I

103D CONGRESS

2D SESSION H. R. 4842

To specify the terms of contracts entered into by the United States and

Indian tribal organizations under the Indian Self-Determination and

Education Assistance Act, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JULY 27, 1994

Mr. RICHARDSON (for himself and Mr. THOMAS of Wyoming) introduced the

following bill; which was referred to the Committee on Natural Resources

A BILL

To specify the terms of contracts entered into by the United

States and Indian tribal organizations under the Indian

Self-Determination and Education Assistance Act, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Self-Determina5 tion Act Amendments of 1994’’.

6 SEC. 2. AMENDMENTS.

7 The Indian Self-Determination and Education Assist8 ance Act (25 U.S.C. 450 et seq.) is amended as follows:
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1 (1) At the beginning of section 4, insert the fol2 lowing new paragraph and redesignate all other

3 paragraphs accordingly:

4 ‘‘(1) ‘construction contract’ means a fixed-price

5 or cost-reimbursement self-determination contract

6 for a construction project. Contracts (i) limited to

7 providing architectural and engineering services,

8 planning services, and/or construction management

9 services; (ii) for the Housing Improvement Program

10 or roads maintenance program administered by the

11 Secretary of the Interior; and (iii) for the health fa12 cility maintenance and improvement program admin13 istered by the Secretary of Health and Human Serv14 ices, shall not be deemed to be construction con15 tracts within the meaning of this Act;’’.

16 (2) Amend section 5(f) to read as follows:

17 ‘‘(f) For each fiscal year during which an Indian trib18 al organization receives or expends funds pursuant to a

19 contract or grant under this title, the tribal organization

20 which requested such contract or grant shall submit to the

21 appropriate Secretary a single agency audit report as re22 quired by chapter 75 of title 31, United States Code. Such

23 tribal organization shall also submit such additional infor24 mation on the conduct of the program or service involved

25 as the tribal organization may negotiate with the Sec-
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1 retary. Any disagreement over reporting requirements

2 shall be subject to the declination standards and proce3 dures set forth in section 102 of this Act.’’.

4 (3) In section 7(a) strike ‘‘of subcontractors’’

5 and insert in lieu thereof ‘‘or subcontractors (exclud6 ing tribes and tribal organization)’’.

7 (4) At the end of section 7, insert the following

8 new subsection:

9 ‘‘(c) Notwithstanding subsections (a) and (b), where

10 a self-determination contract, or portion thereof, is in11 tended to benefit one tribe, tribal employment or contract

12 preference laws adopted by such tribe shall govern with

13 respect to the administration of such contract or portion

14 thereof.’’.

15 (5) At the end of paragraph (1) of section

16 102(a), insert the following new sentence: ‘‘Such

17 programs shall include administrative functions of

18 the Department of the Interior or the Department

19 of Health and Human Services which support the

20 delivery of services to Indians, including those ad21 ministrative activities related to, but not part of, the

22 service delivery program, which are otherwise

23 contractible, without regard to the organization level

24 within the Department where such functions are car25 ried out.’’.
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1 (6) Amend paragraph (2) of section 102(a) as

2 follows—

3 (A) insert ‘‘, or to amend or renew a self4 determination contract,’’ before ‘‘to the Sec5 retary for review’’;

6 (B) in the second sentence strike ‘‘The’’

7 and insert ‘‘Subject to the provisions of sub8 section 4 hereof, the’’;

9 (C) insert ‘‘and award the contract’’ before

10 ‘‘unless’’;

11 (D) in subparagraph (A), insert ‘‘by the

12 tribal organization’’ after ‘‘rendered’’;

13 (E) in subparagraph (B), insert ‘‘by the

14 tribal organization’’ after ‘‘resources’’;

15 (F) at the end of subparagraph (C) add

16 the following: ‘‘, either because (i) the amount

17 of funds proposed in the contract is in excess

18 of the funding levels specified in section 106(a)

19 of this Act, or (ii) the program (or portion

20 thereof) to be contracted is beyond the scope of

21 paragraph (1) thereof because the proposal in22 cludes activities which cannot be lawfully car23 ried out by the contractor;’’; and

24 (G) insert the following new paragraph:
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1 ‘‘(4) The Secretary shall approve any severable por2 tion of a contract proposal which does not support a dec3 lination finding as provided in paragraph (3) of this sub4 section. Whenever the Secretary determines under para5 graph (3) that a contract proposal (A) proposes in part

6 to plan, conduct, or administer a program that is beyond

7 the scope of paragraph (1), or (B) proposes a funding level

8 in excess of the funding levels specified in section 106(a)

9 of this Act, the Secretary shall approve the proposal to

10 the extent authorized to paragraph (1) of section 106(a)

11 of this Act, as appropriate (subject to any agreed-upon

12 alteration in the proposed scope of work). In the event

13 the tribal organization elects to operate the severable por14 tion of a contract proposal, subsection (b) thereof shall

15 apply only with respect to the declined portion of the con16 tract.’’.

17 (7) In section 102(b)(3), insert before the pe18 riod ‘‘, subject to the tribe’s or tribal organization’s

19 option to proceed directly to Federal district court

20 as provided in section 110(a)’’.

21 (8) At the end of section 102, insert the follow22 ing new subsections:

23 ‘‘(e) In any hearing or appeal provided under sub24 section (b)(3), the Secretary shall carry the burden of

25 proof to establish by clear and convincing evidence that
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1 the contract proposal should be declined. Final depart2 mental decisions in all such appeals shall be made at a

3 level higher than the level of the agency whose decision

4 under subsection (b) is appealed.

