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[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4842 Introduced in House (IH)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Indian Self-Determination Act 
Amendments of 1994''.

SEC. 2. AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act (25 
U.S.C. 450 et seq.) is amended as follows:
            (1) At the beginning of section 4, insert the following new 
        paragraph and redesignate all other paragraphs accordingly:
            ``(1) `construction contract' means a fixed-price or cost-
        reimbursement self-determination contract for a construction 
        project. Contracts (i) limited to providing architectural and 
        engineering services, planning services, and/or construction 
        management services; (ii) for the Housing Improvement Program 
        or roads maintenance program administered by the Secretary of 
        the Interior; and (iii) for the health facility maintenance and 
        improvement program administered by the Secretary of Health and 
        Human Services, shall not be deemed to be construction 
        contracts within the meaning of this Act;''.
            (2) Amend section 5(f) to read as follows:
    ``(f) For each fiscal year during which an Indian tribal 
organization receives or expends funds pursuant to a contract or grant 
under this title, the tribal organization which requested such contract 
or grant shall submit to the appropriate Secretary a single agency 
audit report as required by chapter 75 of title 31, United States Code. 
Such tribal organization shall also submit such additional information 
on the conduct of the program or service involved as the tribal 
organization may negotiate with the Secretary. Any disagreement over 
reporting requirements shall be subject to the declination standards 
and procedures set forth in section 102 of this Act.''.
            (3) In section 7(a) strike ``of subcontractors'' and insert 
        in lieu thereof ``or subcontractors (excluding tribes and 
        tribal organization)''.
            (4) At the end of section 7, insert the following new 
        subsection:
    ``(c) Notwithstanding subsections (a) and (b), where a self-
determination contract, or portion thereof, is intended to benefit one 
tribe, tribal employment or contract preference laws adopted by such 
tribe shall govern with respect to the administration of such contract 
or portion thereof.''.
            (5) At the end of paragraph (1) of section 102(a), insert 
        the following new sentence: ``Such programs shall include 
        administrative functions of the Department of the Interior or 
        the Department of Health and Human Services which support the 
        delivery of services to Indians, including those administrative 
        activities related to, but not part of, the service delivery 
        program, which are otherwise contractible, without regard to 
        the organization level within the Department where such 
        functions are carried out.''.
            (6) Amend paragraph (2) of section 102(a) as follows--
                    (A) insert ``, or to amend or renew a self-
                determination contract,'' before ``to the Secretary for 
                review'';
                    (B) in the second sentence strike ``The'' and 
                insert ``Subject to the provisions of subsection 4 
                hereof, the'';
                    (C) insert ``and award the contract'' before 
                ``unless'';
                    (D) in subparagraph (A), insert ``by the tribal 
                organization'' after ``rendered'';
                    (E) in subparagraph (B), insert ``by the tribal 
                organization'' after ``resources'';
                    (F) at the end of subparagraph (C) add the 
                following: ``, either because (i) the amount of funds 
                proposed in the contract is in excess of the funding 
                levels specified in section 106(a) of this Act, or (ii) 
                the program (or portion thereof) to be contracted is 
                beyond the scope of paragraph (1) thereof because the 
                proposal includes activities which cannot be lawfully 
                carried out by the contractor;''; and
                    (G) insert the following new paragraph:
    ``(4) The Secretary shall approve any severable portion of a 
contract proposal which does not support a declination finding as 
provided in paragraph (3) of this subsection. Whenever the Secretary 
determines under paragraph (3) that a contract proposal (A) proposes in 
part to plan, conduct, or administer a program that is beyond the scope 
of paragraph (1), or (B) proposes a funding level in excess of the 
funding levels specified in section 106(a) of this Act, the Secretary 
shall approve the proposal to the extent authorized to paragraph (1) of 
section 106(a) of this Act, as appropriate (subject to any agreed-upon 
alteration in the proposed scope of work). In the event the tribal 
organization elects to operate the severable portion of a contract 
proposal, subsection (b) thereof shall apply only with respect to the 
declined portion of the contract.''.
            (7) In section 102(b)(3), insert before the period ``, 
        subject to the tribe's or tribal organization's option to 
        proceed directly to Federal district court as provided in 
        section 110(a)''.
            (8) At the end of section 102, insert the following new 
        subsections:
    ``(e) In any hearing or appeal provided under subsection (b)(3), 
the Secretary shall carry the burden of proof to establish by clear and 
convincing evidence that the contract proposal should be declined. 
Final departmental decisions in all such appeals shall be made at a 
level higher than the level of the agency whose decision under 
subsection (b) is appealed.
    ``(f) A tribal organization in Alaska authorized by tribal 
resolution or resolutions to contract under this Act the operation of 
one or more programs may redelegate that authority, by formal action of 
the tribal organization's governing body, to another tribal 
organization provided advance notice of such redelegation and a copy of 
the contracting proposal, prior to its submission to the Secretary, are 
provided to all tribes served by the tribal organization. Nothing 
herein is to be construed as a limitation on the authority of a tribe 
to limit, restrict or rescind its resolution at any time or in any 
manner whatsoever. A tribe receiving such notice shall have 60 days 
from receipt of the notice to notify the tribal organization in writing 
of its intent to adopt a limiting resolution prohibiting or 
conditioning the proposed redelegation, and thereafter shall have 60 
days to adopt and transmit such resolution to the tribal organization. 
