Title 25—Indians--Volume 1
PART 900—CONTRACTS UNDER THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT
§ 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.
§ 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(c) If a decision is withdrawn and a new decision is issued that is not acceptable to the contractor, the contractor may proceed with the appeal based on the new decision.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 § 900.224.
(d) If an appeal or suit is filed, the awarding official may modify or withdraw his or her final decision.
§ 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.
§ 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 CBCA 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 CBCA; and
(5) Any additional information which may be relevant.
§ 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.
§ 900.231   What is an organizational conflict of interest?
An organizational conflict of interest arises when there is a direct conflict between the financial interests of the contracting Indian tribe or tribal organization and:
(a) The financial interests of beneficial owners of Indian trust resources;
(b) The financial interests of the United States relating to trust resources, trust acquisitions, or lands conveyed or to be conveyed pursuant to the Alaska Native Claims Settlement Act 43 U.S.C. 1601 et seq.; or
(c) An express statutory obligation of the United States to third parties. This section only applies if the conflict was not addressed when the contract was first negotiated. This section only applies where the financial interests of the Indian tribe or tribal organization are significant enough to impair the Indian tribe or tribal organization's objectivity in carrying out the contract, or a portion of the contract.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 900.249   What happens if the contractor fails to take corrective action to remedy the contract deficiencies identified in the notice?
The Secretary shall provide a second written notice by certified mail to the Indian tribes or tribal organizations served by the contract and the contractor that the contract will be rescinded, in whole or in part.
§ 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.
§ 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.
§ 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.
§ 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 § 900.171 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.
§ 900.254   May the contractor be reimbursed for actual and reasonable “wind up costs” incurred after the effective date of rescission?
Yes.
§ 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.
§ 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.