Calendar No. 625

103D CONGRESS

2D SESSION S. 2036

[Report No. 103–374]

A BILL

To specify the terms of contracts entered into by

cation Assistance Act, and for other purposes.under the Indian Self-Determination and Eduthe United States and Indian tribal organizations

SEPTEMBER 26 (legislative day, SEPTEMBER 12), 1994

Reported with an amendment
II

Calendar No. 625

103D CONGRESS

2D SESSION S. 2036

[Report No. 103–374]

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 SENATE OF THE UNITED STATES

APRIL 20 (legislative day, APRIL 11), 1994

Mr. MCCAIN (for himself and Mr. INOUYE) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

SEPTEMBER 26 (legislative day, SEPTEMBER 12), 1994

Reported by Mr. INOUYE, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Indian Self-Determina3 tion Contract Reform Act of 1994’’.

4 SEC. 2. CONTRACT SPECIFICATIONS.

5 Section 105 of the Indian Self-Determination and

6 Education Assistance Act (25 U.S.C. 450j) is amended to

7 read as follows:

8 ‘‘SEC. 105. CONTRACT OR GRANT SPECIFICATIONS.

9 ‘‘Each contract or grant entered into under this Act,

10 except an agreement entered into pursuant to title III (25

11 U.S.C. 450f note), shall contain, or incorporate by ref12 erence, the following provisions, with modifications where

13 indicated and the blanks appropriately filled:

14 ‘‘(a) AUTHORITY AND PURPOSE.—

15 ‘‘(1) AUTHORITY.—This agreement, denoted a

16 Contract of Self-Determination (hereinafter referred

17 to as the ‘Contract’), is entered into by the Sec18 retary of the Interior (or the Secretary of Health

19 and Human Services) (hereinafter referred to as the

20 ‘Secretary’), for and on behalf of the United States

21 pursuant to the Indian Self-Determination and Edu22 cation Assistance Act and by the authority of the

23 XXXXXXX tribal government. Unless otherwise

24 provided in this agreement, all of the provisions of

25 the Indian Self-Determination and Education Assist26 ance Act are incorporated herein.
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1 ‘‘(2) PURPOSE.—This Contract shall be lib2 erally construed to transfer the funding, functions,

3 and activities for the following programs from the

4 Federal Government to the XXXXXXX tribal gov5 ernment: (List functions, activities, and programs.)

6 ‘‘(3) TRIBAL LAW AND FORUMS.—The laws of

7 the XXXXXXX tribal government shall be applied

8 in the execution of this Contract and the powers and

9 decisions of the Tribal Court shall be respected to

10 the extent that Federal law, construed in accordance

11 with the applicable canons of construction and the

12 Indian Self-Determination and Education Assistance

13 Act, is not inconsistent.

14 ‘‘(b) TERMS, PROVISIONS AND CONDITIONS.—

15 ‘‘(1) TERM.—The term of this Contract shall

16 not exceed 3 years, unless the Secretary and the

17 tribe agree on a longer period pursuant to section

18 106 of the Indian Self-Determination and Education

19 Assistance Act. The calendar year is the basis for

20 contracts under this Act, unless the Secretary and

21 the tribe agree on a different period.

22 ‘‘(2) EFFECTIVE DATE.—This Contract shall

23 become effective upon approval and execution by the

24 tribe and the Secretary, unless otherwise provided by

25 law.
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1 ‘‘(3) FUNDING AMOUNT.—Subject to the appro2 priation of funds by Congress, the Secretary shall

3 make available to the tribe the total amount speci4 fied in the annual agreement incorporated by ref5 erence in subsection (f)(2).

6 ‘‘(4) PAYMENT.—

7 ‘‘(A) IN GENERAL.—Payments shall be

8 made as expeditiously as possible in compliance

9 with applicable Treasury Department regula10 tions and shall include financial arrangements

11 to cover funding during periods under continu12 ing resolutions to the extent permitted by such

13 resolutions.

14 ‘‘(B) QUARTERLY PAYMENTS.—To the ex15 tent authorized by law, for each fiscal year cov16 ered by this Contract, the Secretary shall make

17 available the funds specified for the fiscal year

18 under the annual agreement by paying to the

19 tribe on a quarterly basis one-quarter of the

20 total amount provided for in the annual agree21 ment for that fiscal year, or by using an instru22 ment such as a letter of credit, or other method

23 authorized by law, as may be specified in the

24 annual agreement. To the extent applicable,

25 each quarterly payment shall be made on the
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1 first day of each quarter of the fiscal year ex2 cept for the first quarter, for which the quar3 terly payment shall be made not later than the

4 date that is 10 calendar days after the date on

5 which the Office of Management and Budget

6 apportions the appropriations for the fiscal year

7 for the programs, services, functions, and ac8 tivities subject to the Contract.

9 ‘‘(5) RECORDS.—(A) Except for previously pro10 vided copies of tribal records that the Secretary

11 demonstrates are clearly required to be maintained

12 as part of the recordkeeping system of the Depart13 ment of the Interior, tribal records shall not be con14 sidered Federal records for purposes of chapter 5 of

15 title 5, United States Code.

16 ‘‘(B) The tribe shall maintain a recordkeeping

17 system, and provide reasonable access to records to

18 the Secretary that permits the Department of the

19 Interior to meet its minimum legal recordkeeping

20 program requirements under chapter 31 of title 44,

21 United States Code.

22 ‘‘(6) PROPERTY.—(A) At the request of the

23 tribe, the Secretary shall make available to the tribe

24 reasonably divisible real property, facilities, equip25 ment, and personal property that the Department
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1 had previously utilized to provide the programs,

2 services, functions, and activities now consolidated

3 by the tribe pursuant to subsection (c)(1) of this

4 Contract. A mutually agreed upon list specifying the

5 property, facilities, and equipment so made available

6 shall also be prepared and periodically revised.

7 ‘‘(B) Subject to the agreement of the General

8 Services Administration, the Secretary shall delegate

9 to the tribe the authority to acquire such ‘excess’

10 property as may be appropriate in the judgment of

11 the tribe to support the programs, services, func12 tions, and activities consolidated under subsection

13 (c)(1) of this Contract. The Secretary agrees to

14 make best efforts to assist the tribe in obtaining

15 such confiscated or excess property as may become

16 available to tribes or local governments. Subject to

17 the agreement of the General Services Administra18 tion, a screener identification card (General Services

19 Administration form 2946) shall be issued to the

20 tribe not later than the effective date of this Con21 tract. The designated official shall, upon request, as22 sist the tribe in securing the use of the card.

23 ‘‘(C) The tribe shall, upon acquisition of excess

24 United States Government property, provide ade25 quate documentation to the Secretary to facilitate
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1 recordation of the property in the Bureau of Indian

2 Affairs Property Inventory.

3 ‘‘(D) The tribe shall determine what capital

4 equipment, leases, rentals, property, or services it

5 shall require to perform its obligations under this

6 subsection, and shall acquire and maintain records

7 of such capital equipment, property rentals, leases,

8 property, or services through tribal procurement pro9 cedures.

10 ‘‘(7) SAVINGS.—Notwithstanding any other pro11 vision of law, any funds appropriated pursuant to

12 the Act of November 2, 1921 (42 Stat. 208, chapter

13 115; 25 U.S.C. 13) shall remain available until ex14 pended.

15 ‘‘(8) TRANSPORTATION.—

16 ‘‘(A) USE OF MOTOR VEHICLES.—Subject

17 to the agreement of the General Services Ad18 ministration, the Secretary hereby authorizes

19 the tribe to obtain interagency motor pool vehi20 cles and related services, if available, for per21 formance of any activities under this Contract.

22 ‘‘(B) USE OF OTHER TRANSPORTATION

23 SERVICES.—The Secretary shall make best ef24 forts to obtain the concurrence of the General

25 Services Administration to provide the tribe and
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1 its employees with eligibility for services and

2 supplies pursuant to General Services Adminis3 tration programs and contracts with private en4 tities, including airlines and other transpor5 tation carriers.

6 ‘‘(9) REGULATORY AUTHORITY.—The tribe is

7 not required to abide by Federal program guidelines,

8 manuals, or policy directives unless otherwise agreed

9 to by the tribe and the Secretary.

10 ‘‘(10) DISPUTES.—(A) Obligations of the Unit11 ed States under this Contract shall be considered to

12 be ‘duties’ under section 110 of the Indian Self-De13 termination and Education Assistance Act.

14 ‘‘(B) Section 110 of the Indian Self-Determina15 tion and Education Act shall apply to disputes under

16 this Contract.

17 ‘‘(C) In addition or as an alternative to rem18 edies and procedures prescribed by section 110 of

19 the Indian Self-Determination and Education Assist20 ance Act the parties may jointly—

21 ‘‘(i) submit disputes under this Contract to

22 third-party mediation, which for purposes of

23 this section means that the Secretary and the

24 tribe nominate a third party who together

25 choose a third party mediator (‘third-party’
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1 means a person not employed by or significantly

2 involved with either the tribe, the Secretary, or

3 the Department of the Interior);

4 ‘‘(ii) submit the dispute to the Court of the

5 tribe; or

6 ‘‘(iii) submit the dispute to mediation proc7 esses provided for under the law of the tribe.

8 ‘‘(D) The Secretary shall accept decisions

9 reached by mediation processes or the tribal court,

10 but shall not be bound by any decision that might

11 be in conflict with the interests of the Indians or the

12 United States.

13 ‘‘(11) TRIBAL ADMINISTRATIVE PROCE14 DURES.—Tribal law and tribal forums shall provide

15 for administrative due process with respect to pro16 grams, services, functions, and activities that are

17 provided by the tribe pursuant to this Contract and

18 pursuant to the Indian Civil Rights Act of 1968 (25

19 U.S.C. 1301 et seq.).

20 ‘‘(12) SUCCESSOR ANNUAL AGREEMENT.—Ne21 gotiations for a successor annual agreement, as pro22 vided for in subsection (f)(2), shall begin not later

23 than 120 days prior to the conclusion of the preced24 ing annual agreement. The tribe is hereby assured

25 that future funding of successor annual agreements
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1 shall only be reduced pursuant to section 106(b) of

2 the Indian Self-Determination and Education Assist3 ance Act. The Secretary agrees to prepare and sup4 ply relevant information, and to promptly comply

5 with any request by the tribe for information reason6 ably needed to determine the funds that may be

7 available for a successor annual agreement as pro8 vided for in a subsection (f)(2) of this Contract.

