I

103D CONGRESS

2D SESSION S. 2036

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 7, 1994

Referred to the Committee on Natural Resources

AN ACT

To specify the terms of contracts entered into by the United

States and Indian tribal organizations under the Indian

Self-Determination and Education Assistance Act, and

for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Self-Determina5 tion Contract Reform Act of 1994’’.
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1 SEC. 2. GENERAL AMENDMENTS.

2 The Indian Self-Determination and Education Assist3 ance Act (25 U.S.C. 450 et seq.) is amended—

4 (1) in section 4—

5 (A) in subsection (g), by striking ‘‘indirect

6 costs rate’’ and inserting ‘‘indirect cost rate’’;

7 (B) by striking ‘‘and’’ at the end of sub8 section (k);

9 (C) by striking the period at the end of

10 subsection (l) and inserting ‘‘; and’’; and

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

12 subsection:

13 ‘‘(m) ‘construction contract’ means a fixed-price or

14 cost-reimbursement self-determination contract for a con15 struction project, except that such term does not include

16 any contract—

17 ‘‘(1) that is limited to providing planning serv18 ices and construction management services (or a

19 combination of such services);

20 ‘‘(2) for the Housing Improvement Program or

21 roads maintenance program of the Bureau of Indian

22 Affairs administered by the Secretary of the Inte23 rior; or

24 ‘‘(3) for the health facility maintenance and im25 provement program administered by the Secretary of

26 Health and Human Services.’’;
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1 (2) by striking subsection (f) of section 5 and

2 inserting the following new subsection:

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

4 tribal organization receives or expends funds pursuant to

5 a contract entered into, or grant made, under this Act,

6 the tribal organization that requested such contract or

7 grant shall submit to the appropriate Secretary a single8 agency audit report required by chapter 75 of title 31,

9 United States Code.

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

11 report pursuant to paragraph (1), a tribal organization re12 ferred to in such paragraph shall submit such additional

13 information concerning the conduct of the program, func14 tion, service, or activity carried out pursuant to the con15 tract or grant that is the subject of the report as the tribal

16 organization may negotiate with the Secretary.

17 ‘‘(3) Any disagreement over reporting requirements

18 shall be subject to the declination criteria and procedures

19 set forth in section 102.’’;

20 (3) in section 7(a), by striking ‘‘of subcontrac21 tors’’ and inserting in lieu thereof ‘‘or subcontrac22 tors (excluding tribes and tribal organizations)’’;

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

24 new subsection:
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1 ‘‘(c) Notwithstanding subsections (a) and (b), with

2 respect to any self-determination contract, or portion of

3 a self-determination contract, that is intended to benefit

4 one tribe, the tribal employment or contract preference

5 laws adopted by such tribe shall govern with respect to

6 the administration of the contract or portion of the con7 tract.’’;

8 (5) at the end of section 102(a)(1), add the fol9 lowing new flush sentence:

10 ‘‘The programs, functions, services, or activities that are

11 contracted under this paragraph shall include administra12 tive functions of the Department of the Interior and the

13 Department of Health and Human Services (whichever is

14 applicable) that support the delivery of services to Indians,

15 including those administrative activities supportive of, but

16 not included as part of, the service delivery programs de17 scribed in this paragraph that are otherwise contractable.

18 The administrative functions referred to in the preceding

19 sentence shall be contractable without regard to the orga20 nizational level within the department that carries out

21 such functions.’’;

22 (6) in section 102(a)—

23 (A) in paragraph (2)—

24 (i) in the first sentence, by inserting

25 ‘‘, or a proposal to amend or renew a self-
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1 determination contract,’’ before ‘‘to the

2 Secretary for review’’;

3 (ii) in the second sentence—

4 (I) by striking ‘‘The’’ and insert5 ing ‘‘Subject to the provisions of para6 graph (4), the’’;

7 (II) by inserting ‘‘and award the

8 contract’’ after ‘‘approve the pro9 posal’’;

10 (III) by striking ‘‘, within sixty

11 days of receipt of the proposal,’’; and

12 (IV) by striking ‘‘a specific find13 ing is made that’’ and inserting ‘‘the

14 Secretary provides written notification

15 to the applicant that contains a spe16 cific finding supported by clearly dem17 onstrated evidence or a controlling

18 legal authority that’’;

19 (iii) in subparagraph (B), by striking

20 ‘‘or’’ after the semicolon;

21 (iv) in subparagraph (C), by striking

22 the period at the end and inserting a semi23 colon;

24 (v) by adding at the end the following

25 new subparagraphs:
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1 ‘‘(D) the amount of funds proposed under

2 the contract is in excess of the applicable fund3 ing level for the contract, as determined under

4 section 106(a); or

5 ‘‘(E) the program, function, service, or ac6 tivity (or portion thereof) that is the subject of

7 the proposal is beyond the scope of programs,

8 functions, services, or activities covered under

9 paragraph (1) because the proposal includes ac10 tivities that cannot lawfully be carried out by

11 the contractor.’’; and

12 (vi) by adding at the end of the para13 graph the following new flush material:

14 ‘‘Notwithstanding any other provision of law, the Sec15 retary may extend or otherwise alter the 90-day period

16 specified in the second sentence of this subsection, if be17 fore the expiration of such period, the Secretary obtains

18 the voluntary and express written consent of the tribe or

19 tribal organization to extend or otherwise alter such pe20 riod. The contractor shall include in the proposal of the

21 contractor the standards under which the tribal organiza22 tion will operate the contracted program, service, function,

23 or activity, including in the area of construction, provi24 sions regarding the use of licensed and qualified archi25 tects, applicable health and safety standards, adherence
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1 to applicable Federal, State, local, or tribal building codes

2 and engineering standards. The standards referred to in

3 the preceding sentence shall ensure structural integrity,

4 accountability of funds, adequate competition for sub5 contracting under tribal or other applicable law the com6 mencement, performance, and completion of the contract,

7 adherence to project plans and specifications (including

8 any applicable Federal construction guidelines and manu9 als), the use of proper materials or workmanship, nec10 essary inspection and testing, and changes, modifications,

11 stop work, and termination of the work when warranted.’’;

12 and

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

14 paragraph:

15 ‘‘(4) The Secretary shall approve any severable por16 tion of a contract proposal that does not support a declina17 tion finding described in paragraph (2). If the Secretary

18 determines under such paragraph that a contract pro19 posal—

20 ‘‘(A) proposes in part to plan, conduct, or ad21 minister a program, function, service, or activity

22 that is beyond the scope of programs covered under

23 paragraph (1), or
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1 ‘‘(B) proposes a level of funding that is in ex2 cess of the applicable level determined under section

3 106(a),

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

5 the Secretary and the tribal organization agree to, the

6 Secretary shall, as appropriate, approve such portion of

7 the program, function, service, or activity as is authorized

8 under paragraph (1) or approve a level of funding author9 ized under section 106(a). If a tribal organization elects

10 to carry out a severable portion of a contract proposal pur11 suant to this paragraph, subsection (b) shall only apply