5 ‘‘(f) A tribal organization in Alaska authorized by

6 tribal resolution or resolutions to contract under this Act

7 the operation of one or more programs may redelegate

8 that authority, by formal action of the tribal organiza9 tion’s governing body, to another tribal organization pro10 vided advance notice of such redelegation and a copy of

11 the contracting proposal, prior to its submission to the

12 Secretary, are provided to all tribes served by the tribal

13 organization. Nothing herein is to be construed as a limi14 tation on the authority of a tribe to limit, restrict or re15 scind its resolution at any time or in any manner whatso16 ever. A tribe receiving such notice shall have 60 days from

17 receipt of the notice to notify the tribal organization in

18 writing of its intent to adopt a limiting resolution prohibit19 ing or conditioning the proposed redelegation, and there20 after shall have 60 days to adopt and transmit such reso21 lution to the tribal organization. A tribal organization so

22 notified of a tribe’s intent shall not proceed with any re23 delegation proposal until the expiration of the 60-day pe24 riod.’’.

25 (9) Amend section 105(a) to read as follows:
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1 ‘‘(a) Contracts, grants, and cooperative agreements

2 with tribal organizations pursuant to sections 102 and 103

3 of this title shall not be subject to general Federal con4 tracting, discretionary grant or cooperative agreement

5 laws and regulations, except to the extent such laws ex6 pressly apply to Indian tribes: Provided, That with respect

7 to construction contracts as defined in section 4 of this

8 Act (or subcontracts of such a construction contract), the

9 Office of Federal Procurement Policy Act (88 Stat. 796;

10 41 U.S.C. 401 et seq.) and Federal acquisition regulations

11 promulgated thereunder shall apply to the limited extent

12 such statute or regulations are necessary to assure proper

13 completion of the contract, are directly relevant to the con14 struction activity, and are not inconsistent with the provi15 sions or policy of this Act: Provided further, That all such

16 requirements shall be negotiated between the Secretary

17 and the tribal organization and set forth as an attachment

18 to the contract: Provided further, That no other laws or

19 executive orders shall be applicable to construction con20 tracts subject to this Act unless expressly so stated in such

21 other laws or orders, including chapter 10 of title 40,

22 United States Code; section 9(a) and (c) of the Act of

23 August 2, 1946, as amended, 60 Stat. 809; sections 301–

24 310 of the Act of June 30, 1949, as amended, 63 Stat.

25 393–397; section 13 of the Act of October 3, 1944, as
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1 amended, 58 Stat. 770; chapters 21, 25, 27, 29, and 31

2 of title 44, United States Code; chapter 5 of title 40, Unit3 ed States Code, section 2 of the Act of June 13, 1934,

4 as amended, 48 Stat. 948; sections 1–12 of the Act of

5 June 30, 1936, as amended, 49 Stat. 2036–39; chapter

6 6 of title 41, United States Code; chapter 14A of title 15,

7 United States Code; and Executive Orders 12138, 11246,

8 11701, and 11758.’’.

9 (10) Amend section 105(e) to read as follows:

10 ‘‘(e) Whenever an Indian tribe or tribal organization

11 requests retrocession of the appropriate Secretary for any

12 contract, or portion thereof, entered into pursuant to this

13 Act, such retrocession shall, unless the request for ret14 rocession is rescinded by such tribe or tribal organization,

15 become effective one year from the date of the request by

16 the Indian tribe or tribal organization, or the date of con17 tract expiration, whichever is earlier, or at such date as

18 may be mutually agreed by the Secretary and the Indian

19 tribe.’’.

20 (11) Amend paragraph (2) of section 105(f) to

21 read as follows:

22 ‘‘(2) donate to an Indian tribe or tribal organi23 zation the title to any personal or real property

24 found to be excess to the needs of the Bureau of In25 dian Affairs, the Indian Health Service, or the Gen-
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1 eral Services Administration, except that title to

2 property and equipment furnished by the Federal

3 Government for use in the performance of the con4 tract or purchased with funds under any self-deter5 mination contract or grant agreement shall, unless

6 otherwise requested by the tribe or tribal organiza7 tion, vest in the appropriate tribe or tribal organiza8 tion, and upon retrocession, rescission, or termi9 nation of such self-determination contract or grant,

10 title to such property having a present value in ex11 cess of $5,000 and remaining in use in support of

12 the contracted program shall, at the Secretary’s op13 tion, revert to the Secretary; and’’.

14 (12) At the end of section 105, insert the fol15 lowing new subsections:

16 ‘‘(i) Where a self-determination contract requires the

17 Secretary to administratively divide a program which has

18 previously been administered for the benefit of a greater

19 number of tribes than are represented by the tribal organi20 zation that is a party to the contract, the Secretary

21 shall—

22 ‘‘(1) endeavor to minimize any adverse effect on

23 the level of services to be provided to all affected

24 tribes;
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1 ‘‘(2) notify all affected tribes not party to the

2 contract of the receipt of the contract proposal at

3 the earliest possible date, and of the right of such

4 tribes to comment on how the Secretary’s program

5 should be divided to best meet the needs of all af6 fected tribes;

7 ‘‘(3) explore the feasibility of instituting cooper8 ative agreements amongst the affected tribes not a

9 party to the contract, the tribal organization operat10 ing the contract, and the Secretary; and

11 ‘‘(4) identify and report to Congress the nature

12 of any diminution in quality, level or quantity of

13 services to any affected tribe resulting from the divi14 sion of the Secretary’s program, together with an es15 timate of the funds which would be required to cor16 rect such diminution. In determining whether to de17 cline a contract under section 102(a)(2), the Sec18 retary shall not consider the effect which a contract

19 proposal will have on tribes not represented by the

20 tribal organization submitting such proposal, nor on

21 Indians not served by the portion of the program to

22 be contracted. The Secretary shall make such special

23 provisions as may be necessary to assure that serv24 ices are provided to the tribes not served by a self25 determination contract.
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1 ‘‘(j) Upon notice to the Secretary, tribal organiza2 tions carrying out self-determination contracts are author3 ized to redesign programs, activities, functions and serv4 ices under contract, including program standards, to best

5 meet the local geographic, demographic, economic, cul6 tural, health and institutional needs of the Indian people

7 and tribes served under the contract. The Secretary shall

8 evaluate any redesign proposal against the declination cri9 teria set forth in section 102 of this Act.