A tribal organization so notified of a tribe's intent shall not proceed 
with any redelegation proposal until the expiration of the 60-day 
period.''.
            (9) Amend section 105(a) to read as follows:
    ``(a) Contracts, grants, and cooperative agreements with tribal 
organizations pursuant to sections 102 and 103 of this title shall not 
be subject to general Federal contracting, discretionary grant or 
cooperative agreement laws and regulations, except to the extent such 
laws expressly apply to Indian tribes: Provided, That with respect to 
construction contracts as defined in section 4 of this Act (or 
subcontracts of such a construction contract), the Office of Federal 
Procurement Policy Act (88 Stat. 796; 41 U.S.C. 401 et seq.) and 
Federal acquisition regulations promulgated thereunder shall apply to 
the limited extent such statute or regulations are necessary to assure 
proper completion of the contract, are directly relevant to the 
construction activity, and are not inconsistent with the provisions or 
policy of this Act: Provided further, That all such requirements shall 
be negotiated between the Secretary and the tribal organization and set 
forth as an attachment to the contract: Provided further, That no other 
laws or executive orders shall be applicable to construction contracts 
subject to this Act unless expressly so stated in such other laws or 
orders, including chapter 10 of title 40, United States Code; section 
9(a) and (c) of the Act of August 2, 1946, as amended, 60 Stat. 809; 
sections 301-310 of the Act of June 30, 1949, as amended, 63 Stat. 393-
397; section 13 of the Act of October 3, 1944, as amended, 58 Stat. 
770; chapters 21, 25, 27, 29, and 31 of title 44, United States Code; 
chapter 5 of title 40, United States Code, section 2 of the Act of June 
13, 1934, as amended, 48 Stat. 948; sections 1-12 of the Act of June 
30, 1936, as amended, 49 Stat. 2036-39; chapter 6 of title 41, United 
States Code; chapter 14A of title 15, United States Code; and Executive 
Orders 12138, 11246, 11701, and 11758.''.
            (10) Amend section 105(e) to read as follows:
    ``(e) Whenever an Indian tribe or tribal organization requests 
retrocession of the appropriate Secretary for any contract, or portion 
thereof, entered into pursuant to this Act, such retrocession shall, 
unless the request for retrocession is rescinded by such tribe or 
tribal organization, become effective one year from the date of the 
request by the Indian tribe or tribal organization, or the date of 
contract expiration, whichever is earlier, or at such date as may be 
mutually agreed by the Secretary and the Indian tribe.''.
            (11) Amend paragraph (2) of section 105(f) to read as 
        follows:
            ``(2) donate to an Indian tribe or tribal organization the 
        title to any personal or real property found to be excess to 
        the needs of the Bureau of Indian Affairs, the Indian Health 
        Service, or the General Services Administration, except that 
        title to property and equipment furnished by the Federal 
        Government for use in the performance of the contract or 
        purchased with funds under any self-determination contract or 
        grant agreement shall, unless otherwise requested by the tribe 
        or tribal organization, vest in the appropriate tribe or tribal 
        organization, and upon retrocession, rescission, or termination 
        of such self-determination contract or grant, title to such 
        property having a present value in excess of $5,000 and 
        remaining in use in support of the contracted program shall, at 
        the Secretary's option, revert to the Secretary; and''.
            (12) At the end of section 105, insert the following new 
        subsections:
    ``(i) Where a self-determination contract requires the Secretary to 
administratively divide a program which has previously been 
administered for the benefit of a greater number of tribes than are 
represented by the tribal organization that is a party to the contract, 
the Secretary shall--
            ``(1) endeavor to minimize any adverse effect on the level 
        of services to be provided to all affected tribes;
            ``(2) notify all affected tribes not party to the contract 
        of the receipt of the contract proposal at the earliest 
        possible date, and of the right of such tribes to comment on 
        how the Secretary's program should be divided to best meet the 
        needs of all affected tribes;
            ``(3) explore the feasibility of instituting cooperative 
        agreements amongst the affected tribes not a party to the 
        contract, the tribal organization operating the contract, and 
        the Secretary; and
            ``(4) identify and report to Congress the nature of any 
        diminution in quality, level or quantity of services to any 
        affected tribe resulting from the division of the Secretary's 
        program, together with an estimate of the funds which would be 
        required to correct such diminution. In determining whether to 
        decline a contract under section 102(a)(2), the Secretary shall 
        not consider the effect which a contract proposal will have on 
        tribes not represented by the tribal organization submitting 
        such proposal, nor on Indians not served by the portion of the 
        program to be contracted. The Secretary shall make such special 
        provisions as may be necessary to assure that services are 
        provided to the tribes not served by a self-determination 
        contract.
    ``(j) Upon notice to the Secretary, tribal organizations carrying 
out self-determination contracts are authorized to redesign programs, 
activities, functions and services under contract, including program 
standards, to best meet the local geographic, demographic, economic, 
cultural, health and institutional needs of the Indian people and 
tribes served under the contract. The Secretary shall evaluate any 
redesign proposal against the declination criteria set forth in section 
102 of this Act.
    ``(k) For purposes of section 201(a) of the Act of June 30, 1949 
(40 U.S.C. 481(a)) (involving Federal sources of supply, including 
lodging providers, airlines, and other transportation providers), an 
Indian tribe or tribal organization carrying out a contract, grant, or 
cooperative agreement under this Act shall be deemed an executive 
agency when carrying out such contract, grant, or agreement.
