32482 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Indian Health Service

25 CFR Part 900

RINs 1076–AD21; 0905–AC98

Indian Self-Determination and

Education Assistance Act

Amendments

AGENCIES: Departments of the Interior

and Health and Human Services.

ACTION: Final rule.

SUMMARY: The Secretaries of the

Department of Interior (DOI) and the

Department of Health and Human

Services (DHHS) hereby issue a joint

rule to implement section 107 of the

Indian Self-Determination Act, as

amended, including Title I, Pub. L. 103–

413, the Indian Self-Determination

Contract Reform Act of 1994. This joint

rule, as required by section

107(a)(2)(A)(ii) of the Act, will permit

the Departments to award contracts and

grants to Indian tribes without the

unnecessary burden or confusion

associated with having two sets of rules

for single program legislation. In section

107(a)(1) of the Act Congress delegated

to the Departments limited legislative

rulemaking authority in certain

specified subject matter areas, and the

joint rule addresses only those specific

areas. As required by section 107(d) of

the Act, the Departments have

developed this final rule with active

tribal participation, using the guidance

of the Negotiated Rulemaking Act.

DATES: This rule will become effective

on August 23, 1996.

FOR FURTHER INFORMATION CONTACT:

James Thomas, Division of SelfDetermination Services, Bureau of

Indian Affairs, Department of the

Interior, Room 4627, 1849 C Street

N.W., Washington, DC 20240,

Telephone (202) 208–5727 or Merry

Elrod, Division of Self-Determination

Services, Office of Tribal Activities,

Indian Health Service, Room 6A–19,

5600 Fishers Lane, Parklawn Building,

Rockville, MD 20857, Telephone (301)

443–6840/1104/1044.

SUPPLEMENTARY INFORMATION: The 1975

Indian Self-Determination and

Education Assistance Act, Pub. L. 93–

638, gave Indian tribes the authority to

contract with the Federal government to

operate programs serving their tribal

members and other eligible persons. The

Act was further amended by the

Technical Assistance Act and other

Acts, Pub. L. 98–250; Pub. L. 100–202;

Interior Appropriations Act for Fiscal

Year 1988, Pub. L. 100- 446; Indian SelfDetermination and Education

Assistance Act Amendments of 1988,

Pub. L. 100–472; Indian Reorganization

Act Amendments of 1988, Pub. L. 100–

581; miscellaneous Indian Law

Amendments, Pub. L. 101–301; Pub. L.

101–512; Indian Self-Determination and

Education Assistance Act Amendments

of 1990, Pub. L. 101–644; Pub. L. 102–

184; Pub. L. 103–138; Indian SelfDetermination Act Amendments of

1994, Pub. L. 103–413; and Pub. L. 103–

435. Of these, the most significant were

Pub. L. 100–472 (the 1988

Amendments) and Pub. L. 103–413 (the

1994 Amendments).

The 1988 Amendments substantially

revised the Act in order ‘‘to increase

tribal participation in the management

of Federal Indian programs and to help

ensure long-term financial stability for

tribally-run programs.’’ Senate Report

100–274 at 2. The 1988 Amendments

were also ‘‘intended to remove many of

the administrative and practical barriers

that seem to persist under the IndianSelf-Determination Act.’’ Id. at 2. In

fashioning the amendments, Congress

directed that the two Departments

develop implementing regulations over

a 10-month period with the active

participation of tribes and tribal

organizations. In this regard, Congress

delegated to the Departments broad

legislative rulemaking authority.

Initially the two Departments worked

closely with Indian tribes and tribal

organizations to develop new

implementing regulations, culminating

in a joint compromise September 1990

draft regulation reflecting substantial

tribal input. Thereafter, however, the

two Departments continued work on the

draft regulation without any further

tribal input. The revised proposed

regulation was completed under the

previous administration, and the current

administration published the proposed

regulation (1994 NPRM) for public

comment on January 20, 1994, at 59 FR

3166. In so doing, the current

administration expressed its concern

over the absence of tribal participation

in the regulation drafting process in the

years following August 1990, and

invited tribes to review the 1994 NPRM

closely for possible revisions.

Tribal reaction to the January 1994

proposed regulation was extremely

critical. Tribes, tribal organizations, and

national Indian organizations criticized

both the content of the 1994 NPRM and

its length, running over 80 pages in the

Federal Register. To address tribal

concerns in revising the proposed

regulations into final form, the

Departments committed to establish a

Federal advisory committee that would

include at least 48 tribal representatives

from throughout the country, and be

jointly funded by the two Departments.

In the meantime, Congress renewed

its examination into the regulation

drafting process, and the extent to

which events since the 1988

amendments, including the lengthy and

controversial regulation development

process, justified revisiting the Act

anew. This Congressional review

eventually led to the October 1994

amendments. (Similar efforts by tribal

representatives to secure amendments to

the Act in response to the developing

regulations had been considered by

Congress in 1990 and 1992.)

The 1994 amendments

comprehensively revisit almost every

section of the original Act, including

amending the Act to override certain

provisions in the January 1994 NPRM.

