expenses
that the Secretary determines, by regulation, to be allowable.'' This
subpart contains requirements for these leases.
Sec. 900.70 What elements are included in the compensation for a lease
entered into between the Secretary and an Indian tribe or tribal
organization for a
building owned or leased by the Indian tribe or tribal
organization that is used for administration or delivery of
services under the Act?
To the extent that no element is duplicative, the following elements
may be included in the lease compensation:
(a) Rent (sublease);
(b) Depreciation and use allowance based on the useful life of the
facility based on acquisition costs not financed with Federal funds;
(c) Contributions to a reserve for replacement of facilities;
(d) Principal and interest paid or accrued;
(e) Operation and maintenance expenses, to the extent not otherwise
included in rent or use allowances, including, but not limited to, the
following:
(1) Water, sewage;
(2) Utilities;
(3) Fuel;
(4) Insurance;
(5) Building management supervision and custodial services;
(6) Custodial and maintenance supplies;
(7) Pest control;
(8) Site maintenance (including snow and mud removal);
(9) Trash and waste removal and disposal;
(10) Fire protection/fire fighting services and equipment;
(11) Monitoring and preventive maintenance of building structures
and systems, including but not limited to:
(i) Heating/ventilation/air conditioning;
(ii) Plumbing;
(iii) Electrical;
(iv) Elevators;
(v) Boilers;
(vi) Fire safety system;
(vii) Security system; and
(viii) Roof, foundation, walls, floors.
(12) Unscheduled maintenance;
(13) Scheduled maintenance (including replacement of floor
coverings, lighting fixtures, repainting);
(14) Security services;
(15) Management fees; and
[[Page 1005]]
(16) Other reasonable and necessary operation or maintenance costs
justified by the contractor;
(f) Repairs to buildings and equipment;
(g) Alterations needed to meet contract requirements;
(h) Other reasonable expenses; and
(i) The fair market rental for buildings or portions of buildings
and land, exclusive of the Federal share of building construction or
acquisition costs, or the fair market rental for buildings constructed
with Federal funds exclusive of fee or profit, and for land.
Sec. 900.71 What type of reserve fund is anticipated for funds deposited
into a reserve for replacement of facilities as specified in Sec. 900.70(c)?
Reserve funds must be accounted for as a capital project fund or a
special revenue fund.
Sec. 900.72 Who is the guardian of the fund and may the funds be invested?
(a) The Indian tribe or tribal organization is the guardian of the
fund.
(b) Funds may be invested in accordance with the laws, regulations
and policies of the Indian tribe or tribal organization subject to the
terms of the lease or the self-determination contract.
Sec. 900.73 Is a lease with the Secretary the only method available to
recover the types of cost described in Sec. 900.70?
No. With the exception of paragraph (i) in Sec. 900.70, the same
types of costs may be recovered in whole or in part under section 106(a)
of the Act as direct or indirect charges to a self-determination
contract.
Sec. 900.74 How may an Indian tribe or tribal organization propose a
lease to be compensated for the use of facilities?
There are three options available:
(a) The lease may be based on fair market rental.
(b) The lease may be based on a combination of fair market rental
and paragraphs (a) through (h) of Sec. 900.70, provided that no element
of expense is duplicated in fair market rental.
(c) The lease may be based on paragraphs (a) through (h) of Sec.
900.70 only.
Subpart I_Property Donation Procedures
General
Sec. 900.85 What is the purpose of this subpart?
This subpart implements section 105(f) of the Act regarding donation
of Federal excess and surplus property to Indian tribes or tribal
organizations and acquisition of property with funds provided under a
self-determination contract or grant.
Sec. 900.86 How will the Secretary exercise discretion to acquire and
donate BIA or IHS excess property and excess and surplus Federal
property to an Indian
tribe or tribal organization?
The Secretary will exercise discretion in a way that gives maximum
effect to the requests of Indian tribes or tribal organizations for
donation of BIA or IHS excess property and excess or surplus Federal
property, provided that the requesting Indian tribe or tribal
organization shall state how the requested property is appropriate for
use for any purpose for which a self-determination contract or grant is
authorized.
Government-Furnished Property
Sec. 900.87 How does an Indian tribe or tribal organization obtain title
to property furnished by the Federal government for use in the performance
of a contract or grant agreement pursuant to section 105(f)(2)(A)
of the Act?
(a) For government-furnished personal property made available to an
Indian tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with each Indian tribe or tribal
organization, shall develop a list of the property used in a self-
determination contract.
(2) The Indian tribe or tribal organization shall indicate any items
on the list to which the Indian tribe or tribal organization wants the
Secretary to retain title.
[[Page 1006]]
(3) The Secretary shall provide the Indian tribe or tribal
organization with any documentation needed to transfer title to the
remaining listed property to the Indian tribe or tribal organization.
(b) For government-furnished real property made available to an
Indian tribe or tribal organization before October 25, 1994:
(1) The Secretary, in consultation with the Indian tribe or tribal
organization, shall develop a list of the property furnished for use in
a self-determination contract.
(2) The Secretary shall inspect any real property on the list to
determine the presence of any hazardous substance activity, as defined
in 41 CFR 101-47.202.2(b)(10). If the Indian tribe or tribal
organization desires to take title to any real property on the list, the
Indian tribe or tribal organization shall inform the Secretary, who
shall take such steps as necessary to transfer title to the Indian tribe
or tribal organization.
(c) For government-furnished real and personal property made
available to an Indian tribe or tribal organization on or after October
25, 1994:
(1) The Indian tribe or tribal organization shall take title to all
property unless the Indian tribe or tribal organization requests that
the United States retain the title.
(2) The Secretary shall determine the presence of any hazardous
substance activity, as defined in 41 CFR 101-47.202.2(b)(10).
Sec. 900.88 What should the Indian tribe or tribal organization do if
it wants to obtain title to government-furnished real property that
includes land not already held in trust?
If the land is owned by the United States but not held in trust for
an Indian tribe or individual Indian, the Indian tribe or tribal
organization shall specify whether it wants to acquire fee title to the
land or whether it wants the land to be held in trust for the benefit of
a tribe.
(a) If the Indian tribe or tribal organization requests fee title,
the Secretary shall take the necessary action under Federal law and
regulations to transfer fee title.
(b) If the Indian tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for an
Indian tribe:
(1) The Indian tribe or tribal organization shall submit with its
request a resolution of support from the governing body of the Indian
tribe in which the beneficial ownership is to be registered.
(2) If the request is submitted to the Secretary of Health and Human
Services for land under the jurisdiction of that Secretary, the
Secretary shall take all necessary steps to effect a transfer of the
land to the Secretary of the Interior and shall also forward the Indian
tribe or tribal organization's request and the tribe's resolution.
(3) The Secretary of the Interior shall expeditiously process all
requests in accordance with applicable Federal law and regulations.
(4) The Secretary shall not require the Indian tribe or tribal
organization to furnish any information in support of a request other
than that required by law or regulation.
Sec. 900.89 When may the Secretary elect to reacquire government-furnished
property whose title has been transferred to an Indian tribe or tribal
organization?
(a) Except as provided in paragraph (b) of this section, when a
self-determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) That title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization in excess
of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing contracts or grant agreements and a
contract or grant agreement that is retroceded, reassumed, terminated or
expires and the Secretary wishes to use such property in the retroceded
or reassumed program, the Secretary and the contractor or grantee using
such property shall
[[Page 1007]]
negotiate an acceptable arrangement for continued sharing of such
property and for the retention or transfer of title.
Sec. 900.90 Does government-furnished real property to which an
Indian tribe or tribal organization has taken title continue to
be eligible for facilities
operation and maintenance funding from the Secretary?
Yes.
Contractor-Purchased Property
Sec. 900.91 Who takes title to property purchased with funds under
a self-determination contract or grant agreement pursuant to
section 105(f)(2)(A) of the Act?
The contractor takes title to such property, unless the contractor
chooses to have the United States take title. In that event, the
contractor must inform the Secretary of the purchase and identify the
property and its location in such manner as the contractor and the
Secretary deem necessary. A request for the United States to take title
to any item of contractor-purchased property may be made at any time. A
request for the Secretary to take fee title to real property shall be
expeditiously processed in accordance with applicable Federal law and
regulation.
Sec. 900.92 What should the Indian tribe or tribal organization do if
it wants contractor-purchased real property to be taken into trust?
The contractor shall submit a resolution of support from the
governing body of the Indian tribe in which the beneficial ownership is
to be registered. If the request to take contractor-purchased real
property into trust is submitted to the Secretary of Health and Human
Services, that Secretary shall transfer the request to the Secretary of
the Interior. The Secretary of the Interior shall expeditiously process
all requests in accord with applicable Federal law and regulation.
Sec. 900.93 When may the Secretary elect to acquire title to
contractor-purchased property?
(a) Except as provided in paragraph (b) of this section when a self-
determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) Whose title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization, in excess
of $5,000.
(b) If property referred to in paragraph (a) of this section is
shared between one or more ongoing contracts or grant agreements and a
contract or grant agreement that is retroceded, reassumed, terminated or
expires and the Secretary wishes to use such property in the retroceded
or reassumed program, the Secretary and the contractor or grantee using
such property shall negotiate an acceptable arrangement for continued
sharing of such property and for the retention or transfer of title.
Sec. 900.94 Is contractor-purchased real property to which an Indian
tribe or tribal organization holds title eligible for facilities operation and
maintenance funding from the Secretary?
Yes.
BIA and IHS Excess Property
Sec. 900.95 What is BIA or IHS excess property?
BIA or IHS excess property means property under the jurisdiction of
the BIA or IHS that is excess to the agency's needs and the discharge of
its responsibilities.
Sec. 900.96 How can Indian tribes or tribal organizations learn about
BIA and IHS excess property?
The Secretary shall not less than annually send to Indian tribes and
tribal organizations a listing of all excess BIA or IHS personal
property before reporting the property to GSA or to any other Federal
agency as excess. The listing shall identify the agency official to whom
a request for donation shall be submitted.
[[Page 1008]]
Sec. 900.97 How can an Indian tribe or tribal organization acquire excess
BIA or IHS property?
(a) The Indian tribe or tribal organization shall submit to the
appropriate Secretary a request for specific property that includes a
statement of how the property is intended for use in connection with a
self-determination contract or grant. The Secretary shall expeditiously
process the request and shall exercise discretion in a way that gives
maximum effect to the request of Indian tribes or tribal organizations
for the donation of excess BIA or IHS property.
(b) If more than one request for the same item of personal property
is submitted, the Secretary shall award the item to the requestor whose
request is received on the earliest date. If two or more requests are
received on the same date, the Secretary shall award the item to the
requestor with the lowest transportation costs. The Secretary shall make
the donation as expeditiously as possible.
(c) If more than one request for the same parcel of real property is
submitted, the Secretary shall award the property to the Indian tribe or
tribal organization whose reservation or trust land is closest to the
real property requested.
Sec. 900.98 Who takes title to excess BIA or IHS property donated to
an Indian tribe or tribal organization?
The Indian tribe or tribal organization takes title to donated
excess BIA or IHS property. The Secretary shall provide the Indian tribe
or tribal organization with all documentation needed to vest title in
the Indian tribe or tribal organization.
Sec. 900.99 Who takes title to any land that is part of excess BIA
or IHS real property donated to an Indian tribe or tribal organization?
(a) If an Indian tribe or tribal organization requests donation of
fee title to excess real property that includes land not held in trust
for an Indian tribe, the Indian tribe or tribal organization shall so
specify in its request for donation. The Secretary shall take the
necessary action under Federal law and regulations to transfer the title
to the Indian tribe or tribal organization.
(b) If an Indian tribe or tribal organization asks the Secretary to
donate excess real property that includes land and requests that fee
title to the land be held by the United States in trust for an Indian
tribe, the requestor shall submit a resolution of support from the
governing body of the Indian tribe in which the beneficial ownership is
to be registered.
(1) If the donation request is submitted to the Secretary of Health
and Human Services, that Secretary shall take all steps necessary to
transfer the land to the Secretary of the Interior with the Indian tribe
or tribal organization's request and the Indian tribe's resolution. The
Secretary of the Interior shall expeditiously process all requests in
accordance with applicable Federal law and regulations.
(2) The Secretary shall not require the Indian tribe or tribal
organization to furnish any information in support of a request other
than that required by law or regulation.
Sec. 900.100 May the Secretary elect to reacquire excess BIA or IHS
property whose title has been transferred to an Indian tribe or tribal
organization?
Yes. When a self-determination contract or grant agreement, or
portion-- thereof, is retroceded, reassumed, terminated, or expires, the
Secretary shall have the option to take title to any item of the
property;
(a) Except as provided in paragraph (b) of this section when a self-
determination contract or grant agreement, or portion thereof, is
retroceded, reassumed, terminated, or expires, the Secretary shall have
the option to take title to any item of government-furnished property:
(1) Whose title has been transferred to an Indian tribe or tribal
organization;
(2) That is still in use in the program; and
(3) That has a current fair market value, less the cost of
improvements borne by the Indian tribe or tribal organization, in excess
of $5,000.
[[Page 1009]]
(b) To the extent that any property referred to in paragraph (a) of
this section is shared between one or more ongoing contracts or grant
agreements and a contract or grant agreement that is retroceded,
reassumed, terminated or expires and the Secretary wishes to use such
property in the retroceded or reassumed program, the Secretary and the
contractor or grantee using such property shall negotiate an acceptable
arrangement for continued sharing of such property and for the retention
or transfer of title.
Sec. 900.101 Is excess BIA or IHS real property to which an Indian
tribe or tribal organization has taken title eligible for facilities
operation and maintenance funding from the Secretary?
Yes.
Excess or Surplus Government Property of Other Agencies
Sec. 900.102 What is excess or surplus government property of other
agencies?
(a) ``Excess government property'' is real or personal property
under the control of a Federal agency, other than BIA and IHS, which is
not required for the agency's needs and the discharge of its
responsibilities.
(b) ``Surplus government property'' means excess real or personal
property that is not required for the needs of and the discharge of the
responsibilities of all Federal agencies that has been declared surplus
by the General Services Administration (GSA).
Sec. 900.103 How can Indian tribes or tribal organizations learn about
property that has been designated as excess or surplus government property?
The Secretary shall furnish, not less than annually, to Indian
tribes or tribal organizations listings of such property as may be made
available from time to time by GSA or other Federal agencies, and shall
obtain listings upon the request of an Indian tribe or tribal
organization.
Sec. 900.104 How may an Indian tribe or tribal organization receive excess
or surplus government property of other agencies?
(a) The Indian tribe or tribal organization shall file a request for
specific property with the Secretary, and shall state how the property
is appropriate for use for a purpose for which a self-determination
contract or grant is authorized under the Act.
(b) The Secretary shall expeditiously process such request and shall
exercise discretion to acquire the property in the manner described in
Sec. 900.86 of this subpart.
(c) Upon approval of the Indian tribe or tribal organization's
request, the Secretary shall immediately request acquisition of the
property from the GSA or the holding agency, as appropriate, by
submitting the necessary documentation in order to acquire the requested
property prior to the expiration of any ``freeze'' placed on the
property by the Indian tribe or tribal organization.
(d) The Secretary shall specify that the property is requested for
donation to an Indian tribe or tribal organization pursuant to authority
provided in section 105(f)(3) of the Act.
(e) The Secretary shall request a waiver of any fees for transfer of
the property in accordance with applicable Federal regulations.
Sec. 900.105 Who takes title to excess or surplus Federal property
donated to an Indian tribe or tribal organization?