    ``(l) Upon the request of an Indian tribe or tribal organization, 
the Secretary shall enter into leases with Indian tribes and tribal 
organizations which hold title to, a leasehold interest in, or a 
beneficial interest in, facilities used by Indian tribes or tribal 
organizations for the administration and delivery of contract services 
under the Act. The Secretary shall compensate such Indian tribes or 
tribal organizations for the use of leased facilities for contract 
purposes. Lease compensation may include: rent, depreciation based on 
the useful life of the building, principal and interest paid or 
accrued, operation and maintenance expenses, and such other reasonable 
expenses determined by regulation to be allowable.
    ``(m) Construction contracts:
            ``(1) Construction contracts requested, approved, or 
        awarded under this Act shall be subject to all of the 
        provisions of this Act, including without intending any 
        limitation, sections 7, 102(a), 102(b), 103(d) and (e), 105(f), 
        106(a), 106(f), 110, and 111, and section 314 of Public Law No. 
        101-512, as amended.
            ``(2) In providing technical assistance to tribes and 
        tribal organizations in the development of construction 
        contract proposals, the Secretary shall provide a requesting 
        tribe or tribal organization, within 30 days of receipt of a 
        request, with all available information regarding the 
        construction project, including without intending any 
        limitation, construction drawings, maps, engineering reports, 
        design reports, plans of requirements, cost estimates, 
        environmental assessments or impact reports, and archaeological 
        reports.
            ``(3) Prior to finalization of a construction contract 
        proposal pursuant to section 102(a), and upon request of the 
        contracting tribe or tribal organization, there shall be a 
        precontract negotiation phase which shall, at a minimum, 
        include--
                    ``(A) the provision of technical assistance 
                pursuant to section 103 and paragraph (2) hereof;
                    ``(B) a joint scoping session 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;
                    ``(C) an opportunity for the Secretary to revise 
                his or her plans, designs, or cost estimates in 
                response to concerns raised or information provided by 
                the tribe or tribal organization;
                    ``(D) a negotiation session during which the 
                Secretary and the tribe or tribal organization shall 
                seek to develop a mutually agreeable contract proposal;
                    ``(E) upon the request of the tribe or tribal 
                organization, use of an alternative dispute resolution 
                mechanism to seek resolution of all remaining areas of 
                disagreement pursuant to the Administrative Dispute 
                Resolution Act (5 U.S.C. 571); and
                    ``(F) submission of a final contract proposal 
                pursuant to section 102(a).
            ``(4) In funding a fixed-price construction contract 
        pursuant to section 106(a), the Secretary shall include funds 
        for (A) the reasonable costs of the tribe or tribal 
        organization for general administration to be incurred in 
        connection with the contracted project, and (B) a reasonable 
        profit in light of the risk and other relevant considerations: 
        Provided, That the Secretary shall not be required to 
        separately identify such components in the contract budget: and 
        Provided further, That the total amount awarded under the 
        contract shall reflect an overall fair and reasonable price to 
        the parties, including but not limited to (i) the reasonable 
        costs to the tribal organization of performing the contract 
        given the terms of the contract and the requirements of this 
        Act and any other applicable law, (ii) the costs of preparing 
        the contract proposal and supporting cost data, (iii) the costs 
        associated with the tribal organization's audited general and 
        administrative costs, and (iv) in the case of a fixed-price 
        contract, a fair profit determined in light of the relevant 
        risks and local market conditions.''.
            (13) Amend section 106(a) as follows--
                    (A) at the end of paragraph (1), insert the 
                following ``, without regard to the organizational 
                level or levels within the Department at which the 
                program (or portion thereof), including supportive 
                administrative functions which are otherwise 
                contractible is operated'';
                    (B) in paragraph (2), after ``consist of'', insert 
                ``an amount for'', and add the following at the end 
                thereof: ``Contract support costs shall include, 
                without distinction, funds to reimburse tribal 
                contractors for reasonable and allowable costs of 
                contracting attributable to direct program expenses, 
                and reasonable additional administrative or other 
                overhead expenses in connection with tribal operation 
                of Federal programs. The amount of funds to which a 
                tribe or tribal organization is entitled pursuant to 
                this subparagraph shall be negotiated annually with the 
                Secretary.''; and
                    (C) strike paragraph (3) and insert the following 
                new paragraphs (3) and (4):
            ``(3) Any savings in operation under a self-determination 
        contract (including a cost reimbursement construction contract) 
        shall be utilized to provide additional services or benefits 
        under the contract or be expended in the succeeding fiscal year 
        as provided in section 8 of this Act.
            ``(4) During the initial year of a self-determination 
        contract there shall be included, in the amount required to be 
        paid under paragraph (2), start-up costs consisting of the 
        reasonable costs, either previously incurred or to be incurred 
        under the contract on a one-time basis, necessary to plan, 
        prepare for and take over operation of the contracted program 
        and to also ensure compliance with the terms of the contract 
        and prudent management: Provided, That previously incurred 
        costs shall not be included to the extent the Secretary was not 
        notified in advance and in writing of the nature and extent of 
        the costs to be incurred.''.