9 ‘‘(13) SECRETARIAL APPROVAL.—(A) Except as

10 provided in subparagraph (B), for the term of the

11 Contract, section 2103 of the Revised Statutes (25

12 U.S.C. 81) and section 16 of the Act of June 18,

13 1934 (25 U.S.C. 476), shall not apply to any con14 tract entered into by the tribe in connection with

15 this Contract.

16 ‘‘(B) Each contract entered into by the tribe

17 shall—

18 ‘‘(i) be in writing;

19 ‘‘(ii) identify the interested parties, their

20 authorities, and purposes;

21 ‘‘(iii) state the work to be performed; and

22 ‘‘(iv) state the basis for any claim, the pay23 ments to be made, and the terms of the con24 tract, which shall be fixed.

25 ‘‘(c) OBLIGATION OF THE TRIBE.—
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1 ‘‘(1) CONSOLIDATION.—Except as provided in

2 subsection (d)(2), the Tribally Controlled Commu3 nity College Assistance Act of 1978 (25 U.S.C. 1801

4 et seq.), and title XI of the Education Amendments

5 of 1978 (25 U.S.C. 2001 et seq.), the tribe shall

6 perform the programs, services, functions, and ac7 tivities as provided in the annual agreement under

8 subsection (f)(2) of this Contract.

9 ‘‘(2) AMOUNT OF FUNDS.—The total amount of

10 funds covered by the Contract provided for in para11 graph (1) that the Secretary shall make available to

12 the XXXXXXX Indian tribe shall be determined in

13 an annual agreement between the Secretary and the

14 tribe, which shall be incorporated in its entirety into

15 this Contract and attached as provided in subsection

16 (f)(2).

17 ‘‘(3) TRIBAL PROGRAMS.—The tribe agrees to

18 provide the programs, services, functions, and activi19 ties identified in the annual agreement. The tribe

20 pledges to practice good faith in upholding its re21 sponsibility to provide such programs, services, func22 tions, and activities.

23 ‘‘(4) TRUST SERVICES FOR INDIVIDUAL INDI24 ANS.—To the extent that the annual agreement en25 deavors to provide trust services to individual Indi-
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1 ans that were formerly provided by the Secretary,

2 the tribe shall maintain at least the same level of

3 service as was previously provided by the Secretary,

4 subject to the availability of appropriated funds for

5 such services. The tribe pledges to practice good

6 faith in upholding its responsibility to provide such

7 service. Trust services for individual Indians means

8 only services that pertain to land or financial man9 agement connected to individually held allotments.

10 ‘‘(d) OBLIGATION OF THE UNITED STATES.—

11 ‘‘(1) TRUST RESPONSIBILITY.—The United

12 States reaffirms its trust responsibility to the

13 XXXXXXX Indian tribe of the XXXXXXX Indian

14 Reservation to protect and conserve the trust re15 sources of the XXXXXXX Indian tribe and of indi16 vidual Indians of the XXXXXXX Indian Reserva17 tion. Nothing in this Contract is intended to, nor

18 shall be construed, to terminate, waive, modify, or

19 reduce the trust responsibility of the United States

20 to the tribe or individual Indians. The Secretary

21 pledges to practice good faith in upholding said trust

22 responsibility.

23 ‘‘(2) PROGRAMS RETAINED.—As specified in

24 the annual agreement, the United States hereby re25 tains the programs, services, functions, and activities
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1 with respect to the tribe that are not specially as2 sumed by the tribe in the annual agreement.

3 ‘‘(e) OTHER PROVISIONS.—

4 ‘‘(1) DESIGNATED OFFICIALS.—On or before

5 the effective date of this Contract, both the United

6 States and the tribe shall provide each other with a

7 written designation of a senior official as its rep8 resentative for notices, proposed amendments to the

9 Contract and other purposes for this Contract.

10 ‘‘(2) INDIAN PREFERENCE IN EMPLOYMENT,

11 CONTRACTING, AND SUBCONTRACTING.—Tribal law

12 shall govern the provision of Indian preference in

13 employment, contracting, and subcontracting pursu14 ant to this Contract. Section 5 of the Indian Self15 Determination and Education Assistance Act shall

16 apply to individuals who leave Federal employment

17 for tribal employment pursuant to this contract.

18 ‘‘(3) CONTRACT MODIFICATIONS OR AMEND19 MENT.—To be effective any modifications of this

20 Contract shall be in the form of a written amend21 ment to the Contract, and shall require the written

22 consent of the tribe and the Secretary.

23 ‘‘(4) OFFICIALS NOT TO BENEFIT.—No Mem24 ber of Congress, or resident commissioner, shall be

25 admitted to any share or part of any contract exe-
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1 cuted pursuant to this Contract, or to any benefit

2 that may arise therefrom; but this provision shall

3 not be construed to extend to any contract under

4 this Contract if made with a corporation for its gen5 eral benefit.

6 ‘‘(5) COVENANT AGAINST CONTINGENT FEES.—

7 The parties warrant that no person or selling agency

8 has been employed or retained to solicit or secure

9 any contract executed pursuant to this Contract

10 upon an agreement or understanding for a commis11 sion, percentage, brokerage, or contingent fee, ex12 cepting bona fide employees or bona fide established

13 commercial or selling agencies maintained by the

14 contractor for the purpose of securing business. For

15 breach or violation of this warranty the Government

16 shall have the right to annul any contract without li17 ability or, in its discretion, to deduct from the Con18 tract price or consideration, or otherwise recover, the

19 full amount of such commission, percentage, broker20 age, or contingent fee.

21 ‘‘(f) ATTACHMENTS.—

22 ‘‘(1) APPROVAL OF CONTRACT.—The resolution

23 of the XXXXXXX Indian tribe approving this Con24 tract is attached hereto as attachment 1.
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1 ‘‘(2) ANNUAL AGREEMENT.—The negotiated

2 and duly approved annual agreement with respect to

3 the XXXXXXX Indian tribe which shall only con4 tain terms that identify the programs, services, func5 tions, and activities to be performed, the general

6 budget category assigned, the funds to be provided,

7 the time and method of payment, and a requirement

8 that all modifications or amendments shall be writ9 ten and signed by both parties, is hereby incor10 porated in its entirety in this Contract and attached

11 hereto as attachment 2.’’.

12 SEC. 3. REGULATIONS.

13 ‘‘(a) IN GENERAL.—The Secretary of the Interior

14 and the Secretary of Health and Human Services shall

15 not promulgate any regulation relating to grants, con16 tracts, or cooperative agreements entered into pursuant to

17 the Indian Self-Determination and Education Assistance

18 Act (25 U.S.C. 450 et seq.).

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

20 this Act shall supersede any conflicting provisions of law

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

22 Act.
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1 SEC. 4. REPEAL.

2 ‘‘(a) IN GENERAL.—Section 107 of the Indian Self3 Determination and Education Assistance Act (25 U.S.C.

4 450k) is repealed.

5 ‘‘(b) CONFORMING AMENDMENTS.—

6 ‘‘(1) Section 104(b) of the Indian Self-Deter7 mination and Education Assistance Act (25 U.S.C.

8 450h(b)) is amending by striking ‘‘, in accordance

9 with regulations adopted pursuant to section 107,’’.

10 ‘‘(2) Section 106(h) of such Act (25 U.S.C.

11 450j(h)) is amended by striking ‘‘and the rules and

12 regulations adopted by the Secretaries of the Inte13 rior and Health and Human Services pursuant to

14 section 107’’.

15 SECTION 1. SHORT TITLE.

16 This Act may be cited as the ‘‘Indian Self-Determina17 tion Contract Reform Act of 1994’’.

18 SEC. 2. GENERAL AMENDMENTS.

19 The Indian Self-Determination and Education Assist20 ance Act (25 U.S.C. 450 et seq.) is amended—

21 (1) in section 4—

22 (A) by redesignating subsections (a) through

23 (l) as paragraphs (2) through (13), respectively;

24 (B) by inserting before paragraph (2), as so

25 redesignated, the following new paragraph:
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1 ‘‘(1) ‘Construction contract’ means a fixed-price

2 or cost-reimbursement self-determination contract for

3 a construction project. Such term does not include

4 any contract—

5 ‘‘(A) that is limited to providing architec6 tural and engineering services, planning services,

7 or construction management services (or a com8 bination of such services);

9 ‘‘(B) for the Housing Improvement Pro10 gram or roads maintenance program of the Bu11 reau of Indian Affairs administered by the Sec12 retary of the Interior; or

13 ‘‘(C) for the health facility maintenance and

14 improvement program administered by the Sec15 retary of Health and Human Services.’’;

16 (C) in each of paragraphs (2) through (12),

17 by striking the semicolon at the end and insert18 ing a period;

19 (D) in paragraph (2), as so redesignated, by

20 striking ‘‘construction programs’’ and inserting

21 ‘‘Construction programs’’;

22 (E) in paragraph (3), as so redesignated, by

23 striking ‘‘contract funding base’’ and inserting

24 ‘‘Contract funding base’’;
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1 (F) in paragraph (4), as so redesignated, by

2 striking ‘‘direct program costs’’ and inserting

3 ‘‘Direct program costs’’;

4 (G) in paragraph (7), as so redesignated, by

5 striking ‘‘indirect costs’’ and inserting ‘‘Indirect

6 costs’’;

7 (H) in paragraph (8), as so redesignated,

8 by striking ‘‘indirect costs rate’’ and inserting

9 ‘‘Indirect cost rate’’;

10 (I) in paragraph (9), as so redesignated, by

11 striking ‘‘mature contract’’ and inserting ‘‘Ma12 ture contract’’;

13 (J) in paragraph (11), as so redesignated,

14 by striking ‘‘self-determination contract’’ and in15 serting ‘‘Self-determination contract’’; and

16 (K) in paragraph (13), as so redesignated,

17 by striking ‘‘tribal organization’’ and inserting

18 ‘‘Tribal organization’’;

19 (2) by striking subsection (f) of section 5 and in20 serting the following new subsection:

21 ‘‘(f)(1) For each fiscal year during which an Indian

22 tribal organization receives or expends funds pursuant to

23 a contract entered into, or grant made, under this Act, the

24 tribal organization that requested such contract or grant

25 shall submit to the appropriate Secretary a single-agency
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1 audit report required by chapter 75 of title 31, United

2 States Code.

3 ‘‘(2) In addition to submitting a single-agency audit

4 report pursuant to paragraph (1), a tribal organization re5 ferred to in such paragraph shall submit such additional

6 information concerning the conduct of the program, func7 tion, service, or activity carried out pursuant to the con8 tract or grant that is the subject of the report as the tribal

9 organization may negotiate with the Secretary.