(a) Title to any donated excess or surplus Federal personal property
shall vest in the Indian tribe or tribal organization upon taking
possession.
(b) Legal title to donated excess or surplus Federal real property
shall vest in the Indian tribe or tribal organization upon acceptance by
the Indian tribe or tribal organization of a proper deed of conveyance.
(c) If the donation of excess or surplus Federal real property
includes land owned by the United States but not held in trust for an
Indian tribe, the Indian tribe or tribal organization shall specify
whether it wants to acquire fee title to the land or whether it
[[Page 1010]]
wants the land to be held in trust for the benefit of an Indian tribe.
(1) If the Indian tribe or tribal organization requests fee title,
the Secretary shall take the necessary action under Federal law and
regulations to transfer fee title to the Indian tribe or tribal
organization.
(2) If the Indian tribe or tribal organization requests beneficial
ownership with fee title to be held by the United States in trust for an
Indian tribe:
(i) The Indian tribe or tribal organization shall submit with its
request a resolution of support from the governing body of the Indian
tribe in which the beneficial ownership is to be registered.
(ii) If the donation request of the Indian tribe or tribal
organization is submitted to the Secretary of Health and Human Services,
that Secretary shall take all necessary steps to acquire the land and
transfer it to the Secretary of the Interior and shall also forward the
Indian tribe or tribal organization's request and the Indian tribe's
resolution.
(iii) The Secretary of the Interior shall expeditiously process all
requests in accord with applicable Federal law and regulations.
(iv) The Secretary shall not require submission of any information
other than that required by Federal law and regulation.
Sec. 900.106 If a contract or grant agreement or portion thereof is
retroceded, reassumed, terminated, or expires, may the Secretary
reacquire title to excess
or surplus Federal property of other agencies that was donated
to an Indian tribe or tribal organization?
No. Section 105(f)(3) of the Act does not give the Secretary the
authority to reacquire title to excess or surplus government property
acquired from other agencies for donation to an Indian tribe or tribal
organization.
Property Eligible for Replacement Funding
Sec. 900.107 What property to which an Indian tribe or tribal organization
obtains title under this subpart is eligible for replacement funding?
Government-furnished property, contractor-purchased property and
excess BIA and IHS property donated to an Indian tribe or tribal
organization to which an Indian tribe or tribal organization holds title
shall remain eligible for replacement funding to the same extent as if
title to that property were held by the United States.
Subpart J_Construction
Sec. 900.110 What does this subpart cover?
(a) This subpart establishes requirements for issuing fixed-price or
cost-reimbursable contracts to provide: design, construction, repair,
improvement, expansion, replacement, erection of new space, or
demolition and other related work for one or more Federal facilities. It
applies to tribal facilities where the Secretary is authorized by law to
design, construct and/or renovate, or make improvements to such tribal
facilities.
(b) Activities covered by construction contracts under this subpart
are: design and architectural/engineering services, construction project
management, and the actual construction of the building or facility in
accordance with the construction documents, including all labor,
materials, equipment, and services necessary to complete the work
defined in the construction documents.
(1) Such contracts may include the provision of movable equipment,
telecommunications and data processing equipment, furnishings (including
works of art), and special purpose equipment, when part of a
construction contract let under this subpart.
(2) While planning services and construction management services as
defined in Sec. 900.113 may be included in a construction contract
under this subpart, they may also be contracted separately using the
model agreement in section 108 of the Act.
Sec. 900.111 What activities of construction programs are contractible?
The Secretary shall, upon the request of any Indian tribe or tribal
organization authorized by tribal resolution, enter into a self-
determination contract to plan, conduct, and administer construction
programs or portions thereof.
[[Page 1011]]
Sec. 900.112 What are construction phases?
(a) Construction programs generally include the following activities
in phases which can vary by funding source (an Indian tribe or tribal
organization should contact its funding source for more information
regarding the conduct of its program):
(1) The preplanning phase. The phase during which an initial
assessment and determination of project need is made and supporting
information collected for presentation in a project application. This
project application process is explained in more detail in Sec.
900.122;
(2) The planning phase. The phase during which planning services are
provided. This phase can include conducting and preparing a detailed
needs assessment, developing justification documents, completing and/or
verifying master plans, conducting predesign site investigations and
selection, developing budget cost estimates, conducting feasibility
studies, and developing a project Program of Requirements (POR);
(3) The design phase. The phase during which licensed design
professional(s) using the POR as the basis for design of the project,
prepare project plans, specifications, and other documents that are a
part of the construction documents used to build the project. Site
investigation and selection activities are completed in this phase if
not conducted as part of the planning phase.
(4) The construction phase. The phase during which the project is
constructed. The construction phase includes providing the labor,
materials, equipment, and services necessary to complete the work in
accordance with the construction documents prepared as part of the
design phase.
(b) The following activities may be part of phases described in
paragraphs (a)(2), (a)(3), and (a)(4) of this section:
(1) Management; and
(2) Environmental, archeological, cultural resource, historic
preservation, and similar assessments and associated activities.
Sec. 900.113 Definitions.
(a) Construction contract means a fixed-price or cost-reimbursement
self-determination contract for a construction project, except that such
term does not include any contract:
(1) That is limited to providing planning services and construction
management services (or a combination of such services);
(2) For the Housing Improvement Program or roads maintenance program
of the Bureau of Indian Affairs administered by the Secretary of the
Interior; or
(3) For the health facility maintenance and improvement program
administered by the Secretary of Health and Human Services.
(b) Construction management services (CMS) means activities limited
to administrative support services; coordination; and monitoring
oversight of the planning, design, and construction process. An Indian
tribe or tribal organization's employee or construction management
services consultant (typically an engineer or architect) performs such
activities as:
(1) Coordination and information exchange between the Indian tribe
or tribal organization and the Federal government;
(2) Preparation of Indian tribe or tribal organization's
construction contract proposals;
(3) Indian tribe or tribal organization subcontract scope of work
identification and subcontract preparation, and competitive selection of
Indian tribe or tribal organization construction contract subcontractors
(see Sec. 900.110);
(4) Review of work to ensure compliance with the POR and/or the
construction contract. This does not involve construction project
management as defined in paragraph (d) of this section.
(c) Construction programs include programs for the planning, design,
construction, repair, improvement, and expansion of buildings or
facilities, including but not limited to, housing, law enforcement and
detention facilities, sanitation and water systems, roads, schools,
administration and health facilities, irrigation and agricultural work,
water conservation, flood control, and port facilities, and
environmental, archeological, cultural resource, historic preservation,
and conduct of similar assessments.
[[Page 1012]]
(d) Construction project management means direct responsibility for
the construction project through day-to-day on-site management and
administration of the project. Activities may include cost management,
project budgeting, project scheduling, procurement services.
(e) Design means services performed by licensed design professionals
related to preparing drawings, specifications, and other design
submissions specified in the contract, as well as services provided by
or for licensed design professionals during the bidding/negotiating,
construction, and operational phases of the project.
(f) Planning services means activities undertaken to support agency
and/or Congressional funding of a construction project. Planning
services may include performing a needs assessment, completing and/or
verifying master plans, developing justification documents, conducting
pre-design site investigations, developing budget cost estimates,
conducting feasibility studies as needed and completion of approved
justification documents and a program of requirements (POR) for the
project.
(g) Program of Requirements (POR) is a planning document developed
during the planning phase for an individual project. It provides
background about the project; site information; programmatic needs; and,
for facilities projects, a detailed room-by-room listing of spaces,
including net and gross sizes, finish materials to be used, furnishings
and equipment, and other information and design criteria on which to
base the construction project documents.
(h) Scope of work means the description of the work to be provided
through a contract issued under this subpart and the methods and
processes to be used to accomplish that work. A scope of work is
typically developed based on criteria provided in a POR during the
design phase, and project construction documents (plans and
specifications) during the construction phase.
Sec. 900.114 Why is there a separate subpart in these regulations
for construction contracts and grants?
There is a separate subpart because the Act differentiates between
construction contracts and the model agreement in section 108 of the Act
which is required for contracting other activities. Construction
contracts are separately defined in the Act and are subject to a
separate proposal and review process.
Sec. 900.115 How do self-determination construction contracts relate
to ordinary Federal procurement contracts?
(a) A self-determination construction contract is a government-to-
government agreement that transfers control of the construction project,
including administrative functions, to the contracting Indian tribe or
tribal organization to facilitate effective and meaningful participation
by the Indian tribe or tribal organization in planning, conducting, and
administering the construction project, and so that the construction
project is responsive to the true needs of the Indian community. The
Secretary's role in the conduct of a contracted construction project is
limited to the Secretary's responsibilities set out in Sec. 900.131.
(b) Self-determination construction contracts are not traditional
``procurement'' contracts.
(1) With respect to a construction contract (or a subcontract of
such a construction contract), the provisions of the Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.) and the regulations
promulgated under that Act, shall apply to a construction contract or
subcontract only to the extent that application of the provision is:
(i) Necessary to ensure that the contract may be carried out in a
satisfactory manner;
(ii) Directly related to the construction activity; and
(iii) Not inconsistent with the Act.
(2) A list of the Federal requirements that meet the requirements of
this paragraph shall be included in an attachment to the contract under
negotiations between the Secretary and the Indian tribe or tribal
organization.
[[Page 1013]]
(3) Except as provided in paragraph (b)(2) of this section, no
Federal law listed in section 105(3)(C)(ii) of the Act or any other
provision of Federal law (including an Executive order) relating to
acquisition by the Federal government shall apply to a construction
contract that an Indian tribe or tribal organization enters into under
this Act, unless expressly provided in the law.
(c) Provisions of a construction contract under this subpart shall
be liberally construed in favor of the contracting Indian tribe or
tribal organization.
Sec. 900.116 Are negotiated fixed-price contracts treated the same
as cost-reimbursable contracts?
Yes, except that in negotiated fixed-price construction contracts,
appropriate clauses shall be negotiated to allocate properly the
contract risks between the government and the contractor.
Sec. 900.117 Do these ``construction contract'' regulations apply
to planning services?
(a) These regulations apply to planning services contracts only as
provided in this section.
(1) The Indian tribe or tribal organization shall submit to the
Secretary for review and approval the POR documents produced as a part
of a model contract under section 108 of the Act or under a construction
contract under this subpart.
(i) Within 60 days after receipt of the POR from the Indian tribe or
tribal organization for a project that has achieved priority ranking or
that is funded, the Secretary shall:
(A) Approve the POR;
(B) Notify the Indian tribe or tribal organization of and make
available any objections to the POR that the Secretary may have; or
(C) Notify the Indian tribe or tribal organization of the reasons
why the Secretary will be unable either to approve the POR or to notify
the Indian tribe or tribal organization of any objections within 60
days, and state the time within which the notification will be made,
provided that the extended time shall not exceed 60 additional days.
(ii) Within a maximum of 180 days after receipt of a POR from an
Indian tribe or tribal organization for a project that is not funded and
is not described in paragraph (a)(1)(i) of this section, the Secretary
shall:
(A) Approve the POR; or
(B) Notify the Indian tribe or tribal organization of and make
available any objections to the POR; or
(C) Notify the Indian tribe or tribal organization of the reasons
why the Secretary will be unable either to approve the POR or to notify
the Indian tribe or tribal organization of any objections within 180
days, and state the time within which the notification will be made,
provided that the extended time shall not exceed 60 additional days.
(2) Any failure of the Secretary to act on a POR within the
applicable period required in paragraph (a)(1) of this section will be
deemed a rejection of the POR and will authorize the commencement of any
appeal as provided in section 110 of the Act, or, if a model agreement
under section 108 of the Act is used, the disputes provision of that
agreement.
(3) If an Indian tribe or tribal organization elects to provide
planning services as part of a construction contract rather than under a
model agreement as set out in section 108 of the Act, the regulations in
this subpart shall apply.
(b) The parties to the contract are encouraged to consult during the
development of the POR and following submission of the POR to the
Secretary.
Sec. 900.118 Do these ``construction contract'' regulations apply to
construction management services?
No. Construction management services may be contracted separately
under section 108 of the Act. Construction management services
consultants and/or Indian tribe or tribal organization employees assist
and advise the Indian tribe or tribal organization to implement
construction contracts, but have no contractual relationship with or
authority to direct construction contract subcontractors.
(a) If the Indian tribe or tribal organization chooses to contract
solely for construction management services, these services shall be
limited to:
[[Page 1014]]
(1) Coordination and exchange of information between the Indian
tribe or tribal organization and the Secretary;
(2) Review of work produced by the Secretary to determine compliance
with:
(i) The POR and design contract during the design stage; or
(ii) The project construction documents during the construction
stage;
(3) Disputes shall be resolved in accordance with the disputes
clause of the CMS contract.
(b) If the Indian tribe or tribal organization conducts CMS under
section 108 of the Act and the Indian tribe or tribal organization
contracts separately under this subpart for all or some of the
activities in Sec. 900.110, the contracted activities shall be limited
to:
(1) Coordination and exchange of information between the Indian
tribe or tribal organization and Secretary;
(2) Preparation of tribal or tribal organization construction
subcontract scope of work identification and subcontract preparation,
and competitive selection of tribal or tribal organization construction
contract subcontractors;
(3) Review of work produced by tribal or tribal organization
construction subcontractors to determine compliance with:
(i) The POR and the design contract during the design stage; or
(ii) The project construction documents during the construction
stage.
Sec. 900.119 To what extent shall the Secretary consult with affected
Indian tribes before spending funds for any construction project?
Before spending any funds for a planning, design, construction, or
renovation project, whether subject to a competitive application and
ranking process or not, the Secretary shall consult with any Indian
tribe or tribal organization(s) that would be significantly affected by
the expenditure to determine and to follow tribal preferences to the
greatest extent feasible concerning: size, location, type, and other
characteristics of the project.
Sec. 900.120 How does an Indian tribe or tribal organization find
out about a construction project?
Within 30 days after the Secretary's allocation of funds for
planning phase, design phase, or construction phase activities for a
specific project, the Secretary shall notify, by registered mail with
return receipt in order to document mailing, the Indian tribe or tribal
organization(s) to be benefitted by the availability of the funds for
each phase of a project. The Secretarial notice of fund allocation shall
offer technical assistance in the preparation of a contract proposal.
(a) The Secretary shall, within 30 days after receiving a request
from an Indian tribe or tribal organization, furnish the Indian tribe or
tribal organization with all information available to the Secretary
about the project including, but not limited to: construction drawings,
maps, engineering reports, design reports, plans of requirements, cost
estimates, environmental assessments, or environmental impact reports
and archeological reports.
(b) An Indian tribe or tribal organization is not required to
request this information prior to submitting a notification of intent to
contract or a contract proposal.
(c) The Secretary shall have a continuing responsibility to furnish
information.
Sec. 900.121 What happens during the preplanning phase and can an
Indian tribe or tribal organization perform any of the activities
involved in this process?
(a) The application and ranking process for developing a priority
listing of projects varies between agencies. There are, however, steps
in the selection process that are common to most selection processes. An
Indian tribe or tribal organization that wishes to secure a construction
project should contact the appropriate agency to determine the specific
steps involved in the application and selection process used to fund
specific types of projects. When a priority process is used in the
selection of construction projects, the steps involved in the
application and ranking process are as follows:
[[Page 1015]]
(1) Application. The agency solicits applications from Indian tribes
or tribal organizations. In the request for applications, the Secretary
provides specific information regarding the type of project to be
funded, the objective criteria that will be used to evaluate
applications, the points or weight that each criterion will be assigned,
and the time when applications are due. An Indian tribe or tribal
organization may prepare the application (technical assistance from the
agency, within resources available, shall be provided upon request from
an Indian tribe or tribal organization) or may rely upon the agency to
prepare the application.