Most importantly for this new NPRM,

the 1994 amendments also remove

Congress’ prior delegation to the

Departments of general legislative

rulemaking authority. Instead, the

Departments’ authority is strictly

limited to certain areas, a change

explained in the Senate report that

accompanied the final version of the

bill:

Section 105 of the bill addresses the

Secretaries’ authority to promulgate

interpretative regulations in carrying out the

mandates of the Act. It amends section 107

(a) and (b) of the Act by limiting the

delegated authorization of the Secretaries to

promulgate regulations. This action is a

direct result of the failure of the Secretaries

to respond promptly and appropriately to the

comprehensive amendments developed by

this committee six years ago.

* * * * *

Section 105(l) amends section 107(a) by

delegating to the Secretary the authority only

to promulgate implementing regulations in

certain limited subject matter areas. By and

large these areas correspond to the areas of

concern identified by the Departments in

testimony and in discussions. Beyond the

areas specified in subsection (a) * * * no

further delegated authority is conferred.

Sen. Rep. No. 103–374 at 14. For this

reason, the new rule covers

substantially fewer topics than the

January 1994 NPRM.

As specified by Congress, the new

rule is limited to regulations relating to

chapter 171 of title 28 of the United

States Code, commonly known as the

‘‘Federal Tort Claims Act;’’ the Contract

Disputes Act of 1978 (41 U.S.C. 601 et

seq.); declination and waiver

procedures; appeal procedures;

reassumption procedures; discretionary

grant procedures for grants awarded
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32483

under section 103 of the Act; property

donation procedures arising under

section 105(f) of the Act; internal agency

procedures relating to the

implementation of this Act; retrocession

and tribal organization relinquishment

procedures; contract proposal contents;

conflicts of interest; construction;

programmatic reports and data

requirements; procurement standards;

property management standards; and

financial management standards. All but

three of these permitted regulatory

topics—discretionary grant procedures,

internal agency procedures, and tribal

organization relinquishment

procedures—are addressed in this rule.

The 1994 amendments also required

that, if the Departments elected to

promulgate regulations, the

Departments must use the notice and

comment procedures of the

Administrative Procedure Act, and must

promulgate the regulations as a single

set of regulations in title 25 of the Code

of Federal Regulations. Section

107(a)(2). Finally, the 1994 amendments

required that any regulations must be

developed with the direct participation

of tribal representatives using as a guide

the Negotiated Rulemaking Act of 1990.

This latter requirement is also explained

in the accompanying Senate Report:

To remain consistent with the original

intent of the Act and to ensure that the input

received from the tribes and tribal

organizations in the regulation drafting

process is not disregarded as has previously

been the case, section 107 also has been

amended by adding a new subsection (d),

requiring the Secretaries to employ the

negotiated rulemaking process.

Sen. Rep. No. 103–374 at 14. As a

result of the October 1994 amendments

and earlier initiatives previously

discussed, the Departments chartered a

negotiated rulemaking committee under

the Federal Advisory Committee Act.

The committee’s purpose was to

develop regulations that implement

amendments to the Act.

The advisory committee had 63

members. Forty-eight of these members

represented Indian tribes—two tribal

members from each BIA area and two

from each IHS area. Nine members were

from the Department of the Interior and

six members were from the Department

of Health and Human Services.

Additionally, four individuals from the

Federal Mediation and Conciliation

Service served as facilitators. The

committee was co-chaired by four tribal

representatives and two Federal

representatives. While the committee

was much larger than those usually

chartered under the Negotiated

Rulemaking Act, its larger size was

justified due to the diversity of tribal

interests and programs available for

contracting under the Act.

In order to complete the regulations

within the statutory timeframe, the

committee divided the areas subject to

regulation among six working groups.

The workgroups made

recommendations to the committee on

whether regulations in a particular area

were desirable. If the committee agreed

that regulations were desirable, the

workgroups developed options for draft

regulations. The workgroups presented

their options to the full committee,

where the committee discussed them

and eventually developed the proposed

regulations.

The first meeting of the committee

was in April of 1995. At that meeting,

the committee established six

workgroups, a meeting schedule, and a

protocol for deliberations. Between

April and September of 1995, the

committee met five times to discuss

draft regulations produced by the

workgroups. Each of these meetings

generally lasted three days.

Additionally, the workgroups met

several more times between April and

September to develop recommendations

for the committee to consider.

The policy of the Departments was,

whenever possible, to afford the public

an opportunity to participate in the

rulemaking process. All of the sessions

of the committee were announced in the

Federal Register and were open to the

public.

The Departments published draft

regulations in a Notice of Proposed

Rulemaking in the Federal Register on

January 24, 1996, at 61 FR 2038. (1996

NPRM) In the 1996 NPRM, the

Departments invited the public to

comment on the draft provisions. In

addition, the Departments outlined five

areas in which the Committee had not

yet reached consensus and asked for

public comments specifically

addressing those topics.

Ultimately, the Departments received

approximately 76 comments from

Indian tribes and tribal organizations,

addressing virtually every aspect of the

proposed regulation. The full committee

reconvened in Denver between April 29,

1996 and May 3, 1996 to review the

comments, to evaluate changes

suggested by the comments, and to

approve final regulatory language.

As a result of that meeting, the full

committee was able to transmit a report

to the Secretaries which included

consensus regulatory language on all but

four issues: internal agency procedures;

contract renewal proposals; conflicts of

interest; and construction management

services. Tribal and Federal

representatives prepared non-consensus

reports on these four issues, which were

submitted to the Secretaries for a

decision. One additional question arose,

pertaining to § 900.3(b)(11) of the

regulation, and that was also referred to

the Secretaries. On May 23, 1996 a

delegation of tribal representatives met

with the Chiefs of Staff of the two

departments to present the tribal view of

the unresolved issues. Decisions have

been made based upon the arguments

presented at that meeting, and the

regulation incorporates those decisions.