10 ‘‘(3) Any disagreement over reporting requirements

11 shall be subject to the declination criteria and procedures

12 set forth in section 102.’’;

13 (3) in section 7(a), by striking ‘‘of subcontrac14 tors’’ and inserting in lieu thereof ‘‘or subcontractors

15 (excluding tribes and tribal organizations)’’;

16 (4) at the end of section 7, add the following new

17 subsection:

18 ‘‘(c) Notwithstanding subsections (a) and (b), with re19 spect to any self-determination contract, or portion of a self20 determination contract, that is intended to benefit one tribe,

21 the tribal employment or contract preference laws adopted

22 by such tribe shall govern with respect to the administration

23 of the contract or portion of the contract.’’;

24 (5) at the end of section 102(a)(1), add the fol25 lowing new flush sentence:
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1 ‘‘The programs, functions, services, or activities that are

2 contracted under this paragraph shall include administra3 tive functions of the Department of the Interior and the De4 partment of Health and Human Services (whichever is ap5 plicable) that support the delivery of services to Indians,

6 including those administrative activities related to, but not

7 included as part of, the service delivery programs described

8 in this paragraph that are otherwise contractable. The ad9 ministrative functions referred to in the preceding sentence

10 shall be contractable without regard to the organizational

11 level within the department that carries out such func12 tions.’’;

13 (6) in section 102(a)—

14 (A) in paragraph (2)—

15 (i) in the first sentence, by inserting ‘‘,

16 or a proposal to amend or renew a self-de17 termination contract,’’ before ‘‘to the Sec18 retary for review’’;

19 (ii) in the second sentence—

20 (I) by striking ‘‘The’’ and insert21 ing ‘‘Subject to the provisions of para22 graph (4), the’’;

23 (II) by inserting ‘‘and award the

24 contract’’ after ‘‘approve the proposal’’;

25 and
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1 (III) by striking ‘‘a specific find2 ing is made that’’ and inserting ‘‘the

3 Secretary provides written notification

4 to the applicant that contains a spe5 cific finding (citing clear and convinc6 ing evidence or a controlling legal au7 thority) that’’;

8 (iii) in subparagraph (A)—

9 (I) by inserting ‘‘by the tribal or10 ganization’’ after ‘‘rendered’’; and

11 (II) by striking ‘‘not be satisfac12 tory’’ and inserting ‘‘endanger the

13 health, safety, or welfare of the bene14 ficiaries’’;

15 (iv) in subparagraph (B), by inserting

16 ‘‘by the tribal organization’’ after ‘‘re17 sources’’;

18 (v) in subparagraph (C), by striking

19 the period at the end and inserting the fol20 lowing: ‘‘because—

21 ‘‘(i) the amount of funds proposed

22 under the contract is in excess of the appli23 cable funding level for the contract, as deter24 mined under section 106(a); or
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1 ‘‘(ii) the program, function, service, or

2 activity (or portion thereof) that is the sub3 ject of the proposal is beyond the scope of

4 programs, functions, services, or activities

5 covered under paragraph (1) because the

6 proposal includes activities that cannot

7 lawfully be carried out by the contractor.’’;

8 and

9 (vi) by adding at the end of the para10 graph the following new flush sentence:

11 ‘‘Notwithstanding any other provision of law, the Secretary

12 may extend or otherwise alter a 60-day or 90-day period

13 specified in the first or second sentence of this subsection,

14 if before the expiration of such period, the Secretary obtains

15 the voluntary and express written consent of the tribe or

16 tribal organization to extend or otherwise alter such pe17 riod.’’; and

18 (B) by adding at the end the following new

19 paragraph:

20 ‘‘(4) The Secretary shall approve any severable portion

21 of a contract proposal that does not support a declination

22 finding described in paragraph (2). If the Secretary deter23 mines under such paragraph that a contract proposal—

24 ‘‘(A) proposed in part to plan, conduct, or ad25 minister a program, function, service, or activity that
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1 is beyond the scope of programs covered under para2 graph (1), or

3 ‘‘(B) proposes a level of funding that is in excess

4 of the applicable level determined under section

5 106(a),

6 subject to any alteration in the scope of the proposal that

7 the Secretary and the tribal organization agree to, the Sec8 retary shall, as appropriate, approve such portion of the

9 program, function, service, or activity as is authorized

10 under paragraph (1) or approve a level of funding author11 ized under section 106(a). If a tribal organization elects to

12 carry out a severable portion of a contract proposal pursu13 ant to this paragraph, subsection (b) shall only apply to

14 the portion of the contract that is declined by the Secretary

15 pursuant to this subsection.’’;

16 (7) in section 102(b)(3)—

17 (A) by inserting after ‘‘record’’ the follow18 ing: ‘‘with the right to engage in full discovery

19 relevant to any issue raised in the matter’’; and

20 (B) by inserting before the period the follow21 ing: ‘‘, except that the tribe or tribal organiza22 tion may, in lieu of filing such appeal, exercise

23 the option to initiate an action in a Federal dis24 trict court and proceed directly to such court

25 pursuant to section 110(a)’’;
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1 (8) in section 102(d), by striking ‘‘as provided in

2 section 2671 of title 28)’’ and inserting ‘‘as provided

3 in section 2671 of title 28, United States Code, and

4 including an individual who provides health care

5 services pursuant to a personal services contract with

6 a tribal organization for the provision of services in

7 any facility owned, operated, or constructed under the

8 jurisdiction of the Indian Health Service)’’;

9 (9) by adding at the end of section 102 the fol10 lowing new subsections:

11 ‘‘(e)(1) With respect to any hearing or appeal con12 ducted pursuant to subsection (b)(3), the Secretary shall

13 have the burden of proof to establish by clear and convinc14 ing evidence—

15 ‘‘(A) the validity of the grounds for declining the

16 contract proposal (or portion thereof); and

17 ‘‘(B) that the tribe or tribal organization, would

18 not be able after the Secretary has provided such as19 sistance as the Secretary is required to provide, to

20 overcome the reasons for the objections to the contract

21 proposal stated in a notice of declination issued by

22 the Secretary pursuant to subsection (b).

23 ‘‘(2) Notwithstanding any other provision of law, a de24 cision by an official of the Department of the Interior or

25 the Department of Health and Human Services, as appro-
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1 priate (referred to in this paragraph as the ‘Department’)

2 that constitutes final agency action and that relates to an

3 appeal within the Department that is conducted under sub4 section (b)(3) shall be made by an official of the Department

5 who holds a position at a higher organizational level within

6 the Department than the level of the departmental agency

7 (such as the Indian Health Service or the Bureau of Indian

8 Affairs) in which the decision that is the subject of the ap9 peal was made.

10 ‘‘(f)(1) Notwithstanding any other provision of law, a

11 tribal organization that is located in Alaska that is author12 ized by a tribal resolution to enter into a contract under

13 this Act for the operation of a program, function, service,

14 or activity that meets the requirements of this Act may

15 redelegate the authority to enter into such a contract to an16 other tribal organization.

17 ‘‘(2) The redelegation of authority referred to in para18 graph (1) may be carried out by formal action of the gov19 erning body of the tribal organization to another tribal or20 ganization, if the tribal organization provides advance no21 tice of such redelegation and provides a copy of the contract

22 proposal to all tribes served by the tribal organization prior

23 to submitting the contract proposal to the Secretary.

24 ‘‘(3)(A) A tribe that receives notice of a proposed re25 delegation of authority under paragraph (2) may—
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1 ‘‘(i) not later than 60 days after the date of re2 ceipt of the notification, notify the tribal organization

3 of its intent to adopt a limiting resolution prohibit4 ing or conditioning the proposed redelegation; and

5 ‘‘(ii) during the 60-day period beginning on the

6 date of termination of the period referred to in sub7 paragraph (A), adopt and transmit such resolution to

8 the tribal organization.

9 ‘‘(B) A tribal organization that receives notification

10 of the intent of a tribe to adopt a limiting resolution pursu11 ant to subparagraph (A)(i) shall not proceed with the re12 delegation that is the subject of the notification until the

13 expiration of the period specified in subparagraph (A)(ii).

14 ‘‘(4) Nothing in this subsection may be construed as

15 a limitation on the authority of a tribe to limit, restrict,

16 or rescind a resolution to enter into a contract described

17 in paragraph (1) at any time or in any manner.’’;

18 (10) by striking subsection (a) of section 105 and

19 inserting the following new subsection:

20 ‘‘(a)(1) Notwithstanding any other provision of law,

21 subject to paragraph (2), the contracts and cooperative

22 agreements entered into with, and grants made to, tribal

23 organizations pursuant to sections 102 and 103 shall not

24 be subject to any Federal laws (including any regulations)

25 of general applicability relating to contracts or discre-
27

•S 2036 RS

1 tionary cooperative agreements entered into or grants made

2 by the Federal Government, except to the extent that such

3 laws expressly apply to Indian tribes.

4 ‘‘(2)(A) With respect to a construction contract (or a

5 subcontract of such a construction contract), the provisions

6 of the Office of Federal Procurement Policy Act (41 U.S.C.

7 401 et seq.) and the regulations relating to acquisitions pro8 mulgated under such Act shall apply only to the extent that

9 the application of such provision to the construction con10 tract (or subcontract) is—

11 ‘‘(i) necessary to ensure that the contract may be

12 carried out in a satisfactory manner;

13 ‘‘(ii) directly related to the construction activity;

14 and

15 ‘‘(iii) not inconsistent with this Act.

16 ‘‘(B) A list of the Federal requirements that meet the

17 requirements of clauses (i) through (iii) of subparagraph

18 (A) shall be included in an attachment to the contract pur19 suant to negotiations between the Secretary and the tribal

20 organization.