            (14) Amend section 106(c) as follows:
                    (A) In each of paragraphs (1) and (2), strike 
                ``indirect costs'' and insert in lieu thereof 
                ``indirect costs and other negotiated contract support 
                costs''.
                    (B) Strike ``and'' at the end of paragraph (4).
                    (C) Strike the period at the end of paragraph (5) 
                and insert in lieu thereof ``; and''.
                    (D) Insert the following new paragraph:
            ``(6) a reporting of any deficiency of funds needed to 
        maintain the preexisting level of services to any tribes 
        affected by contracting activities under this Act, and the 
        amount of funds needed for transitional purposes to enable 
        contractors to convert from Federal fiscal year accounting to a 
        different accounting cycle, as authorized under section 105(d) 
        of this Act.''.
            (15) At the end of paragraph (2) of section 106(d), insert 
        the following new sentence: ``Notwithstanding any other 
        provision of law, and subject to the availability of 
        appropriations, every Federal agency and every State shall pay 
        its full proportionate share of the indirect costs associated 
        with federally funded contracts or grants awarded to tribes or 
        tribal organizations under any other law. In the event that 
        appropriations are not sufficient for agencies other than the 
        Department of the Interior and the Department of Health and 
        Human Services, or for State governments or State agencies, to 
        pay their full proportionate share as provided herein, the 
        Secretary shall, subject to the availability of appropriations 
        for this purpose, fund and pay such shortfalls and report all 
        unfunded shortfalls to the Congress, as provided in section 
        106(c)(2).''.
            (16) Amend section 106(f) by inserting immediately after 
        the second sentence thereof the following: ``For the purpose of 
        the 365-day period, an audit report shall be deemed received on 
        the date of actual receipt by the Secretary, absent a notice by 
        the Secretary within 60 days of receipt that the report will be 
        rejected as insufficient due to noncompliance with chapter 75 
        of title 31, United States Code, or other applicable law.''.
            (17) Amend section 106(g) to read as follows:
    ``(g) Upon approval of a self-determination contract, the Secretary 
shall allocate to the contract the full amount to which the contractor 
is entitled under section 106(a), subject to adjustments for each 
subsequent year that Federal programs are administered by such tribe or 
tribal organization.''.
            (18) Amend section 106(i) to read as follows:
    ``(i) The Secretary shall consult annually 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 in the formulation of annual 
budget requests to Congress.''.
            (19) Amend section 106 by adding at the end thereof the 
        following new subsections:
    ``(j) A tribal organization may use funds provided under a self-
determination contract to meet matching or cost participation 
requirements under other Federal and non-Federal programs.
    ``(k) Without intending any limitation, a tribal organization may, 
without approval, expend funds provided under a self-determination 
contract for the following purposes to the extent supportive of a 
contracted program--
            ``(1) depreciation and use allowances not otherwise 
        specifically prohibited by law, including depreciation of 
        facilities owned by the tribe or tribal organization and 
        constructed with Federal financial assistance;
            ``(2) publication and printing costs;
            ``(3) building, realty and facilities costs, including 
        rental costs or mortgage expenses;
            ``(4) automated data processing and similar equipment or 
        services;
            ``(5) cost of capital assets and repairs;
            ``(6) management studies;
            ``(7) professional services other than services provided in 
        connection with judicial proceedings by or against the United 
        States;
            ``(8) insurance and indemnification, including insurance 
        covering the risk of loss of or damage to property used in 
        connection with the contract without regard to the ownership of 
        such property;
            ``(9) costs incurred to raise funds or contributions from 
        non-Federal sources for the purpose of furthering the goals and 
        objectives of a self-determination contract;
            ``(10) interest expenses paid on capital expenditures such 
        as buildings, building renovation, or acquisition or 
        fabrication of capital equipment, and interest expenses on 
        loans necessitated due to secretarial delays in providing funds 
        under a contract;
            ``(11) expenses of a tribal organization's governing body 
        to the extent attributable to the management or operation of 
        programs under this Act; and
            ``(12) costs associated with the management of pension, 
        self-insurance and other funds which include Federal 
        participation.
    ``(l) Within 12 months following the date of enactment of this 
subsection, the Office of Management and Budget, with the active 
participation of Indian tribes and tribal organizations, the Department 
of the Interior, Office of the Inspector General, and the Health and 
Human Services Department, Cost Determination Branch, shall develop a 
separate set of cost principles applicable to Indian tribes and tribal 
organizations consistent with the government-to-government Federal-
tribal relationship embodied in this Act.
    ``(m) Except in connection with rescission and reassumption of a 
contract under section 109 of this Act, the Secretary shall in no 
circumstance suspend, withhold or delay the payment of funds to a 
tribal organization under a self-determination contract.
    ``(n) Program income earned by a tribal organization in the course 
of carrying out a self-determination contract shall be used by the 
tribal organization to further the general purposes of the contract and 
shall not be a basis for reducing the amount of funds otherwise 
obligated to the contract.
    ``(o) To the extent contracting activities under this Act reduce 
the Secretary's administrative or other responsibilities in connection 
with the operation of Indian programs, resulting in savings which have 
not otherwise been included in the contract amount specified in 
subsection (a) of this section, and to the extent that doing so will 
not adversely affect the Secretary's ability to carry out his 
responsibilities to other tribes and tribal organizations, the 
Secretary shall make such savings available to tribal organizations 
contracting under this Act.