10 ‘‘(k) For purposes of section 201(a) of the Act of

11 June 30, 1949 (40 U.S.C. 481(a)) (involving Federal

12 sources of supply, including lodging providers, airlines,

13 and other transportation providers), an Indian tribe or

14 tribal organization carrying out a contract, grant, or coop15 erative agreement under this Act shall be deemed an exec16 utive agency when carrying out such contract, grant, or

17 agreement.

18 ‘‘(l) Upon the request of an Indian tribe or tribal or19 ganization, the Secretary shall enter into leases with In20 dian tribes and tribal organizations which hold title to,

21 a leasehold interest in, or a beneficial interest in, facilities

22 used by Indian tribes or tribal organizations for the ad23 ministration and delivery of contract services under the

24 Act. The Secretary shall compensate such Indian tribes

25 or tribal organizations for the use of leased facilities for
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1 contract purposes. Lease compensation may include: rent,

2 depreciation based on the useful life of the building, prin3 cipal and interest paid or accrued, operation and mainte4 nance expenses, and such other reasonable expenses deter5 mined by regulation to be allowable.

6 ‘‘(m) Construction contracts:

7 ‘‘(1) Construction contracts requested, ap8 proved, or awarded under this Act shall be subject

9 to all of the provisions of this Act, including without

10 intending any limitation, sections 7, 102(a), 102(b),

11 103(d) and (e), 105(f), 106(a), 106(f), 110, and

12 111, and section 314 of Public Law No. 101–512,

13 as amended.

14 ‘‘(2) In providing technical assistance to tribes

15 and tribal organizations in the development of con16 struction contract proposals, the Secretary shall pro17 vide a requesting tribe or tribal organization, within

18 30 days of receipt of a request, with all available in19 formation regarding the construction project, includ20 ing without intending any limitation, construction

21 drawings, maps, engineering reports, design reports,

22 plans of requirements, cost estimates, environmental

23 assessments or impact reports, and archaeological

24 reports.
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1 ‘‘(3) Prior to finalization of a construction con2 tract proposal pursuant to section 102(a), and upon

3 request of the contracting tribe or tribal organiza4 tion, there shall be a precontract negotiation phase

5 which shall, at a minimum, include—

6 ‘‘(A) the provision of technical assistance

7 pursuant to section 103 and paragraph (2)

8 hereof;

9 ‘‘(B) a joint scoping session to review all

10 plans, specifications, engineering reports, cost

11 estimates, and other information available to

12 the parties, for the purpose of identifying all

13 areas of agreement and disagreement;

14 ‘‘(C) an opportunity for the Secretary to

15 revise his or her plans, designs, or cost esti16 mates in response to concerns raised or infor17 mation provided by the tribe or tribal organiza18 tion;

19 ‘‘(D) a negotiation session during which

20 the Secretary and the tribe or tribal organiza21 tion shall seek to develop a mutually agreeable

22 contract proposal;

23 ‘‘(E) upon the request of the tribe or tribal

24 organization, use of an alternative dispute reso25 lution mechanism to seek resolution of all re-
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1 maining areas of disagreement pursuant to the

2 Administrative Dispute Resolution Act (5

3 U.S.C. 571); and

4 ‘‘(F) submission of a final contract pro5 posal pursuant to section 102(a).

6 ‘‘(4) In funding a fixed-price construction con7 tract pursuant to section 106(a), the Secretary shall

8 include funds for (A) the reasonable costs of the

9 tribe or tribal organization for general administra10 tion to be incurred in connection with the contracted

11 project, and (B) a reasonable profit in light of the

12 risk and other relevant considerations: Provided,

13 That the Secretary shall not be required to sepa14 rately identify such components in the contract

15 budget: and Provided further, That the total amount

16 awarded under the contract shall reflect an overall

17 fair and reasonable price to the parties, including

18 but not limited to (i) the reasonable costs to the

19 tribal organization of performing the contract given

20 the terms of the contract and the requirements of

21 this Act and any other applicable law, (ii) the costs

22 of preparing the contract proposal and supporting

23 cost data, (iii) the costs associated with the tribal

24 organization’s audited general and administrative

25 costs, and (iv) in the case of a fixed-price contract,
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1 a fair profit determined in light of the relevant risks

2 and local market conditions.’’.

3 (13) Amend section 106(a) as follows—

4 (A) at the end of paragraph (1), insert the

5 following ‘‘, without regard to the organiza6 tional level or levels within the Department at

7 which the program (or portion thereof), includ8 ing supportive administrative functions which

9 are otherwise contractible is operated’’;

10 (B) in paragraph (2), after ‘‘consist of’’,

11 insert ‘‘an amount for’’, and add the following

12 at the end thereof: ‘‘Contract support costs

13 shall include, without distinction, funds to reim14 burse tribal contractors for reasonable and al15 lowable costs of contracting attributable to di16 rect program expenses, and reasonable addi17 tional administrative or other overhead expenses

18 in connection with tribal operation of Federal

19 programs. The amount of funds to which a

20 tribe or tribal organization is entitled pursuant

21 to this subparagraph shall be negotiated annu22 ally with the Secretary.’’; and

23 (C) strike paragraph (3) and insert the fol24 lowing new paragraphs (3) and (4):
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1 ‘‘(3) Any savings in operation under a self-de2 termination contract (including a cost reimburse3 ment construction contract) shall be utilized to pro4 vide additional services or benefits under the con5 tract or be expended in the succeeding fiscal year as

6 provided in section 8 of this Act.

7 ‘‘(4) During the initial year of a self-determina8 tion contract there shall be included, in the amount

9 required to be paid under paragraph (2), start-up

10 costs consisting of the reasonable costs, either pre11 viously incurred or to be incurred under the contract

12 on a one-time basis, necessary to plan, prepare for

13 and take over operation of the contracted program

14 and to also ensure compliance with the terms of the

15 contract and prudent management: Provided, That

16 previously incurred costs shall not be included to the

17 extent the Secretary was not notified in advance and

18 in writing of the nature and extent of the costs to

19 be incurred.’’.