12 to the portion of the contract that is declined by the Sec13 retary pursuant to this subsection.’’;

14 (7) in section 102(b)(3)—

15 (A) by inserting after ‘‘record’’ the follow16 ing: ‘‘with the right to engage in full discovery

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

18 (B) by inserting before the period the fol19 lowing: ‘‘, except that the tribe or tribal organi20 zation may, in lieu of filing such appeal, exer21 cise the option to initiate an action in a Federal

22 district court and proceed directly to such court

23 pursuant to section 110(a)’’;

24 (8) in section 102(d), by striking ‘‘as provided

25 in section 2671 of title 28)’’ and inserting ‘‘as pro-
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1 vided in section 2671 of title 28, United States

2 Code, and including an individual who provides

3 health care services pursuant to a personal services

4 contract with a tribal organization for the provision

5 of services in any facility owned, operated, or con6 structed under the jurisdiction of the Indian Health

7 Service)’’;

8 (9) by adding at the end of section 102 the fol9 lowing new subsection:

10 ‘‘(e)(1) With respect to any hearing or appeal con11 ducted pursuant to subsection (b)(3), the Secretary shall

12 have the burden of proof to establish by clearly dem13 onstrated evidence the validity of the grounds for declining

14 the contract proposal (or portion thereof).

15 ‘‘(2) Notwithstanding any other provision of law, a

16 decision by an official of the Department of the Interior

17 or the Department of Health and Human Services, as ap18 propriate (referred to in this paragraph as the ‘Depart19 ment’) that constitutes final agency action and that relates

20 to an appeal within the Department that is conducted

21 under subsection (b)(3) shall be made either—

22 ‘‘(A) by an official of the Department who holds

23 a position at a higher organizational level within the

24 Department than the level of the departmental agen25 cy (such as the Indian Health Service or the Bureau
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1 of Indian Affairs) in which the decision that is the

2 subject of the appeal was made; or

3 ‘‘(B) by an administrative judge.’’;

4 (10) by striking subsection (a) of section 105

5 and inserting the following new subsection:

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

7 subject to paragraph (3), the contracts and cooperative

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

9 organizations pursuant to sections 102 and 103 shall not

10 be subject to Federal contracting, discretionary grant or

11 cooperative agreement laws (including any regulations),

12 except to the extent that such laws expressly apply to In13 dian tribes.

14 ‘‘(2) Program standards applicable to a nonconstruc15 tion self-determination contract shall be set forth in the

16 contract proposal and the final contract of the tribe or

17 tribal organization.

18 ‘‘(3)(A) With respect to a construction contract (or

19 a subcontract of such a construction contract), the provi20 sions of the Office of Federal Procurement Policy Act (41

21 U.S.C. 401 et seq.) and the regulations relating to acquisi22 tions promulgated under such Act shall apply only to the

23 extent that the application of such provision to the con24 struction contract (or subcontract) is—
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1 ‘‘(i) necessary to ensure that the contract may

2 be carried out in a satisfactory manner;

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

4 and

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

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

7 the requirements of clauses (i) through (iii) of subpara8 graph (A) shall be included in an attachment to the con9 tract pursuant to negotiations between the Secretary and

10 the tribal organization.

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

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

13 Federal law (including an Executive order) relating to ac14 quisition by the Federal Government shall apply to a con15 struction contract that a tribe or tribal organization enters

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

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

18 ‘‘(I) The Federal Property and Administrative

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

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

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

22 (60 Stat. 809, chapter 744).

23 ‘‘(IV) Title III of the Federal Property and Ad24 ministrative Services Act of 1949 (63 Stat. 393 et

25 seq., chapter 288).
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1 ‘‘(V) Section 13 of the Act of Oct. 3, 1944 (58

2 Stat. 770; chapter 479).

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

4 44, United States Code.

5 ‘‘(VII) Section 2 of the Act of June 13, 1934

6 (48 Stat 948, chapter 483).

7 ‘‘(VIII) Sections 1 through 12 of the Act of

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

9 ‘‘(IX) The Service Control Act of 1965 (41

10 U.S.C. 351 et seq.).

11 ‘‘(X) The Small Business Act (15 U.S.C. 631

12 et seq.).

13 ‘‘(XI) Executive Order Nos. 12138, 11246,

14 11701 and 11758.’’;

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

16 following new subsection:

17 ‘‘(e) If an Indian tribe, or a tribal organization au18 thorized by a tribe, requests retrocession of the appro19 priate Secretary for any contract or portion of a contract

20 entered into pursuant to this Act, unless the tribe or tribal

21 organization rescinds the request for retrocession, such

22 retrocession shall become effective on—

23 ‘‘(1) the earlier of—
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1 ‘‘(A) the date that is 1 year after the date

2 the Indian tribe or tribal organization submits

3 such request; or

4 ‘‘(B) the date on which the contract ex5 pires; or

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

7 the Secretary and the Indian tribe.’’;

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

9 and inserting the following new paragraph:

10 ‘‘(2) donate to an Indian tribe or tribal organi11 zation title to any personal or real property found to

12 be excess to the needs of the Bureau of Indian Af13 fairs, the Indian Health Service, or the General

14 Services Administration, except that—

15 ‘‘(A) subject to the provisions of subpara16 graph (B), title to property and equipment fur17 nished by the Federal Government for use in

18 the performance of the contract or purchased

19 with funds under any self-determination con20 tract or grant agreement shall, unless otherwise

21 requested by the tribe or tribal organization,

22 vest in the appropriate tribe or tribal organiza23 tion;

24 ‘‘(B) if property described in subparagraph

25 (A) has a value in excess of $5,000 at the time
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1 of the retrocession, rescission, or termination of

2 the self-determination contract or grant agree3 ment, at the option of the Secretary, upon the

4 retrocession, rescission, or termination, title to

5 such property and equipment shall revert to the

6 Department of the Interior or the Department

7 of Health and Human Services, as appropriate;

8 and

9 ‘‘(C) all property referred to in subpara10 graph (A) shall remain eligible for replacement

11 on the same basis as if title to such property

12 were vested in the United States; and’’;

13 (13) by adding at the end of section 105 the

14 following new subsections:

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

16 Secretary to divide the administration of a program that

17 has previously been administered for the benefit of a

18 greater number of tribes than are represented by the tribal

19 organization that is a party to the contract, the Secretary

20 shall take such action as may be necessary to ensure that

21 services are provided to the tribes not served by a self22 determination contract, including program redesign in

23 consultation with the tribal organization and all affected

24 tribes.
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1 ‘‘(2) Nothing in this title shall be construed to limit

2 or reduce in any way the funding for any program, project,

3 or activity serving a tribe under this or other applicable

4 Federal law. Any tribe or tribal organization that alleges

5 that a self-determination contract is in violation of this

6 section may apply the provisions of section 110.