    ``(p) Notwithstanding any laws or regulations to the contrary, a 
tribal organization may rebudget within the approved budget of its 
contract to meet contract requirements, if such rebudgeting does not 
have a significant and adverse effect upon the level or nature of 
services.''.

SEC. 3. CONTRACT SPECIFICATIONS.

    Section 108 of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j), currently reserved, is amended to read 
as follows:

``SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

    ``Each Self-Determination Contract or grant entered into under this 
Act shall contain, or incorporate by reference, the following 
provisions, with modifications where indicated and the blanks 
appropriately filled together with such other provisions as the parties 
may agree upon:
            ``(1) Authority and purpose.--
                    ``(A) Authority.--This agreement, denoted a Self-
                Determination Contract (hereinafter referred to as the 
                `Contract'), is entered into by the Secretary of the 
                Interior or the Secretary of Health and Human Services 
                (hereinafter referred to as the `Secretary'), for and 
                on behalf of the United States pursuant to titles I and 
                II of the Indian Self-Determination and Education 
                Assistance Act and by the authority of the 
                ______________ tribal government or tribal organization 
                (hereinafter referred to as the `Contractor'). Unless 
                otherwise provided in this agreement, all of the 
                provisions of title I of the Indian Self-Determination 
                and Education Assistance Act are incorporated herein.
                    ``(B) Purpose.--Each and every provision of the 
                Indian Self-Determination Act and of this Contract 
                shall be liberally construed for the benefit of the 
                Contractor to transfer the funding and the following 
                related functions, services, activities, and programs 
                (or portion thereof), including all related 
                administrative functions from the Federal Government to 
                the Contractor: (List functions, services, activities, 
                and programs.)
                    ``(C) Tribal law and forums.--The laws and/or 
                policies and procedures of the Contractor shall be 
                applied in the performance of this Contract and the 
                powers and decisions of the Contractor's Tribal Court 
                or other dispute resolution mechanism shall be binding 
                to the extent that Federal law, construed in accordance 
                with the applicable canons of construction and the 
                Indian Self-Determination and Education Assistance Act, 
                is not inconsistent.
            ``(2) Terms, provisions and conditions.--
                    ``(A) Term.--The term of this Contract shall not 
                exceed 3 years, unless the Secretary and the Contractor 
                agree on a longer period pursuant to section 
                105(c)(1)(B) of the Indian Self-Determination and 
                Education Assistance Act. Pursuant to section 105(d)(1) 
                of the Act, upon the Contractor's election, the 
                calendar year shall be the basis for contracts under 
                this Act, unless the Secretary and the Contractor agree 
                on a different period in the annual funding agreement.
                    ``(B) Effective date.--This Contract shall become 
                effective upon approval and execution by the Contractor 
                and the Secretary, unless otherwise agreed to by the 
                Secretary and the Contractor.
                    ``(C) Funding amount.--
                            ``(i) Amount of annual funding agreement.--
                        Subject to the appropriation of funds by 
                        Congress, the Secretary shall make available to 
                        the Contractor the total amount specified in 
                        the annual funding agreement incorporated by 
                        reference in paragraph (6)(B), which amount 
                        shall not be less than the amounts specified in 
                        section 106(a) of the Act.
                            ``(ii) Limitation of costs.--The Contractor 
                        shall not be obligated to continue performance 
                        beyond the amount of funds awarded, and if at 
                        any time the Contractor has reason to believe 
                        that the total amount for performance of this 
                        contract or a specific activity of this 
                        Contract will be greater than the amount 
                        awarded, the Contractor shall notify the 
                        appropriate Secretary. If the amount awarded is 
                        not increased, the Contractor may cease 
                        performance. In such event all duties and 
                        responsibilities previously assumed by the 
                        Contractor shall become the duties and 
                        responsibilities of the Secretary.
                    ``(D) Payment.--
                            ``(i) In general.--Payments shall be made 
                        as expeditiously as possible and shall include 
                        financial arrangements to cover funding during 
                        periods under continuing resolutions to the 
                        extent permitted by such resolutions.
                            ``(ii) Quarterly semiannual, lump sum, and 
                        other methods of payment.--Notwithstanding the 
                        provisions of any other law, for each fiscal 
                        year covered by this Contract, the Secretary is 
                        authorized to and shall make available the 
                        funds specified for the fiscal year under the 
                        annual funding agreement by paying to the 
                        Contractor on a quarterly basis one-quarter of 
                        the total amount provided for in the annual 
                        funding agreement for that fiscal year, by 
                        making a lump-sum payment or semiannual 
                        payments, or by using any other method 
                        authorized by law, as may be requested by the 
                        Contractor and specified in the annual funding 
                        agreement. Each quarterly payment shall be made 
                        on the first day of each quarter of the fiscal 
                        year except that in instances where the 
                        contract year coincides with the Federal fiscal 
                        year, payment for the first quarter shall be 
                        made not later than the date that is 10 
                        calendar days after the date on which the 
                        Office of Management and Budget apportions the 
                        appropriations for the fiscal year for the 
                        programs, servicers, functions, and activities 
                        subject to the Contract. Chapter 39 of title 
                        31, United States Code, shall apply to the 
                        payment of funds due under the contract and the 
                        annual funding agreement.