The Departments commend the ability

of the committee to cooperate and

develop a rule that addresses the

interests of the tribes and the Federal

agencies. This negotiated rulemaking

process has been a model for developing

successful Federal and tribal

partnerships in other endeavors. The

consensus process allowed for true

bilateral negotiations between the

Federal government and the tribes in the

best spirit of the government-togovernment relationship.

In developing regulatory language,

consensus was reached on the

regulations which follow under subparts

‘‘A’’ through ‘‘P’’. In addition, at the

request of tribal and Federal

representatives, the Secretaries agreed to

publish additional introductory

materials under subpart ‘‘A.’’

Summary of Regulations and

Comments Received

The narrative and discussion of

comments below is keyed to specific

subparts of the rule. Matters addressed

under the heading ‘‘Key Areas of

Disagreement’’ in the Notice of

Proposed Rulemaking are discussed

under the appropriate Subpart.

Subpart A—Policy

Summary of Subpart

This subpart contains key

congressional policies contained in the

Act and adds several Secretarial policies

that will guide the Secretaries’

implementation of the Act.

A number of comments recommended

that the statement that tribal records are

exempt from disclosure under the

Freedom of Information Act (§ 900.2(d))

be further explained to include annual

audit reports prepared by tribal

contractors and tribal records archived

by the Federal government. The

suggestion regarding archived tribal

records has been adopted. However,

section 7502(f) of the Single Audit Act

of 1984, 31 U.S.C. 7502(f), and OMB

Circular No. A–128, Audits of State and

Local Governments, subparagraph 13(e),

state that single audit reports shall be

available for public inspection within
32484 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

30 days after the completion of the

audit. Therefore, these audit reports are

available for public inspection.

Numerous comments expressed

concern over the nonapplicability of the

Privacy Act to tribal medical records, in

section 900.2(e). Although section

108(b) of the Act is binding in this

respect, Subpart C (§ 900.8) has been

amended to address the confidentiality

of medical records. Indian Tribes and

tribal organizations remain free to adopt

their own confidentiality procedures,

including procedures that are similar to

Privacy Act procedures.

A large number of comments urged

that the NPRM be amended to include

a Secretarial policy to interpret Federal

laws and regulations in a manner that

will facilitate the inclusion of programs

in contracts authorized by the Act. In

response to these comments, the

Committee has added the language in

Secretarial policy statement in

§ 900.3(b)(8). This policy is not intended

to limit in any manner the scope of

programs, functions, services or

activities that are contractible under

section 102(a)(1) of the Act.

Discussion of Comments

Several comments recommended that

various policy statements be clarified to

reflect the congressional policy that

funds for programs, services, functions

and activities are transferred to tribal

contractors when contracts are awarded

under the Act. These comments have

been adopted and appropriate changes

made to § 900.3(a)(4), § 900.3(b)(4) and

§ 900.3(b)(9).

One comment found the last two

words of § 900.3(a)(8) confusing due to

the inclusion of the words ‘‘as

appropriate.’’ In response, these words

have been deleted in the final rule.

Several comments recommended that

the phrase ‘‘and for which funds are

appropriated by Congress’’ be deleted

from the Secretarial policy statement set

forth in § 900.3(b)(1). The Committee

agreed and deleted this phrase in the

final rule.

The Committee revised 900.3(b)(7)

(referring to the scope of programs that

are contractible under the Act) to be

consistent with the new policy set forth

in 900.3(b)(8).

Several comments urged that

§ 900.d(b)(9) be amended to articulate

more clearly the Secretaries’ duty to

commence planning for the transfer of

programs to tribal operation

immediately upon receipt of a contract

proposal. In response to the comments,

§ 900.3(b)(9) has been revised.

A large number of comments urged

that the provision regarding Federal

program guidelines, manuals, or policy

directives set forth in § 900.5 of the

NPRM be revised to refer more generally

to any unpublished requirements. In

response to these comments, § 900.5 has

been revised in the final rule.

Some comments urged that language

be included to identify the inherent

Federal functions that cannot lawfully

be carried out by an Indian tribe or

tribal organization, and that therefore

may not be contracted under the Act.

The Committee did not adopt these

comments due to the subject-matter

limitations on its rulemaking authority

set forth in section 107(a)(1) of the Act.

Similarly, the Committee did not

address comments relating to the

appropriate uses of program income

generated under the Federal Medicare

and Medicaid programs.

One comment expressed concern

regarding the absence of clear

provisions for tribal participation in the

administration of Federal Indian

programs. No change was made as this

concern is already dealt with in

§ 900.3(a)(1).

One comment recommended that the

Secretary adopt a policy that Indian

tribes participate in the development of

the budgets of agencies other than the

Indian Health Service and the Bureau of

Indian Affairs. The Committee did not

adopt this proposal due to the subjectmatter limitation set forth in section

107(a)(1) of the Act, and the limitation

in section 106(I) of the Act regarding

tribal participation.

One comment urged that the

Secretarial policy regarding tribal

participation in budgetary matters set

forth in § 900.3(b)(6) be more clearly

articulated as a mandatory duty.

Nothing in the new regulation is

intended to change the Department’s

current consultation requirements.