20 (14) Amend section 106(c) as follows:

21 (A) In each of paragraphs (1) and (2),

22 strike ‘‘indirect costs’’ and insert in lieu thereof

23 ‘‘indirect costs and other negotiated contract

24 support costs’’.
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1 (B) Strike ‘‘and’’ at the end of paragraph

2 (4).

3 (C) Strike the period at the end of para4 graph (5) and insert in lieu thereof ‘‘; and’’.

5 (D) Insert the following new paragraph:

6 ‘‘(6) a reporting of any deficiency of funds

7 needed to maintain the preexisting level of services

8 to any tribes affected by contracting activities under

9 this Act, and the amount of funds needed for transi10 tional purposes to enable contractors to convert from

11 Federal fiscal year accounting to a different ac12 counting cycle, as authorized under section 105(d) of

13 this Act.’’.

14 (15) At the end of paragraph (2) of section

15 106(d), insert the following new sentence: ‘‘Notwith16 standing any other provision of law, and subject to

17 the availability of appropriations, every Federal

18 agency and every State shall pay its full propor19 tionate share of the indirect costs associated with

20 federally funded contracts or grants awarded to

21 tribes or tribal organizations under any other law. In

22 the event that appropriations are not sufficient for

23 agencies other than the Department of the Interior

24 and the Department of Health and Human Services,

25 or for State governments or State agencies, to pay
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1 their full proportionate share as provided herein, the

2 Secretary shall, subject to the availability of appro3 priations for this purpose, fund and pay such short4 falls and report all unfunded shortfalls to the Con5 gress, as provided in section 106(c)(2).’’.

6 (16) Amend section 106(f) by inserting imme7 diately after the second sentence thereof the follow8 ing: ‘‘For the purpose of the 365-day period, an

9 audit report shall be deemed received on the date of

10 actual receipt by the Secretary, absent a notice by

11 the Secretary within 60 days of receipt that the re12 port will be rejected as insufficient due to non13 compliance with chapter 75 of title 31, United

14 States Code, or other applicable law.’’.

15 (17) Amend section 106(g) to read as follows:

16 ‘‘(g) Upon approval of a self-determination contract,

17 the Secretary shall allocate to the contract the full amount

18 to which the contractor is entitled under section 106(a),

19 subject to adjustments for each subsequent year that Fed20 eral programs are administered by such tribe or tribal or21 ganization.’’.

22 (18) Amend section 106(i) to read as follows:

23 ‘‘(i) The Secretary shall consult annually with, and

24 solicit the participation of, Indian tribes and tribal organi25 zations in the development of the budget for the Indian
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1 Health Service and the Bureau of Indian Affairs, includ2 ing participation in the formulation of annual budget re3 quests to Congress.’’.

4 (19) Amend section 106 by adding at the end

5 thereof the following new subsections:

6 ‘‘(j) A tribal organization may use funds provided

7 under a self-determination contract to meet matching or

8 cost participation requirements under other Federal and

9 non-Federal programs.

10 ‘‘(k) Without intending any limitation, a tribal orga11 nization may, without approval, expend funds provided

12 under a self-determination contract for the following pur13 poses to the extent supportive of a contracted program—

14 ‘‘(1) depreciation and use allowances not other15 wise specifically prohibited by law, including depre16 ciation of facilities owned by the tribe or tribal orga17 nization and constructed with Federal financial as18 sistance;

19 ‘‘(2) publication and printing costs;

20 ‘‘(3) building, realty and facilities costs, includ21 ing rental costs or mortgage expenses;

22 ‘‘(4) automated data processing and similar

23 equipment or services;

24 ‘‘(5) cost of capital assets and repairs;

25 ‘‘(6) management studies;
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1 ‘‘(7) professional services other than services

2 provided in connection with judicial proceedings by

3 or against the United States;

4 ‘‘(8) insurance and indemnification, including

5 insurance covering the risk of loss of or damage to

6 property used in connection with the contract with7 out regard to the ownership of such property;

8 ‘‘(9) costs incurred to raise funds or contribu9 tions from non-Federal sources for the purpose of

10 furthering the goals and objectives of a self-deter11 mination contract;

12 ‘‘(10) interest expenses paid on capital expendi13 tures such as buildings, building renovation, or ac14 quisition or fabrication of capital equipment, and in15 terest expenses on loans necessitated due to sec16 retarial delays in providing funds under a contract;

17 ‘‘(11) expenses of a tribal organization’s gov18 erning body to the extent attributable to the man19 agement or operation of programs under this Act;

20 and

21 ‘‘(12) costs associated with the management of

22 pension, self-insurance and other funds which in23 clude Federal participation.

24 ‘‘(l) Within 12 months following the date of enact25 ment of this subsection, the Office of Management and
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1 Budget, with the active participation of Indian tribes and

2 tribal organizations, the Department of the Interior, Of3 fice of the Inspector General, and the Health and Human

4 Services Department, Cost Determination Branch, shall

5 develop a separate set of cost principles applicable to In6 dian tribes and tribal organizations consistent with the

7 government-to-government Federal-tribal relationship em8 bodied in this Act.

9 ‘‘(m) Except in connection with rescission and

10 reassumption of a contract under section 109 of this Act,

11 the Secretary shall in no circumstance suspend, withhold

12 or delay the payment of funds to a tribal organization

13 under a self-determination contract.

14 ‘‘(n) Program income earned by a tribal organization

15 in the course of carrying out a self-determination contract

16 shall be used by the tribal organization to further the gen17 eral purposes of the contract and shall not be a basis for

18 reducing the amount of funds otherwise obligated to the

19 contract.