                    ``(E) Records and Monitoring.--(i) Except for 
                previously provided copies of tribal records that the 
                Secretary demonstrates are clearly required to be 
                maintained as part of the recordkeeping system of the 
                Department of the Interior and/or the Department of 
                Health and Human Services, Contractor records shall not 
                be considered Federal records for purposes of chapter 5 
                of title 5, United States Code.
                    ``(ii) The Contractor shall maintain a 
                recordkeeping system, and upon reasonable advance 
                request provide reasonable access to such records to 
                the Secretary.
                    ``(iii) Contractors are responsible for managing 
                the day-to-day operations of the Contract and for 
                monitoring activities to assure compliance with the 
                Contract and applicable Federal requirements. 
                Monitoring visits shall be limited to not more than one 
                performance monitoring visit per contract by each 
                operating division, departmental bureau or departmental 
                agency or duly authorized representatives thereof 
                unless (I) the Contractor has agreed to such additional 
                visits, or (II) there is reasonable cause to believe 
                that grounds for reassumption of the contract or other 
                serious contract performance deficiency exists: 
                Provided, however, That such additional visits shall 
                not be made until after reasonable advance notice has 
                been given to the Contractor, including the nature of 
                the problem which requires the additional visits.
                    ``(F) Property.--(i) As provided in section 105(f) 
                of the Act, as amended, at the request of the 
                Contractor the Secretary shall make available or 
                transfer to the Contractor all reasonably divisible 
                real property, facilities, equipment, and personal 
                property that the Secretary had previously utilized to 
                provide or administer the programs, services, 
                functions, and activities covered by this Contract. A 
                mutually agreed upon list specifying the property, 
                facilities, and equipment so furnished shall also be 
                prepared and periodically revised. The Secretary shall 
                maintain a record of all such property for purposes of 
                replacement and shall replace such property on the same 
                basis as property remaining under the Secretary's 
                control. Upon the request of the Contractor, the 
                Secretary and the Contractor shall enter into a 
                separate joint use agreement to address the parties' 
                shared use of real or personal property that is not 
                reasonably divisible.
                    ``(ii) The Secretary shall delegate to the 
                Contractor the authority to acquire such `excess' 
                property as may be appropriate in the judgment of the 
                Contractor to support the programs, services, 
                functions, and activities operated pursuant to this 
                Contract. The Secretary shall assist the Contractor in 
                obtaining such confiscated or excess property as may 
                become available to tribes, tribal organizations, or 
                local governments. A screener identification card 
                (General Services Administration form 2946) shall be 
                issued to the Contractor not later than the effective 
                date of this Contract. The designated official shall, 
                upon request, assist the Contractor in securing the use 
                of the card.
                    ``(iii) The Contractor shall determine what capital 
                equipment, leases, rentals, property, or services it 
                shall require to perform its obligations under this 
                subsection, and shall acquire and maintain records of 
                such capital equipment, property rentals, leases, 
                property, or services through tribal procurement 
                procedures.
                    ``(G) Savings.--Notwithstanding any other provision 
                of law, any funds provided under this Contract shall 
                remain available until expended and shall require no 
                further approval by the Secretary nor further 
                justifying documentation from the Contractor prior to 
                expenditure.
                    ``(H) Transportation.--Upon the effective date of 
                this contract, the Secretary shall authorize the 
                Contractor to obtain interagency motor pool vehicles 
                and related services for performance of any activities 
                under this Contract.
                    ``(I) Regulatory authority.--The Contractor is not 
                required to abide by Federal program guidelines, 
                manuals, or policy directives unless otherwise agreed 
                to by the Contractor and the Secretary.
                    ``(J) Disputes.--(i) In addition or as an 
                alternative to remedies and procedures prescribed by 
                section 110 of the Indian Self-Determination and 
                Education Assistance Act, the parties may jointly--
                            ``(I) submit disputes under this Contract 
                        to third-party mediation, which for purposes of 
                        this section means that the Secretary and the 
                        Contractor nominate a third party who together 
                        choose a third party mediator (`third-party' 
                        means a person not employed by or significantly 
                        involved with either the Contractor, the 
                        Secretary, or the Department of the Interior or 
                        the Department of Health and Human Services);
                            ``(II) submit the dispute to the court of 
                        the Contractor's adjudicatory body, including 
                        but not limited to the Contractor's tribal 
                        court;
                            ``(III) submit the dispute to mediation 
                        processes provided for under the Contractor's 
                        laws, policies, or procedures; or
                            ``(IV) use the processes authorized in the 
                        Administrative Dispute Resolution Act (5 U.S.C. 
                        571).
                    ``(ii) The Secretary shall be bound by decisions 
                reached by the processes set forth in clause (i) of 
                this subparagraph of this Contract, except that the 
                Secretary shall not be bound by any decision that 
                significantly conflicts with the interests of the 
                Indians or the United States.
                    ``(K) Contractor's administrative procedures.--
                Pursuant to the Indian Civil Rights Act of 1968 (25 
                U.S.C. 1301 et seq.), the Contractor's laws, policies, 
                and procedures shall provide for administrative due 
                process (or its equivalent) with respect to programs, 
                services, functions, and activities that are provided 
                by the Contractor pursuant to this Contract.