Accordingly, no change was made in the

text of the regulation.

A few comments urged that the

phrase ‘‘for the benefit of Indians

because of their status as Indians’’ or the

phrase ‘‘for the benefit of Indians’’ be

further defined in the regulation. The

Committee rejected suggestions that the

concept of ‘‘contractibility’’ be further

explored in the regulations due to the

specific subject-matter limitations of

section 107(a)(1) of the Act.

Subpart B—Definitions

Summary of Subpart

Subpart B sets forth definitions for

key terms used in the balance of the

regulations. Terms unique to one

subpart are generally defined in that

subpart, rather than in subpart B.

Summary of Comments

In response to one comment regarding

the term ‘‘awarding official’’ the

definition has been revised and an

additional sentence added to make clear

that an ‘‘awarding official’’ need not

necessarily be a warranted contracting

officer. Who the awarding official is in

a particular situation will depend on to

whom the Secretary has delegated

authority to award the contract.

In response to comments regarding

the scope of Subpart C (which deals

with ‘‘initial contract proposals’’), the

term ‘‘initial contract proposal’’ has

been added as a new definition in the

final rule. The definition clarifies that

the requirements for an ‘‘initial contract

proposal’’ do not apply to other

proposals such as proposals to renew

contracts governing programs, services,

functions or activities that are already

under tribal operation.

In response to one comment regarding

the procedural aspects of reassumption,

the definition of ‘‘reassumption’’ has

been revised to refer the reader to the

notice and other procedures set forth in

Subpart P.

One comment requested that the term

‘‘Indian tribe’’ be revised. The

Committee rejected the comment in

favor of the definition of this term

already set forth in the statute and

repeated in § 900.6 of the final rule.

Two comments urged that the

Secretary add a new definition of the

term ‘‘consultation’’ to establish a

framework for this activity. The

Committee rejected this proposal as

beyond the scope of subjects which may

be regulated under section 107(a)(1) of

the Act. Similarly, the Committee

rejected requests that the regulations

include a definition of ‘‘trust

responsibility.’’

In the NPRM, the public was invited

to comment on the disagreement within

the Committee regarding the

development of internal agency

procedures. Specifically, as noted in 61

FR at 2039–2040, tribal representatives

on the Committee urged that internal

agency procedures be developed in

precisely the same fashion as other

regulations implementing the Indian

Self-Determination Act Amendments of

1994, through the use of the negotiated

rulemaking process. Federal

representatives on the Committee

supported instead a joint tribal and

Federal commitment to work together to

generate a procedural manual which

would promote the purposes underlying

the Act and facilitate contracting by

Indian tribes and tribal organizations.

The Federal committee members

proposed committing to a firm timeline
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32485

within which to produce such a manual.

Further, the Federal Government

committed to ‘‘meaningful

consultation’’ throughout the manual

development process.

The Departments received many

comments from tribal representatives

addressing the issue of internal agency

procedures as a subject for negotiated

rulemaking. Those comments

consistently supported the tribal

proposal to include a Subpart in the

regulation concerning internal agency

procedures.

Many of the comments indicated a

belief that all internal agency

procedures under which Indian tribes

and tribal organizations exercise their

self-determination should be

promulgated by negotiated rulemaking.

Those comments cited sections 107 (a)

and (d) of the Act as authority for their

recommendation.

Tribal representatives also indicated a

concern that absent formal rulemaking,

Federal agencies might use internal

procedures to circumvent the policies

underlying the Act, thwarting the intent

to simplify the contracting process and

free Indian tribes from excessive Federal

control. Two comments suggested that

negotiating rulemaking procedures will

ensure that Federal agencies would be

bound to follow uniform procedures to

implement and interpret the Act and the

regulations.

Two other comments wanted the

regulation to state explicitly that the

Secretaries lack authority to interpret

the meaning or application of any

provision of the Act or the regulations.

Tribal representatives feared that a

myriad of letters containing policy

statements and correspondence

interpreting reporting requirements

would result if internal agency

procedures are not tied to formal

rulemaking.

In response to the Federal proposal as

detailed in the NPRM, several

comments stated that it would not be

acceptable to develop a manual in a

setting which is less formal and

structured than a negotiated rulemaking

committee. In addition, comments

objected that developing such a manual

after the publication of a final regulation

would violate the mandatory deadline

imposed on the Secretaries by Congress.

Several comments were suspicious of

the government’s commitment to seek

tribal consultation on internal agency

procedures. They stated that

consultation alone would be insufficient

to ensure that Indian tribes and tribal

organizations are accorded the full

benefits of the Act. Without full and

active participation, one comment

stated, Indian tribes would be in the

position of attempting to change

decisions made in advance by Federal

agencies.

The Departments agree to an

enhanced consultation process in

developing procedures that do not

involve resource allocation issues.

Features of this enhanced process could

include facilitation by professional

facilitators, consensus decision-making,

opportunity for comment by tribal

entities, and reporting of decisions to

the Secretaries. The Departments will

convene a meeting to begin this process

within sixty days of the regulations

becoming effective.

Subpart C—Contract Proposal Contents

Summary of Regulation

Subpart C contains provisions relating

to initial contract proposal contents. In

this area, the committee opted to have

minimal regulations. Subpart C consists

of a checklist of 13 items that must be

addressed in a proposal. In addition, the

regulation contains a provision relating

to the availability of technical assistance

to assist Indian tribes and tribal

organizations in preparing a contract

proposal, and a provision relating to the

identification of Federal property that

the tribe or tribal organization intends to

use during contract performance.