20 ‘‘(o) To the extent contracting activities under this

21 Act reduce the Secretary’s administrative or other respon22 sibilities in connection with the operation of Indian pro23 grams, resulting in savings which have not otherwise been

24 included in the contract amount specified in subsection (a)

25 of this section, and to the extent that doing so will not
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1 adversely affect the Secretary’s ability to carry out his re2 sponsibilities to other tribes and tribal organizations, the

3 Secretary shall make such savings available to tribal orga4 nizations contracting under this Act.

5 ‘‘(p) Notwithstanding any laws or regulations to the

6 contrary, a tribal organization may rebudget within the

7 approved budget of its contract to meet contract require8 ments, if such rebudgeting does not have a significant and

9 adverse effect upon the level or nature of services.’’.

10 SEC. 3. CONTRACT SPECIFICATIONS.

11 Section 108 of the Indian Self-Determination and

12 Education Assistance Act (25 U.S.C. 450j), currently re13 served, is amended to read as follows:

14 ‘‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

15 ‘‘Each Self-Determination Contract or grant entered

16 into under this Act shall contain, or incorporate by ref17 erence, the following provisions, with modifications where

18 indicated and the blanks appropriately filled together with

19 such other provisions as the parties may agree upon:

20 ‘‘(1) AUTHORITY AND PURPOSE.—

21 ‘‘(A) AUTHORITY.—This agreement, de22 noted a Self-Determination Contract (herein23 after referred to as the ‘Contract’), is entered

24 into by the Secretary of the Interior or the Sec25 retary of Health and Human Services (herein-
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1 after referred to as the ‘Secretary’), for and on

2 behalf of the United States pursuant to titles I

3 and II of the Indian Self-Determination and

4 Education Assistance Act and by the authority

5 of the lllllll tribal government or

6 tribal organization (hereinafter referred to as

7 the ‘Contractor’). Unless otherwise provided in

8 this agreement, all of the provisions of title I of

9 the Indian Self-Determination and Education

10 Assistance Act are incorporated herein.

11 ‘‘(B) PURPOSE.—Each and every provision

12 of the Indian Self-Determination Act and of

13 this Contract shall be liberally construed for the

14 benefit of the Contractor to transfer the fund15 ing and the following related functions, services,

16 activities, and programs (or portion thereof), in17 cluding all related administrative functions

18 from the Federal Government to the Contrac19 tor: (List functions, services, activities, and pro20 grams.)

21 ‘‘(C) TRIBAL LAW AND FORUMS.—The

22 laws and/or policies and procedures of the Con23 tractor shall be applied in the performance of

24 this Contract and the powers and decisions of

25 the Contractor’s Tribal Court or other dispute
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1 resolution mechanism shall be binding to the

2 extent that Federal law, construed in accord3 ance with the applicable canons of construction

4 and the Indian Self-Determination and Edu5 cation Assistance Act, is not inconsistent.

6 ‘‘(2) TERMS, PROVISIONS AND CONDITIONS.—

7 ‘‘(A) TERM.—The term of this Contract

8 shall not exceed 3 years, unless the Secretary

9 and the Contractor agree on a longer period

10 pursuant to section 105(c)(1)(B) of the Indian

11 Self-Determination and Education Assistance

12 Act. Pursuant to section 105(d)(1) of the Act,

13 upon the Contractor’s election, the calendar

14 year shall be the basis for contracts under this

15 Act, unless the Secretary and the Contractor

16 agree on a different period in the annual fund17 ing agreement.

18 ‘‘(B) EFFECTIVE DATE.—This Contract

19 shall become effective upon approval and execu20 tion by the Contractor and the Secretary, un21 less otherwise agreed to by the Secretary and

22 the Contractor.

23 ‘‘(C) FUNDING AMOUNT.—

24 ‘‘(i) AMOUNT OF ANNUAL FUNDING

25 AGREEMENT.—Subject to the appropria-
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1 tion of funds by Congress, the Secretary

2 shall make available to the Contractor the

3 total amount specified in the annual fund4 ing agreement incorporated by reference in

5 paragraph (6)(B), which amount shall not

6 be less than the amounts specified in sec7 tion 106(a) of the Act.

8 ‘‘(ii) LIMITATION OF COSTS.—The

9 Contractor shall not be obligated to con10 tinue performance beyond the amount of

11 funds awarded, and if at any time the Con12 tractor has reason to believe that the total

13 amount for performance of this contract or

14 a specific activity of this Contract will be

15 greater than the amount awarded, the

16 Contractor shall notify the appropriate

17 Secretary. If the amount awarded is not

18 increased, the Contractor may cease per19 formance. In such event all duties and re20 sponsibilities previously assumed by the

21 Contractor shall become the duties and re22 sponsibilities of the Secretary.

23 ‘‘(D) PAYMENT.—

24 ‘‘(i) IN GENERAL.—Payments shall be

25 made as expeditiously as possible and shall
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1 include financial arrangements to cover

2 funding during periods under continuing

3 resolutions to the extent permitted by such

4 resolutions.

5 ‘‘(ii) QUARTERLY SEMIANNUAL, LUMP

6 SUM, AND OTHER METHODS OF PAY7 MENT.—Notwithstanding the provisions of

8 any other law, for each fiscal year covered

9 by this Contract, the Secretary is author10 ized to and shall make available the funds

11 specified for the fiscal year under the an12 nual funding agreement by paying to the

13 Contractor on a quarterly basis one-quar14 ter of the total amount provided for in the

15 annual funding agreement for that fiscal

16 year, by making a lump-sum payment or

17 semiannual payments, or by using any

18 other method authorized by law, as may be

19 requested by the Contractor and specified

20 in the annual funding agreement. Each

21 quarterly payment shall be made on the

22 first day of each quarter of the fiscal year

23 except that in instances where the contract

24 year coincides with the Federal fiscal year,

25 payment for the first quarter shall be
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1 made not later than the date that is 10

2 calendar days after the date on which the

3 Office of Management and Budget appor4 tions the appropriations for the fiscal year

5 for the programs, servicers, functions, and

6 activities subject to the Contract. Chapter

7 39 of title 31, United States Code, shall

8 apply to the payment of funds due under

9 the contract and the annual funding agree10 ment.