21 ‘‘(C)(i) Except as provided in subparagraph (B), no

22 Federal law listed in clause (ii) or any other provision of

23 Federal law (including an Executive order) relating to ac24 quisition by the Federal Government shall apply to a con-
28

•S 2036 RS

1 struction contract that a tribe or tribal organization enters

2 into under this Act, unless expressly provided in such law.

3 ‘‘(ii) The laws listed in this paragraph are as follows:

4 ‘‘(I) The Federal Property and Administrative

5 Services Act of 1949 (40 U.S.C. 471 et seq.).

6 ‘‘(II) Section 3709 of the Revised Statutes.

7 ‘‘(III) Section 9(c) of the Act of Aug. 2, 1946 (60

8 Stat. 809, chapter 744).

9 ‘‘(IV) Title III of the Federal Property and Ad10 ministrative Services Act of 1949 (63 Stat. 393 et

11 seq., chapter 288).

12 ‘‘(V) Section 13 of the Act of Oct. 3, 1944 (58

13 Stat. 770; chapter 479).

14 ‘‘(VI) Chapters 21, 25, 27, 29, and 31 of title 44,

15 United States Code.

16 ‘‘(VII) The Work Hours Act of 1962 (40 U.S.C.

17 328 et seq.).

18 ‘‘(VIII) Section 2 of the Act of June 13, 1934 (48

19 Stat 948, chapter 483).

20 ‘‘(IX) Sections 1 through 12 of the Act of June

21 30, 1936 (49 Stat. 2036 et seq. chapter 881).

22 ‘‘(X) The Service Control Act of 1965 (41 U.S.C.

23 351 et seq.).

24 ‘‘(XI) The Small Business Act (15 U.S.C. 631 et

25 seq.).
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•S 2036 RS

1 ‘‘(XII) Executive Order Nos. 12138, 11246,

2 11701 and 11758.’’;

3 (11) by striking subsection (e) and inserting the

4 following new subsection:

5 ‘‘(e) If an Indian tribe or tribal organization requests

6 retrocession of the appropriate Secretary for any contract

7 or portion of a contract entered into pursuant to this Act,

8 unless the tribe or tribal organization rescinds the request

9 for retrocession, such retrocession shall become effective on—

10 ‘‘(1) the earlier of—

11 ‘‘(A) the date that is 1 year after the date

12 the Indian tribe or tribal organization submits

13 such request; or

14 ‘‘(B) the date on which the contract expires;

15 or

16 ‘‘(2) such date as may be mutually agreed by the

17 Secretary and the Indian tribe.’’;

18 (12) by striking paragraph (2) of section 105(f)

19 and inserting the following new paragraph:

20 ‘‘(2) donate to an Indian tribe or tribal organi21 zation title to any personal or real property found to

22 be excess to the needs of the Bureau of Indian Affairs,

23 the Indian Health Service, or the General Services

24 Administration, except that—
30

•S 2036 RS

1 ‘‘(A) title to property and equipment (other

2 than property and equipment described in sub3 paragraph (B)) furnished by the Federal Govern4 ment for use in the performance of the contract

5 or purchased with funds under any self-deter6 mination contract or grant agreement shall, un7 less otherwise requested by the tribe or tribal or8 ganization, vest in the appropriate tribe or trib9 al organization; and

10 ‘‘(B) if property described in subparagraph

11 (A) has a value in excess of $5,000 at the time

12 of the retrocession, rescission, or termination of

13 the self-determination contract or grant agree14 ment, and if such property remains in use in

15 support of the contracted program, at the option

16 of the Secretary, upon the retrocession, rescis17 sion, or termination, title to such property and

18 equipment shall revert to the Department of the

19 Interior or the Department of Health and

20 Human Services, as appropriate; and’’;

21 (13) by adding at the end of section 105 the fol22 lowing new subsections:

23 ‘‘(i)(1) If a self-determination contract requires the

24 Secretary to divide the administration of a program that

25 has previously been administered for the benefit of a greater
31

•S 2036 RS

1 number of tribes than are represented by the tribal organi2 zation that is a party to the contract, the Secretary shall—

3 ‘‘(A) endeavor to minimize any adverse effect on

4 the level of services to be provided to all affected

5 tribes;

6 ‘‘(B) notify all affected tribes that are not a

7 party to the contract, as soon as practicable after re8 ceipt of the contract proposal—

9 ‘‘(i) of the receipt of the contract proposal;

10 and

11 ‘‘(ii) of the right of such tribes to comment

12 on the best means of dividing the administration

13 of the program to meet the needs of all affected

14 tribes;

15 ‘‘(C) explore the feasibility of instituting cooper16 ative agreements among the affected tribes that are

17 not a party to the contract, the tribal organization

18 operating the contract, and the Secretary; and

19 ‘‘(D)(i) identify the nature of any diminution in

20 quality, level, or quantity of services to any affected

21 tribe resulting from the division of the program; and

22 ‘‘(ii) submit a report to Congress that contains

23 the identification, together with an estimate of the

24 funds required to raise the quality, level, or quantity,

25 of services to correct the diminution.
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•S 2036 RS

1 ‘‘(2) In determining whether to decline a contract

2 under section 102(a)(2), the Secretary may not consider the

3 effect that a contract proposal would have on—

4 ‘‘(A) tribes not represented by the tribe or tribal

5 organization that submits such proposal; or

6 ‘‘(B) Indians who are not served by the portion

7 of the program to be contracted.

8 ‘‘(3) The Secretary shall take such action as may be

9 necessary to ensure that services are provided to the tribes

10 not served by a self-determination contract.

11 ‘‘(j) Upon providing notice to the Secretary, a tribal

12 organization that carries out a self-determination contract

13 may redesign a program, activity, function, or service car14 ried out by the tribal organization under the contract, in15 cluding any program standard, in such manner as to best

16 meet the local geographic, demographic, economic, cultural,

17 health, and institutional needs of the Indian people and

18 tribes served under the contract. The Secretary shall evalu19 ate any proposal to redesign any program, activity, func20 tion, or service provided under the contract. With respect

21 to declining to approve a redesigned program, activity,

22 function, or service under this subsection, the Secretary

23 shall apply the criteria and procedures set forth in section

24 102.
33

•S 2036 RS

1 ‘‘(k) For purposes of section 201(a) of the Federal

2 Property and Administrative Services Act of 1949 (40

3 U.S.C. 481(a)) (relating to Federal sources of supply, in4 cluding lodging providers, airlines and other transportation

5 providers), a tribal organization carrying out a contract,

6 grant, or cooperative agreement under this Act shall be

7 deemed an executive agency when carrying out such con8 tract, grant, or agreement and the employees of the tribal

9 organization shall be eligible to have access to such sources

10 of supply on the same basis as employees of an executive

11 agency have such access.

12 ‘‘(l)(1) Upon the request of an Indian tribe or tribal

13 organization, the Secretary shall enter into a lease with the

14 Indian tribe or tribal organization that holds title to, a

15 leasehold interest in, or a beneficial interest in, a facility

16 used by the Indian tribe or tribal organization for the ad17 ministration and delivery of services under this Act.

18 ‘‘(2) The Secretary shall compensate each Indian tribe

19 or tribal organization that enters into a lease under para20 graph (1) for the use of the facility leased for the purposes

21 specified in such paragraph. Such compensation may in22 clude rent, depreciation based on the useful life of the facil23 ity, principal and interest paid or accrued, operation and

24 maintenance expenses, and such other reasonable expenses
34

•S 2036 RS

1 that the Secretary determines, by regulation, to be allow2 able.

3 ‘‘(m)(1) Each construction contract requested, ap4 proved, or awarded under this Act shall be subject to—

5 ‘‘(A) the provisions of this Act, including sec6 tions 7, 102(a), 102(b), 103 (d) and (e), 105(f),

7 106(a), 106(f), 110 and 111; and

8 ‘‘(B) section 314 of the Department of the Inte9 rior and Related Agencies Appropriations Act, 1991

10 (104 Stat. 1959).

11 ‘‘(2) In providing technical assistance to tribes and

12 tribal organizations in the development of construction con13 tract proposals, the Secretary shall provide, not later than

14 30 days after receiving a request from a tribe or tribal orga15 nization, all information available to the Secretary regard16 ing the construction project, including construction draw17 ings, maps, engineering reports, design reports, plans of re18 quirements, cost estimates, environmental assessments or

19 environmental impact reports, and archaeological reports.

20 ‘‘(3) Prior to finalizing a construction contract pro21 posal pursuant to section 102(a), and upon request of the

22 tribe or tribal organization that submits the proposal, the

23 Secretary shall provide for a precontract negotiation phase

24 in the development of a contract proposal. Such phase shall

25 include, at a minimum, the following elements:
35

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1 ‘‘(A) The provision of technical assistance pursu2 ant to section 103 and paragraph (2).

3 ‘‘(B) A joint scoping session between the Sec4 retary and the tribe or tribal organization to review

5 all plans, specifications, engineering reports, cost esti6 mates, and other information available to the parties,

7 for the purpose of identifying all areas of agreement

8 and disagreement.

9 ‘‘(C) An opportunity for the Secretary to revise

10 the plans, designs, or cost estimates of the Secretary

11 in response to concerns raised, or information pro12 vided by, the tribe or tribal organization.

13 ‘‘(D) A negotiation session during which the Sec14 retary and the tribe or tribal organization shall seek

15 to develop a mutually agreeable contract proposal.

16 ‘‘(E) Upon the request of the tribe or tribal orga17 nization, the use of an alternative dispute resolution

18 mechanism to seek resolution of all remaining areas

19 of disagreement pursuant to the dispute resolution

20 provisions under subchapter IV of chapter 5 of title

21 5, United States Code.

22 ‘‘(F) The submission to the Secretary by the tribe

23 or tribal organization of a final contract proposal

24 pursuant to section 102(a).
36

•S 2036 RS

1 ‘‘(4)(A) Subject to subparagraph (B), in funding a

2 fixed-price construction contract pursuant to section

3 106(a), the Secretary shall provide for the following:

4 ‘‘(i) The reasonable costs to the tribe or tribal or5 ganization for general administration incurred in

6 connection with the project that is the subject of the

7 contract.

8 ‘‘(ii) The ability of the contractor that carries

9 out the construction contract to make a reasonable

10 profit, taking into consideration the risks associated

11 with carrying out the contract and other relevant con12 siderations.