Summary of Comments

Several comments recommended

amending § 900.7 to permit the

Secretary to provide technical assistance

funding in addition to technical

assistance. To reflect the concerns the

two sentences were added at the end of

the section. The first sentence

authorizes the Secretary to make

technical assistance grants, and the

second authorizes an Indian tribe or

tribal organization to request

reimbursement of pre-award costs for

obtaining technical assistance under the

Act.

One comment recommended the

insertion of objective standards in

§ 900.7 to measure the authenticity of a

claim that technical assistance cannot

be provided due to the availability of

appropriations. This recommendation

was not adopted because the provision

that technical assistance be subject to

the availability of appropriations comes

directly from Section 103(d) of the Act.

In addition, it is clear that if qualified

agency personnel are available,

technical assistance will be provided to

prepare an initial contract proposal.

Several comments recommended

deleting the word ‘‘must’’ and inserting

the word ‘‘should’’ in the first sentence

of § 900.8. This recommendation was

not adopted because the proposal

requirements in this subsection

represent the minimum amount of

information required for the

Departments to approve a proposal.

Several comments generally objected

to § 900.8 on the grounds that it requires

the production of information that the

Federal Government has no right to

know, or that is in excess of statutory

requirements. Although some

modifications were made to § 900.8 in

response to comments, it is the

consensus of the Committee that the

information included in the final

version of § 900.8 is necessary to protect

Indian tribes or tribal organizations, or

because it is essential information

required by the Departments in order to

be able to review or decline a contract

proposal, to determine whether any of

the statutory declination criteria exist.

A number of comments expressed

concern that § 900.8(d) does not clearly

bar the Secretary from revising service

area boundaries over the objections of

tribes located in an established service

area. This recommendation was not

adopted because it is the intent of this

provision for the applicant to define the

service area. This specific provision was

debated at length by the Negotiated

Rulemaking Committee, and the

proposed regulatory provision in

§ 900.8(d) is the compromise agreed to

by consensus of the Committee.

In response to a comment, the words

‘‘an identification’’ were deleted from

§ 900.8(e), and replaced with the words

‘‘the name, title,’’ for clarification

purposes.

In response to a comment, the words

‘‘a description’’ were deleted from

§ 900.8(g)(3), and replaced with the

words ‘‘an identification’’ for

clarification purposes.

In response to a comment,

§ 900.8(g)(7) was amended to read

‘‘minimum staff qualifications proposed

by the Indian tribe or tribal

organization, if any’’ for clarification

purposes.

In response to several comments

objecting to the requirement in

§ 900.8(g)(4) that financial,

procurement, and property management

standards be included in the proposal,

reference to these standards was deleted

from this subsection, and a new

subsection (g)(8) was added to require a

statement that the Indian tribe or tribal

organization meet minimum

procurement, property, and financial

management standards set forth in

Subpart F, subject to waivers that may

have been granted under Subpart K.

In response to several comments

requesting that the words ‘‘tribal shares’’

be defined, § 900.8(h)(1) was modified

by removing these words and inserting
32486 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

‘‘the Indian tribe or tribal organization’s

share of funds.’’

In response to a comment,

§ 900.8(h)(2) was amended by including

the word ‘‘start-up’’ after the word ‘‘onetime’’ to make this section consistent

with the Act.

Several comments objected to the use

of the word ‘‘budget’’ in § 900.8(h), and

to the level of detail required under this

subsection. This subsection was

redrafted to delete the word ‘‘budget’’

wherever it appears, and replace it with

‘‘amount of funds requested’’ or

‘‘funding request.’’ In addition,

§§ 900.8(h)(1) (i), (ii), and (iii) were

deleted.

In response to a comment that the

information sought in § 900.8(h)(5) was

unnecessary, this subsection was

redrafted for clarification purposes, and

the words ‘‘[a]t the option of the Indian

tribe or tribal organization’’ were added

at the beginning of the subsection.

A new subparagraph (m) was added to

§ 900.8 to provide that in its contract

proposal, an Indian tribe or tribal

organization must state that it will

implement procedures appropriate to

the program being contracted to assure

the confidentiality of information

relating to the financial affairs of

individual Indians obtained under a

proposed contract, and of medical

records, or as otherwise required by law.

While tribal comments objected to the

imposition of regulatory procedures on

confidentiality of personal financial

information, many comments were

received from Indian tribes indicating a

concern that the confidentiality of

personal medical records in the hands

of tribal contractors be preserved,

notwithstanding the opinion of DHHS

Office of General Counsel that the

Privacy Act does not apply to such

records. The provision for such an

assurance with respect to personal

financial information resulted from a

compromise in the Committee between

the Federal and tribal positions.

In response to a comment suggesting

that Indian tribes or tribal organizations

should receive a list of Federal property

used in carrying out programs to be

contracted, a new question and answer

were added immediately preceding

§ 900.10. In response to a comment, this

new section also includes a requirement

that the condition of the property be

described.

In response to a comment,

§ 900.11(a)(4) was modified to add the

words ‘‘real and personal’’ before the

word ‘‘property’’ for clarification

purposes.

Several comments requested

clarification regarding whether the

contract proposal becomes part of the

contract document. In response, a new

question and answer were added to

clarify that the contract proposal

becomes part of the final contract only

by mutual agreement of the parties.