(2) Ranking/Prioritization. The Secretary evaluates the applications
based on the criteria provided as part of the application preparation
process. The Secretary applies only criteria and weights assigned to
each criteria that were disclosed to the Indian tribe or tribal
organization during the application stage. The applications are then
ranked in order from the application that best meets application
criteria to the application that least meet the application criteria.
(3) Validation. Before final acceptance of a ranked application, the
information, such as demographic information, deficiency levels reported
in application, the condition of existing facilities, and program
housing needs, is validated. During this process, additional information
may be developed by the Indian tribe or tribal organization in support
of the original information or the Secretary may designate a
representative of the Department to conduct an on-site review of the
information contained in the application.
(b) [Reserved]
Sec. 900.122 What does an Indian tribe or tribal organization do if
it wants to secure a construction contract?
(a) The Act establishes a special process for review and negotiation
of proposals for construction contracts which is different than that for
other self-determination contract proposals. The Indian tribe or tribal
organization should notify the Secretary of its intent to contract.
After notification, the Indian tribe or tribal organization should
prepare its contract proposal in accordance with the sections of this
subpart. While developing its construction contract proposal, the Indian
tribe or tribal organization can request technical assistance from the
Secretary. Not later than 30 days after receiving a request from an
Indian tribe or tribal organization, the Secretary shall provide to the
Indian tribe or tribal organization all information available about the
construction project, including construction drawings, maps, engineering
reports, design reports, plans of requirements, cost estimates,
environmental assessments, or environmental impact reports, and
archaeological reports. The responsibility of the Secretary to furnish
this information shall be a continuing one.
(b) At the request of the Indian tribe or tribal organization and
before finalizing its construction contract proposal, the Secretary
shall provide for a precontract negotiation phase during the development
of a contract proposal. Within 30 days the Secretary shall acknowledge
receipt of the proposal and, if requested by the Indian tribe or tribal
organization, shall confer with the Indian tribe or tribal organization
to develop a negotiation schedule. The negotiation phase shall include,
at a minimum:
(1) The provision of technical assistance under section 103 of the
Act and paragraph (a) of this section;
(2) A joint scoping session between the Secretary and the Indian
tribe or tribal organization to review all plans, specifications,
engineering reports, cost estimates, and other information available to
the parties, for the purpose of identifying all areas of agreement and
disagreement;
(3) An opportunity for the Secretary to revise plans, designs, or
cost estimates of the Secretary in response to concerns raised, or
information provided by, the Indian tribe or tribal organization;
(4) A negotiation session during which the Secretary and the Indian
tribe or tribal organization shall seek to develop a mutually agreeable
contract proposal; and
(5) Upon the request of the Indian tribe or tribal organization, the
use of alternative dispute resolution to resolve remaining areas of
disagreement
[[Page 1016]]
under the dispute resolution provisions under subchapter IV of chapter 5
of the United States Code.
Sec. 900.123 What happens if the Indian tribe or tribal organization
and the Secretary cannot develop a mutually agreeable contract proposal?
(a) If the Secretary and the Indian tribe or tribal organization are
unable to develop a mutually agreeable construction contract proposal
under the procedures in Sec. 900.122, the Indian tribe or tribal
organization may submit a final contract proposal to the Secretary. Not
later than 30 days after receiving the final contract proposal, the
Secretary shall approve the contract proposal and award the contract,
unless, during the period the Secretary declines the proposal under
sections 102(a)(2) and 102(b) of the Act (including providing
opportunity for an appeal under section 102(b)).
(b) Whenever the Secretary declines to enter into a self-
determination contract or contracts under section 102(a)(2) of the Act,
the Secretary shall:
(1) State any objections to the contract proposal (as submitted by
the Indian tribe or tribal organization) in writing and provide all
documents relied on in making the declination decision within 20 days of
such decision to the Indian tribe or tribal organization;
(2) Provide assistance to the Indian tribe or tribal organization to
overcome the stated objections;
(3) Provide the Indian tribe or tribal organization with a hearing
on the record with the right to engage in full discovery relevant to any
issue raised in the matter and the opportunity for appeal on the
objections raised, under the regulations set forth in subpart L, except
that the Indian tribe or tribal organization may, in lieu of filing the
appeal, initiate an action in a Federal district court and proceed
directly under section 110(a) of the Act.
Sec. 900.124 May the Indian tribe or tribal organization elect to use
a grant in lieu of a contract?
Yes. A grant agreement or a cooperative agreement may be used in
lieu of a contract under sections 102 and 103 of the Act when agreed to
by the Secretary and the Indian tribe or tribal organization. Under the
grant concept, the grantee will assume full responsibility and
accountability for design and construction performance within the
funding limitations. The grantee will manage and administer the work
with minimal involvement by the government. The grantee will be expected
to have acceptable management systems for finance, procurement, and
property. The Secretary may issue Federal construction guidelines and
manuals applicable to its construction programs, and the government
shall accept tribal proposals for alternatives which are consistent with
or exceed Federal guidelines or manuals applicable to construction
programs.
Sec. 900.125 What shall a construction contract proposal contain?
(a) In addition to the full name, address, and telephone number of
the Indian tribe or tribal organization submitting the construction
proposal, a construction contract proposal shall contain descriptions of
the following standards under which they propose to operate the
contract:
(1) The use of licensed and qualified architects;
(2) Applicable health and safety standards;
(3) Adherence to applicable Federal, State, local, or tribal
building codes and engineering standards;
(4) Structural integrity;
(5) Accountability of funds;
(6) Adequate competition for subcontracting under tribal or other
applicable law;
(7) The commencement, performance, and completion of the contract;
(8) Adherence to project plans and specifications (including any
applicable Federal construction guidelines and manuals and the Secretary
shall accept tribal proposals for alternatives which are consistent with
or exceed Federal guidelines or manuals applicable to construction
programs);
(9) The use of proper materials and workmanship;
(10) Necessary inspection and testing;
(11) With respect to the self-determination contract between the
Indian tribe or tribal organization and Federal government, a process
for changes, modifications, stop work, and termination of the work when
warranted;
[[Page 1017]]
(b) In addition to provisions regarding the program standards listed
in paragraph (a) of this section or the assurances listed in paragraph
(c) of this section, the Indian tribe or tribal organization shall also
include in its construction contract proposal the following:
(1) In the case of a contract for design activities, this statement,
``Construction documents produced as part of this contract will be
produced in accordance with the Program of Requirements and/or Scope of
Work,'' and the POR and/or Scope of Work shall be attached to the
contract proposal. If tribal construction procedures, standards and
methods (including national, regional, state, or tribal building codes
or construction industry standards) are consistent with or exceed
applicable Federal standards then the Secretary shall accept the
tribally proposed standards; and
(2) In the case of a contract for construction activities, this
statement, ``The facility will be built in accordance with the
construction documents produced as a part of design activities. The
project documents, including plans and specifications, are hereby
incorporated into this contract through this reference.'' If tribal
construction procedures, standards and methods (including national,
regional, state, or tribal building codes or construction industry
standards) are consistent with or exceed applicable Federal standards
then the Secretary shall accept the tribally proposed standards; and
(3) Proposed methods to accommodate the responsibilities of the
Secretary provided in Sec. 900.131; and
(4) Proposed methods to accommodate the responsibilities of the
Indian tribe or tribal organization provided in Sec. 900.130 unless
otherwise addressed in paragraph (a) of this section and minimum staff
qualifications proposed by the Indian tribe or tribal organization, if
any;
(5) A contract budget as described in Sec. 900.127; and
(6) A period of performance for the conduct of all activities to be
contracted;
(7) A payment schedule as described in Sec. 900.132;
(8) A statement indicating whether or not the Indian tribe or tribal
organization has a CMS contract related to this project;
(9) Current (unrevoked) authorizing resolutions in accordance with
Sec. 900.5(d) from all Indian tribes benefitting from the contract
proposal; and
(10) Any responsibilities, in addition to the Federal
responsibilities listed in Sec. 900.131, which the Indian tribe or
tribal organization proposes the Federal government perform to assist
with the completion of the scope of work;
(c) The Indian tribe or tribal organization will provide the
following assurances in its contract proposal:
(1) If the Indian tribe or tribal organization elects not to take
title (pursuant to subpart I) to Federal property used in carrying out
the contract, ``The Indian tribe or tribal organization will not dispose
of, modify the use of, or change the terms of the real property title,
or other interest in the site and facilities without permission and
instructions from the awarding agency. The Indian tribe or tribal
organization will record the Federal interest in the title of real
property in accordance with awarding agency directives and will include
a covenant in the title of real property acquired in whole or in part
with Federal assistance funds to assure nondiscrimination during the
useful life of the project''; and
(2) ``The Indian tribe or tribal organization will comply with the
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4801 et seq.)''
which prohibits the use of lead based paint in construction or
rehabilitation of residential structures;
(3) ``The Indian tribe or tribal organization will comply, or has
already complied, with the requirements of titles II and III of the
Uniform Relocation Assistance and Real Property Acquisition Policies Act
of 1970 (Pub. L. 91-646),'' which provides for fair and equitable
treatment of persons displaced or whose property is acquired as a result
of Federal participation in purchases; and
(4) ``Except for work performed by tribal or tribal organization
employees, the Indian tribe or tribal organization will comply, as
applicable, with the provisions of the Davis-Bacon Act (40
[[Page 1018]]
U.S.C. 276c and 18 U.S.C. 874),'' for Federally assisted construction
subagreements;
(5) ``The Indian tribe or tribal organization will comply with the
flood insurance purchase requirements of section 102(a) of the Flood
Disaster Protection Act of 1973 (Pub. L. 93-234),'' which requires
recipients in a special flood hazard area to participate in the program
and to purchase flood insurance if the total cost of insurable
construction and acquisition is $10,000 or more;
(6) ``The Indian tribe or tribal organization will comply with all
applicable Federal environmental laws, regulations, and Executive
Orders;''
(7) ``The Indian tribe or tribal organization will comply with the
Wild and Scenic Rivers Act of 1968 (16 U.S.C. 1271 et seq.) related to
protecting the components or potential components of the national wild
and scenic rivers system;''
(8) ``The Indian tribe or tribal organization will assist the
awarding agency in assuring compliance with section 106 of the National
Historic Preservation Act of 1966, as amended (16 U.S.C. 470), EO 11593
(identification and preservation of historic properties), and the
Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469a-1
et seq.).''
(d) The Indian tribe or tribal organization and the Secretary will
both make a good faith effort to identify any other applicable Federal
laws, Executive Orders, or regulations applicable to the contract, share
them with the other party, and refer to them in the construction
contract. The parties will make a good faith effort to identify tribal
laws, ordinances, and resolutions which may affect either party in the
performance of the contract.
Sec. 900.126 Shall a construction contract proposal incorporate provisions
of Federal construction guidelines and manuals?
Each agency may provide or the Indian tribe or tribal organization
may request Federal construction guidelines and manuals for
consideration by the Indian tribe or tribal organization in the
preparation of its contract proposal. If tribal construction procedures,
standards and methods (including national, regional, State, or tribal
building codes or construction industry standards) are consistent with
or exceed applicable Federal standards, the Secretary shall accept the
tribally proposed standards.
Sec. 900.127 What can be included in the Indian tribe or tribal
organization's contract budget?
(a) The costs incurred will vary depending on which phase (see Sec.
900.112) of the construction process the Indian tribe or tribal
organization is conducting and the type of contract that will be used.
The total amount awarded under a construction contract shall reflect an
overall fair and reasonable price to the parties (see Sec. 900.129).
(b) Costs for activities under this subpart that have not been
billed, allocated, or recovered under a contract issued under section
108 of the Act should be included.
(c) The Indian tribe or tribal organization's budget should include
the cost elements that reflect an overall fair and reasonable price.
These costs include:
(1) The reasonable costs to the Indian tribe or tribal organization
of performing the contract, taking into consideration the terms of the
contract and the requirements of the Act and any other applicable law;
(2) The costs of preparing the contract proposal and supporting cost
data;
(3) The costs associated with auditing the general and
administrative costs of the Indian tribe or tribal organization
associated with the management of the construction contract; and
(4) In cases where the Indian tribe or tribal organization is
submitting a fixed-price construction contract:
(i) The reasonable costs to the Indian tribe or tribal organization
for general administration incurred in connection with the project that
is the subject of the contract;
(ii) The ability of the contractor that carries out the construction
contract to make a reasonable profit, taking into consideration the
risks associated with carrying out the contract, local market
conditions, and other relevant considerations.
[[Page 1019]]
(d) In establishing a contract budget for a construction project,
the Secretary shall not be required to identify separately the
components described in paragraphs (c)(4)(i) and (c)(4)(ii) of this
section.
(e) The Indian tribe or tribal organization's budget proposal
includes a detailed budget breakdown for performing the scope of work
including a total ``not to exceed'' dollar amount with which to perform
the scope of work. Specific budget line items, if requested by the
Indian tribe or tribal organization, can include the following:
(1) The administrative costs the Indian tribe or tribal organization
may incur including:
(i) Personnel needed to provide administrative oversight of the
contract;
(ii) Travel costs incurred, both local travel incurred as a direct
result of conducting the contract and remote travel necessary to review
project status with the Secretary;
(iii) Meeting costs incurred while meeting with community residents
to develop project documents;
(iv) Fees to be paid to consultants, such as demographic
consultants, planning consultants, attorneys, accountants, and personnel
who will provide construction management services;
(2) The fees to be paid to architects and engineers to assist in
preparing project documents and to assist in oversight of the
construction process;
(3) The fees to be paid to develop project surveys including
topographical surveys, site boundary descriptions, geotechnical surveys,
archeological surveys, and NEPA compliance, and;
(4) In the case of a contract to conduct project construction
activities, the fees to provide a part-time or full-time on-site
inspector, depending on the terms of the contract, to monitor
construction activities;
(5) In the case of a contract to conduct project construction
activities, project site development costs;
(6) In the case of a contract to conduct project construction
activities, project construction costs including those costs described
in paragraph (c)(4), of this section;
(7) The cost of securing and installing moveable equipment,
telecommunications and data processing equipment, furnishings, including
works of art, and special purpose equipment when part of a construction
contract;
(8) A contingency amount for unanticipated conditions of the
construction phase of cost-reimbursable contracts. The amount of the
contingency provided shall be 3 percent of activities being contracted
or 50 percent of the available contingency funds, whichever is greater.
In the event provision of required contingency funds will cause the
project to exceed available project funds, the discrepancy shall be
reconciled in accordance with Sec. 900.129(e). Any additional
contingency funds for the construction phase will be negotiated on an
as-needed basis subject to the availability of funds and the nature,
scope, and complexity of the project. Any contingency for other phases
will be negotiated on a contract-by-contract basis. Unused contingency
funds obligated to the contract and remaining at the end of the contract
will be considered savings.
(9) Other costs incurred that are directly related to the conduct of
contract activities.
Sec. 900.128 What funding shall the Secretary provide in a construction
contract?
The Secretary shall provide an amount under a construction contract
that reflects an overall fair and reasonable price to the parties. These
costs include:
(a) The reasonable costs to the Indian tribe or tribal organization
of performing the contract, taking into consideration the terms of the
contract and the requirements of the Act and any other applicable law;
(b) The costs of preparing the contract proposal and supporting cost
data; and
(c) The costs associated with auditing the general and
administrative costs of the tribal organization associated with the
management of the construction contract; and
(d) If the Indian tribe or tribal organization is submitting a
fixed-price construction contract:
(1) The reasonable costs to the Indian tribe or tribal organization
for general administration incurred in connection
[[Page 1020]]
with the project that is the subject of the contract;
(2) The ability of the contractor that carries out the construction
contract to make a reasonable profit, taking into consideration the
risks associated with carrying out the contract, local market
conditions, and other relevant considerations including but not limited
to contingency.
