[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

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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.

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