Several comments suggested that

Subpart C be clarified to address what

is contractible and what is inherently

Federal and thus residual. The

Committee did not adopt the suggestion.

Federal agency decisions regarding

residual functions are subject to the

appeals process.

Subpart D—Review and Approval of

Contract Proposals

Summary of Regulation

Although this topic is part of the

declination process, it has been pulled

out for separate treatment to facilitate a

clearer understanding of the entire

contracting process. In this area, the

committee opted to have minimal

regulations. This subpart details what

the Secretary must do upon receiving a

contract proposal, the time frames

applicable to Secretarial review, how

the 90-day review period can be

extended, and what happens if a

proposal is not declined within the 90-

day period.

Summary of Comments

One comment indicated that the word

‘‘Secretary’’ in this Subpart does not

define where the proposal should

actually be submitted. Subpart B defines

the word ‘‘Secretary’’ to include either

Secretary or their delegates. It is clear

that a proposal should therefore be

submitted to the agency with

jurisdiction over the program to be

contracted, i.e., the Bureau of Indian

Affairs, the Indian Health Service, the

Bureau of Land Management, the

National Park Service, etc.

A comment suggested amending

§ 900.15(a) to require the Secretary to

return any proposal lacking the required

authorizing resolution(s) to the

applicant without further action. This

suggestion was not adopted because

§ 900.15(b) requires that the applicant

be notified of any missing information.

It should be clear, however, that Section

102(a)(2) of the Act only requires the

Secretary to consider a proposal if ‘‘so

authorized by an Indian tribe’’ pursuant

to the tribal resolution required under

Section 102(a)(1) of the Act. Therefore,

although technically outside of the

enumerated declination criteria in

Section 102(a)(2) of the Act, it is also

clear that the Act precludes the

approval of any proposal and award of

any self-determination contract absent

an authorizing tribal resolution.

Several comments requested that the

15-day timeframe in § 900.15 be cut to

10 days. This suggestion was not

adopted because 15 days are needed to

evaluate the application. The word

‘‘request’’ was added before the words

‘‘that the items’’ in this subsection for

clarification purposes, and in response

to several comments.

Several comments expressed concerns

with the failure of this Subpart to

specify what happens when a proposal

is approved. The comments

recommended addressing the award and

funding of the contract. In response to

these concerns, the question and the

answer in § 900.16 were amended to

reflect that the award of the contract

occurs upon approval of the proposal.

Also, the committee added the words

‘‘and add to the contract the full amount

of funds pursuant to § 106(a) of the Act’’

were added at the end of § 900.18. Also,

a new section was added to explain

what happens when a proposal is

approved.

One comment suggested adding a

provision in § 900.18 to provide that

costs incurred after the 90-day period be

deemed allowable costs under the

contract and be reimbursed. This

suggestion was not adopted because it is

beyond the scope of this Subpart.

A comment inquired whether the 90-

day period continues to run if the

Indian tribe is notified that there are

missing items, or whether the 90-day

period starts only when there is a

complete proposal. The regulation in

§ 900.15(b) requires the Secretary to

notify the applicant of any missing

items, and to request the applicant to

furnish these items within 15 days. If

the applicant fails to submit the missing

items altogether, the Secretary must

either approve or decline the proposal

that was received within 90 days of

receipt. Similarly, if the applicant

submits the missing items within the

15-day deadline, the 90-day period

continues to run from the time of receipt

of the original proposal.

Subpart E—Declination Procedures

Summary of Subpart

This subpart implements sections 102

(a)(2), (a)(4), (b) and (d) of the Act. It

restates the statutory grounds for

declining a contract proposal, clarifies

that a proposal cannot be declined

based on any objection that will be

overcome through the contract, and

details procedures applicable for partial

declinations. Subpart E also informs

Indian tribes and tribal organizations of

the requirements the Secretary must

follow when a declination finding is

made, contains provisions for technical
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32487

assistance to Indian tribes and tribal

organizations to avoid a declination

finding, and to overcome stated

declination grounds after a declination

finding is made.

Summary of Comments

Several comments noted that the

proposed regulations fail to address the

continuation of mature contracts, and

recommended that this issue be

addressed. This recommendation was

not adopted because there is no

statutory authority to issue regulations

on the mature contract process. In

addition, the right to mature contracts is

addressed in Section 105(c)(1) of the Act

and in the Model Contract under

Section 108 of the Act. Continuation of

any contract is also addressed in

§ 900.32 of the final rule.

One comment recommended that

declination of construction contracts be

addressed in this Subpart. This

recommendation was not adopted

because this issue is addressed in

§ 900.123 of the final rule.

Several comments recommended a

further explanation of the criteria in

§ 900.22. These comments were not

adopted because it was decided not to

interpret the declination criteria in the

regulation, but to leave their

interpretation to case-by-case

adjudication.

One comment suggested adding an

applicant’s failure to submit the single

agency audit report and/or failure to

correct prior audit deficiencies as a

declination ground in § 900.22. This

comment was not adopted because there

is no statutory authority to add

declination criteria to those specified in

Section 102(a)(2) of the Act.

In response to a comment, the

reference to Section 106 of the Act in

§ 900.26 was replaced with a reference

to Section 102(a) of the Act.