                    ``(L) Successor annual funding agreement.--
                Negotiations for a successor annual funding agreement, 
                as provided for in paragraph (6)(B), shall begin not 
                later than 120 days prior to the conclusion of the 
                preceding annual funding agreement. Funding of 
                successor annual funding agreements shall only be 
                reduced pursuant to section 106(b) of the Indian Self-
                Determination and Education Assistance Act. The 
                Secretary shall prepare and supply relevant 
                information, and promptly comply with any request by 
                the Contractor for information reasonably needed to 
                determine the funds that may be available for a 
                successor annual funding agreement as provided for in 
                paragraph (6)(B) of this Contract.
                    ``(M) Secretarial approval.--(i) Except as provided 
                in clause (ii), for the term of the Contract, section 
                2103 of the Revised Statutes (25 U.S.C. 81) and section 
                16 of the Act of June 18, 1934 (25 U.S.C. 476), shall 
                not apply to any contract entered into in connection 
                with this Contract.
                    ``(ii) Each contract entered into by the Contractor 
                with third parties in connection with performing its 
                obligations under this Contract shall--
                            ``(I) be in writing;
                            ``(II) identify the interested parties, 
                        their authorities, and purposes;
                            ``(III) state the work to be performed; and
                            ``(IV) state the process for making any 
                        claim, the payments to be made, and the terms 
                        of the contract, which shall be fixed.
            ``(3) Obligation of the contractor.--
                    ``(A) Contract performance.--Except as provided in 
                paragraph (4)(B), the Contractor shall perform the 
                programs, services, functions, and activities as 
                provided in the annual funding agreement under 
                paragraph (6)(B) of this Contract.
                    ``(B) Amount of funds.--The total amount of funds 
                to be paid under this Contract shall be determined in 
                an annual funding agreement entered into between the 
                Secretary and the Contractor, which shall be 
                incorporated in its entirety into this Contract.
                    ``(C) Contracted programs.--Subject to the 
                availability of appropriated funds, the Contractor 
                shall administer the programs, services, functions, and 
                activities identified herein and funded through the 
                annual funding agreement.
                    ``(D) Trust services for individual Indians.--To 
                the extent that the annual funding agreement provides 
                funding for the delivery of trust services to 
                individual Indians that were formerly provided by the 
                Secretary, the Contractor shall maintain at least the 
                same level of service as was previously provided by the 
                Secretary, subject to the availability of appropriated 
                funds for such services. Strictly for the purposes of 
                this subsection only, ``trust services for individual 
                Indians'' means only those services that pertain to 
                land or financial management connected to individually 
                held allotments.
                    ``(E) Fair and uniform services.--The Contractor 
                shall provide services under this contract in a fair 
                and uniform manner and shall provide access to an 
                administrative or judicial body empowered to adjudicate 
                or otherwise resolve complaints, claims, and grievances 
                brought by program beneficiaries against the Contractor 
                arising out of the performance of the Contract.
            ``(4) Obligation of the united states.--
                    ``(A) Trust responsibility.--The United States 
                reaffirms its trust responsibility to the 
                ______________ Indian tribes to protect and conserve 
                the trust resources of the Indian tribes and of 
                individual Indians. Nothing in this Contract is 
                intended to, nor shall be construed, to terminate, 
                waive, modify, or reduce the trust responsibility of 
                the United States to the tribes or individual Indians. 
                The Secretary shall act in good faith in upholding said 
                trust responsibility. To the extent that health 
                programs are included in this Contract, the Secretary 
                shall act in good faith in cooperating with the 
                Contractor to achieve the goals set forth in chapter 18 
                of title 25, United States Code.
                    ``(B) Programs retained.--As specified in the 
                annual funding agreement, the United States hereby 
                retains the programs, services, functions, and 
                activities with respect to the tribes that are not 
                specially assumed by the Contractor in the annual 
                funding agreement.
            ``(5) Other provisions.--
                    ``(A) Designated officials.--On or before the 
                effective date of this Contract, both the United States 
                and the Contractor shall provide each other with a 
                written designation of a senior official as its 
                representative for notices, proposed amendments to the 
                Contract and other purposes for this Contract.
                    ``(B) Contract modifications or amendment.--To be 
                effective any modifications of this Contract shall be 
                in the form of a written amendment to the Contract, and 
                shall require the written consent of the Contractor and 
                the Secretary, except for the addition of supplemental 
                funds for programs, functions, and activities (or 
                portions thereof) already included in the annual 
                funding agreement.
                    ``(C) Officials not to benefit.--No Member of 
                Congress, or resident commissioner, shall be admitted 
                to any share or part of any contract executed pursuant 
                to this Contract, or to any benefit that may arise 
                therefrom; but this provision shall not be construed to 
                extend to any contract under this Contract if made with 
                a corporation for its general benefit.
                    ``(D) Covenant against contingent fees.--The 
                parties warrant that no person or selling agency has 
                been employed or retained to solicit or secure any 
                contract executed pursuant to this Contract upon an 
                agreement or understanding for a commission, 
                percentage, brokerage, or contingent fee, excepting 
                bona fide employees or bona fide established commercial 
                or selling agencies maintained by the contractor for 
                the purpose of securing business.
            ``(6) Attachments.--
                    ``(A) Approval of contract.--Unless previously 
                furnished to the Secretary, the resolution of the ____ 
                Indian tribe(s) authorizing the contracting of the 
                programs, services, functions, and activities 
                identified herein is (are) attached hereto as 
                attachment 1.