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

8 organization that carries out a nonconstruction self-deter9 mination contract may propose a redesign of a program,

10 activity, function, or service carried out by the tribal orga11 nization under the contract, including any nonstatutory

12 program standard, in such manner as to best meet the

13 local geographic, demographic, economic, cultural, health,

14 and institutional needs of the Indian people and tribes

15 served under the contract. The Secretary shall evaluate

16 any proposal to redesign any program, activity, function,

17 or service provided under the contract. With respect to de18 clining to approve a redesigned program, activity, func19 tion, or service under this subsection, the Secretary shall

20 apply the criteria and procedures set forth in section 102.

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

22 Property and Administrative Services Act of 1949 (40

23 U.S.C. 481(a)) (relating to Federal sources of supply, in24 cluding lodging providers, airlines and other transpor25 tation providers), a tribal organization carrying out a con-
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1 tract, grant, or cooperative agreement under this Act shall

2 be deemed an executive agency when carrying out such

3 contract, grant, or agreement and the employees of the

4 tribal organization shall be eligible to have access to such

5 sources of supply on the same basis as employees of an

6 executive agency have such access.

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

8 organization, the Secretary shall enter into a lease with

9 the Indian tribe or tribal organization that holds title to,

10 a leasehold interest in, or a trust interest in, a facility

11 used by the Indian tribe or tribal organization for the ad12 ministration and delivery of services under this Act.

13 ‘‘(2) The Secretary shall compensate each Indian

14 tribe or tribal organization that enters into a lease under

15 paragraph (1) for the use of the facility leased for the pur16 poses specified in such paragraph. Such compensation

17 may include rent, depreciation based on the useful life of

18 the facility, principal and interest paid or accrued, oper19 ation and maintenance expenses, and such other reason20 able expenses that the Secretary determines, by regula21 tion, to be allowable.

22 ‘‘(m)(1) Each construction contract requested, ap23 proved, or awarded under this Act shall be subject to—
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1 ‘‘(A) except as otherwise provided in this Act,

2 the provisions of this Act, other than sections

3 102(a)(2), 106(m), 108 and 109; and

4 ‘‘(B) section 314 of the Department of the In5 terior and Related Agencies Appropriations Act,

6 1991 (104 Stat. 1959).

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

8 tribal organizations in the development of construction

9 contract proposals, the Secretary shall provide, not later

10 than 30 days after receiving a request from a tribe or trib11 al organization, all information available to the Secretary

12 regarding the construction project, including construction

13 drawings, maps, engineering reports, design reports, plans

14 of requirements, cost estimates, environmental assess15 ments or environmental impact reports, and archaeological

16 reports.

17 ‘‘(3) Prior to finalizing a construction contract pro18 posal pursuant to section 102(a), and upon request of the

19 tribe or tribal organization that submits the proposal, the

20 Secretary shall provide for a precontract negotiation phase

21 in the development of a contract proposal. Such phase

22 shall include, at a minimum, the following elements:

23 ‘‘(A) The provision of technical assistance pur24 suant to section 103 and paragraph (2).
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1 ‘‘(B) A joint scoping session between the Sec2 retary and the tribe or tribal organization to review

3 all plans, specifications, engineering reports, cost es4 timates, and other information available to the par5 ties, for the purpose of identifying all areas of agree6 ment and disagreement.

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

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

9 in response to concerns raised, or information pro10 vided by, the tribe or tribal organization.

11 ‘‘(D) A negotiation session during which the

12 Secretary and the tribe or tribal organization shall

13 seek to develop a mutually agreeable contract pro14 posal.

15 ‘‘(E) Upon the request of the tribe or tribal or16 ganization, the use of an alternative dispute resolu17 tion mechanism to seek resolution of all remaining

18 areas of disagreement pursuant to the dispute reso19 lution provisions under subchapter IV of chapter 5

20 of title 5, United States Code.

21 ‘‘(F) The submission to the Secretary by the

22 tribe or tribal organization of a final contract pro23 posal pursuant to section 102(a).
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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

5 organization 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

12 considerations.

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 pro25 posal and supporting cost data.
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1 ‘‘(iii) The costs associated with auditing the

2 general and administrative costs of the tribal organi3 zation associated with the management of the con4 struction contract.

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

6 profit determined by taking into consideration the

7 relevant risks and local market conditions.

8 ‘‘(v) If the Secretary and the tribe or tribal or9 ganization are unable to develop a mutually agree10 able construction contract proposal pursuant to the

11 procedures set forth in this subsection, the tribe or

12 tribal organization may submit a final contract pro13 posal to the Secretary. Not later than 30 days after

14 receiving such final contract proposal, the Secretary

15 shall approve the contract proposal and award the

16 contract, unless, during such period the Secretary

17 declines the proposal pursuant to sections 102(a)(2)

18 and 102(b) of section 102 (including providing op19 portunity for an appeal pursuant to section 102(b)).

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

21 rental rates for housing provided to an employee by the

22 Federal Government in Alaska pursuant to a self-deter23 mination contract shall be determined on the basis of—

24 ‘‘(1) the reasonable value of the quarters and

25 facilities (as such terms are defined under section
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1 5911 of title 5, United States Code) to such em2 ployee, and

3 ‘‘(2) the circumstances under which such quar4 ters and facilities are provided to such employee,

5 as based on the cost of comparable private rental housing

6 in the nearest established community with a year-round

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

8 (14) in section 106(a)—

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

10 the period at the end the following: ‘‘, without

11 regard to any organizational level within the

12 Department of the Interior or the Department

13 of Health and Human Services, as appropriate,

14 at which the program, function, service, or ac15 tivity or portion thereof, including supportive

16 administrative functions that are otherwise con17 tractable, is operated’’;

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

19 ‘‘consist of’’ the following: ‘‘an amount for’’;

20 and

21 (C) by striking paragraph (3) and insert22 ing the following new paragraphs:

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

24 costs for the purposes of receiving funding under this Act
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1 shall include the costs of reimbursing each tribal contrac2 tor for reasonable and allowable costs of—

3 ‘‘(i) direct program expenses for the operation

4 of the Federal program that is the subject of the

5 contract, and

6 ‘‘(ii) any additional administrative or other ex7 pense related to the overhead incurred by the tribal

8 contractor in connection with the operation of the

9 Federal program, function, service, or activity pursu10 ant to the contract,

11 except that such funding shall not duplicate any funding

12 provided under section 106(a)(1).

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

14 tribe or tribal organization operates a Federal program,

15 function, service, or activity pursuant to a contract en16 tered into under this Act, the tribe or tribal organization

17 shall have the option to negotiate with the Secretary the

18 amount of funds that the tribe or tribal organization is

19 entitled to receive under such contract pursuant to this

20 paragraph.

21 ‘‘(4) For each fiscal year during which a self-deter22 mination contract is in effect, any savings attributable to

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

24 activity under a self-determination contract by a tribe or
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1 tribal organization (including a cost reimbursement con2 struction contract) shall—

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

4 benefits under the contract; or

5 ‘‘(B) be expended by the tribe or tribal organi6 zation in the succeeding fiscal year, as provided in

7 section 8.

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

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

10 required to be paid under paragraph (2) shall include

11 startup costs consisting of the reasonable costs that have

12 been incurred or will be incurred on a one-time basis pur13 suant to the contract necessary—

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

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

16 the subject of the contract; and

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

18 contract and prudent management.