(3) In establishing a contract budget for a construction project,
the Secretary is not required to identify separately the components
described in paragraph (d) (1) and (d) (2) of this sections.
Sec. 900.129 How do the Secretary and Indian tribe or tribal organization
arrive at an overall fair and reasonable price for the performance of a
construction contract?
(a) Throughout the contract award process, the Secretary and Indian
tribe or tribal organization shall share all construction project cost
information available to them in order to facilitate reaching agreement
on an overall fair and reasonable price for the project or part thereof.
In order to enhance this communication, the government's estimate of an
overall fair and reasonable price shall:
(1) Contain a level of detail appropriate to the nature and phase of
the work and sufficient to allow comparisons to the Indian tribe or
tribal organization's estimate;
(2) Be prepared in a format coordinated with the Indian tribe or
tribal organization; and
(3) Include the cost elements contained in section 105(m)(4) of the
Act.
(b) The government's cost estimate shall be an independent cost
estimate based on such information as the following:
(1) Prior costs to the government for similar projects adjusted for
comparison to the target location, typically in unit costs, such as
dollars per pound, square meter cost of building, or other unit cost
that can be used to make a comparison;
(2) Actual costs previously incurred by the Indian tribe or tribal
organization for similar projects;
(3) Published price lists, to include regional adjustment factors,
for materials, equipment, and labor; and
(4) Projections of inflation and cost trends, including projected
changes such as labor, material, and transportation costs.
(c) The Secretary shall provide the initial government cost estimate
to the Indian tribe or tribal organization and make appropriate
revisions based on concerns raised or information provided by the Indian
tribe or tribal organization. The Secretary and the Indian tribe or
tribal organization shall continue to revise, as appropriate, their
respective cost estimates based on changed or additional information
such as the following:
(1) Actual subcontract bids;
(2) Changes in inflation rates and market conditions, including
local market conditions;
(3) Cost and price analyses conducted by the Secretary and the
Indian tribe or tribal organization during negotiations;
(4) Agreed-upon changes in the size, scope and schedule of the
construction project; and
(5) Agreed-upon changes in project plans and specifications.
(d) Considering all of the information available, the Secretary and
the Indian tribe or tribal organization shall negotiate the amount of
the construction contract. The objective of the negotiations is to
arrive at an amount that is fair under current market conditions and
reasonable to both the government and the Indian tribe or tribal
organization. As a result, the agreement does not necessarily have to be
in strict conformance with either party's cost estimate nor does
agreement have to be reached on every element of cost, but only on the
overall fair and reasonable price of each phase of the work included in
the contract.
(e) If the fair and reasonable price arrived at under paragraph (d)
of this section would exceed the amount available to the Secretary,
then:
(1) If the Indian tribe or tribal organization elects to submit a
final proposal, the Secretary may decline the proposal under section
105(m)(4)(C)(v) of the Act or if the contract has been awarded, dispute
the matter under the Contract Disputes Act; or
(2) If requested by the Indian tribe or tribal organization:
[[Page 1021]]
(i) The Indian tribe or tribal organization and the Secretary may
jointly explore methods of expanding the available funds through the use
of contingency funds, advance payments in accordance with Sec. 900.132,
rebudgeting, or seeking additional appropriations; or
(ii) The Indian tribe or tribal organization may elect to propose a
reduction in project scope to bring the project price within available
funds; or
(iii) The Secretary and Indian tribe or tribal organization may
agree that the project be executed in phases.
Sec. 900.130 What role does the Indian tribe or tribal organization
play during the performance of a self-determination construction contract?
(a) The Indian tribe or tribal organization is responsible for the
successful completion of the project in accordance with the approved
contract documents.
(b) If the Indian tribe or tribal organization is contracting to
perform design phase activities, the Indian tribe or tribal organization
shall have the following responsibilities:
(1) The Indian tribe or tribal organization shall subcontract with
or provide the services of licensed and qualified architects and other
consultants needed to accomplish the self-determination construction
contract.
(2) The Indian tribe or tribal organization shall administer and
disburse funds provided through the contract in accordance with subpart
F, Sec. 900.42 through Sec. 900.45 and implement a property management
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
(3) The Indian tribe or tribal organization shall direct the
activities of project architects, engineers, and other project
consultants, facilitate the flow of information between the Indian tribe
or tribal organization and its subcontractors, resolve disputes between
the Indian tribe or tribal organization and its subcontractors or
between its subcontractors, and monitor the work produced by its
subcontractors to ensure compliance with the POR.
(4) The Indian tribe or tribal organization shall direct the work of
its subcontractors so that work produced is provided in accordance with
the contract budget and contract performance period as negotiated
between and agreed to by the parties.
(5) The Indian tribe or tribal organization shall provide the
Secretary with an opportunity to review and provide written comments on
the project plans and specifications only at the concept phase, the
schematic phase (or the preliminary design), the design development
phase, and the final construction documents phase and approve the
project plans and specifications for general compliance with contract
requirements only at the schematic phase (or the preliminary design) and
the final construction documents phase or as otherwise negotiated.
(6) The Indian tribe or tribal organization shall provide the
Secretary with the plans and specifications after their final review so,
if needed, the Secretary may obtain an independent government cost
estimate in accordance with Sec. 900.131(b)(4) for the construction of
the project.
(7) The Indian tribe or tribal organization shall retain project
records and design documents for a minimum of 3 years following
completion of the contract.
(8) The Indian tribe or tribal organization shall provide progress
reports and financial status reports quarterly, or as negotiated, that
contain a narrative of the work accomplished, including but not limited
to descriptions of contracts, major subcontracts, and modifications
implemented during the report period and A/E service deliverables, the
percentage of the work completed, a report of funds expended during the
reporting period, and total funds expended for the project. The Indian
tribe or tribal organization shall also provide copies, for the
information of the Secretary, of an initial work and payment schedule
and updates as they may occur.
(c) If the Indian tribe or tribal organization is contracting to
perform project construction phase activities, the Indian tribe or
tribal organization shall have the following responsibilities:
[[Page 1022]]
(1) The Indian tribe or tribal organization shall subcontract with
or provide the services of licensed and qualified architects and other
consultants as needed to accomplish the self-determination construction
contract.
(2) The Indian tribe or tribal organization shall administer and
dispense funds provided through the contract in accordance with subpart
F, Sec. 900.42 through Sec. 900.45 and implement a property management
system in accordance with subpart F, Sec. 900.51 through Sec. 900.60.
(3) The Indian tribe or tribal organization shall subcontract with
or provide the services of construction contractors or provide its own
forces to conduct construction activities in accordance with the project
construction documents or as otherwise negotiated between and agreed to
by the parties.
(4) The Indian tribe or tribal organization shall direct the
activities of project architects, engineers, construction contractors,
and other project consultants, facilitate the flow of information
between the Indian tribe or tribal organization and its subcontractors,
resolve disputes between itself and its subcontractors or between its
subcontractors, and monitor the work produced by its subcontractors to
assure compliance with the project plans and specifications.
(5) The Indian tribe or tribal organization shall manage or provide
for the management of day-to-day activities of the contract including
the issuance of construction change orders to subcontractors except
that, unless the Secretary agrees:
(i) The Indian tribe or tribal organization may not issue a change
order to a construction subcontractor that will cause the Indian tribe
or tribal organization to exceed its self-determination contract budget;
(ii) The Indian tribe or tribal organization may not issue a change
order to a construction subcontractor that will cause the Indian tribe
or tribal organization to exceed the performance period in its self-
determination contract budget; or
(iii) The Indian tribe or tribal organization may not issue to a
construction subcontractor a change order that is a significant
departure from the scope or objective of the project.
(6) The Indian tribe or tribal organization shall direct the work of
its subcontractors so that work produced is provided in accordance with
the contract budget and performance period as negotiated between and
agreed to by the parties.
(7) The Indian tribe or tribal organization shall provide to the
Secretary progress and financial status reports.
(i) The reports shall be provided quarterly, or as negotiated, and
shall contain a narrative of the work accomplished, the percentage of
the work completed, a report of funds expended during the reporting
period, and total funds expended for the project.
(ii) The Indian tribe or tribal organization shall also provide
copies, for the information of the Secretary, of an initial schedule of
values and updates as they may occur, and an initial construction
schedule and updates as they occur.
(8) The Indian tribe or tribal organization shall maintain on the
job-site or project office, and make available to the Secretary during
monitoring visits: contracts, major subcontracts, modifications,
construction documents, change orders, shop drawings, equipment cut
sheets, inspection reports, testing reports, and current redline
drawings.
(d) Upon completion of the project, the Indian tribe or tribal
organization shall provide to the Secretary a reproducible copy of the
record plans and a contract closeout report.
(e) For cost-reimbursable projects, the Indian tribe or tribal
organization shall not be obligated to continue performance that
requires an expenditure of more funds than were awarded under the
contract. If the Indian tribe or tribal organization has a reason to
believe that the total amount required for performance of the contract
will be greater than the amount of funds awarded, it shall provide
reasonable notice to the Secretary. If the Secretary does not increase
the amount of funds awarded under the contract, the Indian tribe or
tribal organization may suspend performance of the contract until
sufficient additional funds are awarded.
[[Page 1023]]
Sec. 900.131 What role does the Secretary play during the performance
of a self-determination construction contract?
(a) If the Indian tribe or tribal organization is contracting solely
to perform construction management services either under this subpart or
section 108 of the Act, the Secretary has the following
responsibilities:
(1) The Secretary is responsible for the successful completion of
the project in accordance with the approved contract documents. In
fulfilling those responsibilities, the Secretary shall consult with the
Indian tribe or tribal organization on a regular basis as agreed to by
the parties to facilitate the exchange of information between the Indian
tribe or tribal organization and Secretary;
(2) The Secretary shall provide the Indian tribe or tribal
organization with regular opportunities to review work produced to
determine compliance with the following documents:
(i) The POR, during the conduct of design phase activities. The
Secretary shall provide the Indian tribe or tribal organization with an
opportunity to review the project construction documents at the concept
phase, the schematic phase, the design development phase, and the final
construction documents phase, or as otherwise negotiated. Upon receipt
of project construction documents for review, the Indian tribe or tribal
organization shall not take more than 21 days to make available to the
Secretary any comments or objections to the construction documents as
submitted by the Secretary. Resolution of any comments or objections
shall be in accordance with dispute resolution procedures as agreed to
by the parties and contained in the contract; or
(ii) The project construction documents, during conduct of the
construction phase activities. The Indian tribe or tribal organization
shall have the right to conduct monthly or critical milestone on-site
monitoring visits or as negotiated with the Secretary;
(b) If the Indian tribe or tribal organization is contracting to
perform design and/or construction phase activities, the Secretary shall
have the following responsibilities:
(1) In carrying out the responsibilities of this section, and
specifically in carrying out review, comment, and approval functions
under this section, the Secretary shall provide for full tribal
participation in the decision making process and shall honor tribal
preferences and recommendations to the greatest extent feasible. This
includes promptly notifying the Indian tribe or tribal organization of
any concerns or issues in writing that may lead to disapproval, meeting
with the Indian tribe or tribal organization to discuss these concerns
and issues and to share relevant information and documents, and making a
good faith effort to resolve all issues and concerns of the Indian tribe
or tribal organization. The time allowed for Secretarial review,
comment, and approval shall be no more than 21 days per review unless a
different time period is negotiated and specified in individual
contracts. The 21-day time period may be extended if the Indian tribe or
tribal organization agrees to the extension in writing. Disagreements
over the Secretary's decisions in carrying out these responsibilities
shall be handled under subpart N governing contract disputes under the
Contract Disputes Act.
(2) To the extent the construction project is subject to NEPA or
other environmental laws, the appropriate Secretary shall make the final
determination under such laws. All other environmentally related
functions are contractible.
(3) If the Indian tribe or tribal organization conducts planning
activities under this subpart, the Secretary shall review and approve
final planning documents for the project to ensure compliance with
applicable planning standards.
(4) When a contract or portion of a contract is for project
construction activities, the Secretary may rely on the Indian tribe or
tribal organization's cost estimate or the Secretary may obtain an
independent government cost estimate that is derived from the final
project plans and specifications. The Secretary shall obtain the cost
estimate, if any, within 90 days or less of
[[Page 1024]]
receiving the final plans and specifications from the Indian tribe or
tribal organization and shall provide all supporting documentation of
the independent cost estimate to the Indian tribe or tribal organization
within the 90 day time limit.
(5) If the contracted project involves design activities, the
Secretary shall have the authority to review for general compliance with
the contract requirements and provide written comments on the project
plans and specifications only at the concept phase, the schematic phase,
the design development phase and the final construction documents phase,
and approve for general compliance with contract requirements the
project plans and specifications only at the schematic phase and the
final construction documents phase or as otherwise negotiated.
(6) If the contracted project involves design activities, the
Secretary reserves a royalty-free, nonexclusive, and irrevocable license
to reproduce, publish or otherwise use, for Federal government purposes:
(i) The copyright in any work developed under a contract or
subcontract of this subpart; and
(ii) Any rights of copyright to which an Indian tribe or tribal
organization or a tribal subcontractor purchases ownership through this
contract.
(7) Changes that require an increase to the negotiated contract
budget or an increase in the negotiated performance period or are a
significant departure from the scope or objective of the project shall
require approval of the Secretary.
(8) Review and comment on specific shop drawings as negotiated and
specified in individual contracts.
(9) The Secretary may conduct monthly on-site monitoring visits, or
alternatively if negotiated with the Indian tribe or tribal
organization, critical milestone on-site monitoring visits.
(10) The Secretary retains the right to conduct final project
inspections jointly with the Indian tribe or tribal organization and to
accept the building or facility. If the Secretary identifies problems
during final project inspections the information shall be provide to the
Indian tribe or tribal organization and shall be limited to items that
are materially noncompliant.
(11) The Secretary can require an Indian tribe or tribal
organization to suspend work under a contract in accordance with this
paragraph. The Secretary may suspend a contract for no more than 30 days
unless the Indian tribe or tribal organization has failed to correct the
reason(s) for the suspension or unless the cause of the suspension
cannot be resolved through either the efforts of the Secretary or the
Indian tribe or tribal organization.
(i) The following are reasons the Secretary may suspend work under a
self-determination contract for construction:
(A) Differing site conditions encountered upon commencement of
construction activities that impact health or safety concerns or shall
require an increase in the negotiated project budget;
(B) The Secretary discovers materially non-compliant work;
(C) Funds allocated for the project that is the subject of this
contract are rescinded by Congressional action; or
(D) Other Congressional actions occur that materially affect the
subject matter of the contract.
(ii) If the Secretary wishes to suspend the work, the Secretary
shall first provide written notice and an opportunity for the Indian
tribe or tribal organization to correct the problem. The Secretary may
direct the Indian tribe or tribal organization to suspend temporarily
work under a contract only after providing a minimum of 5 working days'
advance written notice to the Indian tribe or tribal organization
describing the nature of the performance deficiencies or imminent
safety, health or environmental issues which are the cause for
suspending the work.
(iii) The Indian tribe or tribal organization shall be compensated
for reasonable costs, including but not limited to overhead costs,
incurred due to any suspension of work that occurred through no fault of
the Indian tribe or tribal organization.