13 ‘‘(B) In establishing a contract budget for a construc14 tion project, the Secretary shall not be required to sepa15 rately identify the components described in clauses (i) and

16 (ii) of subparagraph (A).

17 ‘‘(C) The total amount awarded under a construction

18 contract shall reflect an overall fair and reasonable price

19 to the parties, including the following costs:

20 ‘‘(i) The reasonable costs to the tribal organiza21 tion of performing the contract, taking into consider22 ation the terms of the contract and the requirements

23 of this Act and any other applicable law.

24 ‘‘(ii) The costs of preparing the contract proposal

25 and supporting cost data.
37

•S 2036 RS

1 ‘‘(iii) The costs associated with auditing the gen2 eral and administrative costs of the tribal organiza3 tion.

4 ‘‘(iv) In the case of a fixed-price contract, a fair

5 profit determined by taking into consideration the

6 relevant risks and local market conditions.

7 ‘‘(n) Notwithstanding any other provision of law, the

8 rental rates for housing provided to an employee by the Fed9 eral Government in Alaska pursuant to a self-determination

10 contract shall be determined on the basis of—

11 ‘‘(1) the reasonable value of the quarters and fa12 cilities (as such terms are defined under section 5911

13 of title 5, United States Code) to such employee, and

14 ‘‘(2) the circumstances under which such quar15 ters and facilities are provided to such employee,

16 as based on the cost of comparable private rental housing

17 in the nearest established community with a year-round

18 population of 1,500 or more individuals.’’;

19 (14) in section 106(a)—

20 (A) in paragraph (1), by inserting before

21 the period at the end of the following: ‘‘, without

22 regard to any organizational level within the De23 partment of the Interior or the Department of

24 Health and Human Services, as appropriate, at

25 which the program, function, service, or activity
38

•S 2036 RS

1 or portion thereof, including supportive adminis2 trative functions that are otherwise contractable,

3 is operated’’;

4 (B) in paragraph (2), by inserting after

5 ‘‘consist of’’ the following: ‘‘an amount for’’; and

6 (C) by striking paragraph (3) and inserting

7 the following new paragraphs:

8 ‘‘(3)(A) The contract support costs that are eligible

9 costs for the purposes of receiving funding under this Act

10 shall include the costs of reimbursing each tribal contractor

11 for reasonable and allowable costs of—

12 ‘‘(i) direct program expenses for the operation of

13 the Federal program that is the subject of the con14 tract; and

15 ‘‘(ii) any additional administrative or other ex16 pense related to the overhead incurred by the tribal

17 contractor in connection with the operation of the

18 Federal program, function, service, or activity pursu19 ant to the contract.

20 ‘‘(B) On an annual basis, during such period as a

21 tribe or tribal organization operates a Federal program,

22 function, service, or activity pursuant to a contract entered

23 into under this Act, the tribe or tribal organization shall

24 have the option to negotiate with the Secretary the amount
39

•S 2036 RS

1 of funds that the tribe or tribal organization is entitled to

2 receive under such contract pursuant to this paragraph.

3 ‘‘(4) For each fiscal year during which a self-deter4 mination contract is in effect, any savings attributable to

5 the operation of a Federal program, function, service, or

6 activity under a self-determination contract by a tribe or

7 tribal organization (including a cost reimbursement con8 struction contract) shall—

9 ‘‘(A) be used to provide additional services or

10 benefits under the contract; or

11 ‘‘(B) be expended by the tribe or tribal organiza12 tion in the succeeding fiscal year, as provided in sec13 tion 8.

14 ‘‘(5) Subject to paragraph (6), during the initial year

15 that a self-determination contract is in effect, the amount

16 required to be paid under paragraph (2) shall include start17 up costs consisting of the reasonable costs that have been

18 incurred or will be incurred on a one-time basis pursuant

19 to the contract necessary—

20 ‘‘(A) to plan, prepare for, and assume operation

21 of the program, function, service, or activity that is

22 the subject of the contract; and

23 ‘‘(B) to ensure compliance with the terms of the

24 contract and prudent management.
40

•S 2036 RS

1 ‘‘(6) Costs incurred before the initial year that a self2 determination contract is in effect may not be included in

3 the amount required to be paid under paragraph (2) if the

4 Secretary does not receive a written notification of the na5 ture and extent of the costs prior to the date on which such

6 costs are incurred.’’;

7 (15) in section 106(c)—

8 (A) in paragraphs (1) and (2), by striking

9 ‘‘indirect costs’’ each place it appears and insert10 ing ‘‘indirect costs and other negotiated contract

11 support costs’’;

12 (B) in paragraph (4), by striking ‘‘and’’ at

13 the end;

14 (C) in paragraph (5), by striking the period

15 at the end and inserting ‘‘; and’’; and

16 (D) by adding at the end the following new

17 paragraph:

18 ‘‘(6) an accounting of any deficiency of funds

19 needed to maintain the preexisting level of services to

20 any tribes affected by contracting activities under this

21 Act, and a statement of the amount of funds needed

22 for transitional purposes to enable contractors to con23 vert from a Federal fiscal year accounting cycle to a

24 different accounting cycle, as authorized by section

25 105(d).’’;
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•S 2036 RS

1 (16) in section 106(f), by inserting immediately

2 after the second sentence the following new sentence:

3 ‘‘For the purpose of determining the 365-day period

4 specified in this paragraph, an audit report shall be

5 deemed to have been received on the date of actual re6 ceipt by the Secretary, if, within 60 days after receiv7 ing the report, the Secretary does not give notice of

8 a determination by the Secretary to reject the single9 agency report as insufficient due to noncompliance

10 with chapter 75 of title 31, United States Code, or

11 noncompliance with any other applicable law.’’;

12 (17) by striking subsection (g) of section 106 and

13 inserting the following new subsection:

14 ‘‘(g) Upon the approval of a self-determination con15 tract, the Secretary shall allocate to the contract the full

16 amount of funds to which the contractor is entitled under

17 section 106(a), subject to adjustments for each subsequent

18 year that such tribe or tribal organization administers a

19 Federal program, function, service, or activity under such

20 contract.’’;

21 (18) by striking subsection (i) of section 106 and

22 inserting the following new subsection:

23 ‘‘(i) On an annual basis, the Secretary shall consult

24 with, and solicit the participation of, Indian tribes and

25 tribal organizations in the development of the budget for
42

•S 2036 RS

1 the Indian Health Service and the Bureau of Indian Affairs

2 (including participation of Indian tribes and tribal organi3 zations in formulating annual budget requests that the Sec4 retary submits to the President for submission to Congress

5 pursuant to section 1105 of title 31, United States Code).’’;

6 and

7 (19) by adding at the end of section 106 the fol8 lowing new subsections:

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

10 under a self-determination contract to meet matching or

11 cost participation requirements under other Federal and

12 non-Federal programs.

13 ‘‘(k) Without intending any limitation, a tribal orga14 nization may, without the approval of the Secretary, ex15 pend funds provided under a self-determination contract for

16 the following purposes, to the extent that the expenditure

17 of the funds is supportive of a contracted program:

18 ‘‘(1) Depreciation and use allowances not other19 wise specifically prohibited by law, including the de20 preciation of facilities owned by the tribe or tribal or21 ganization and constructed with Federal financial as22 sistance.

23 ‘‘(2) Publication and printing costs.

24 ‘‘(3) Building, realty, and facilities costs, includ25 ing rental costs or mortgage expenses.
43

•S 2036 RS

1 ‘‘(4) Automated data processing and similar

2 equipment or services.

3 ‘‘(5) Costs for capital assets and repairs.

4 ‘‘(6) Management studies.

5 ‘‘(7) Professional services, other than services

6 provided in connection with judicial proceedings by

7 or against the United States.

8 ‘‘(8) Insurance and indemnification, including

9 insurance covering the risk of loss of or damage to

10 property used in connection with the contract without

11 regard to the ownership of such property.

12 ‘‘(9) Costs incurred to raise funds or contribu13 tions from non-Federal sources for the purpose of fur14 thering the goals and objectives of the self-determina15 tion contract.

16 ‘‘(10) Interest expenses paid on capital expendi17 tures such as buildings, building renovation, or acqui18 sition or fabrication of capital equipment, and inter19 est expenses on loans necessitated due to delays by the

20 Secretary in providing funds under a contract.

21 ‘‘(11) Expenses of a governing body of a tribal

22 organization that are attributable to the management

23 or operation of programs under this Act.

24 ‘‘(12) Costs associated with the management of

25 pension funds, self-insurance funds, and other funds
44

•S 2036 RS

1 of the tribal organization that provide for participa2 tion by the Federal Government.

3 ‘‘(l) Not later than 1 year after the date of enactment

4 of this subsection, the Director of the Office of Management

5 and Budget, with the active participation of Indian tribes

6 and tribal organizations, the Inspector General of the De7 partment of the Interior, and the head of the Cost Deter8 mination Branch of the Department of Health and Human

9 Services, shall develop a separate set of cost principles ap10 plicable to Indian tribes and tribal organizations that is

11 consistent with the government-to-government, Federal-trib12 al relationship provided for in this Act.

13 ‘‘(m) Except with respect to a rescission and

14 reassumption of a contract made under section 109, the Sec15 retary shall in no circumstance suspend, withhold, or delay

16 the payment of funds to a tribal organization under a self17 determination contract.

18 ‘‘(n) The program income earned by a tribal organiza19 tion in the course of carrying out a self-determination con20 tract—

21 ‘‘(1) shall be used by the tribal organization to

22 further the general purposes of the contract; and

23 ‘‘(2) shall not be a basis for reducing the amount

24 of funds otherwise obligated to the contract.

25 ‘‘(o) To the extent that—
45

•S 2036 RS

1 ‘‘(1) programs, functions, services, or activities

2 carried out by tribal organizations pursuant to con3 tracts entered into under this Act reduce the adminis4 trative or other responsibilities of the Secretary with

5 respect to the operation of Indian programs and re6 sult in savings that have not otherwise been included

7 in the amount of contract funds determined under

8 subsection (a), and

9 ‘‘(2) making such savings available to tribal or10 ganizations that carry out contracts under this Act

11 will not adversely affect the ability of the Secretary

12 to carry out the responsibilities of the Secretary with

13 respect to other tribes and tribal organizations,

14 the Secretary shall make such savings available to tribal

15 organizations described in paragraph (1).