There were numerous comments

objecting to the document disclosure

provisions in § 900.27 of NPRM (now

§ 900.29). In response to these

objections, § 900.27(a) was amended to

delete the words ‘‘when appropriate’’

and replace them with the words

‘‘within 20 days.’’ In addition,

§ 900.27(c) was deleted in its entirety.

Several comments requested that the

Secretary’s burden of proof when

declining a proposal in § 900.297(a) be

changed to ‘‘clear and convincing

evidence.’’ This recommendation was

not adopted because it is different from

the statutory burden of proof contained

in Section 102(a)(2) of the Act.

A comment requested that the

technical assistance to be provided in

§ 900.30 be clearly identified. This

recommendation was not adopted

because the type of technical assistance

required will vary with each proposal.

It is impossible to define generally the

type of technical assistance required for

all proposals.

Pursuant to several comments, the

word ‘‘substantively’’ was deleted from

two places in § 900.32, and replaced by

the word ‘‘substantially.’’

The Committee received several

comments regarding the ability of the

BIA and other agencies of the

Department of the Interior to review

contract renewal proposals for

declination issues, where the renewal

proposal is substantially similar to the

contract previously held by that Indian

tribe or tribal organization. In the past,

as a matter of practice, neither IHS nor

the BIA has reviewed contract renewal

proposals for declination issues.

Therefore, the Departments have agreed

that IHS and the BIA will not use the

declination process in contract renewals

where there is no material or significant

change to the contract. However, as no

past practice exists for the non-BIA

agencies within DOI, those agencies will

have discretion to use the declination

process in appropriate contract renewal

situations. The regulatory language of

§ 900.32 has been amended to reflect

this decision.

Subpart F—Standards for Tribal or

Tribal Organization Management

Systems

Summary of Subpart

Indian self-determination contracts

are unique agreements because, by

definition, they are not procurement

contracts, discretionary grants or

cooperative agreements. This means that

none of the usual procurement or grant

regulations apply to the management of

the Federal funds provided under these

contracts. The absence of established

guidelines presented a special challenge

to the committee to develop standards

which would assure appropriate

stewardship of the Federal funds and

other assets being transferred through

these contracts. Deliberations on this

issue led to the review of OMB Circular

A–102 and the Uniform Administrative

Requirements for Grants and

Cooperative Agreements to State and

Local Governments (the ‘‘Common

Rule’’). Although an Indian selfdetermination contract is not a

discretionary grant, the Common Rule

provides certain government-togovernment management principles that

apply to discretionary Federal grants to

states, local governments, and Indian

tribes.

The Common Rule has two-tiered

management rules. On one tier, it

generally defers to state law and

regulations and accepts a state’s

management standards without

imposing more detailed requirements.

On the second tier, other local

governments and Indian tribes (which

vary greatly in size and structure) must

observe the Rule’s more detailed

standards for the management of

Federal grants.

In the interest of giving greater

recognition to the government-togovernment relationship which exists

between Indian tribes and the Federal

government, and to transfer greater

responsibility to Indian tribes

commensurate with their status, the

committee established standards

permitting the management of contract

resources in accordance with tribal

laws, regulations and procedures, just as

the Common Rule permits states to

manage Federal resources in accordance

with state laws and procedures. Systems

established by Indian tribes will govern

the administration of contracts provided

that they include the core management

principles or standards adopted from

the Common Rule which the committee

determined best meet the needs of

Indian tribes and tribal organizations.

Subpart F contains provisions relating

to the following management standards:

(1) Financial Management; (2)

Procurement Management and (3)

Property Management. In all of these

areas the advisory committee designed

minimal regulations that focus on the

minimum standards for the performance

of the three management systems used

by Indian tribes and tribal organizations

when carrying out self-determination

contracts.

The standards contained in this

subpart are designed to be the targets

which the Indian tribe and tribal

organization’s management systems

should be designed and implemented to

meet. The management systems

themselves are to be designed by the

Indian tribe or tribal organization.

Section 900.36 contains general

provisions which apply to all

management system standards

contained in this subpart. Subpart F

includes provisions that: (1) Identify the

management systems that are addressed;

(2) set forth the requirements imposed;

(3) limit the applicability of OMB

circulars; (4) provide that the Indian

tribe or tribal organization has the

option to impose these standards upon

subcontractors; (5) identify the

difference between a standard and a

system; and (6) specify when the

management standards and management

systems are evaluated.

Section § 900.44 contains the

standards for financial management
32488 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

systems. Subpart F establishes the

minimum requirements for seven

elements including: (1) Financial

reports; (2) accounting records; (3)

internal control; (4) budget control; (5)

allowable costs; (6) source

documentation; and (7) cash

management.

Section 900.47 contains standards for

procurement management systems. This

subpart establishes the minimum

requirements for seven elements: (1) To

ensure that vendors and subcontractors

perform in accordance with the terms of

purchase orders or contracts; (2) to

require the Indian tribe or tribal

organization to maintain standards of

conduct for employees award contracts

to avoid any conflict of interest; (3) to

review proposed procurements to avoid

buying unnecessary or duplicative

items; (4) to provide full and open

competition, to the extent feasible in the

local area, subject to the Indian

preference and tribal preference

provisions of the Act; (5) to ensure that

procurement awards are made only to

entities that have the ability to perform

consistent with the terms of the award;

(6) to maintain records on significant

history of all major procurements; and

(7) to establish that the Indian tribe or

tribal organization is solely responsible

for processing and settling all

contractual and administrative issues

arising out of a procurement. In

addition, the regulation provides that

each Indian tribe or tribal organization

must establish its own small purchase

threshold and definition of ‘‘major

procurement transactions’’; establish

minimum requirements for subcontract

terms, and include a provision in its

subcontracts that addresses the

application of Federal laws, regulations

and executive orders to subcontractors.