11 ‘‘(E) RECORDS AND MONITORING.—(i) Ex12 cept for previously provided copies of tribal

13 records that the Secretary demonstrates are

14 clearly required to be maintained as part of the

15 recordkeeping system of the Department of the

16 Interior and/or the Department of Health and

17 Human Services, Contractor records shall not

18 be considered Federal records for purposes of

19 chapter 5 of title 5, United States Code.

20 ‘‘(ii) The Contractor shall maintain a rec21 ordkeeping system, and upon reasonable ad22 vance request provide reasonable access to such

23 records to the Secretary.

24 ‘‘(iii) Contractors are responsible for man25 aging the day-to-day operations of the Contract
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1 and for monitoring activities to assure compli2 ance with the Contract and applicable Federal

3 requirements. Monitoring visits shall be limited

4 to not more than one performance monitoring

5 visit per contract by each operating division, de6 partmental bureau or departmental agency or

7 duly authorized representatives thereof unless

8 (I) the Contractor has agreed to such additional

9 visits, or (II) there is reasonable cause to be10 lieve that grounds for reassumption of the con11 tract or other serious contract performance de12 ficiency exists: Provided, however, That such ad13 ditional visits shall not be made until after rea14 sonable advance notice has been given to the

15 Contractor, including the nature of the problem

16 which requires the additional visits.

17 ‘‘(F) PROPERTY.—(i) As provided in sec18 tion 105(f) of the Act, as amended, at the re19 quest of the Contractor the Secretary shall

20 make available or transfer to the Contractor all

21 reasonably divisible real property, facilities,

22 equipment, and personal property that the Sec23 retary had previously utilized to provide or ad24 minister the programs, services, functions, and

25 activities covered by this Contract. A mutually
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1 agreed upon list specifying the property, facili2 ties, and equipment so furnished shall also be

3 prepared and periodically revised. The Sec4 retary shall maintain a record of all such prop5 erty for purposes of replacement and shall re6 place such property on the same basis as prop7 erty remaining under the Secretary’s control.

8 Upon the request of the Contractor, the Sec9 retary and the Contractor shall enter into a

10 separate joint use agreement to address the

11 parties’ shared use of real or personal property

12 that is not reasonably divisible.

13 ‘‘(ii) The Secretary shall delegate to the

14 Contractor the authority to acquire such ‘ex15 cess’ property as may be appropriate in the

16 judgment of the Contractor to support the pro17 grams, services, functions, and activities oper18 ated pursuant to this Contract. The Secretary

19 shall assist the Contractor in obtaining such

20 confiscated or excess property as may become

21 available to tribes, tribal organizations, or local

22 governments. A screener identification card

23 (General Services Administration form 2946)

24 shall be issued to the Contractor not later than

25 the effective date of this Contract. The des-
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1 ignated official shall, upon request, assist the

2 Contractor in securing the use of the card.

3 ‘‘(iii) The Contractor shall determine what

4 capital equipment, leases, rentals, property, or

5 services it shall require to perform its obliga6 tions under this subsection, and shall acquire

7 and maintain records of such capital equipment,

8 property rentals, leases, property, or services

9 through tribal procurement procedures.

10 ‘‘(G) SAVINGS.—Notwithstanding any

11 other provision of law, any funds provided

12 under this Contract shall remain available until

13 expended and shall require no further approval

14 by the Secretary nor further justifying docu15 mentation from the Contractor prior to expendi16 ture.

17 ‘‘(H) TRANSPORTATION.—Upon the effec18 tive date of this contract, the Secretary shall

19 authorize the Contractor to obtain interagency

20 motor pool vehicles and related services for per21 formance of any activities under this Contract.

22 ‘‘(I) REGULATORY AUTHORITY.—The Con23 tractor is not required to abide by Federal pro24 gram guidelines, manuals, or policy directives
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1 unless otherwise agreed to by the Contractor

2 and the Secretary.

3 ‘‘(J) DISPUTES.—(i) In addition or as an

4 alternative to remedies and procedures pre5 scribed by section 110 of the Indian Self-Deter6 mination and Education Assistance Act, the

7 parties may jointly—

8 ‘‘(I) submit disputes under this Con9 tract to third-party mediation, which for

10 purposes of this section means that the

11 Secretary and the Contractor nominate a

12 third party who together choose a third

13 party mediator (‘third-party’ means a per14 son not employed by or significantly in15 volved with either the Contractor, the Sec16 retary, or the Department of the Interior

17 or the Department of Health and Human

18 Services);

19 ‘‘(II) submit the dispute to the court

20 of the Contractor’s adjudicatory body, in21 cluding but not limited to the Contractor’s

22 tribal court;

23 ‘‘(III) submit the dispute to mediation

24 processes provided for under the Contrac25 tor’s laws, policies, or procedures; or
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1 ‘‘(IV) use the processes authorized in

2 the Administrative Dispute Resolution Act

3 (5 U.S.C. 571).

4 ‘‘(ii) The Secretary shall be bound by deci5 sions reached by the processes set forth in

6 clause (i) of this subparagraph of this Contract,

7 except that the Secretary shall not be bound by

8 any decision that significantly conflicts with the

9 interests of the Indians or the United States.

10 ‘‘(K) CONTRACTOR’S ADMINISTRATIVE

11 PROCEDURES.—Pursuant to the Indian Civil

12 Rights Act of 1968 (25 U.S.C. 1301 et seq.),

13 the Contractor’s laws, policies, and procedures

14 shall provide for administrative due process (or

15 its equivalent) with respect to programs, serv16 ices, functions, and activities that are provided

17 by the Contractor pursuant to this Contract.