16 ‘‘(p) Notwithstanding any other provision of law (in17 cluding any regulation), a tribal organization that carries

18 out a self-determination contract may, with respect to allo19 cations within the approved budget of the contract, rebudget

20 to meet contract requirements, if such rebudgeting would

21 not have a significant and adverse effect on the level or na22 ture of services provided pursuant to the contract.’’.
46

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1 SEC. 3. CONTRACT SPECIFICATIONS.

2 Section 108 of the Indian Self-Determination and

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

4 read as follows:

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

6 ‘‘(a) Each self-determination contract entered into

7 under this Act, or grant made pursuant to this Act, shall—

8 ‘‘(1) contain, or incorporate by reference, the

9 provisions of the model agreement described in sub10 section (c) (with modifications where indicated and

11 the blanks appropriately filled in), and

12 ‘‘(2) contain such other provisions as are agreed

13 to by the parties.

14 ‘‘(b) Notwithstanding any other provision of law, the

15 Secretary may make payments pursuant to section 1(b)(4)

16 of such model agreement. As provided in section 1(b)(5) of

17 the model agreement, the records of the tribal government

18 or tribal organization specified in such section shall not be

19 considered Federal records for purposes of chapter 5 of title

20 5, United States Code.

21 ‘‘(c) The model agreement referred to in subsection

22 (a)(1) reads as follows:

23 ‘‘ ‘SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND

24 THE ll TRIBAL GOVERNMENT.

25 ‘‘ ‘(a) AUTHORITY AND PURPOSE.—
47

•S 2036 RS

1 ‘‘ ‘(1) AUTHORITY.—This agreement, denoted a

2 Self-Determination Contract (referred to in this

3 agreement as the ‘‘Contract’’), is entered into by the

4 Secretary of the Interior or the Secretary of Health

5 and Human Services (referred to in this agreement as

6 the ‘‘Secretary’’), for and on behalf of the United

7 States pursuant to title I of the Indian Self-Deter8 mination and Education Assistance Act (25 U.S.C.

9 450 et seq.) and by the authority of the ll tribal

10 government or tribal organization (referred to in this

11 agreement as the ‘‘Contractor’’). Unless otherwise pro12 vided in this agreement, the provisions of title I of the

13 Indian Self-Determination and Education Assistance

14 Act (25 U.S.C. 450 et seq.) are incorporated in this

15 agreement.

16 ‘‘ ‘(2) PURPOSE.—Each provision of the Indian

17 Self-Determination and Education Assistance Act (25

18 U.S.C. 450 et seq.) and each provision of this Con19 tract shall be liberally construed for the benefit of the

20 Contractor to transfer the funding and the following

21 related functions, services, activities, and programs

22 (or portions thereof), including all related adminis23 trative functions, from the Federal Government to the

24 Contractor: (List functions, services, activities, and

25 programs).
48

•S 2036 RS

1 ‘‘ ‘(3) TRIBAL LAW AND FORUMS.—The laws or

2 policies (or both) and procedures of the Contractor

3 shall be applied in the performance of this Contract

4 and the powers and decisions of the tribal court of the

5 Contractor or other dispute resolution mechanism

6 shall be binding to the extent that such laws or poli7 cies (or both) and procedures are not inconsistent

8 with applicable Federal laws, including the Indian

9 Self-Determination and Education Assistance Act (25

10 U.S.C. 450 et seq.), construed in accordance with the

11 applicable canons of construction.

12 ‘‘ ‘(b) TERMS, PROVISIONS, AND CONDITIONS.—

13 ‘‘ ‘(1) TERM.—The term of this Contract shall

14 not exceed 3 years, unless the Secretary and the Con15 tractor agree to a longer period pursuant to section

16 105(c)(1)(B) of the Indian Self-Determination and

17 Education Assistance Act (25 U.S.C. 450j(c)(1)(B)).

18 Pursuant to section 105(d)(1) of such Act (25 U.S.C.

19 450j(d)), upon the election by the Contractor, the pe20 riod of this Contract shall be determined on the basis

21 of a calendar year, unless the Secretary and the Con22 tractor agree on a different period in the annual

23 funding agreement incorporated by reference in sub24 section (f)(2).
49

•S 2036 RS

1 ‘‘ ‘(2) EFFECTIVE DATE.—This Contract shall be2 come effective upon the date of the approval and exe3 cution by the Contractor and the Secretary, unless the

4 Contractor and the Secretary agree on an effective

5 date other than the date specified in this paragraph.

6 ‘‘ ‘(3) FUNDING AMOUNT.—Subject to the avail7 ability of appropriations, the Secretary shall make

8 available to the Contractor the total amount specified

9 in the annual funding agreement incorporated by ref10 erence in subsection (f)(2). Such amount shall not be

11 less than the applicable amount determined pursuant

12 to section 106(a) of the Indian Self-Determination

13 and Education Assistance Act (25 U.S.C. 450j–1).

14 ‘‘ ‘(4) LIMITATION OF COSTS.—The Contractor

15 shall not be obligated to continue performance that re16 quires an expenditure of funds in excess of the

17 amount of funds awarded under this Contract. If, at

18 any time, the Contractor has reason to believe that the

19 total amount required for performance of this Con20 tract or a specific activity conducted under this Con21 tract would be greater than the amount of funds

22 awarded under this Contract, the Contractor shall no23 tify the appropriate Secretary. If the appropriate

24 Secretary does not take such action as may be nec25 essary to increase the amount of funds awarded under
50

•S 2036 RS

1 this Contract, the Contractor may suspend perform2 ance of the Contract until such time as additional

3 funds are awarded. If, pursuant to the preceding sen4 tence, the Contractor suspends performance of the

5 Contract, all duties and responsibilities assumed by

6 the Contractor before the date on which the Contractor

7 suspends performance shall be transferred to the ap8 propriate Secretary, and the appropriate Secretary

9 shall carry out such duties and responsibilities.

10 ‘‘ ‘(5) PAYMENT.—

11 ‘‘ ‘(A) IN GENERAL.—Payments to the Con12 tractor under this Contract shall—

13 ‘‘ ‘(i) be made as expeditiously as prac14 ticable; and

15 ‘‘ ‘(ii) include financial arrangements

16 to cover funding during periods covered by

17 joint resolutions adopted by Congress mak18 ing continuing appropriations, to the extent

19 permitted by such resolutions.

20 ‘‘ ‘(B) QUARTERLY SEMIANNUAL, LUMP-SUM,

21 AND OTHER METHODS OF PAYMENT.—

22 ‘‘ ‘(i) IN GENERAL.—Pursuant to sec23 tion 108(b) of the Indian Self-Determina24 tion and Education Assistance Act, and

25 notwithstanding any other provision of law,
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1 for each fiscal year covered by this Contract,

2 the Secretary shall make available to the

3 Contractor the funds specified for the fiscal

4 year under the annual funding agreement

5 incorporated by reference pursuant to sub6 section (f)(2) by paying to the Contractor,

7 on a quarterly basis, one-quarter of the total

8 amount provided for in the annual funding

9 agreement for that fiscal year, in a lump10 sum payment or as semiannual payments,

11 or any other method of payment authorized

12 by law, in accordance with such method as

13 may be requested by the Contractor and

14 specified in the annual funding agreement.

15 ‘‘ ‘(ii) METHOD OF QUARTERLY PAY16 MENT.—If quarterly payments are specified

17 in the annual funding agreement incor18 porated by reference pursuant to subsection

19 (f)(2), each quarterly payment made pursu20 ant to clause (i) shall be made on the first

21 day of each quarter of the fiscal year, except

22 that in any case in which the contract year

23 coincides with the Federal fiscal year, pay24 ment for the first quarter shall be made not

25 later than the date that is 10 calendar days
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1 after the date on which the Office of Man2 agement and Budget apportions the appro3 priations for the fiscal year for the pro4 grams, services, functions, and activities

5 subject to this Contract.

6 ‘‘ ‘(iii) APPLICABILITY.—Chapter 39 of

7 title 31, United States Code, shall apply to

8 the payment of funds due under this Con9 tract and the annual funding agreement re10 ferred to in clause (i).

11 ‘‘ ‘(6) RECORDS AND MONITORING.—

12 ‘‘ ‘(A) IN GENERAL.—Except for previously

13 provided copies of tribal records that the Sec14 retary demonstrates are clearly required to be

15 maintained as part of the recordkeeping system

16 of the Department of the Interior or the Depart17 ment of Health and Human Services (or both),

18 records of the Contractor shall not be considered

19 Federal records for purposes of chapter 5 of title

20 5, United States Code.

21 ‘‘ ‘(B) RECORDKEEPING SYSTEM.—The Con22 tractor shall maintain a recordkeeping system

23 and, upon reasonable advance request, provide

24 reasonable access to such records to the Sec25 retary.
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1 ‘‘ ‘(C) RESPONSIBILITIES OF CONTRAC2 TOR.—The Contractor shall be responsible for

3 managing the day-to-day operations conducted

4 under this Contract and for monitoring activi5 ties conducted under this Contract to ensure

6 compliance with the contract and applicable

7 Federal requirements. With respect to the mon8 itoring activities of the Secretary, the monitoring

9 visits shall be limited to not more than one per10 formance monitoring visit for this Contract by

11 the head of each operating division, depart12 mental bureau, or departmental agency, or duly

13 authorized representative of such head unless—

14 ‘‘ ‘(i) the Contractor agrees to one or

15 more additional visits; or

16 ‘‘ ‘(ii) the appropriate official deter17 mines that there is reasonable cause to be18 lieve that grounds for reassumption of the

19 Contract or other serious contract perform20 ance deficiency exists.

21 No additional visit referred to in clause (i) shall

22 be made until such time as reasonable advance

23 notice that includes a description of the nature

24 of the problem that requires the additional visit

25 has been given to the Contractor.
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1 ‘‘ ‘(7) PROPERTY.—

2 ‘‘ ‘(A) IN GENERAL.—As provided in section

3 105(f) of the Indian Self-Determination and

4 Education Assistance Act (25 U.S.C. 450j(f)), at

5 the request of the Contractor, the Secretary shall

6 make available, or transfer to the Contractor, all

7 reasonably divisible real property, facilities,

8 equipment, and personal property that the Sec9 retary has used to provide or administer the pro10 grams, services, functions, and activities covered

11 by this Contract. A mutually agreed upon list

12 specifying the property, facilities, and equipment

13 so furnished shall also be prepared by the Con14 tractor, with the concurrence of the Secretary,

15 and periodically revised by the contractor, with

16 the concurrence of the Secretary.