(iv) Disputes arising as a result of a suspension of the work by the
Secretary shall be subject to the Contract Disputes Act or any other
alternative
[[Page 1025]]
dispute resolution mechanism as negotiated between and agreed to by the
parties and contained in the contract.
(12) The Secretary can terminate the project for cause in the event
non-compliant work is not corrected through the suspension process
specified in paragraph (11) of this section.
(13) The Secretary retains authority to terminate the project for
convenience for the following reasons:
(i) Termination for convenience is requested by the Indian tribe or
tribal organization;
(ii) Termination for convenience is requested by the Secretary and
agreed to by the Indian tribe or tribal organization;
(iii) Funds allocated for the project that is the subject of the
contract are rescinded by Congressional action;
(iv) Other Congressional actions take place that affect the subject
matter of the contract;
(v) If the Secretary terminates a self-determination construction
contract for convenience, the Secretary shall provide the Indian tribe
or tribal organization 21 days advance written notice of intent to
terminate a contract for convenience; or
(vi) The Indian tribe or tribal organization shall be compensated
for reasonable costs incurred due to termination of the contract.
Sec. 900.132 Once a contract and/or grant is awarded, how will the
Indian tribe or tribal organization receive payments?
(a) A schedule for advance payments shall be developed based on
progress, need, and other considerations in accordance with applicable
law. The payment schedule shall be negotiated by the parties and
included in the contract. The payment schedule may be adjusted as
negotiated by the parties during the course of the project based on
progress and need.
(b) Payments shall be made to the Indian tribe or tribal
organization according to the payment schedule contained in the
contract. If the contract does not provide for the length of each
allocation period, the Secretary shall make payments to the Indian tribe
or tribal organization at least quarterly. Each allocation shall be
adequate to provide funds for the contract activities anticipated to be
conducted during the allocation period, except that:
(1) The first allocation may be greater than subsequent allocations
and include mobilization costs, and contingency funds described in Sec.
900.128(e)(8); and
(2) Any allocation may include funds for payment for materials that
will be used during subsequent allocation periods.
(c) The Indian tribe or tribal organization may propose a schedule
of payment amounts measured by time or measured by phase of the project
(e.g., planning, design, construction).
(d) The amount of each payment allocation shall be stated in the
Indian tribe or tribal organization's contract proposal. Upon award of
the contract, the Secretary shall transfer the amount of the first
allocation to the Indian tribe or tribal organization within 21 days
after the date of contract award. The second allocation shall be made
not later than 7 days before the end of the first allocation period.
(e) Not later than 7 days before the end of each subsequent
allocation period after the second allocation, the Secretary shall
transfer to the Indian tribe or tribal organization the amount for the
next allocation period, unless the Indian tribe or tribal organization
is delinquent in submission of allocation period progress reports and
financial reports or the Secretary takes action to suspend or terminate
the contract in accordance with Sec. 900.131(b)(11), Sec.
900.131(b)(12), or Sec. 900.131(b)(13).
Sec. 900.133 Does the declination process or the Contract Dispute Act
apply to construction contract amendments proposed either by an Indian
tribe or tribal organization or the Secretary?
The Contract Disputes Act generally applies to such amendments.
However, the declination process and the procedures in Sec. 900.122 and
Sec. 900.123 apply to the proposal by an Indian tribe or tribal
organization when the proposal is for a new project, a new phase or
discreet stage of a phase of a project, or an expansion of a project
resulting from an additional allocation of funds by the Secretary under
Sec. 900.120.
[[Page 1026]]
Sec. 900.134 At the end of a self-determination construction contract,
what happens to savings on a cost-reimbursement contract?
The savings shall be used by the Indian tribe or tribal organization
to provide additional services or benefits under the contract.
Unexpended contingency funds obligated to the contract, and remaining at
the end of the contract, are savings. No further approval or justifying
documentation by the Indian tribe or tribal organization shall be
required before expenditure of funds.
Sec. 900.135 May the time frames for action set out in this subpart
be reduced?
Yes. The time frames in this subpart are intended to be maximum
times and may be reduced based on urgency and need, by agreement of the
parties. If the Indian tribe or tribal organization requests reduced
time frames for action due to unusual or special conditions (such as
limited construction periods), the Secretary shall make a good faith
effort to accommodate the requested time frames.
Sec. 900.136 Do tribal employment rights ordinances apply to construction
contracts and subcontracts?
Yes. Tribal employment rights ordinances do apply to construction
contracts and subcontracts pursuant to section 7(b) and section 7(c) of
the Act.
Sec. 900.137 Do all provisions of the other subparts apply to contracts
awarded under this subpart?
Yes, except as otherwise provided in this subpart and unless
excluded as follows: programmatic reports and data requirements,
reassumption, contract review and approval process, contract proposal
contents, and Sec. 900.150 (d) and (e) of these regulations.
Subpart K_Waiver Procedures
Sec. 900.140 Can any provision of the regulations under this part be waived?
Yes. Upon the request of an Indian tribe or tribal organization, the
Secretary shall waive any provision of these regulations, including any
cost principles adopted by the regulations under this part, if the
Secretary finds that granting the waiver is either in the best interest
of the Indians served by the contract, or is consistent with the
policies of the Act and is not contrary to statutory law.
Sec. 900.141 How does an Indian tribe or tribal organization get a waiver?
To obtain a waiver, an Indian tribe or tribal organization shall
submit a written request to the Secretary identifying the regulation to
be waived and the basis for the request. The Indian tribe or tribal
organization shall explain the intended effect of the waiver, the impact
upon the Indian tribe or tribal organization if the waiver is not
granted, and the specific contract(s) to which the waiver will apply.
Sec. 900.142 Does an Indian tribe or tribal organization's waiver
request have to be included in an initial contract proposal?
No. Although a waiver request may be included in a contract
proposal, it can also be submitted separately.
Sec. 900.143 How is a waiver request processed?
The Secretary shall approve or deny a waiver within 90 days after
the Secretary receives a written waiver request. The Secretary's
decision shall be in writing. If the requested waiver is denied, the
Secretary shall include in the decision a full explanation of the basis
for the decision.
Sec. 900.144 What happens if the Secretary makes no decision within
the 90-day period?
The waiver request is deemed approved.
Sec. 900.145 On what basis may the Secretary deny a waiver request?
Consistent with section 107(e) of the Act, the Secretary may only
deny a waiver request based on a specific written finding. The finding
must clearly demonstrate (or be supported by controlling legal
authority) that if the waiver is granted:
(a) The service to be rendered to the Indian beneficiaries of the
particular program or function to be contracted will not be
satisfactory;
[[Page 1027]]
(b) Adequate protection of trust resources is not assured;
(c) The proposed project or function to be contracted for cannot be
properly completed or maintained by the proposed contract;
(d) The amount of funds proposed under the contract is in excess of
the applicable funding level for the contract, as determined under
section 106(a) of the Act; or
(e) The program, function, service, or activity (or portion of it)
that is the subject of the proposal is beyond the scope of programs,
functions, services, or activities that are contractible under the Act
because the proposal includes activities that cannot lawfully be carried
out by the contractor.
Sec. 900.146 Is technical assistance available for waiver requests?
Yes. Technical assistance is available as provided in Sec. 900.7 to
prepare a waiver request or to overcome any stated objection which the
Secretary might have to the request.
Sec. 900.147 What appeal rights are available?
If the Secretary denies a waiver request, the Indian tribe or tribal
organization has the right to appeal the decision and request a hearing
on the record under the procedures for hearings and appeals contained in
subpart L of these regulations. Alternatively, the Indian tribe or
tribal organization may sue in Federal district court to challenge the
Secretary's action.
Sec. 900.148 How can an Indian tribe or tribal organization secure a
determination that a law or regulation has been superseded by the Indian
Self-Determination Act, as specified in section 107(b) of the Act?
Any Indian tribe or tribal organization may at any time submit a
request to the Secretary for a determination that any law or regulation
has been superseded by the Act and that the law has no applicability to
any contract or proposed contract under the Act. The Secretary is
required to provide an initial decision on such a request within 90 days
after receipt. If such a request is denied, the Indian tribe or tribal
organization may appeal under subpart L of these regulations. The
Secretary shall provide notice of each determination made under this
subpart to all Indian tribes and tribal organizations.
Subpart L_Appeals
Appeals Other Than Emergency Reassumption and Suspension, Withholding or
Delay in Payment
Sec. 900.150 What decisions can an Indian tribe or tribal organization
appeal under this subpart?
(a) A decision to decline to award a self-determination contract, or
a portion thereof, under section 102 of the Act;
(b) A decision to decline to award a construction contract, or a
portion thereof, under sections 105(m) and 102 of the Act;
(c) A decision to decline a proposed amendment to a self-
determination contract, or a portion thereof, under section 102 of the
Act;
(d) A decision not to approve a proposal, in whole or in part, to
redesign a program;
(e) A decision to rescind and reassume a self-determination
contract, in whole or in part, under section 109 of the Act except for
emergency reassumptions;
(f) A decision to refuse to waive a regulation under section 107(e)
of the Act;
(g) A disagreement between an Indian tribe or tribal organization
and the Federal government over proposed reporting requirements;
(h) A decision to refuse to allow an Indian tribe or tribal
organization to convert a contract to mature status, under section 4(h)
of the Act;
(i) All other appealable pre-award decisions by a Federal official
as specified in these regulations, whether an official of the Department
of the Interior or the Department of Health and Human Services; or
(j) A decision relating to a request for a determination that a law
or regulation has been superseded by the Act.
Sec. 900.151 Are there any appeals this subpart does not cover?
This subpart does not cover:
(a) Disputes which arise after a self-determination contract has
been
[[Page 1028]]
awarded, or emergency reassumption of self-determination contracts or
suspension of payments under self-determination contracts, which are
covered under Sec. 900.170 through Sec. 900.176 of these regulations.
(b) Other post-award contract disputes, which are covered under
subpart N.
(c) Denials under the Freedom of Information Act, 5 U.S.C. 552,
which may be appealed under 43 CFR 2 for the Department of the Interior
and 45 CFR 5 for the Department of Health and Human Services; and
(d) Decisions relating to the award of discretionary grants under
section 103 of the Act, which may be appealed under 25 CFR 2 for the
Department of the Interior, and under 45 CFR 5 for the Department of
Health and Human Services.
Sec. 900.152 How does an Indian tribe or tribal organization know
where and when to file its appeal from decisions made by agencies
of DOI or DHHS?
Every decision in any of the ten areas listed above shall contain
information which shall tell the Indian tribe or tribal organization
where and when to file the Indian tribe or tribal organization's appeal.
Each decision shall include the following statement:
Within 30 days of the receipt of this decision, you may request an
informal conference under 25 CFR 900.154, or appeal this decision under
25 CFR 900.158 to the Interior Board of Indian Appeals (IBIA). Should
you decide to appeal this decision, you may request a hearing on the
record. An appeal to the IBIA under 25 CFR 900.158 shall be filed with
the IBIA by certified mail or by hand delivery at the following address:
Board of Indian Appeals, U.S. Department of the Interior, 801 North
Quincy Street, Arlington, VA 22203. You shall serve copies of your
Notice of Appeal on the Secretary and on the official whose decision is
being appealed. You shall certify to the IBIA that you have served these
copies.
Sec. 900.153 Does an Indian tribe or tribal organization have any
options besides an appeal?
Yes. The Indian tribe or tribal organization may request an informal
conference. An informal conference is a way to resolve issues as quickly
as possible, without the need for a formal hearing. The Indian tribe or
tribal organization may also choose to sue in U.S. District Court under
section 102(b)(3) and section 110(a) of the Act.
Sec. 900.154 How does an Indian tribe or tribal organization request
an informal conference?
The Indian tribe or tribal organization shall file its request for
an informal conference with the office of the person whose decision it
is appealing, within 30 days of the day it receives the decision. The
Indian tribe or tribal organization may either hand-deliver the request
for an informal conference to that person's office, or mail it by
certified mail, return receipt requested. If the Indian tribe or tribal
organization mails the request, it will be considered filed on the date
the Indian tribe or tribal organization mailed it by certified mail.
Sec. 900.155 How is an informal conference held?
(a) The informal conference shall be held within 30 days of the date
the request was received, unless the Indian tribe or tribal organization
and the authorized representative of the Secretary agree on another
date.
(b) If possible, the informal conference will be held at the Indian
tribe or tribal organization's office. If the meeting cannot be held at
the Indian tribe or tribal organization's office and is held more than
fifty miles from its office, the Secretary shall arrange to pay
transportation costs and per diem for incidental expenses to allow for
adequate representation of the Indian tribe or tribal organization.
(c) The informal conference shall be conducted by a designated
representative of the Secretary.
(d) Only people who are the designated representatives of the Indian
tribe or tribal organization, or authorized by the Secretary of Health
and Human Services or by the appropriate agency of the Department of the
Interior, are allowed to make presentations at the informal conference.
Sec. 900.156 What happens after the informal conference?
(a) Within 10 days of the informal conference, the person who
conducted
[[Page 1029]]
the informal conference shall prepare and mail to the Indian tribe or
tribal organization a written report which summarizes what happened at
the informal conference and a recommended decision.
(b) Every report of an informal conference shall contain the
following language:
Within 30 days of the receipt of this recommended decision, you may
file an appeal of the initial decision of the DOI or DHHS agency with
the Interior Board of Indian Appeals (IBIA) under 25 CFR 900.157. You
may request a hearing on the record. An appeal to the IBIA under 25 CFR
900.157 shall be filed with the IBIA by certified mail or hand delivery
at the following address: Board of Indian Appeals, U.S. Department of
the Interior, 801 North Quincy Street, Arlington, VA 22203. You shall
serve copies of your Notice of Appeal on the Secretary and on the
official whose decision is being appealed. You shall certify to the IBIA
that you have served these copies.
Sec. 900.157 Is the recommended decision always final?
No. If the Indian tribe or tribal organization is dissatisfied with
the recommended decision, it may still appeal the initial decision
within 30 days of receiving the recommended decision and the report of
the informal conference. If the Indian tribe or tribal organization does
not file a notice of appeal within 30 days, or before the expiration of
the extension it has received under Sec. 900.159, the recommended
decision becomes final.
Sec. 900.158 How does an Indian tribe or tribal organization appeal
the initial decision, if it does not request an informal conference
or if it does not
agree with the recommended decision resulting from the
informal conference?
(a) If the Indian tribe or tribal organization decides to appeal, it
shall file a notice of appeal with the IBIA within 30 days of receiving
either the initial decision or the recommended decision.
(b) The Indian tribe or tribal organization may either hand-deliver
the notice of appeal to the IBIA, or mail it by certified mail, return
receipt requested. If the Indian tribe or tribal organization mails the
Notice of Appeal, it will be considered filed on the date the Indian
tribe or tribal organization mailed it by certified mail. The Indian
tribe or tribal organization should mail the notice of appeal to: Board
of Indian Appeals, U.S. Department of the Interior, 801 North Quincy
Street, Arlington, VA 22203.
(c) The Notice of Appeal shall:
(1) Briefly state why the Indian tribe or tribal organization thinks
the initial decision is wrong;
(2) Briefly identify the issues involved in the appeal; and
(3) State whether the Indian tribe or tribal organization wants a
hearing on the record, or whether the Indian tribe or tribal
organization wants to waive its right to a hearing.
(d) The Indian tribe or tribal organization shall serve a copy of
the notice of appeal upon the official whose decision it is appealing.
The Indian tribe or tribal organization shall certify to the IBIA that
it has done so.