                    ``(B) Annual funding agreement.--The negotiated and 
                duly approved annual funding agreement shall only 
                contain terms that identify the programs, services, 
                functions, and activities to be performed or 
                administered, the general budget category assigned, the 
                funds to be provided, the time and method of payment, 
                and such other provisions, including but not limited 
                to, a brief description of the programs, services, 
                functions, and activities to be performed (including 
                those supported by financial resources other than those 
                provided by the Secretary), as the Contractor may 
                request and to which the parties agree. The annual 
                funding agreement is hereby incorporated in its 
                entirety in this Contract and attached hereto as 
                attachment 2.''.

SEC. 4. ADDITIONAL AMENDMENTS.

    The Indian Self-Determination and Education Assistance Act is 
further amended as follows:
            (1) In section 109--
                    (A) strike ``as prescribed by him'' and all that 
                follows through ``in such cases'' and insert 
                ``prescribed by him to remedy the contract deficiency. 
                The appropriate Secretary may, upon written notice to a 
                tribal organization, and the tribes served thereby, 
                immediately rescind a contract or grant and resume 
                control or operation of a program, activity, or service 
                if he finds that there is an immediate threat of 
                imminent harm to the safety of any person and that such 
                threat arises from the Contractor's failure to fulfill 
                the requirements of the contract. In such cases''; and
                    (B) insert the following immediately before the 
                last sentence: ``In any hearing or appeal provided for 
                under this section, the Secretary shall carry the 
                burden of proof to establish by clear and convincing 
                evidence that the contract should be rescinded, 
                assumed, or reassumed.''.
            (2) In section 110(a), insert before the period at the end 
        thereof the following: ``(including immediate injunctive relief 
        to reverse a declination finding under section 102(a)(2) or to 
        compel the Secretary to award and fund an approved self-
        determination contractor)''.
            (3) In section 110(d), insert before the period at the end 
        thereof the following: ``except that all such administrative 
        appeals shall be heard by the Interior Board of Contract 
        Appeals''.

SEC. 5. REGULATIONS.

    Section 107 of the Indian Self-Determination and Education 
Assistance Act is amended--
            (1) by amending subsections (a) and (b) to read as follows:
    ``(a) General.--Except as may be specifically authorized herein and 
elsewhere in this Act, the Secretary of the Interior and the Secretary 
of Health and Human Services shall not promulgate any regulation, nor 
impose any nonregulatory requirement, relating to self-determination 
contracts: Provided, however, That the Secretary may promulgate 
regulations relating to the Federal Tort Claims Act, the Contract 
Disputes Act, declination appeal procedures, reassumption procedures, 
and retrocession procedures. All regulations including those referred 
to in this section shall be promulgated in conformity with sections 552 
and 553 of title 5 of the United States Code and with subsections (c), 
(d), and (e) hereof, and shall be promulgated as a single set of 
regulations in title 25 of the Code of Federal Regulations. Any 
authorization to promulgate regulations set forth in this Act shall 
expire if such regulations are not finally promulgated within 12 months 
from the date of enactment of these amendments.
    ``(b) Existing Regulations.--The provisions of this Act shall 
supersede any conflicting provisions of law or regulation in existence 
on the date of enactment of this Act.''.
            (2) Add the following new subsections:
    ``(d) In drafting and promulgating regulations as provided in 
section 107(a) of this Act (including any revisions or amendments 
thereto), the Secretaries shall confer with and allow for active 
participation by representatives of Indian tribes, tribal 
organizations, individual tribal members, and representatives of other 
parties interested in the implementation of this Act, as amended. The 
rulemaking process shall follow the guidance of the Negotiated 
Rulemaking Act of 1990 and of the Administrative Conference of the 
United States in Recommendations 82-094 and 85-095, `Procedures for 
Negotiating Proposed Regulations' (1 CFR 305.82-094 and 305.85-095), 
and any successor recommendation, regulation, or law. Tribal 
participants in the negotiation shall be chosen by the tribes and 
tribal organizations participating in regional and national meetings to 
be convened by the Secretary, representing the groups described herein 
and shall include tribal representatives from all geographic regions. 
The negotiations shall be conducted in a timely manner and the proposed 
rule implementing these amendments shall be published in the Federal 
Register by the Secretaries no later than 6 months from the date of 
enactment of these amendments. Notwithstanding any other law or 
regulation to the contrary, the Secretary of the Interior and the 
Secretary of Health and Human Services shall be authorized to jointly 
establish and jointly fund such interagency committees or other 
interagency bodies, including advisory bodies comprised of tribal 
representatives, as may be necessary or appropriate to carry out the 
provisions of this Act.
    ``(e) Notwithstanding any laws or regulations to the contrary, the 
Secretary shall waive or make exceptions to his regulations where the 
Secretary finds that such waiver or exceptions is in the best interest 
of the Indians served by the contract. The Secretary shall review a 
waiver request under the declination criteria and procedures contained 
in section 102(a)(2) of this Act.''.

SEC. 6. CONFORMING AMENDMENT.

    Section 105(h) of the Indian Self-Determination and Education 
Assistance Act (25 U.S.C. 450j(h)) is amended by striking ``and the 
rules and regulations adopted by the Secretaries of the Interior and 
Health and Human Services pursuant to section 107 of this Act''.
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