17 ‘‘ ‘(B) RECORDS.—The Secretary shall

18 maintain a record of all property referred to in

19 subparagraph (A) or other property acquired by

20 the Contractor under section 105(f)(2)(A) of such

21 Act for purposes of replacement and shall replace

22 such property on the same basis as property re23 maining under the control of the Secretary.

24 ‘‘ ‘(C) JOINT USE AGREEMENTS.—Upon the

25 request of the Contractor, the Secretary and the
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1 Contractor shall enter into a separate joint use

2 agreement to address the shared use by the par3 ties of real or personal property that is not rea4 sonably divisible.

5 ‘‘ ‘(D) ACQUISITION OF PROPERTY.—The

6 Secretary shall delegate to the Contractor the au7 thority to acquire such excess property as the

8 Contractor may determine to be appropriate in

9 the judgment of the Contractor to support the

10 programs, services, functions, and activities op11 erated pursuant to this Contract.

12 ‘‘ ‘(E) CONFISCATED OR EXCESS PROP13 ERTY.—The Secretary shall assist the Contractor

14 in obtaining such confiscated or excess property

15 as may become available to tribes, tribal organi16 zations, or local governments.

17 ‘‘ ‘(F) SCREENER IDENTIFICATION CARD.—A

18 screener identification card (General Services

19 Administration form numbered 2946) shall be is20 sued to the Contractor not later than the effective

21 date of this Contract. The designated official

22 shall, upon request, assist the Contractor in se23 curing the use of the card.

24 ‘‘ ‘(G) CAPITAL EQUIPMENT.—The Contrac25 tor shall determine the capital equipment, leases,
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1 rentals, property, or services the Contractor re2 quires to perform the obligations of the Contrac3 tor under this subsection, and shall acquire and

4 maintain records of such capital equipment,

5 property rentals, leases, property, or services

6 through applicable tribal procurement proce7 dures.

8 ‘‘ ‘(8) AVAILABILITY OF FUNDS.—Notwithstand9 ing any other provision of law, any funds provided

10 under this contract—

11 ‘‘ ‘(A) shall remain available until ex12 pended; and

13 ‘‘ ‘(B) with respect to such funds, no fur14 ther—

15 ‘‘ ‘(i) approval by the Secretary, or

16 ‘‘ ‘(ii) justifying documentation from

17 the Contractor,

18 shall be required prior to the expenditure of such

19 funds.

20 ‘‘ ‘(9) TRANSPORTATION.—Beginning on the ef21 fective date of this Contract, the Secretary shall au22 thorize the Contractor to obtain interagency motor

23 pool vehicles and related services for performance of

24 any activities carried out under this Contract.
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1 ‘‘ ‘(10) REGULATORY AUTHORITY.—Except as

2 specifically provided in the Indian Self-Determina3 tion and Education Assistance Act (25 U.S.C. 450 et

4 seq.) the Contractor is not required to abide by Fed5 eral program guidelines, manuals, or policy direc6 tives, unless otherwise agreed to by the Contractor

7 and the Secretary.

8 ‘‘ ‘(11) DISPUTES.—

9 ‘‘ ‘(A) THIRD-PARTY MEDIATION DEFINED.—

10 For the purposes of this Contract, the term

11 ‘‘third-party mediation’’ means a form of medi12 ation whereby the Secretary and the Contractor

13 nominate a third party who is not employed by

14 or significantly involved with the Secretary of

15 the Interior, the Secretary of Health and Human

16 Services, or the Contractor, to serve as a third17 party mediator to mediate disputes under this

18 Contract.

19 ‘‘ ‘(B) ALTERNATIVE PROCEDURES.—In ad20 dition to, or as an alternative to, remedies and

21 procedures prescribed by section 110 of the In22 dian Self-Determination and Education Assist23 ance Act (25 U.S.C. 450m–1), the parties to this

24 Contract may jointly—
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1 ‘‘ ‘(i) submit disputes under this Con2 tract to third-party mediation;

3 ‘‘ ‘(ii) submit the dispute to the adju4 dicatory body of the Contractor, including

5 the tribal court of the Contractor;

6 ‘‘ ‘(iii) submit the dispute to mediation

7 processes provided for under the laws, poli8 cies, or procedures of the Contractor; or

9 ‘‘ ‘(iv) use the administrative dispute

10 resolution processes authorized in sub11 chapter IV of chapter 5 of title 5, United

12 States Code.

13 ‘‘ ‘(C) EFFECT OF DECISIONS.—The Sec14 retary shall be bound by decisions made pursu15 ant to the processes set forth in subparagraph

16 (B), except that the Secretary shall not be bound

17 by any decision that significantly conflicts with

18 the interests of Indians or the United States.

19 ‘‘ ‘(12) ADMINISTRATIVE PROCEDURES OF CON20 TRACTOR.—Pursuant to the Indian Civil Rights Act

21 of 1968 (25 U.S.C. 1301 et seq.), the laws, policies,

22 and procedures of the Contractor shall provide for ad23 ministrative due process (or the equivalent of admin24 istrative due process) with respect to programs, serv-
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1 ices, functions, and activities that are provided by the

2 Contractor pursuant to this Contract.

3 ‘‘ ‘(13) SUCCESSOR ANNUAL FUNDING AGREE4 MENT.—

5 ‘‘ ‘(A) IN GENERAL.—Negotiations for a suc6 cessor annual funding agreement, provided for in

7 subsection (f)(2), shall begin not later than 120

8 days prior to the conclusion of the preceding an9 nual funding agreement. The funding for each

10 such successor annual funding agreement shall

11 only be reduced pursuant to section 106(b) of the

12 Indian Self-Determination and Education As13 sistance Act (25 U.S.C. 450j–1(b)).

14 ‘‘ ‘(B) INFORMATION.—The Secretary shall

15 prepare and supply relevant information, and

16 promptly comply with any request by the Con17 tractor for information that the Contractor rea18 sonably needs to determine the amount of funds

19 that may be available for a successor annual

20 funding agreement, as provided for in subsection

21 (f)(2) of this Contract.

22 ‘‘ ‘(14) CONTRACT REQUIREMENTS; APPROVAL BY

23 SECRETARY.—

24 ‘‘ ‘(A) IN GENERAL.—Except as provided in

25 subparagraph (B), for the term of the Contract,
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1 section 2103 of the Revised Statutes (25 U.S.C.

2 81) and section 16 of the Act of June 18, 1934

3 (48 Stat. 987, chapter 576; 25 U.S.C. 476), shall

4 not apply to any contract entered into in con5 nection with this Contract.

6 ‘‘ ‘(B) REQUIREMENTS.—Each Contract en7 tered into by the Contractor with a third party

8 in connection with performing the obligations of

9 the Contractor under this Contract shall—

10 ‘‘ ‘(i) be in writing;

11 ‘‘ ‘(ii) identify the interested parties,

12 the authorities of such parties, and purposes

13 of the Contract;

14 ‘‘ ‘(iii) state the work to be performed

15 under the Contract; and

16 ‘‘ ‘(iv) state the process for making any

17 claim, the payments to be made, and the

18 terms of the Contract, which shall be fixed.

19 ‘‘ ‘(c) OBLIGATION OF THE CONTRACTOR.—

20 ‘‘ ‘(1) CONTRACT PERFORMANCE.—Except as pro21 vided in subsection (d)(2), the Contractor shall per22 form the programs, services, functions, and activities

23 as provided in the annual funding agreement under

24 subsection (f)(2) of this Contract.
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1 ‘‘ ‘(2) AMOUNT OF FUNDS.—The total amount of

2 funds to be paid under this Contract shall be deter3 mined in an annual funding agreement entered into

4 between the Secretary and the Contractor, which shall

5 be incorporated into this Contract.

6 ‘‘ ‘(3) CONTRACTED PROGRAMS.—Subject to the

7 availability of appropriated funds, the Contractor

8 shall administer the programs, services, functions,

9 and activities identified in this Contract and funded

10 through the annual funding agreement under sub11 section (f)(2).

12 ‘‘ ‘(4) TRUST SERVICES FOR INDIVIDUAL

13 INDIANS.—

14 ‘‘ ‘(A) IN GENERAL.—To the extent that the

15 annual funding agreement provides funding for

16 the delivery of trust services to individual Indi17 ans that have been provided by the Secretary, the

18 Contractor shall maintain at least the same level

19 of service as the Secretary provided for such in20 dividual Indians, subject to the availability of

21 appropriated funds for such services.

22 ‘‘ ‘(B) TRUST SERVICES TO INDIVIDUAL IN23 DIANS.—For the purposes of this paragraph

24 only, the term ‘‘trust services for individual In25 dians’’ means only those services that pertain to
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1 land or financial management connected to indi2 vidually held allotments.

3 ‘‘ ‘(5) FAIR AND UNIFORM SERVICES.—The Con4 tractor shall provide services under this Contract in

5 a fair and uniform manner and shall provide access

6 to an administrative or judicial body empowered to

7 adjudicate or otherwise resolve complaints, claims,

8 and grievances brought by program beneficiaries

9 against the Contractor arising out of the performance

10 of the Contract.

11 ‘‘ ‘(d) OBLIGATION OF THE UNITED STATES.—

12 ‘‘ ‘(1) TRUST RESPONSIBILITY.—

13 ‘‘ ‘(A) IN GENERAL.—The United States re14 affirms the trust responsibility of the United

15 States to the ll Indian tribe(s) to protect and

16 conserve the trust resources of the Indian tribe(s)

17 and the trust resources of individual Indians.

18 ‘‘ ‘(B) CONSTRUCTION OF CONTRACT.—Noth19 ing in this Contract may be construed to termi20 nate, waive, modify, or reduce the trust respon21 sibility of the United States to the tribe(s) or in22 dividual Indians.