19 ‘‘(6) Costs incurred before the initial year that a self20 determination contract is in effect may not be included

21 in the amount required to be paid under paragraph (2)

22 if the Secretary does not receive a written notification of

23 the nature and extent of the costs prior to the date on

24 which such costs are incurred.’’;

25 (15) in section 106(c)—
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1 (A) by striking ‘‘March 15’’ and inserting

2 ‘‘May 15’’;

3 (B) in paragraphs (1) and (2), by striking

4 ‘‘indirect costs’’ each place it appears and in5 serting ‘‘contract support costs’’;

6 (C) in paragraph (4), by striking ‘‘and’’ at

7 the end;

8 (D) in paragraph (5), by striking the pe9 riod at the end and inserting ‘‘; and’’; and

10 (E) by adding at the end the following new

11 paragraph:

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

13 needed to maintain the preexisting level of services

14 to any tribes affected by contracting activities under

15 this Act, and a statement of the amount of funds

16 needed for transitional purposes to enable contrac17 tors to convert from a Federal fiscal year accounting

18 cycle to a different accounting cycle, as authorized

19 by section 105(d).’’;

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

21 after the second sentence the following new sentence:

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

23 specified in this paragraph, an audit report shall be

24 deemed to have been received on the date of actual

25 receipt by the Secretary, if, within 60 days after re-
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1 ceiving the report, the Secretary does not give notice

2 of a determination by the Secretary to reject the sin3 gle-agency report as insufficient due to noncompli4 ance with chapter 75 of title 31, United States

5 Code, or noncompliance with any other applicable

6 law.’’;

7 (17) by striking subsection (g) of section 106

8 and inserting the following new subsection:

9 ‘‘(g) Upon the approval of a self-determination con10 tract, the Secretary shall add to the contract the full

11 amount of funds to which the contractor is entitled under

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

13 year that such tribe or tribal organization administers a

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

15 contract.’’;

16 (18) by striking subsection (i) of section 106

17 and inserting the following new subsection:

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

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

20 tribal organizations in the development of the budget for

21 the Indian Health Service and the Bureau of Indian Af22 fairs (including participation of Indian tribes and tribal

23 organizations in formulating annual budget requests that

24 the Secretary submits to the President for submission to
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1 Congress pursuant to section 1105 of title 31, United

2 States Code).’’; and

3 (19) by adding at the end of section 106 the

4 following new subsections:

5 ‘‘(j) Notwithstanding any other provision of law, a

6 tribal organization may use funds provided under a self7 determination contract to meet matching or cost participa8 tion requirements under other Federal and non-Federal

9 programs.

10 ‘‘(k) Without intending any limitation, a tribal orga11 nization may, without the approval of the Secretary, ex12 pend funds provided under a self-determination contract

13 for the following purposes, to the extent that the expendi14 ture of the funds is supportive of a contracted program:

15 ‘‘(1) Depreciation and use allowances not other16 wise specifically prohibited by law, including the de17 preciation of facilities owned by the tribe or tribal

18 organization.

19 ‘‘(2) Publication and printing costs.

20 ‘‘(3) Building, realty, and facilities costs, in21 cluding rental costs or mortgage expenses.

22 ‘‘(4) Automated data processing and similar

23 equipment or services.

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

25 ‘‘(6) Management studies.
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1 ‘‘(7) Professional services, other than services

2 provided in connection with judicial proceedings by

3 or against the United States.

4 ‘‘(8) Insurance and indemnification, including

5 insurance covering the risk of loss of or damage to

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

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

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

12 ‘‘(10) Interest expenses paid on capital expendi13 tures such as buildings, building renovation, or ac14 quisition or fabrication of capital equipment, and in15 terest expenses on loans necessitated due to delays

16 by the Secretary in providing funds under a con17 tract.

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

19 organization that are attributable to the manage20 ment or operation of programs under this Act.

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

22 pension funds, self-insurance funds, and other funds

23 of the tribal organization that provide for participa24 tion by the Federal Government.
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1 ‘‘(l) The Secretary may only suspend, withhold, or

2 delay the payment of funds for a period of 30 days begin3 ning on the date the Secretary makes a determination

4 under this paragraph to a tribal organization under a self5 determination contract, if the Secretary determines that

6 the tribal organization has failed to substantially carry out

7 the contract without good cause. In any such case, the

8 Secretary shall provide the tribal organization with rea9 sonable advance written notice, technical assistance (sub10 ject to available resources) to assist the tribal organiza11 tion, a hearing on the record not later than 10 days after

12 the date of such determination or such later date as the

13 tribal organization shall approve, and promptly release

14 any funds withheld upon subsequent compliance.

15 ‘‘(2) With respect to any hearing or appeal conducted

16 pursuant to this subsection, the Secretary shall have the

17 burden of proof to establish by clearly demonstrated evi18 dence the validity of the grounds for suspending, withhold19 ing, or delaying payment of funds.

20 ‘‘(m) The program income earned by a tribal organi21 zation in the course of carrying out a self-determination

22 contract—

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

24 further the general purposes of the contract; and
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1 ‘‘(2) shall not be a basis for reducing the

2 amount of funds otherwise obligated to the contract.

3 ‘‘(n) To the extent that programs, functions, services,

4 or activities carried out by tribal organizations pursuant

5 to contracts entered into under this Act reduce the admin6 istrative or other responsibilities of the Secretary with re7 spect to the operation of Indian programs and result in

8 savings that have not otherwise been included in the

9 amount of contract funds determined under subsection

10 (a), the Secretary shall make such savings available for

11 the provision of additional services to program bene12 ficiaries, either directly or through contractors, in a man13 ner equitable to both direct and contracted programs.

14 ‘‘(o) Notwithstanding any other provision of law (in15 cluding any regulation), a tribal organization that carries

16 out a self-determination contract may, with respect to allo17 cations within the approved budget of the contract,

18 rebudget to meet contract requirements, if such

19 rebudgeting would not have an adverse effect on the per20 formance of the contract.’’.

21 SEC. 3. CONTRACT SPECIFICATIONS.

22 The Indian Self-Determination Education Assistance

23 Act (25 U.S.C. 450 et seq.) is amended by inserting after

24 section 107 the following new section:
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1 ‘‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

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

3 under this Act shall—

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

5 provisions of the model agreement described in sub6 section (c) (with modifications where indicated and

7 the blanks appropriately filled in), and

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

9 to by the parties.

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

11 Secretary may make payments pursuant to section 1(b)(6)

12 of such model agreement. As provided in section 1(b)(7)

13 of the model agreement, the records of the tribal govern14 ment or tribal organization specified in such section shall

15 not be considered Federal records for purposes of chapter

16 5 of title 5, United States Code.