18 ‘‘(L) SUCCESSOR ANNUAL FUNDING

19 AGREEMENT.—Negotiations for a successor an20 nual funding agreement, as provided for in

21 paragraph (6)(B), shall begin not later than

22 120 days prior to the conclusion of the preced23 ing annual funding agreement. Funding of suc24 cessor annual funding agreements shall only be

25 reduced pursuant to section 106(b) of the In-
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1 dian Self-Determination and Education Assist2 ance Act. The Secretary shall prepare and sup3 ply relevant information, and promptly comply

4 with any request by the Contractor for informa5 tion reasonably needed to determine the funds

6 that may be available for a successor annual

7 funding agreement as provided for in paragraph

8 (6)(B) of this Contract.

9 ‘‘(M) SECRETARIAL APPROVAL.—(i) Ex10 cept as provided in clause (ii), for the term of

11 the Contract, section 2103 of the Revised Stat12 utes (25 U.S.C. 81) and section 16 of the Act

13 of June 18, 1934 (25 U.S.C. 476), shall not

14 apply to any contract entered into in connection

15 with this Contract.

16 ‘‘(ii) Each contract entered into by the

17 Contractor with third parties in connection with

18 performing its obligations under this Contract

19 shall—

20 ‘‘(I) be in writing;

21 ‘‘(II) identify the interested parties,

22 their authorities, and purposes;

23 ‘‘(III) state the work to be performed;

24 and
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1 ‘‘(IV) state the process for making

2 any claim, the payments to be made, and

3 the terms of the contract, which shall be

4 fixed.

5 ‘‘(3) OBLIGATION OF THE CONTRACTOR.—

6 ‘‘(A) CONTRACT PERFORMANCE.—Except

7 as provided in paragraph (4)(B), the Contractor

8 shall perform the programs, services, functions,

9 and activities as provided in the annual funding

10 agreement under paragraph (6)(B) of this Con11 tract.

12 ‘‘(B) AMOUNT OF FUNDS.—The total

13 amount of funds to be paid under this Contract

14 shall be determined in an annual funding agree15 ment entered into between the Secretary and

16 the Contractor, which shall be incorporated in

17 its entirety into this Contract.

18 ‘‘(C) CONTRACTED PROGRAMS.—Subject to

19 the availability of appropriated funds, the Con20 tractor shall administer the programs, services,

21 functions, and activities identified herein and

22 funded through the annual funding agreement.

23 ‘‘(D) TRUST SERVICES FOR INDIVIDUAL

24 INDIANS.—To the extent that the annual fund25 ing agreement provides funding for the delivery
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1 of trust services to individual Indians that were

2 formerly provided by the Secretary, the Con3 tractor shall maintain at least the same level of

4 service as was previously provided by the Sec5 retary, subject to the availability of appro6 priated funds for such services. Strictly for the

7 purposes of this subsection only, ‘‘trust services

8 for individual Indians’’ means only those serv9 ices that pertain to land or financial manage10 ment connected to individually held allotments.

11 ‘‘(E) FAIR AND UNIFORM SERVICES.—The

12 Contractor shall provide services under this

13 contract in a fair and uniform manner and

14 shall provide access to an administrative or ju15 dicial body empowered to adjudicate or other16 wise resolve complaints, claims, and grievances

17 brought by program beneficiaries against the

18 Contractor arising out of the performance of

19 the Contract.

20 ‘‘(4) OBLIGATION OF THE UNITED STATES.—

21 ‘‘(A) TRUST RESPONSIBILITY.—The

22 United States reaffirms its trust responsibility

23 to the lllllll Indian tribes to protect

24 and conserve the trust resources of the Indian

25 tribes and of individual Indians. Nothing in this
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1 Contract is intended to, nor shall be construed,

2 to terminate, waive, modify, or reduce the trust

3 responsibility of the United States to the tribes

4 or individual Indians. The Secretary shall act in

5 good faith in upholding said trust responsibility.

6 To the extent that health programs are in7 cluded in this Contract, the Secretary shall act

8 in good faith in cooperating with the Contractor

9 to achieve the goals set forth in chapter 18 of

10 title 25, United States Code.

11 ‘‘(B) PROGRAMS RETAINED.—As specified

12 in the annual funding agreement, the United

13 States hereby retains the programs, services,

14 functions, and activities with respect to the

15 tribes that are not specially assumed by the

16 Contractor in the annual funding agreement.

17 ‘‘(5) OTHER PROVISIONS.—

18 ‘‘(A) DESIGNATED OFFICIALS.—On or be19 fore the effective date of this Contract, both the

20 United States and the Contractor shall provide

21 each other with a written designation of a sen22 ior official as its representative for notices, pro23 posed amendments to the Contract and other

24 purposes for this Contract.
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1 ‘‘(B) CONTRACT MODIFICATIONS OR

2 AMENDMENT.—To be effective any modifica3 tions of this Contract shall be in the form of a

4 written amendment to the Contract, and shall

5 require the written consent of the Contractor

6 and the Secretary, except for the addition of

7 supplemental funds for programs, functions,

8 and activities (or portions thereof) already in9 cluded in the annual funding agreement.

10 ‘‘(C) OFFICIALS NOT TO BENEFIT.—No

11 Member of Congress, or resident commissioner,

12 shall be admitted to any share or part of any

13 contract executed pursuant to this Contract, or

14 to any benefit that may arise therefrom; but

15 this provision shall not be construed to extend

16 to any contract under this Contract if made

17 with a corporation for its general benefit.

18 ‘‘(D) COVENANT AGAINST CONTINGENT

19 FEES.—The parties warrant that no person or

20 selling agency has been employed or retained to

21 solicit or secure any contract executed pursuant

22 to this Contract upon an agreement or under23 standing for a commission, percentage, broker24 age, or contingent fee, excepting bona fide em25 ployees or bona fide established commercial or
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1 selling agencies maintained by the contractor

2 for the purpose of securing business.