(e) The authorized representative of the Secretary of Health and
Human Services or the authorized representative of the Secretary of the
Interior will be considered a party to all appeals filed with the IBIA
under the Act.
Sec. 900.159 May an Indian tribe or tribal organization get an extension
of time to file a notice of appeal?
Yes. If the Indian tribe or tribal organization needs more time, it
can request an extension of time to file its Notice of Appeal within 60
days of receiving either the initial decision or the recommended
decision resulting from the informal conference. The request of the
Indian tribe or tribal organization shall be in writing, and shall give
a reason for not filing its notice of appeal within the 30-day time
period. If the Indian tribe or tribal organization has a valid reason
for not filing its notice of appeal on time, it may receive an extension
from the IBIA.
Sec. 900.160 What happens after an Indian tribe or tribal organization
files an appeal?
(a) Within 5 days of receiving the Indian tribe or tribal
organization's notice of appeal, the IBIA will decide whether the appeal
falls under Sec. 900.150(a) through Sec. 900.150(g). If so, the Indian
tribe or tribal organization is entitled to a hearing.
[[Page 1030]]
(1) If the IBIA determines that the appeal of the Indian tribe or
tribal organization falls under Sec. 900.150(h), Sec. 900.150(i), or
Sec. 900.150(j), and the Indian tribe or tribal organization has
requested a hearing, the IBIA will grant the request for a hearing
unless the IBIA determines that there are no genuine issues of material
fact to be resolved.
(2) If the IBIA cannot make that decision based on the information
included in the notice of appeal, the IBIA may ask for additional
statements from the Indian tribe or tribal organization, or from the
appropriate Federal agency. If the IBIA asks for more statements, it
will make its decision within 5 days of receiving those statements.
(b) If the IBIA decides that the Indian tribe or tribal organization
is not entitled to a hearing or if the Indian tribe or tribal
organization has waived its right to a hearing on the record, the IBIA
will ask for the administrative record under 43 CFR 4.335. The IBIA
shall tell the parties that the appeal will be considered under the
regulations at 43 CFR 4, subpart D, except the case shall be docketed
immediately, without waiting for the 20-day period described in 43 CFR
4.336.
Sec. 900.161 How is a hearing arranged?
(a) If a hearing is to be held, the IBIA will refer the Indian tribe
or tribal organization's case to the Hearings Division of the Office of
Hearings and Appeals of the U.S. Department of the Interior. The case
will then be assigned to an Administrative Law Judge (ALJ), appointed
under 5 U.S.C. 3105.
(b) Within 15 days of the date of the referral, the ALJ will hold a
pre-hearing conference, by telephone or in person, to decide whether an
evidentiary hearing is necessary, or whether it is possible to decide
the appeal based on the written record. At the pre-hearing conference
the ALJ will provide for:
(1) A briefing and discovery schedule;
(2) A schedule for the exchange of information, including, but not
limited to witness and exhibit lists, if an evidentiary hearing is to be
held;
(3) The simplification or clarification of issues;
(4) The limitation of the number of expert witnesses, or avoidance
of similar cumulative evidence, if an evidentiary hearing is to be held;
(5) The possibility of agreement disposing of all or any of the
issues in dispute; and
(6) Such other matters as may aid in the disposition of the appeal.
(c) The ALJ shall order a written record to be made of any
conference results that are not reflected in a transcript.
Sec. 900.162 What happens when a hearing is necessary?
(a) The ALJ shall hold a hearing within 60 days of the date of the
order referring the appeal to the ALJ, unless the parties agree to have
the hearing on a later date.
(b) At least 30 days before the hearing, the government agency shall
file and serve the Indian tribe or tribal organization with a response
to the notice of appeal.
(c) If the hearing is held more than 50 miles from the Indian tribe
or tribal organization's office, the Secretary shall arrange to pay
transportation costs and per diem for incidental expenses to allow for
adequate representation of the Indian tribe or tribal organization.
(d) The hearing shall be conducted in accordance with the
Administrative Procedure Act, 5 U.S.C. 556.
Sec. 900.163 What is the Secretary's burden of proof for appeals
from decisions under Sec. 900.150(a) through Sec. 900.150(g)?
For those appeals, the Secretary has the burden of proof (as
required by section 102(e)(1) of the Act) to establish by clearly
demonstrating the validity of the grounds for declining the contract
proposal.
Sec. 900.164 What rights do Indian tribes, tribal organizations,
and the government have during the appeal process?
Both the Indian tribe or tribal organization and the government
agency have the same rights during the appeal process. These rights
include the right to:
(a) Be represented by legal counsel;
[[Page 1031]]
(b) Have the parties provide witnesses who have knowledge of the
relevant issues, including specific witnesses with that knowledge, who
are requested by either party;
(c) Cross-examine witnesses;
(d) Introduce oral or documentary evidence, or both;
(e) Require that oral testimony be under oath;
(f) Receive a copy of the transcript of the hearing, and copies of
all documentary evidence which is introduced at the hearing;
(g) Compel the presence of witnesses, or the production of
documents, or both, by subpoena at hearings or at depositions;
(h) Take depositions, to request the production of documents, to
serve interrogatories on other parties, and to request admissions; and
(i) Any other procedural rights under the Administrative Procedure
Act, 5 U.S.C. 556.
Sec. 900.165 What happens after the hearing?
(a) Within 30 days of the end of the formal hearing or any post-
hearing briefing schedule established by the ALJ, the ALJ shall send all
the parties a recommended decision, by certified mail, return receipt
requested. The recommended decision shall contain the ALJ's findings of
fact and conclusions of law on all the issues. The recommended decision
shall also state that the Indian tribe or tribal organization has the
right to object to the recommended decision.
(b) If the appeal involves the Department of Health and Human
Services, the recommended decision shall contain the following
statement:
Within 30 days of the receipt of this recommended decision, you may
file an objection to the recommended decision with the Secretary of
Health and Human Services under 25 CFR 900.165(b). An appeal to the
Secretary under 25 CFR 900.165(b) shall be filed at the following
address: Department of Health and Human Services, 200 Independence Ave.
S.W., Washington, DC, 20201. You shall serve copies of your notice of
appeal on the official whose decision is being appealed. You shall
certify to the Secretary that you have served this copy. If neither
party files an objection to the recommended decision within 30 days, the
recommended decision will become final.
(c) If the appeal involves the Department of the Interior, the
recommended decision shall contain the following statement:
Within 30 days of the receipt of this recommended decision, you may
file an objection to the recommended decision with the Interior Board of
Indian Appeals (IBIA) under 25 CFR 900.165(c). An appeal to the IBIA
under 25 CFR 900.165(c) shall be filed at the following address: Board
of Indian Appeals, 801 North Quincy Street, Arlington, VA 22203. You
shall serve copies of your notice of appeal on the Secretary of the
Interior, and on the official whose decision is being appealed. You
shall certify to the IBIA that you have served these copies. If neither
party files an objection to the recommended decision within 30 days, the
recommended decision will become final.
Sec. 900.166 Is the recommended decision always final?
No. Any party to the appeal may file precise and specific written
objections to the recommended decision, or any other comments, within 30
days of receiving the recommended decision. Objections shall be served
on all other parties. The recommended decision shall become final 30
days after the Indian tribe or tribal organization receives the ALJ's
recommended decision, unless a written statement of objections is filed
with the Secretary of Health and Human Services or the IBIA during the
30-day period. If no party files a written statement of objections
within 30 days, the recommended decision shall become final.
Sec. 900.167 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human Services
or the IBIA do?
(a) The Secretary of Health and Human Services or the IBIA has 20
days from the date it receives any timely written objections to modify,
adopt, or reverse the recommended decision. If the Secretary of Health
and Human Services or the IBIA does not modify or reverse the
recommended decision during that time, the recommended decision
automatically becomes final.
(b) When reviewing the recommended decision, the IBIA or the
Secretary may consider and decide all issues
[[Page 1032]]
properly raised by any party to the appeal, based on the record.
(c) The decision of the Secretary or the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are
modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
Sec. 900.168 Will an appeal hurt the Indian tribe or tribal
organization's position in other contract negotiations?
No. A pending appeal will not affect or prevent the negotiation or
award of another contract.
Sec. 900.169 Will the decisions on appeals be available for the public
to review?
Yes. The Secretary shall publish all final decisions from the ALJs,
the IBIA, and the Secretary of Health and Human Services.
Appeals of Emergency Reassumption of Self-Determination Contracts or
Suspensions, Withholding or Delay of Payments Under a Self-Determination
Contract
Sec. 900.170 What happens in the case of emergency reassumption or
suspension or withholding or delay of payments?
(a) This subpart applies when the Secretary gives notice to an
Indian tribe or tribal organization that the Secretary intends to:
(1) Immediately rescind a contract or grant and reassume a program;
or
(2) Suspend, withhold, or delay payment under a contract.
(b) When the Secretary advises an Indian tribe or tribal
organization that the Secretary intends to take an action referred to in
paragraph (a)(1) of this section, the Secretary shall also notify the
Deputy Director of the Office of Hearings and Appeals, Department of the
Interior, 801 North Quincy Street, Arlington, VA 22203.
Sec. 900.171 Will there be a hearing?
Yes. The Deputy Director of the Office of Hearings and Appeals shall
appoint an Administrative Law Judge (ALJ) to hold a hearing.
(a) The hearing shall be held within 10 days of the date of the
notice referred to in Sec. 900.170 unless the Indian tribe or tribal
organization agrees to a later date.
(b) If possible, the hearing will be held at the office of the
Indian tribe or tribal organization. If the hearing is held more than 50
miles from the office of the Indian tribe or tribal organization, the
Secretary shall arrange to pay transportation costs and per diem for
incidental expenses. This will allow for adequate representation of the
Indian tribe or tribal organization.
Sec. 900.172 What happens after the hearing?
(a) Within 30 days after the end of the hearing or any post-hearing
briefing schedule established by the ALJ, the ALJ shall send all parties
a recommended decision by certified mail, return receipt requested. The
recommended decision shall contain the ALJ's findings of fact and
conclusions of law on all the issues. The recommended decision shall
also state that the Indian tribe or tribal organization has the right to
object to the recommended decision.
(b) If the appeal involves the Department of Health and Human
Services, the recommended decision shall contain the following
statement:
Within 15 days of the receipt of this recommended decision, you may
file an objection to the recommended decision with the Secretary of
Health and Human Services under 25 CFR 900.165(b). An appeal to the
Secretary under 25 CFR 900.165(b) shall be filed at the following
address: Department of Health and Human Services, 200 Independence Ave.
S.W., Washington, DC 20201. You shall serve copies of your notice of
appeal on the official whose decision is being appealed. You shall
certify to the Secretary that you have served this copy. If neither
party files an objection to the recommended decision within 15 days, the
recommended decision will become final.
(c) If the appeal involves the Department of the Interior, the
recommended decision shall contain the following statement:
Within 15 days of the receipt of this recommended decision, you may
file an objection to the recommended decision with the
[[Page 1033]]
Interior Board of Indian Appeals (IBIA) under 25 CFR 900.165(c). An
appeal to the IBIA under 25 CFR 900.165(c) shall be filed at the
following address: Board of Indian Appeals, 801 North Quincy Street,
Arlington, VA 22203.
You shall serve copies of your notice of appeal on the Secretary of
the Interior, and on the official whose decision is being appealed. You
shall certify to the IBIA that you have served these copies. If neither
party files an objection to the recommended decision within 15 days, the
recommended decision will become final.
Sec. 900.173 Is the recommended decision always final?
No. Any party to the appeal may file precise and specific written
objections to the recommended decision, or any other comments, within 15
days of receiving the recommended decision. You shall serve a copy of
your objections on the other party. The recommended decision will become
final 15 days after the Indian tribe or tribal organization receives the
ALJ's recommended decision, unless a written statement of objections is
filed with the Secretary of Health and Human Services or the IBIA during
the 15-day period. If no party files a written statement of objections
within 15 days, the recommended decision will become final.
Sec. 900.174 If an Indian tribe or tribal organization objects to the
recommended decision, what will the Secretary of Health and Human Services
or the IBIA do?
(a) The Secretary or the IBIA has 15 days from the date he/she
receives timely written objections to modify, adopt, or reverse the
recommended decision. If the Secretary or the IBIA does not modify or
reverse the recommended decision during that time, the recommended
decision automatically becomes final.
(b) When reviewing the recommended decision, the IBIA or the
Secretary may consider and decide all issues properly raised by any
party to the appeal, based on the record.
(c) The decision of the Secretary or of the IBIA shall:
(1) Be in writing;
(2) Specify the findings of fact or conclusions of law which are
modified or reversed;
(3) Give reasons for the decision, based on the record; and
(4) State that the decision is final for the Department.
Sec. 900.175 Will an appeal hurt an Indian tribe or tribal organization's
position in other contract negotiations?
No. A pending appeal will not affect or prevent the negotiation or
award of another contract.
Sec. 900.176 Will the decisions on appeals be available for the public
to review?
Yes. The Secretary shall publish all final decisions from the ALJs,
the IBIA, and the Secretary of Health and Human Services.
Applicability of the Equal Access to Justice Act
Sec. 900.177 Does the Equal Access to Justice Act (EAJA) apply to appeals
under this subpart?
Yes. EAJA claims against the DOI or the DHHS will be heard by the
IBIA under 43 CFR 4.601-4.619. For DHHS, appeals from the EAJA award
will be according to 25 CFR 900.165(b).
Subpart M_Federal Tort Claims Act Coverage General Provisions
Sec. 900.180 What does this subpart cover?
This subpart explains the applicability of the Federal Tort Claims
Act (FTCA). This section covers:
(a) Coverage of claims arising out of the performance of medical-
related functions under self-determination contracts;
(b) Coverage of claims arising out of the performance of non-
medical-related functions under self-determination contracts; and
(c) Procedures for filing claims under FTCA.
Sec. 900.181 What definitions apply to this subpart?
Indian contractor means:
(1) In California, subcontractors of the California Rural Indian
Health Board, Inc. or, subject to approval of the IHS Director after
consultation
[[Page 1034]]
with the DHHS Office of General Counsel, subcontractors of an Indian
tribe or tribal organization which are:
(i) Governed by Indians eligible to receive services from the Indian
Health Service;
(ii) Which carry out comprehensive IHS service programs within
geographically defined service areas; and
(iii) Which are selected and identified through tribal resolution as
the local provider of Indian health care services.
(2) Subject to the approval of the IHS Director after consultation
with the DHHS Office of General Counsel, Indian tribes and tribal
organizations which meet in all respects the requirements of the Indian
Self-Determination Act to contract directly with the Federal Government
but which choose through tribal resolution to subcontract to carry out
IHS service programs within geographically defined service areas with
another Indian tribe or tribal organization which contracts directly
with IHS.
(3) Any other contractor that qualifies as an ``Indian contractor''
under the Indian Self-Determination Act.
Sec. 900.182 What other statutes and regulations apply to FTCA coverage?
A number of other statutes and regulations apply to FTCA coverage,
including the Federal Tort Claims Act (28 U.S.C. 1346(b), 2401, 2671-
2680) and related Department of Justice regulations in 28 CFR part 14.
Sec. 900.183 Do Indian tribes and tribal organizations need to be aware
of areas which FTCA does not cover?
Yes. There are claims against self-determination contractors which
are not covered by FTCA, claims which may not be pursued under FTCA, and
remedies that are excluded by FTCA. General guidance is provided below
as to these matters but is not intended as a definitive description of
coverage, which is subject to review by the Department of Justice and
the courts on a case-by-case basis.