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

18 (a)(1) reads as follows:

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

20 THE ll TRIBAL GOVERNMENT.

21 ‘‘ ‘(a) AUTHORITY AND PURPOSE.—

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

23 Self-Determination Contract (referred to in this

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

25 Secretary of the Interior or the Secretary of Health

26 and Human Services (referred to in this agreement
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1 as the ‘‘Secretary’’), for and on behalf of the United

2 States pursuant to title I of the Indian Self-Deter3 mination and Education Assistance Act (25 U.S.C.

4 450 et seq.) and by the authority of the ll tribal

5 government or tribal organization (referred to in this

6 agreement as the ‘‘Contractor’’). The provisions of

7 title I of the Indian Self-Determination and Edu8 cation Assistance Act (25 U.S.C. 450 et seq.) are in9 corporated in this agreement.

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

11 Self-Determination and Education Assistance Act

12 (25 U.S.C. 450 et seq.) and each provision of this

13 Contract shall be liberally construed for the benefit

14 of the Contractor to transfer the funding and the

15 following related functions, services, activities, and

16 programs (or portions thereof), that are otherwise

17 contractable under section 102(a) of such Act, in18 cluding all related administrative functions, from the

19 Federal Government to the Contractor: (List func20 tions, services, activities, and programs).

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

22 ‘‘ ‘(1) TERM.—Pursuant to section 105(c)(1) of

23 the Indian Self-Determination and Education Assist24 ance Act (25 U.S.C. 450j(c)(1)), the term of this

25 contract shall be ll years. Pursuant to section
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1 105(d)(1) of such Act (25 U.S.C. 450j(d)), upon the

2 election by the Contractor, the period of this Con3 tract shall be determined on the basis of a calendar

4 year, unless the Secretary and the Contractor agree

5 on a different period in the annual funding agree6 ment incorporated by reference in subsection (f)(2).

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

8 become effective upon the date of the approval and

9 execution by the Contractor and the Secretary, un10 less the Contractor and the Secretary agree on an

11 effective date other than the date specified in this

12 paragraph.

13 ‘‘ ‘(3) PROGRAM STANDARD.—The Contractor

14 agrees to administer the program, services, functions

15 and activities (or portions thereof) listed in sub16 section (a)(2) of the Contract in conformity with the

17 following standards: (list standards).

18 ‘‘ ‘(4) FUNDING AMOUNT.—Subject to the avail19 ability of appropriations, the Secretary shall make

20 available to the Contractor the total amount speci21 fied in the annual funding agreement incorporated

22 by reference in subsection (f)(2). Such amount shall

23 not be less than the applicable amount determined

24 pursuant to section 106(a) of the Indian Self-Deter-
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1 mination and Education Assistance Act (25 U.S.C.

2 450j–1).

3 ‘‘ ‘(5) LIMITATION OF COSTS.—The Contractor

4 shall not be obligated to continue performance that

5 requires an expenditure of funds in excess of the

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

7 any time, the Contractor has reason to believe that

8 the total amount required for performance of this

9 Contract or a specific activity conducted under this

10 Contract would be greater than the amount of funds

11 awarded under this Contract, the Contractor shall

12 provide reasonable notice to the appropriate Sec13 retary. If the appropriate Secretary does not take

14 such action as may be necessary to increase the

15 amount of funds awarded under this Contract, the

16 Contractor may suspend performance of the Con17 tract until such time as additional funds are award18 ed.

19 ‘‘ ‘(6) PAYMENT.—

20 ‘‘ ‘(A) IN GENERAL.—Payments to the

21 Contractor under this Contract shall—

22 ‘‘ ‘(i) be made as expeditiously as

23 practicable; and

24 ‘‘ ‘(ii) include financial arrangements

25 to cover funding during periods covered by
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1 joint resolutions adopted by Congress mak2 ing continuing appropriations, to the ex3 tent permitted by such resolutions.

4 ‘‘ ‘(B) QUARTERLY, SEMIANNUAL, LUMP5 SUM, AND OTHER METHODS OF PAYMENT.—

6 ‘‘ ‘(i) IN GENERAL.—Pursuant to sec7 tion 108(b) of the Indian Self-Determina8 tion and Education Assistance Act, and

9 notwithstanding any other provision of law,

10 for each fiscal year covered by this Con11 tract, the Secretary shall make available to

12 the Contractor the funds specified for the

13 fiscal year under the annual funding agree14 ment incorporated by reference pursuant

15 to subsection (f)(2) by paying to the Con16 tractor, on a quarterly basis, one-quarter

17 of the total amount provided for in the an18 nual funding agreement for that fiscal

19 year, in a lump-sum payment or as semi20 annual payments, or any other method of

21 payment authorized by law, in accordance

22 with such method as may be requested by

23 the Contractor and specified in the annual

24 funding agreement.
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1 ‘‘ ‘(ii) METHOD OF QUARTERLY PAY2 MENT.—If quarterly payments are speci3 fied in the annual funding agreement in4 corporated by reference pursuant to sub5 section (f)(2), each quarterly payment

6 made pursuant to clause (i) shall be made

7 on the first day of each quarter of the fis8 cal year, except that in any case in which

9 the contract year coincides with the Fed10 eral fiscal year, payment for the first quar11 ter shall be made not later than the date

12 that is 10 calendar days after the date on

13 which the Office of Management and

14 Budget apportions the appropriations for

15 the fiscal year for the programs, services,

16 functions, and activities subject to this

17 Contract.

18 ‘‘ ‘(iii) APPLICABILITY.—Chapter 39

19 of title 31, United States Code, shall apply

20 to the payment of funds due under this

21 Contract and the annual funding agree22 ment referred to in clause (i).

23 ‘‘ ‘(7) RECORDS AND MONITORING.—

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

25 provided copies of tribal records that the Sec-
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1 retary demonstrates are clearly required to be

2 maintained as part of the recordkeeping system

3 of the Department of the Interior or the De4 partment of Health and Human Services (or

5 both), records of the Contractor shall not be

6 considered Federal records for purposes of

7 chapter 5 of title 5, United States Code.

8 ‘‘ ‘(B) RECORDKEEPING SYSTEM.—The

9 Contractor shall maintain a recordkeeping sys10 tem and, upon reasonable advance request, pro11 vide reasonable access to such records to the

12 Secretary.

13 ‘‘ ‘(C) RESPONSIBILITIES OF CONTRAC14 TOR.—The Contractor shall be responsible for

15 managing the day-to-day operations conducted

16 under this Contract and for monitoring activi17 ties conducted under this Contract to ensure

18 compliance with the contract and applicable

19 Federal requirements. With respect to the mon20 itoring activities of the Secretary, the routine

21 monitoring visits shall be limited to not more

22 than one performance monitoring visit for this

23 Contract by the head of each operating division,

24 departmental bureau, or departmental agency,
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1 or duly authorized representative of such head

2 unless—

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

4 more additional visits; or

5 ‘‘ ‘(ii) the appropriate official deter6 mines that there is reasonable cause to be7 lieve that grounds for reassumption of the

8 Contract, suspension of contract payments,

9 or other serious contract performance defi10 ciency may exist.

11 No additional visit referred to in clause (ii)

12 shall be made until such time as reasonable ad13 vance notice that includes a description of the

14 nature of the problem that requires the addi15 tional visit has been given to the Contractor.