3 ‘‘(6) ATTACHMENTS.—

4 ‘‘(A) APPROVAL OF CONTRACT.—Unless

5 previously furnished to the Secretary, the reso6 lution of the ll Indian tribe(s) authorizing

7 the contracting of the programs, services, func8 tions, and activities identified herein is (are) at9 tached hereto as attachment 1.

10 ‘‘(B) ANNUAL FUNDING AGREEMENT.—

11 The negotiated and duly approved annual fund12 ing agreement shall only contain terms that

13 identify the programs, services, functions, and

14 activities to be performed or administered, the

15 general budget category assigned, the funds to

16 be provided, the time and method of payment,

17 and such other provisions, including but not

18 limited to, a brief description of the programs,

19 services, functions, and activities to be per20 formed (including those supported by financial

21 resources other than those provided by the Sec22 retary), as the Contractor may request and to

23 which the parties agree. The annual funding

24 agreement is hereby incorporated in its entirety
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1 in this Contract and attached hereto as attach2 ment 2.’’.

3 SEC. 4. ADDITIONAL AMENDMENTS.

4 The Indian Self-Determination and Education Assist5 ance Act is further amended as follows:

6 (1) In section 109—

7 (A) strike ‘‘as prescribed by him’’ and all

8 that follows through ‘‘in such cases’’ and insert

9 ‘‘prescribed by him to remedy the contract defi10 ciency. The appropriate Secretary may, upon

11 written notice to a tribal organization, and the

12 tribes served thereby, immediately rescind a

13 contract or grant and resume control or oper14 ation of a program, activity, or service if he

15 finds that there is an immediate threat of immi16 nent harm to the safety of any person and that

17 such threat arises from the Contractor’s failure

18 to fulfill the requirements of the contract. In

19 such cases’’; and

20 (B) insert the following immediately before

21 the last sentence: ‘‘In any hearing or appeal

22 provided for under this section, the Secretary

23 shall carry the burden of proof to establish by

24 clear and convincing evidence that the contract

25 should be rescinded, assumed, or reassumed.’’.
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1 (2) In section 110(a), insert before the period

2 at the end thereof the following: ‘‘(including imme3 diate injunctive relief to reverse a declination finding

4 under section 102(a)(2) or to compel the Secretary

5 to award and fund an approved self-determination

6 contractor)’’.

7 (3) In section 110(d), insert before the period

8 at the end thereof the following: ‘‘except that all

9 such administrative appeals shall be heard by the In10 terior Board of Contract Appeals’’.

11 SEC. 5. REGULATIONS.

12 Section 107 of the Indian Self-Determination and

13 Education Assistance Act is amended—

14 (1) by amending subsections (a) and (b) to read

15 as follows:

16 ‘‘(a) GENERAL.—Except as may be specifically au17 thorized herein and elsewhere in this Act, the Secretary

18 of the Interior and the Secretary of Health and Human

19 Services shall not promulgate any regulation, nor impose

20 any nonregulatory requirement, relating to self-determina21 tion contracts: Provided, however, That the Secretary may

22 promulgate regulations relating to the Federal Tort

23 Claims Act, the Contract Disputes Act, declination appeal

24 procedures, reassumption procedures, and retrocession

25 procedures. All regulations including those referred to in
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1 this section shall be promulgated in conformity with sec2 tions 552 and 553 of title 5 of the United States Code

3 and with subsections (c), (d), and (e) hereof, and shall

4 be promulgated as a single set of regulations in title 25

5 of the Code of Federal Regulations. Any authorization to

6 promulgate regulations set forth in this Act shall expire

7 if such regulations are not finally promulgated within 12

8 months from the date of enactment of these amendments.

9 ‘‘(b) EXISTING REGULATIONS.—The provisions of

10 this Act shall supersede any conflicting provisions of law

11 or regulation in existence on the date of enactment of this

12 Act.’’.

13 (2) Add the following new subsections:

14 ‘‘(d) In drafting and promulgating regulations as pro15 vided in section 107(a) of this Act (including any revisions

16 or amendments thereto), the Secretaries shall confer with

17 and allow for active participation by representatives of In18 dian tribes, tribal organizations, individual tribal mem19 bers, and representatives of other parties interested in the

20 implementation of this Act, as amended. The rulemaking

21 process shall follow the guidance of the Negotiated Rule22 making Act of 1990 and of the Administrative Conference

23 of the United States in Recommendations 82–094 and 85–

24 095, ‘Procedures for Negotiating Proposed Regulations’

25 (1 CFR 305.82–094 and 305.85–095), and any successor
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1 recommendation, regulation, or law. Tribal participants in

2 the negotiation shall be chosen by the tribes and tribal

3 organizations participating in regional and national meet4 ings to be convened by the Secretary, representing the

5 groups described herein and shall include tribal represent6 atives from all geographic regions. The negotiations shall

7 be conducted in a timely manner and the proposed rule

8 implementing these amendments shall be published in the

9 Federal Register by the Secretaries no later than 6

10 months from the date of enactment of these amendments.

11 Notwithstanding any other law or regulation to the con12 trary, the Secretary of the Interior and the Secretary of

13 Health and Human Services shall be authorized to jointly

14 establish and jointly fund such interagency committees or

15 other interagency bodies, including advisory bodies com16 prised of tribal representatives, as may be necessary or

17 appropriate to carry out the provisions of this Act.

18 ‘‘(e) Notwithstanding any laws or regulations to the

19 contrary, the Secretary shall waive or make exceptions to

20 his regulations where the Secretary finds that such waiver

21 or exceptions is in the best interest of the Indians served

22 by the contract. The Secretary shall review a waiver re23 quest under the declination criteria and procedures con24 tained in section 102(a)(2) of this Act.’’.
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1 SEC. 6. CONFORMING AMENDMENT.

2 Section 105(h) of the Indian Self-Determination and

3 Education Assistance Act (25 U.S.C. 450j(h)) is amended

4 by striking ‘‘and the rules and regulations adopted by the

5 Secretaries of the Interior and Health and Human Serv6 ices pursuant to section 107 of this Act’’.

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