(a) What claims are expressly barred by FTCA and therefore may not
be made against the United States, an Indian tribe or tribal
organization? Any claim under 28 U.S.C. 2680, including claims arising
out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights, unless otherwise
authorized by 28 U.S.C. 2680(h).
(b) What claims may not be pursued under FTCA?
(1) Except as provided in Sec. 900.181(a)(1) and Sec. 900.189,
claims against subcontractors arising out of the performance of
subcontracts with a self-determination contractor;
(2) Claims for on-the-job injuries which are covered by workmen's
compensation;
(3) Claims for breach of contract rather than tort claims; or
(4) Claims resulting from activities performed by an employee which
are outside the scope of employment.
(c) What remedies are expressly excluded by FTCA and therefore are
barred?
(1) Punitive damages, unless otherwise authorized by 28 U.S.C. 2674;
and
(2) Other remedies not permitted under applicable state law.
Sec. 900.184 Is there a deadline for filing FTCA claims?
Yes. Claims shall be filed within 2 years of the date of accrual.
(28 U.S.C. 2401).
Sec. 900.185 How long does the Federal government have to process an
FTCA claim after the claim is received by the Federal agency, before a
lawsuit may be filed?
Six months.
Sec. 900.186 Is it necessary for a self-determination contract to
include any clauses about Federal Tort Claims Act coverage?
No, it is optional. At the request of Indian tribes and tribal
organizations, self-determination contracts shall include the following
clauses to clarify the scope of FTCA coverage:
(a) The following clause may be used for all contracts:
For purposes of Federal Tort Claims Act coverage, the contractor and
its employees (including individuals performing personal services
contracts with the contractor to provide health care services) are
deemed to be employees of the Federal government while performing work
under this contract. This status is not changed by the source of
[[Page 1035]]
the funds used by the contractor to pay the employee's salary and
benefits unless the employee receives additional compensation for
performing covered services from anyone other than the contractor.
(b) The following clause is for IHS contracts only:
Under this contract, the contractor's employee may be required as a
condition of employment to provide health services to non-IHS
beneficiaries in order to meet contractual obligations. These services
may be provided in either contractor or non-contractor facilities. The
employee's status for Federal Tort Claims Act purposes is not affected.
Sec. 900.187 Does FTCA apply to a self-determination contract if FTCA
is not referenced in the contract?
Yes.
Sec. 900.188 To what extent shall the contractor cooperate with the
Federal government in connection with tort claims arising out of the
contractor's performance?
(a) The contractor shall designate an individual to serve as tort
claims liaison with the Federal government.
(b) As part of the notification required by 28 U.S.C. 2679(c), the
contractor shall notify the Secretary immediately in writing of any tort
claim (including any proceeding before an administrative agency or
court) filed against the contractor or any of its employees that relates
to performance of a self-determination contract or subcontract.
(c) The contractor, through its designated tort claims liaison,
shall assist the appropriate Federal agency in preparing a
comprehensive, accurate, and unbiased report of the incident so that the
claim may be properly evaluated. This report should be completed within
60 days of notification of the filing of the tort claim. The report
should be complete in every significant detail and include as
appropriate:
(1) The date, time and exact place of the accident or incident;
(2) A concise and complete statement of the circumstances of the
accident or incident;
(3) The names and addresses of tribal and/or Federal employees
involved as participants or witnesses;
(4) The names and addresses of all other eyewitnesses;
(5) An accurate description of all government and other privately-
owned property involved and the nature and amount of damage, if any;
(6) A statement as to whether any person involved was cited for
violating a Federal, State or tribal law, ordinance, or regulation;
(7) The contractor's determination as to whether any of its
employees (including Federal employees assigned to the contractor)
involved in the incident giving rise to the tort claim were acting
within the scope of their employment in carrying out the contract at the
time the incident occurred;
(8) Copies of all relevant documentation, including available police
reports, statements of witnesses, newspaper accounts, weather reports,
plats and photographs of the site or damaged property, such as may be
necessary or useful for purposes of claim determination by the Federal
agency; and
(9) Insurance coverage information, copies of medical bills, and
relevant employment records.
(d) The contractor shall cooperate with and provide assistance to
the U.S. Department of Justice attorneys assigned to defend the tort
claim, including, but not limited to, case preparation, discovery, and
trial.
(e) If requested by the Secretary, the contractor shall make an
assignment and subrogation of all the contractor's rights and claims
(except those against the Federal government) arising out of a tort
claim against the contractor.
(f) If requested by the Secretary, the contractor shall authorize
representatives of the Secretary to settle or defend any claim and to
represent the contractor in or take charge of any action. If the Federal
government undertakes the settlement or defense of any claim or action
the contractor shall provide all reasonable additional assistance in
reaching a settlement or asserting a defense.
Sec. 900.189 Does this coverage extend to subcontractors of
self-determination contracts?
No. Subcontractors or subgrantees providing services to a Public Law
93-638 contractor or grantee are generally not covered. The only
exceptions are Indian contractors such as those under
[[Page 1036]]
subcontract with the California Rural Indian Health Board to carry out
IHS programs in geographically defined service areas in California and
personal services contracts under Sec. 900.193 (for Sec.
900.183(b)(1)) or Sec. 900.183(b) (for Sec. 900.190).
Medical-Related Claims
Sec. 900.190 Is FTCA the exclusive remedy for a tort claim for personal
injury or death resulting from the performance of a self-determination
contract?
Yes, except as explained in Sec. 900.183(b). No claim may be filed
against a self-determination contractor or employee for personal injury
or death arising from the performance of medical, surgical, dental, or
related functions by the contractor in carrying out self-determination
contracts under the Act. Related functions include services such as
those provided by nurses, laboratory and x-ray technicians, emergency
medical technicians and other health care providers including
psychologists and social workers. All such claims shall be filed against
the United States and are subject to the limitations and restrictions of
the FTCA.
Sec. 900.191 Are employees of self-determination contractors providing
health services under the self-determination contract protected by FTCA?
Yes. For the purpose of Federal Tort Claims Act coverage, an Indian
tribe or tribal organization and its employees performing medical-
related functions under a self-determination contract are deemed a part
of the Public Health Service if the employees are acting within the
scope of their employment in carrying out the contract.
Sec. 900.192 What employees are covered by FTCA for medical-related claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out
a contract;
(d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the
services are provided in facilities not owned by the contractor); and
(e) Federal employees assigned to the contract.
Sec. 900.193 Does FTCA coverage extend to individuals who provide health
care services under a personal services contract providing services in a
facility that is owned, operated, or constructed under the jurisdiction
of the IHS?
Yes. The coverage extends to individual personal services
contractors providing health services in such a facility, including a
facility owned by an Indian tribe or tribal organization but operated
under a self-determination contract with IHS.
Sec. 900.194 Does FTCA coverage extend to services provided under a staff
privileges agreement with a non-IHS facility where the agreement requires
a health care practitioner to provide reciprocal services to the
general population?
Yes. Those services are covered, as long as the contractor's health
care practitioners do not receive additional compensation from a third
party for the performance of these services and they are acting within
the scope of their employment under a self-determination contract.
Reciprocal services include:
(a) Cross-covering other medical personnel who temporarily cannot
attend their patients;
(b) Assisting other personnel with surgeries or other medical
procedures;
(c) Assisting with unstable patients or at deliveries; or
(d) Assisting in any patient care situation where additional
assistance by health care personnel is needed.
Sec. 900.195 Does FTCA coverage extend to the contractor's health care
practitioners providing services to private patients on a fee-for-services
basis when such personnel (not the self-determination contractor) receive
the fee?
No.
[[Page 1037]]
Sec. 900.196 Do covered services include the conduct of clinical studies
and investigations and the provision of emergency services, including the
operation of emergency motor vehicles?
Yes, if the services are provided in carrying out a self-
determination contract. (An emergency motor vehicle is a vehicle,
whether government, contractor, or employee-owned, used to transport
passengers for medical services.)
Sec. 900.197 Does FTCA cover employees of the contractor who are paid by
the contractor from funds other than those provided through the
self-determination contract?
Yes, as long as the services out of which the claim arose were
performed in carrying out the self-determination contract.
Sec. 900.198 Are Federal employees assigned to a self-determination
contractor under the Intergovernmental Personnel Act or detailed under
section 214 of the Public Health Service Act covered to the same extent
that they would be if working directly for a Federal agency?
Yes.
Sec. 900.199 Does FTCA coverage extend to health care practitioners to
whom staff privileges have been extended in contractor health care
facilities operated under a self-determination contract on the condition
that such practitioner provide health services to IHS beneficiaries
covered by FTCA?
Yes, health care practitioners with staff privileges in a facility
operated by a contractor are covered when they perform services to IHS
beneficiaries. Such personnel are not covered when providing services to
non-IHS beneficiaries.
Sec. 900.200 May persons who are not Indians or Alaska Natives assert
claims under FTCA?
Yes. Non-Indian individuals served under the contract whether or not
on a fee-for-service basis, may assert claims under this subpart.
Procedure for Filing Medical-Related Claims
Sec. 900.201 How should claims arising out of the performance of
medical-related functions be filed?
Claims should be filed on Standard Form 95 (Claim for Damage, Injury
or Death) or by submitting comparable written information (including a
definite amount of monetary damage claimed) with the Chief, PHS Claims
Branch, Room 18-20, Parklawn Building, 5600 Fishers Lane, Rockville, MD
20857, or at such other address as shall have been provided to the
contractor in writing.
Sec. 900.202 What should a self-determination contractor or a contractor's
employee do on receiving such a claim?
They should immediately forward the claim to the PHS Claims Branch
at the address indicated in Sec. 900.201 and notify the contractor's
tort claims liaison.
Sec. 900.203 If the contractor or contractor's employee receives a
summons and/or a complaint alleging a tort covered by FTCA, what
should the contractor do?
As part of the notification required by 28 U.S.C. 2679(c), the
contractor should immediately inform the Chief, Litigation Branch,
Business and Administrative Law Division, Office of General Counsel,
Department of Health and Human Services, 330 Independence Avenue SW.,
Room 5362, Washington, DC 20201, and the contractor's tort claims
liaison, and forward the following materials:
(a) Four copies of the claimant's medical records of treatment,
inpatient and outpatient, and any related correspondence, as well as
reports of consultants;
(b) A narrative summary of the care and treatment involved;
(c) The names and addresses of all personnel who were involved in
the care and treatment of the claimant;
(d) Any comments or opinions that the employees who treated the
claimant believe to be pertinent to the allegations contained in the
claim; and
(e) Other materials identified in Sec. 900.188(c).
[[Page 1038]]
Non-Medical Related Claims
Sec. 900.204 Is FTCA the exclusive remedy for a non-medical related tort
claim arising out of the performance of a self-determination contract?
Yes. Except as explained in Sec. 900.183(b), no claim may be filed
against a self-determination contractor or employee based upon
performance of non-medical-related functions under a self-determination
contract. Claims of this type must be filed against the United States
under FTCA.
Sec. 900.205 To what non-medical-related claims against self-determination
contractors does FTCA apply?
It applies to:
(a) All tort claims arising from the performance of self-
determination contracts under the authority of the Act on or after
October 1, 1989; and
(b) Any tort claims first filed on or after October 24, 1989,
regardless of when the incident which is the basis of the claim
occurred.
Sec. 900.206 What employees are covered by FTCA for non-medical-related
claims?
(a) Permanent employees;
(b) Temporary employees;
(c) Persons providing services without compensation in carrying out
a contract;
(d) Persons required because of their employment by a self-
determination contractor to serve non-IHS beneficiaries (even if the
services are provided in facilities not owned by the contractor); and
(e) Federal employees assigned to the contract.
Sec. 900.207 How are non-medical related tort claims and lawsuits filed
for IHS?
Non-medical-related tort claims and lawsuits arising out of the
performance of self-determination contracts with the Indian Health
Service should be filed in the manner described in Sec. 900.201 (for
both Sec. 900.207 and Sec. 900.208).
Sec. 900.208 How are non-medical related tort claims and lawsuits filed
for DOI?
Non-medical-related claims arising out of the performance of self-
determination contracts with the Secretary of the Interior should be
filed in the manner described in Sec. 900.201 with the Assistant
Solicitor, Procurement and Patents, Office of the Solicitor, Department
of the Interior, Room 6511, 1849 C Street NW., Washington, DC 20240.
Sec. 900.209 What should a self-determination contractor or contractor's
employee do on receiving a non-medical related tort claim?
(a) If the contract is with DHHS, they should immediately forward
the claim to the PHS Claims Branch at the address indicated in Sec.
900.201 and notify the contractor's tort claims liaison.
(b) If the contract is with DOI, they should immediately notify the
Assistant Solicitor, Procurement and Patents, Office of the Solicitor,
Department of the Interior, Room 6511, 1849 C Street N.W., Washington,
DC 20240.
Sec. 900.210 If the contractor or contractor's employee receives a summons
and/or complaint alleging a non-medical related tort covered by FTCA, what
should an Indian tribe or tribal organization do?
(a) If the contract is with the DHHS, they should immediately inform
the Chief, Litigation Branch, Business and Administrative Law Division,
Office of General Counsel, Department of Health and Human Services, 330
Independence Avenue S.W., Room 5362, Washington, DC 20201 and the
contractor's tort claims liaison.
(b) If the contract is with the Department of the Interior, they
should immediately notify the Assistant Solicitor, Procurement and
Patents, Office of the Solicitor, Department of the Interior, Room 6511,
1849 C Street N.W., Washington, DC 20240, and the contractor's tort
claims liaison.
[[Page 1039]]
Subpart N_Post-Award Contract Disputes
Sec. 900.215 What does this subpart cover?
(a) This subpart covers:
(1) All HHS and DOI self-determination contracts, including
construction contracts; and
(2) All disputes regarding an awarding official's decision relating
to a self-determination contract.
(b) This subpart does not cover the decisions of an awarding
official that are covered under subpart L.
Sec. 900.216 What other statutes and regulations apply to contract disputes?
(a) The Contract Disputes Act of 1978 (CDA), Public Law 95-563 (41
U.S.C. 601 as amended);
(b) If the matter is submitted to the Interior Board of Contract
Appeals, 43 CFR 4.110-126; and
(c) The Equal Access to Justice Act, 5 U.S.C. 504 and 28 U.S.C. 2412
and regulations at 43 CFR 4.601 through 4.619 (DOI) and 45 CFR 13
(DHHS).
Sec. 900.217 Is filing a claim under the CDA our only option for resolving
post-award contract disputes?
No. The Federal government attempts to resolve all contract disputes
by agreement at the awarding official's level. These are alternatives to
filing a claim under the CDA:
(a) Before issuing a decision on a claim, the awarding official
should consider using informal discussions between the parties, assisted
by individuals who have not substantially participated in the matter, to
aid in resolving differences.
(b) In addition to filing a CDA claim, or instead of filing a CDA
claim, the parties may choose to use an alternative dispute resolution
mechanism, pursuant to the provisions of the Administrative Dispute
Resolution Act, Public Law 101-552, as amended, 5 U.S.C. 581 et seq., or
the options listed in section 108(1)(b)(12) of the Indian Self-
Determination Act, as applicable.
Sec. 900.218 What is a claim under the CDA?
(a) A claim is a written demand by one of the contracting parties,
asking for one or more of the following:
(1) Payment of a specific sum of money under the contract;
(2) Adjustment or interpretation of contract terms; or
(3) Any other claim relating to the contract.