16 ‘‘ ‘(8) PROPERTY.—

17 ‘‘ ‘(A) IN GENERAL.—As provided in sec18 tion 105(f) of the Indian Self-Determination

19 and Education Assistance Act (25 U.S.C.

20 450j(f)), at the request of the Contractor, the

21 Secretary may make available, or transfer to

22 the Contractor, all reasonably divisible real

23 property, facilities, equipment, and personal

24 property that the Secretary has used to provide

25 or administer the programs, services, functions,
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1 and activities covered by this Contract. A mutu2 ally agreed upon list specifying the property, fa3 cilities, and equipment so furnished shall also

4 be prepared by the Secretary, with the concur5 rence of the Contractor, and periodically revised

6 by the Secretary, with the concurrence of the

7 Contractor.

8 ‘‘ ‘(B) RECORDS.—The Contractor shall

9 maintain a record of all property referred to in

10 subparagraph (A) or other property acquired by

11 the Contractor under section 105(f)(2)(A) of

12 such Act for purposes of replacement.

13 ‘‘ ‘(C) JOINT USE AGREEMENTS.—Upon

14 the request of the Contractor, the Secretary

15 and the Contractor shall enter into a separate

16 joint use agreement to address the shared use

17 by the parties of real or personal property that

18 is not reasonably divisible.

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

20 Contractor is granted the authority to acquire

21 such excess property as the Contractor may de22 termine to be appropriate in the judgment of

23 the Contractor to support the programs, serv24 ices, functions, and activities operated pursuant

25 to this Contract.
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1 ‘‘ ‘(E) CONFISCATED OR EXCESS PROP2 ERTY.—The Secretary shall assist the Contrac3 tor in obtaining such confiscated or excess

4 property as may become available to tribes,

5 tribal organizations, or local governments.

6 ‘‘ ‘(F) SCREENER IDENTIFICATION

7 CARD.—A screener identification card (General

8 Services Administration form numbered 2946)

9 shall be issued to the Contractor not later than

10 the effective date of this Contract. The des11 ignated official shall, upon request, assist the

12 Contractor in securing the use of the card.

13 ‘‘ ‘(G) CAPITAL EQUIPMENT.—The Con14 tractor shall determine the capital equipment,

15 leases, rentals, property, or services the Con16 tractor requires to perform the obligations of

17 the Contractor under this subsection, and shall

18 acquire and maintain records of such capital

19 equipment, property rentals, leases, property, or

20 services through applicable procurement proce21 dures of the Contractor.

22 ‘‘ ‘(9) AVAILABILITY OF FUNDS.—Notwith23 standing any other provision of law, any funds pro24 vided under this contract—
40

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1 ‘‘ ‘(A) shall remain available until ex2 pended; and

3 ‘‘ ‘(B) with respect to such funds, no fur4 ther—

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

6 ‘‘ ‘(ii) justifying documentation from

7 the Contractor, shall be required prior to

8 the expenditure of such funds.

9 ‘‘ ‘(10) TRANSPORTATION.—Beginning on the

10 effective date of this Contract, the Secretary shall

11 authorize the Contractor to obtain interagency

12 motor pool vehicles and related services for perform13 ance of any activities carried out under this Con14 tract.

15 ‘‘ ‘(11) FEDERAL PROGRAM GUIDELINES, MANU16 ALS, OR POLICY DIRECTIVES.—Except as specifically

17 provided in the Indian Self-Determination and Edu18 cation Assistance Act (25 U.S.C. 450 et seq.) the

19 Contractor is not required to abide by program

20 guidelines, manuals, or policy directives of the Sec21 retary, unless otherwise agreed to by the Contractor

22 and the Secretary, or otherwise required by law.

23 ‘‘ ‘(12) DISPUTES.—

24 ‘‘ ‘(A) THIRD-PARTY MEDIATION DE25 FINED.—For the purposes of this Contract, the
41

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1 term ‘‘third-party mediation’’ means a form of

2 mediation whereby the Secretary and the Con3 tractor nominate a third party who is not em4 ployed by or significantly involved with the Sec5 retary of the Interior, the Secretary of Health

6 and Human Services, or the Contractor, to

7 serve as a third-party mediator to mediate dis8 putes under this Contract.

9 ‘‘ ‘(B) ALTERNATIVE PROCEDURES.—In

10 addition to, or as an alternative to, remedies

11 and procedures prescribed by section 110 of the

12 Indian Self-Determination and Education As13 sistance Act (25 U.S.C. 450m–1), the parties to

14 this Contract may jointly—

15 ‘‘ ‘(i) submit disputes under this Con16 tract to third-party mediation;

17 ‘‘ ‘(ii) submit the dispute to the adju18 dicatory body of the Contractor, including

19 the tribal court of the Contractor;

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

21 processes provided for under the laws, poli22 cies, or procedures of the Contractor; or

23 ‘‘ ‘(iv) use the administrative dispute

24 resolution processes authorized in sub-
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1 chapter IV of chapter 5 of title 5, United

2 States Code.

3 ‘‘ ‘(C) EFFECT OF DECISIONS.—The Sec4 retary shall be bound by decisions made pursu5 ant to the processes set forth in subparagraph

6 (B), except that the Secretary shall not be

7 bound by any decision that significantly con8 flicts with the interests of Indians or the United

9 States.

10 ‘‘ ‘(13) ADMINISTRATIVE PROCEDURES OF CON11 TRACTOR.—Pursuant to the Indian Civil Rights Act

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

13 and procedures of the Contractor shall provide for

14 administrative due process (or the equivalent of ad15 ministrative due process) with respect to programs,

16 services, functions, and activities that are provided

17 by the Contractor pursuant to this Contract.

18 ‘‘ ‘(14) SUCCESSOR ANNUAL FUNDING AGREE19 MENT.—

20 ‘‘ ‘(A) IN GENERAL.—Negotiations for a

21 successor annual funding agreement, provided

22 for in subsection (f)(2), shall begin not later

23 than 120 days prior to the conclusion of the

24 preceding annual funding agreement. Except as

25 provided in section 105(c)(2) of the Indian Self-
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1 Determination and Education Assistance Act

2 (25 U.S.C. 450j(c)(2)) the funding for each

3 such successor annual funding agreement shall

4 only be reduced pursuant to section 106(b) of

5 such Act (25 U.S.C. 450j–1(b)).

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

7 prepare and supply relevant information, and

8 promptly comply with any request by the Con9 tractor for information that the Contractor rea10 sonably needs to determine the amount of funds

11 that may be available for a successor annual

12 funding agreement, as provided for in sub13 section (f)(2) of this Contract.

14 ‘‘ ‘(15) CONTRACT REQUIREMENTS; APPROVAL

15 BY SECRETARY.—

16 ‘‘ ‘(A) IN GENERAL.—Except as provided

17 in subparagraph (B), for the term of the Con18 tract, section 2103 of the Revised Statutes (25

19 U.S.C. 81) and section 16 of the Act of June

20 18, 1934 (48 Stat. 987, chapter 576; 25 U.S.C.