23 ‘‘ ‘(C) DUTIES OF SECRETARY.—The Sec24 retary shall act in good faith in upholding such

25 trust responsibility. To the extent that health
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1 programs are included in this Contract, the Sec2 retary shall act in good faith in cooperating with

3 the Contractor to achieve the goals set forth in

4 the Indian Health Care Improvement Act (25

5 U.S.C. 1601 et seq.).

6 ‘‘ ‘(2) PROGRAMS RETAINED.—As specified in the

7 annual funding agreement, the United States hereby

8 retains the programs, services, functions, and activi9 ties with respect to the tribe(s) that are not specifi10 cally assumed by the Contractor in the annual fund11 ing agreement under subsection (f)(2).

12 ‘‘ ‘(e) OTHER PROVISIONS.—

13 ‘‘ ‘(1) DESIGNATED OFFICIALS.—Not later than

14 the effective date of this Contract, the United States

15 shall provide to the Contractor, and the Contractor

16 shall provide to the United States, a written designa17 tion of a senior official to serve as a representative

18 for notices, proposed amendments to the Contract,

19 and other purposes for this Contract.

20 ‘‘ ‘(2) CONTRACT MODIFICATIONS OR AMEND21 MENT.—

22 ‘‘ ‘(A) IN GENERAL.—Except as provided in

23 subparagraph (B), no modification to this Con24 tract shall take effect unless such modification is

25 made in the form of a written amendment to the
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1 Contract, and the Contractor and the Secretary

2 provide written consent for the modification.

3 ‘‘ ‘(B) EXCEPTION.—The addition of supple4 mental funds for programs, functions, and ac5 tivities (or portions thereof) already included in

6 the annual funding agreement under subsection

7 (f)(2) shall not be subject to subparagraph (A).

8 ‘‘ ‘(3) OFFICIALS NOT TO BENEFIT.—No Member

9 of Congress, or resident commissioner, shall be admit10 ted to any share or part of any contract executed pur11 suant to this Contract, or to any benefit that may

12 arise from such contract. This paragraph may not be

13 construed to apply to any contract with a third party

14 entered into under this Contract if such contract is

15 made with a corporation for the general benefit of the

16 corporation.

17 ‘‘ ‘(4) COVENANT AGAINST CONTINGENT FEES.—

18 The parties warrant that no person or selling agency

19 has been employed or retained to solicit or secure any

20 contract executed pursuant to this Contract upon an

21 agreement or understanding for a commission, per22 centage, brokerage, or contingent fee, excepting bona

23 fide employees or bona fide established commercial or

24 selling agencies maintained by the Contractor for the

25 purpose of securing business.
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1 ‘‘ ‘(f) ATTACHMENTS.—

2 ‘‘ ‘(1) APPROVAL OF CONTRACT.—Unless pre3 viously furnished to the Secretary, the resolution of

4 the ll Indian tribe(s) authorizing the contracting

5 of the programs, services, functions, and activities

6 identified in this Contract is attached to this Con7 tract as attachment 1.

8 ‘‘ ‘(2) ANNUAL FUNDING AGREEMENT.—

9 ‘‘ ‘(A) IN GENERAL.—The negotiated and

10 duly approved annual funding agreement under

11 this Contract shall only contain—

12 ‘‘ ‘(i) terms that identify the programs,

13 services, functions, and activities to be per14 formed or administered, the general budget

15 category assigned, the funds to be provided,

16 and the time and method of payment; and

17 ‘‘ ‘(ii) such other provisions, including

18 a brief description of the programs, services,

19 functions, and activities to be performed

20 (including those supported by financial re21 sources other than those provided by the

22 Secretary), as the Contractor may request

23 and to which the parties agree.

24 ‘‘ ‘(B) INCORPORATION BY REFERENCE.—

25 The annual funding agreement is hereby incor-
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1 porated in its entirety in this Contract and at2 tached to this Contract as attachment 2.’ ’’.

3 SEC. 4. ADDITIONAL AMENDMENTS.

4 The Indian Self-Determination and Education Assist5 ance Act (25 U.S.C. 450 et seq.), as amended by sections

6 2 and 3, is further amended—

7 (1) in section 109—

8 (A) by striking ‘‘action as prescribed by

9 him’’ and all that follows through ‘‘in such cases,

10 he’’ and inserting the following: ‘‘action as pre11 scribed by the Secretary to remedy the contract

12 deficiency, except that the appropriate Secretary

13 may, upon written notice to a tribal organiza14 tion, and the tribe served by the tribal organiza15 tion, immediately rescind a contract or grant

16 and resume control or operation of a program,

17 activity, function, or service, if the Secretary

18 finds that (i) there is an immediate threat of im19 minent harm to the safety of any person, and

20 (ii) such threat arises from the failure of the con21 tractor to fulfill the requirements of the contract.

22 In such cases, the Secretary’’;

23 (B) by striking the second period after ‘‘the

24 tribal organization may approve’’; and
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1 (C) by inserting before the last sentence, the

2 following new sentence: ‘‘In any hearing or ap3 peal provided for under this section, the Sec4 retary shall have the burden of proof to establish,

5 by clear and convincing evidence, the validity of

6 the grounds for rescinding, assuming, or

7 reassuming the contract that is the subject of the

8 hearing.’’;

9 (2) in section 110(a), by inserting immediately

10 before the period at the end the following: ‘‘(including

11 immediate injunctive relief to reverse a declination

12 finding under section 102(a)(2) or to compel the Sec13 retary to award and fund an approved self-deter14 mination contract)’’; and

15 (3) in section 110(d), by inserting immediately

16 before the period at the end the following: ‘‘, except

17 that all administrative appeals relating to such con18 tracts shall be heard by the Interior Board of Con19 tract Appeals established pursuant to section 8 of

20 such Act (41 U.S.C. 607)’’.

21 SEC. 5. REGULATIONS.

22 The Indian Self-Determination and Education Assist23 ance Act (25 U.S.C. 450 et seq.), as amended by sections

24 2 through 4, is further amended—
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1 (1) by striking subsections (a) and (b) of section

2 107 and inserting the following new subsections:

3 ‘‘(a)(1) Except as may be specifically authorized in

4 this subsection, or in any other provision of this Act, the

5 Secretary of the Interior and the Secretary of Health and

6 Human Services may not promulgate any regulation, nor

7 impose any nonregulatory requirement, relating to self-de8 termination contracts or the approval, award, or declina9 tion of such contracts, except that the Secretary of the Inte10 rior and the Secretary of Health and Human Services may

11 promulgate regulations under this Act relating to chapter

12 171 of title 28, United States Code, commonly known as

13 the ‘Federal Tort Claims Act’, the Contract Disputes Act

14 of 1978 (41 U.S.C. 601 et seq.), declination appeal proce15 dures, reassumption procedures, and retrocession proce16 dures.

17 ‘‘(2)(A) The regulations promulgated under this Act,

18 including the regulations referred to in this subsection, shall

19 be promulgated—

20 ‘‘(i) in conformance with sections 552 and 553

21 of title 5, United States Code and subsections (c), (d),

22 and (e) of this section; and

23 ‘‘(ii) as a single set of regulations in title 25 of

24 the Code of Federal Regulations.
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1 ‘‘(B) The authority to promulgate regulations set forth

2 in this Act shall expire if final regulations are not promul3 gated within 1 year after the date of enactment of the In4 dian Self-Determination Contract Reform Act of 1994.

5 ‘‘(b) The provisions of this Act shall supersede any con6 flicting provisions of law (including any conflicting regula7 tions) in effect on the day before the date of enactment of

8 the Indian Self-Determination Contract Reform Act of

9 1994.’’; and

10 (2) by adding at the end of section 107, the fol11 lowing new subsections:

12 ‘‘(d)(1) In drafting and promulgating regulations as

13 provided in subsection (a) (including drafting and promul14 gating any revised regulations), the Secretary of the Inte15 rior and the Secretary of Health and Human Services shall

16 confer with, and allow for active participation by, rep17 resentatives of Indian tribes, tribal organizations, individ18 ual tribal members, and representatives of other parties in19 terested in the implementation of this Act.

20 ‘‘(2)(A) In carrying out rulemaking processes under

21 this Act, the Secretary of the Interior and the Secretary

22 of Health and Human Services shall follow the guidance

23 of—
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1 ‘‘(i) subchapter III of chapter 5 of title 5, United

2 States Code, commonly known as the ‘Negotiated

3 Rulemaking Act of 1990’; and

4 ‘‘(ii) the recommendations of the Administrative

5 Conference of the United States numbered 82–4 and

6 85–5 entitled ‘Procedures for Negotiating Proposed

7 Regulations’ under sections 305.82–4 and 305.85–5 of

8 title 1, Code of Federal Regulations, and any succes9 sor recommendation or law (including any successor

10 regulation).

11 ‘‘(B) The tribal participants in the negotiation process

12 referred to in subparagraph (A) shall be chosen by the tribes

13 and tribal organizations participating in regional and na14 tional meetings that the Secretary shall convene. The par15 ticipants shall represent the groups described in this para16 graph and shall include tribal representatives from all geo17 graphic regions.

18 ‘‘(C) The negotiations referred to in subparagraph (B)

19 shall be conducted in a timely manner. Proposed regula20 tions to implement the amendments made by the Indian

21 Self-Determination Contract Reform Act of 1994 shall be

22 published in the Federal Register by the Secretary of the

23 Interior and the Secretary of Health and Human Services

24 not later than 180 days after the date of enactment of such

25 Act.
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1 ‘‘(D) Notwithstanding any other provision of law (in2 cluding any regulation), the Secretary of the Interior and

3 the Secretary of Health and Human Services are authorized

4 to jointly establish and fund such interagency committees

5 or other interagency bodies, including advisory bodies com6 prised of tribal representatives, as may be necessary or ap7 propriate to carry out the provisions of this Act.

8 ‘‘(e) Notwithstanding any other provision of law (in9 cluding any regulation), the Secretary may, with respect

10 to a contract entered into under this Act, make exceptions

11 in the regulations promulgated by the Secretary to carry

12 out this Act, or waive such regulations, if the Secretary

13 finds that such exception or waiver is in the best interest

14 of the Indians served by the contract. The Secretary shall

15 review each request for a waiver submitted by a tribe or

16 tribal organization under this subsection in accordance

17 with the declination criteria and procedures set forth in sec18 tion 102(a)(2).’’.

19 SEC. 6. CONFORMING AMENDMENTS.

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

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

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

23 Secretaries of the Interior and Health and Human Services

24 pursuant to section 107 of this Act’’.

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