(b) However, an undisputed voucher, invoice, or other routing
request for payment is not a claim under the CDA. A voucher, invoice, or
routing request for payment may be converted into a CDA claim if:
(1) It is disputed as to liability or amount; or
(2) It is not acted upon in a reasonable time and written notice of
the claim is given to the awarding official by the senior official
designated in the contract.
Sec. 900.219 How does an Indian tribe, tribal organization, or Federal
agency submit a claim?
(a) An Indian tribe or tribal organization shall submit its claim in
writing to the awarding official. The awarding official shall document
the contract file with evidence of the date the claim was received.
(b) A Federal agency shall submit its claim in writing to the
contractor's senior official, as designated in the contract.
Sec. 900.220 Does it make a difference whether the claim is large or
small?
Yes. The Contract Disputes Act requires that an Indian tribe or
tribal organization making a claim for more than $100,000 shall certify
that:
(a) The claim is made in good faith,
(b) Supporting documents or data are accurate and complete to the
best of the Indian tribe or tribal organization's knowledge and belief;
(c) The amount claimed accurately reflects the amount believed to be
owed by the Federal government; and
(d) The person making the certification is authorized to do so on
behalf of the Indian tribe or tribal organization.
[[Page 1040]]
Sec. 900.221 What happens next?
(a) If the parties do not agree on a settlement, the awarding
official will issue a written decision on the claim.
(b) The awarding official shall always give a copy of the decision
to the Indian tribe or tribal organization by certified mail, return
receipt requested, or by any other method which provides a receipt.
Sec. 900.222 What goes into a decision?
A decision shall:
(a) Describe the claim or dispute;
(b) Refer to the relevant terms of the contract;
(c) Set out the factual areas of agreement and disagreement;
(d) Set out the actual decision, based on the facts, and outline the
reasoning which supports the decision; and
(e) Contain the following language:
This is a final decision. You may appeal this decision to the
Interior Board of Contract Appeals (IBCA), U.S. Department of the
Interior, 801 North Quincy Street, Arlington, VA 22203. If you decide to
appeal, you shall, within 90 days from the date you receive this
decision, mail or otherwise furnish written notice to the IBCA and
provide a copy to the individual from whose decision the appeal is
taken. The notice shall indicate that an appeal is intended, and refer
to the decision and contract number. Instead of appealing to the IBCA,
you may bring an action in the U.S. Court of Federal Claims or in the
United States District Court within 12 months of the date you receive
this notice.
Sec. 900.223 When does an Indian tribe or tribal organization get the
decision?
(a) If the claim is for more than $100,000, the awarding official
shall issue the decision within 60 days of the day he or she receives
the claim. If the awarding official cannot issue a decision that
quickly, he or she shall tell you when the decision will be issued.
(b) If the claim is for $100,000 or less, and you want a decision
within 60 days, you shall advise the awarding official in writing that
you want a decision within that period. If you advise the awarding
official in writing that you do want a decision within 60 days, the
awarding official shall issue the decision within 60 days of the day he
or she receives your written notice.
(c) If your claim is for $100,000 or less and you do not advise the
awarding official that you want a decision within 60 days, or if your
claim exceeds $100,000 and the awarding official has notified you of the
time within which a decision will be issued, the awarding official shall
issue a decision within a reasonable time. What is ``reasonable''
depends upon the size and complexity of your claim, and upon the
adequacy of the information you have given to the awarding official in
support of your claim.
Sec. 900.224 What happens if the decision does not come within that time?
If the awarding official does not issue a decision within the time
required under Sec. 900.223, the Indian tribe or tribal organization
may treat the delay as though the awarding official has denied the
claim, and proceed according to Sec. 900.222(e),
Sec. 900.225 Does an Indian tribe or tribal organization get paid
immediately if the awarding official decides in its favor?
Yes. Once the awarding official decides that money should be paid
under the contract, the amount due, minus any portion already paid,
should be paid as promptly as possible, without waiting for either party
to file an appeal. Any payment which is made under this subsection will
not affect any other rights either party might have. In addition, it
will not create a binding legal precedent as to any future payments.
Sec. 900.226 What rules govern appeals of cost disallowances?
In any appeal involving a disallowance of costs, the Board of
Contract Appeals will give due consideration to the factual
circumstances giving rise to the disallowed costs, and shall seek to
determine a fair result without rigid adherence to strict accounting
principles. The determination of allowability shall assure fair
compensation for the work or service performed, using cost and
accounting data as guides, but not rigid measures, for ascertaining fair
compensation.
[[Page 1041]]
Sec. 900.227 Can the awarding official change the decision after it
has been made?
(a) The decision of the awarding official is final and conclusive,
and not subject to review by any forum, tribunal or government agency,
unless an appeal or suit is timely commenced as authorized by the
Contract Disputes Act. Once the decision has been made, the awarding
official may not change it, except by agreement of the parties, or under
the following limited circumstances:
(1) If evidence is discovered which could not have been discovered
through due diligence before the awarding official issued the decision;
(2) If the awarding official learns that there has been fraud,
misrepresentation, or other misconduct by a party;
(3) If the decision is beyond the scope of the awarding official's
authority;
(4) If the claim has been satisfied, released or discharged; or
(5) For any other reason justifying relief from the decision.
(b) Nothing in this subpart shall be interpreted to discourage
settlement discussions or prevent settlement of the dispute at any time.
(c) If a decision is withdrawn and a new decision is issued that is
not acceptable to the contractor, the contractor may proceed with the
appeal based on the new decision. If no new decision is issued, the
contractor may proceed under Sec. 900.224.
(d) If an appeal or suit is filed, the awarding official may modify
or withdraw his or her final decision.
Sec. 900.228 Is an Indian tribe or tribal organization entitled to
interest if it wins its claim?
Yes. If an Indian tribe or tribal organization wins the claim, it
will be entitled to interest on the amount of the award. The interest
will be calculated from the date the awarding official receives the
claim until the day it is paid. The interest rate will be the rate which
the Secretary of the Treasury sets for the Renegotiation Board under the
Renegotiation Act of 1951, Public Law 92-41, 26 U.S.C. 1212 and 26
U.S.C. 7447.
Sec. 900.229 What role will the awarding official play during an appeal?
(a) The awarding official shall provide any data, documentation,
information or support required by the IBCA for use in deciding a
pending appeal.
(b) Within 30 days of receiving an appeal or learning that an appeal
has been filed, the awarding official shall assemble a file which
contains all the documents which are pertinent to the appeal, including:
(1) The decision and findings of fact from which the appeal is
taken;
(2) The contract, including specifications and pertinent
modifications, plans and drawings;
(3) All correspondence between the parties which relates to the
appeal, including the letter or letters of claims in response to which
the decision was issued;
(4) Transcripts of any testimony taken during the course of the
proceedings, and affidavits or statements of any witnesses on the matter
in dispute, which were made before the filing of the notice of appeal
with the IBCA; and
(5) Any additional information which may be relevant.
Sec. 900.230 What is the effect of a pending appeal?
(a) Indian tribes and tribal organizations shall continue
performance of a contract during the appeal of any claims to the same
extent they would had there been no dispute.
(b) A pending dispute will not affect or bar the negotiation or
award of any subsequent contract or negotiation between the parties.
Subpart O_Conflicts of Interest
Sec. 900.231 What is an organizational conflict of interest?
An organizational conflict of interest arises when there is a direct
conflict between the financial interests of the contracting Indian tribe
or tribal organization and:
(a) The financial interests of beneficial owners of Indian trust
resources;
(b) The financial interests of the United States relating to trust
resources, trust acquisitions, or lands
[[Page 1042]]
conveyed or to be conveyed pursuant to the Alaska Native Claims
Settlement Act 43 U.S.C. 1601 et seq.; or
(c) An express statutory obligation of the United States to third
parties. This section only applies if the conflict was not addressed
when the contract was first negotiated. This section only applies where
the financial interests of the Indian tribe or tribal organization are
significant enough to impair the Indian tribe or tribal organization's
objectivity in carrying out the contract, or a portion of the contract.
Sec. 900.232 What must an Indian tribe or tribal organization do if an
organizational conflict of interest arises under a contract?
This section only applies if the conflict was not addressed when the
contract was first negotiated. When an Indian tribe or tribal
organization becomes aware of an organizational conflict of interest,
the Indian tribe or tribal organization must immediately disclose the
conflict to the Secretary.
Sec. 900.233 When must an Indian tribe or tribal organization regulate
its employees or subcontractors to avoid a personal conflict of interest?
An Indian tribe or tribal organization must maintain written
standards of conduct to govern officers, employees, and agents
(including subcontractors) engaged in functions related to the
management of trust assets.
Sec. 900.234 What types of personal conflicts of interest involving
tribal officers, employees or subcontractors would have to be regulated
by an Indian tribe?
The Indian tribe or tribal organization would need a tribally-
approved mechanism to ensure that no officer, employee, or agent
(including a subcontractor) of the Indian tribe or tribal organization
reviews a trust transaction in which that person has a financial or
employment interest that conflicts with that of the trust beneficiary,
whether the tribe or an allottee. Interests arising from membership in,
or employment by, an Indian tribe or rights to share in a tribal claim
need not be regulated.
Sec. 900.235 What personal conflicts of interest must the standards
of conduct regulate?
The standards must prohibit an officer, employee, or agent
(including a subcontractor) from participating in the review, analysis,
or inspection of trust transactions involving an entity in which such
persons have a direct financial interest or an employment relationship.
It must also prohibit such officers, employees, or agents from accepting
any gratuity, favor, or anything of more than nominal value, from a
party (other than the Indian tribe) with an interest in the trust
transactions under review. Such standards must also provide for
sanctions or remedies for violation of the standards.
Sec. 900.236 May an Indian tribe elect to negotiate contract provisions
on conflict of interest to take the place of this regulation?
Yes. An Indian tribe and the Secretary may agree to contract
provisions, concerning either personal or organizational conflicts, that
address the issues specific to the program and activities contracted in
a manner that provides equivalent protection against conflicts of
interest to these regulations. Agreed-upon contract provisions shall be
followed, rather than the related provisions of this regulation. For
example, the Indian tribe and the Secretary may agree that using the
Indian tribe's own written code of ethics satisfies the objectives of
the personal conflicts provisions of this regulation, in whole or in
part.
Subpart P_Retrocession and Reassumption Procedures
Sec. 900.240 What does retrocession mean?
A retrocession means the return to the Secretary of a contracted
program, in whole or in part, for any reason, before the expiration of
the term of the contract.
Sec. 900.241 Who may retrocede a contract, in whole or in part?
An Indian tribe or tribal organization authorized by an Indian tribe
may retrocede a contract.
[[Page 1043]]
Sec. 900.242 What is the effective date of retrocession?
The retrocession is effective on the date which is the earliest date
among:
(a) One year from the date of the Indian tribe or tribal
organization's request;
(b) The date the contract expires; or
(c) A mutually agreed-upon date.
Sec. 900.243 What effect will an Indian tribe or tribal organization's
retrocession have on its rights to contract?
An Indian tribe or tribal organization's retrocession shall not
negatively affect:
(a) Any other contract to which it is a party;
(b) Any other contracts it may request; and
(c) Any future request by the Indian tribe or tribal organization to
contract for the same program.
Sec. 900.244 Will an Indian tribe or tribal organization's retrocession
adversely affect funding available for the retroceded program?
No. The Secretary shall provide not less than the same level of
funding that would have been available if there had been no
retrocession.
Sec. 900.245 What obligation does the Indian tribe or tribal organization
have with respect to returning property that was used in the operation of
the retroceded program?
On the effective date of any retrocession, the Indian tribe or
tribal organization shall, at the request of the Secretary, deliver to
the Secretary all requested property and equipment provided under the
contract which have a per item current fair market value, less the cost
of improvements borne by the Indian tribe or tribal organization, in
excess of $5,000 at the time of the retrocession.
Sec. 900.246 What does reassumption mean?
Reassumption means rescission, in whole or in part, of a contract
and assuming or resuming control or operation of the contracted program
by the Secretary without consent of the Indian tribe or tribal
organization. There are two types of reassumption: emergency and non-
emergency.
Sec. 900.247 Under what circumstances is a reassumption considered an
emergency instead of non-emergency reassumption?
(a) A reassumption is considered an emergency reassumption if an
Indian tribe or tribal organization fails to fulfill the requirements of
the contract and this failure poses:
(1) An immediate threat of imminent harm to the safety of any
person; or
(2) Imminent substantial and irreparable harm to trust funds, trust
lands, or interest in such lands.
(b) A reassumption is considered a non-emergency reassumption if
there has been:
(1) A violation of the rights or endangerment of the health, safety,
or welfare of any person; or
(2) Gross negligence or mismanagement in the handling or use of:
(i) Contract funds;
(ii) Trust funds;
(iii) Trust lands; or
(iv) Interests in trust lands under the contract.
Sec. 900.248 In a non-emergency reassumption, what is the Secretary
required to do?
The Secretary must:
(a) Notify the Indian tribes or tribal organizations served by the
contract and the contractor in writing by certified mail of the details
of the deficiencies in contract performance;
(b) Request specified corrective action to be taken within a
reasonable period of time, which in no case may be less than 45 days;
and
(c) Offer and provide, if requested, the necessary technical
assistance and advice to assist the contractor to overcome the
deficiencies in contract performance. The Secretary may also make a
grant for the purpose of obtaining such technical assistance as provided
in section 103 of the Act.
Sec. 900.249 What happens if the contractor fails to take corrective
action to remedy the contract deficiencies identified in the notice?
The Secretary shall provide a second written notice by certified
mail to the Indian tribes or tribal organizations
[[Page 1044]]
served by the contract and the contractor that the contract will be
rescinded, in whole or in part.
Sec. 900.250 What shall the second written notice include?
The second written notice shall include:
(a) The intended effective date of the reassumption;
(b) The details and facts supporting the intended reassumption; and
(c) Instructions that explain the Indian tribe or tribal
organization's right to a formal hearing within 30 days of receipt of
the notice.
Sec. 900.251 What is the earliest date on which the contract will
be rescinded in a non-emergency reassumption?
The contract will not be rescinded by the Secretary before the
issuance of a final decision in any administrative hearing or appeal.
Sec. 900.252 In an emergency reassumption, what is the Secretary required
to do?
(a) Immediately rescind, in whole or in part, the contract;
(b) Assume control or operation of all or part of the program; and
(c) Give written notice to the contractor and the Indian tribes or
tribal organizations served.
Sec. 900.253 What shall the written notice include?
The written notice shall include the following:
(a) A detailed statement of the findings which support the
Secretary's determination;
(b) A statement explaining the contractor's right to a hearing on
the record under Sec. 900.160 and Sec. 900.161 within 10 days of the
emergency reassumption or such later date as the contractor may approve;
(c) An explanation that the contractor may be reimbursed for actual
and reasonable ``wind up costs'' incurred after the effective date of
the rescission; and
(d) A request for the return of property, if any.
Sec. 900.254 May the contractor be reimbursed for actual and reasonable
``wind up costs'' incurred after the effective date of rescission?
Yes.
Sec. 900.255 What obligation does the Indian tribe or tribal organization
have with respect to returning property that was used in the operation of the
rescinded contract?
On the effective date of any rescission, the Indian tribe or tribal
organization shall, at the request of the Secretary, deliver to the
Secretary all property and equipment provided under the contract which
has a per item current fair market value, less the cost of improvements
borne by the Indian tribe or tribal organization, in excess of $5,000 at
the time of the retrocession.
Sec. 900.256 Will a reassumption adversely affect funding available for
the reassumed program?
No. The Secretary shall provide at least the same level of funding
that would have been provided if there had been no reassumption.
[[Page 1045]]