21 476), shall not apply to any contract entered

22 into in connection with this Contract.

23 ‘‘ ‘(B) REQUIREMENTS.—Each Contract

24 entered into by the Contractor with a third

25 party in connection with performing the obliga-
44

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1 tions of the Contractor under this Contract

2 shall—

3 ‘‘ ‘(i) be in writing;

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

5 the authorities of such parties, and pur6 poses of the Contract;

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

8 under the Contract; and

9 ‘‘ ‘(iv) state the process for making

10 any claim, the payments to be made, and

11 the terms of the Contract, which shall be

12 fixed.

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

14 ‘‘ ‘(1) CONTRACT PERFORMANCE.—Except as

15 provided in subsection (d)(2), the Contractor shall

16 perform the programs, services, functions, and ac17 tivities as provided in the annual funding agreement

18 under subsection (f)(2) of this Contract.

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

20 of funds to be paid under this Contract pursuant to

21 section 106(a) shall be determined in an annual

22 funding agreement entered into between the Sec23 retary and the Contractor, which shall be incor24 porated into this Contract.
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1 ‘‘ ‘(3) CONTRACTED PROGRAMS.—Subject to the

2 availability of appropriated funds, the Contractor

3 shall administer the programs, services, functions,

4 and activities identified in this Contract and funded

5 through the annual funding agreement under sub6 section (f)(2).

7 ‘‘ ‘(4) TRUST SERVICES FOR INDIVIDUAL INDI8 ANS.—

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

10 the annual funding agreement provides funding

11 for the delivery of trust services to individual

12 Indians that have been provided by the Sec13 retary, the Contractor shall maintain at least

14 the same level of service as the Secretary pro15 vided for such individual Indians, subject to the

16 availability of appropriated funds for such serv17 ices.

18 ‘‘ ‘(B) TRUST SERVICES TO INDIVIDUAL IN19 DIANS.—For the purposes of this paragraph

20 only, the term ‘‘trust services for individual In21 dians’’ means only those services that pertain to

22 land or financial management connected to in23 dividually held allotments.

24 ‘‘ ‘(5) FAIR AND UNIFORM SERVICES.—The

25 Contractor shall provide services under this Contract
46

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1 in a fair and uniform manner and shall provide ac2 cess to an administrative or judicial body empowered

3 to adjudicate or otherwise resolve complaints, claims,

4 and grievances brought by program beneficiaries

5 against the Contractor arising out of the perform6 ance of the Contract.

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

8 ‘‘ ‘(1) TRUST RESPONSIBILITY.—

9 ‘‘ ‘(A) IN GENERAL.—The United States

10 reaffirms the trust responsibility of the United

11 States to the ll Indian tribe(s) to protect

12 and conserve the trust resources of the Indian

13 tribe(s) and the trust resources of individual In14 dians.

15 ‘‘ ‘(B) CONSTRUCTION OF CONTRACT.—

16 Nothing in this Contract may be construed to

17 terminate, waive, modify, or reduce the trust re18 sponsibility of the United States to the tribe(s)

19 or individual Indians. The Secretary shall act in

20 good faith in upholding such trust responsibil21 ity.

22 ‘‘ ‘(C) GOOD FAITH.—To the extent that

23 health programs are included in this Contract,

24 and within available funds, the Secretary shall

25 act in good faith in cooperating with the Con-
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1 tractor to achieve the goals set forth in the In2 dian Health Care Improvement Act (25 U.S.C.

3 1601 et seq.).

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

5 the annual funding agreement, the United States

6 hereby retains the programs, services, functions, and

7 activities with respect to the tribe(s) that are not

8 specifically assumed by the Contractor in the annual

9 funding agreement under subsection (f)(2).

10 ‘‘ ‘(e) OTHER PROVISIONS.—

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

12 the effective date of this Contract, the United States

13 shall provide to the Contractor, and the Contractor

14 shall provide to the United States, a written des15 ignation of a senior official to serve as a representa16 tive for notices, proposed amendments to the Con17 tract, and other purposes for this Contract.

18 ‘‘ ‘(2) CONTRACT MODIFICATIONS OR AMEND19 MENT.—

20 ‘‘ ‘(A) IN GENERAL.—Except as provided

21 in subparagraph (B), no modification to this

22 Contract shall take effect unless such modifica23 tion is made in the form of a written amend24 ment to the Contract, and the Contractor and
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1 the Secretary provide written consent for the

2 modification.

3 ‘‘ ‘(B) EXCEPTION.—The addition of sup4 plemental funds for programs, functions, and

5 activities (or portions thereof) already included

6 in the annual funding agreement under sub7 section (f)(2), and the reduction of funds pur8 suant to section 106(b)(2), shall not be subject

9 to subparagraph (A).

10 ‘‘ ‘(3) OFFICIALS NOT TO BENEFIT.—No Mem11 ber of Congress, or resident commissioner, shall be

12 admitted to any share or part of any contract exe13 cuted pursuant to this Contract, or to any benefit

14 that may arise from such contract. This paragraph

15 may not be construed to apply to any contract with

16 a third party entered into under this Contract if

17 such contract is made with a corporation for the

18 general benefit of the corporation.

19 ‘‘ ‘(4) COVENANT AGAINST CONTINGENT

20 FEES.—The parties warrant that no person or sell21 ing agency has been employed or retained to solicit

22 or secure any contract executed pursuant to this

23 Contract upon an agreement or understanding for a

24 commission, percentage, brokerage, or contingent

25 fee, excepting bona fide employees or bona fide es-
49

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1 tablished commercial or selling agencies maintained

2 by the Contractor for the purpose of securing busi3 ness.

4 ‘‘ ‘(f) ATTACHMENTS.—

5 ‘‘ ‘(1) APPROVAL OF CONTRACT.—Unless pre6 viously furnished to the Secretary, the resolution of

7 the ll Indian tribe(s) authorizing the contracting

8 of the programs, services, functions, and activities

9 identified in this Contract is attached to this Con10 tract as attachment 1.

11 ‘‘ ‘(2) ANNUAL FUNDING AGREEMENT.—

12 ‘‘ ‘(A) IN GENERAL.—The annual funding

13 agreement under this Contract shall only con14 tain—

15 ‘‘ ‘(i) terms that identify the pro16 grams, services, functions, and activities to

17 be performed or administered, the general

18 budget category assigned, the funds to be

19 provided, and the time and method of pay20 ment; and

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

22 a brief description of the programs, serv23 ices, functions, and activities to be per24 formed (including those supported by fi25 nancial resources other than those provided
50

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1 by the Secretary), to which the parties

2 agree.

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

4 The annual funding agreement is hereby incor5 porated in its entirety in this Contract and at6 tached to this Contract as attachment 2.’ ’’.

7 SEC. 4. ADDITIONAL AMENDMENTS.

8 The Indian Self-Determination and Education Assist9 ance Act (25 U.S.C. 450 et seq.), as amended by sections

10 2 and 3, is further amended—

11 (1) in section 109—

12 (A) by inserting after ‘‘pursuant to such

13 contract or grant agreement,’’ the following ‘‘or

14 in the management of trust fund, trust lands or

15 interests in such lands pursuant to such con16 tract or grant agreement,’’;

17 (B) by striking ‘‘action as prescribed by

18 him’’ and all that follows through ‘‘in such

19 cases, he’’ and inserting the following: ‘‘action

20 as prescribed by the Secretary to remedy the

21 contract deficiency, except that the appropriate

22 Secretary may, upon written notice to a tribal

23 organization, and the tribe served by the tribal

24 organization, immediately rescind a contract or

25 grant, in whole or in part, and resume control
51

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1 or operation of a program, activity, function, or

2 service, if the Secretary finds that (i) there is

3 an immediate threat of imminent harm to the

4 safety of any person, or imminent substantial

5 and irreparable harm to trust funds, trust

6 lands, or interests in such lands, and (ii) such

7 threat arises from the failure of the contractor

8 to fulfill the requirements of the contract. In

9 such cases, the Secretary’’;

10 (C) by inserting after ‘‘rescind such con11 tract or grant agreement’’ the following: ‘‘, in

12 whole or in part,’’;

13 (D) by striking the second period after

14 ‘‘the tribal organization may approve’’; and

15 (E) by inserting before the last sentence,

16 the following new sentence: ‘‘In any hearing or

17 appeal provided for under this section, the Sec18 retary shall have the burden of proof to estab19 lish, by clearly demonstrated evidence, the va20 lidity of the grounds for rescinding, assuming,

21 or reassuming the contract that is the subject

22 of the hearing.’’;

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

24 before the period at the end the following: ‘‘(includ25 ing immediate injunctive relief to reverse a declina-
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1 tion finding under section 102(a)(2) or to compel

2 the Secretary to award and fund an approved self3 determination contract)’’; and

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

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

6 that all administrative appeals relating to such con7 tracts shall be heard by the Interior Board of Con8 tract Appeals established pursuant to section 8 of

9 such Act (41 U.S.C. 607)’’.

10 SEC. 5. REGULATIONS.

11 The Indian Self-Determination and Education Assist12 ance Act (25 U.S.C. 450 et seq.), as amended by sections

13 2 through 4, is further amended—

14 (1) by striking subsections (a) and (b) of sec15 tion 107 and inserting the following new subsections:

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

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

18 Secretary of the Interior and the Secretary of Health and

19 Human Services may not promulgate any regulation, nor

20 impose any nonregulatory requirement, relating to self-de21 termination contracts or the approval, award, or declina22 tion of such contracts, except that the Secretary of the

23 Interior and the Secretary of Health and Human Services

24 may promulgate regulations under this Act relating to

25 chapter 171 of title 28, United States Code, commonly
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1 known as the ‘Federal Tort Claims Act’, the Contract Dis2 putes Act of 1978 (41 U.S.C. 601 et seq.), declination and

3 waiver procedures, appeal procedures, reassumption proce4 dures, discretionary grant procedures for grants awarded

5 under section 103, property donation procedures arising

6 under section 105(f), internal agency procedures relating

7 to the implementation of this Act, retrocession and tribal

8 organization relinquishment procedures, contract proposal

9 contents, conflicts of interest, construction, programmatic

10 reports and data requirements, procurement standards,

11 property management standards, and financial manage12 ment standards.

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

14 including the regulations referred to in this subsection,

15 shall be promulgated—

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

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

18 (d), and (e) of this section; and

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

20 the Code of Federal Regulations.

21 ‘‘(B) The authority to promulgate regulations set

22 forth in this Act shall expire if final regulations are not

23 promulgated within 18 months after the date of enactment

24 of the Indian Self-Determination Contract Reform Act of

25 1994.
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1 ‘‘(b) The provisions of this Act shall supersede any

2 conflicting provisions of law (including any conflicting reg3 ulations) in effect on the day before the date of enactment

4 of the Indian Self-Determination Contract Reform Act of

5 1994, and the Secretary is authorized to repeal any regu6 lation inconsistent with the provisions of this Act.’’; and

7 (2) by adding at the end of section 107, the fol8 lowing new subsections:

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

10 provided in subsection (a) (including drafting and promul11 gating any revised regulations), the Secretary of the Inte12 rior and the Secretary of Health and Human Services

13 shall confer with, and allow for active participation by,

14 representatives of Indian tribes, tribal organizations, and

15 individual tribal members.

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

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

18 of Health and Human Services shall follow the guidance

19 of—

20 ‘‘(i) subchapter III of chapter 5 of title 5, Unit21 ed States Code, commonly known as the ‘Negotiated

22 Rulemaking Act of 1990’; and

23 ‘‘(ii) the recommendations of the Administrative

24 Conference of the United States numbered 82–4 and

25 85–5 entitled ‘Procedures for Negotiating Proposed
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1 Regulations’ under sections 305.82–4 and 305.85–5

2 of title 1, Code of Federal Regulations, and any suc3 cessor recommendation or law (including any succes4 sor regulation).

5 ‘‘(B) The tribal participants in the negotiation proc6 ess referred to in subparagraph (A) shall be nominated

7 by and shall represent the groups described in this para8 graph and shall include tribal representatives from all geo9 graphic regions.

10 ‘‘(C) The negotiations referred to in subparagraph

11 (B) shall be conducted in a timely manner. Proposed regu12 lations to implement the amendments made by the Indian

13 Self-Determination Contract Reform Act of 1994 shall be

14 published in the Federal Register by the Secretary of the

15 Interior and the Secretary of Health and Human Services

16 not later than 180 days after the date of enactment of

17 such Act.

18 ‘‘(D) Notwithstanding any other provision of law (in19 cluding any regulation), the Secretary of the Interior and

20 the Secretary of Health and Human Services are author21 ized to jointly establish and fund such interagency com22 mittees or other interagency bodies, including advisory

23 bodies comprised of tribal representatives, as may be nec24 essary or appropriate to carry out the provisions of this

25 Act.
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1 ‘‘(E) If the Secretary determines that an extension

2 of the deadlines under subsection (a)(2)(B) and subpara3 graph (C) of this paragraph is appropriate, the Secretary

4 may submit proposed legislation to Congress for the exten5 sion of such deadlines.

6 ‘‘(e) The Secretary may, with respect to a contract

7 entered into under this Act, make exceptions in the regula8 tions promulgated to carry out this Act, or waive such reg9 ulations, if the Secretary finds that such exception or

10 waiver is in the best interest of the Indians served by the

11 contract or is consistent with the policies of this Act, and

12 is not contrary to statutory law. In reviewing each request,

13 the Secretary shall follow the timeline, findings, assist14 ance, hearing, and appeal procedures set forth in section

15 102.’’.

16 SEC. 6. CONFORMING AMENDMENTS.

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

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

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

20 Secretaries of the Interior and Health and Human Serv21 ices pursuant to section 107 of this Act’’.

Passed the Senate October 6 (legislative day, September 12), 1994.

Attest: MARTHA S. POPE,

Secretary.