Section 900.51 contains the minimum

requirements for property management

systems. Subpart F addresses the

standards for both Federally-titled

property and property titled to an

Indian tribe or tribal organization, with

differences based upon who possesses

title to the property. As a general rule

the requirements for property where the

Federal agency retains title are higher

than requirements for property where

the Indian tribe or tribal organization

holds the title. Subpart F addresses

elements including: (1) Property

inventories; (2) maintenance of

property; (3) differences in inventory

and control requirements for property

where the Federal agency retains title to

the property; and (4) the disposal

requirements for Federal property.

Summary of Comments

A comment requested that the rule

clarify the application of Office of

Management & Budget (OMB) Circulars

or portions of OMB Circulars that apply

to the operation of Indian SelfDetermination Act contracts.

Section 900.37 specifies that the only

OMB Circulars that apply to selfdetermination contracts are those (1)

Incorporated the by Act, such as OMB

Circular A–128, ‘‘Audits of States and

Local Governments’’; (2) adopted by

these regulations; or (3) agreed to by the

Indian tribe or tribal organization

pursuant to negotiations with the

Secretary. In regard to these regulations,

§ 900.45(e) identifies the appropriate

OMB Circular Cost Principles that

should be used in determining the

propriety of contract costs.

One comment asked the Committee to

delete § 900.40(a) because it is

overreaching and exceeds statutory

requirements. This section was a

fundamental underpinning of the entire

Subpart. The negotiators agreed that the

regulations would include standards, to

be treated as minimum requirements,

for the administration of contracts. For

an initial contract proposal only,

Federal officials may review the

standards proposed by the Indian tribe

or tribal organization, to determine that

they meet or exceed these minimum

regulatory requirements. Indian tribes or

tribal organizations are responsible for

the implementation of administrative

systems that meet the standards and that

are subject to review in accordance with

the Single Agency Audit requirements

as provided in Section 5(f) of the Act.

In many respects, this dichotomy

between the standards and systems was

designed to acknowledge the unique

and special nature of self-determination

contacts (non-procurement

intergovernmental agreements) and a

shift in the regulatory emphasis from

the unnecessary and burdensome

review of systems to an emphasis on the

acceptance of fundamental guiding

management principles. This approach

is consistent with provisions in the Act

at Sections 5(b), 102(a)(2), 105 (a)(1) (2)

and (3) and 107(a)(1) and in the Model

Contract Section 108(b)(7)(c). For these

reasons no change was made in

§ 900.40.

It was suggested that the Committee

delete the words ‘‘or tribal organization’’

in § 900.42 from both the question and

the answer as this section applies only

to Indian tribes. The comment was

correct and the words have been

deleted.

The Committee was requested to

clarify the period of time that Indian

tribes and tribal organizations must

retain records of contract operations. A

new § 900.41 was created to address

these issues. That section specifies that

Indian tribes and tribal organizations

should keep: (1) Financial records for

three years from the date of the single

audit submission; (2) procurement

records for three years from the date of

final payment to the supplier; and (3)

property management records for three

years from the date of disposition,

replacement or transfer of the property.

In addition, records related to litigation,

audit exceptions and claims should be

retained until the action is completed.

One comment suggested that the

regulation provide for the Secretary to

obtain consistent and timely financial

information to respond to Congressional

inquiries and to otherwise support

budget justifications. Section 900.45(a)

was amended by adding a provision that

provides for the submission of a

Financial Status Report, SF 269A. The

frequency of submission of the SF 269A

remains the subject of negotiation

between the Indian tribe or tribal

organization and the Secretary. The

Department expect that the frequency

will not be less than once per year. This

change only affects how the information

is transmitted to the government and is

consistent with Section 5(f)(2) of the

Act.

The committee was asked to specify

which of the three Office of

Management and Budget Circulars

dealing with cost principles apply to a

tribal organization. In that regard, a

tribal organization could be a chartered

entity of a tribe, a non-profit

organization, and/or an educational

institution.

Section 900.45(e) has been amended

by revising the parenthetical statement

and including a chart to clarify the

application of the Office of Management

& Budget circulars. The parenthetical

statement makes clear that which

circular is applicable is negotiable with

the Secretary and that current

agreements concerning Office of

Management & Budget cost principles

need not be renegotiated.

The committee was asked to adopt

proposed clarifying language for

Subsection 900.45(g). The regulations

were amended to adopt the suggested

language that provides a more accurate

description of the standards for a cash

management component of financial

management systems.

One comment suggested adding the

following new language to § 900.45(h):

If an Indian tribe or tribal organization

contracts to assume a program, service,

function, or activity which includes a

physical trust asset or natural resource, the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32489

Indian tribe or tribal organization shall enter

upon its financial management system and

provide for an accurate, current, and

complete disclosure of the value of those

assets, provide for an accurate, current and

complete disclosure of funds by source and

application utilized to keep the physical trust

assets or natural resources in good repair and

maintenance; provide for an accurate,

current, and complete disclosure of any

increase or decrease in the valuation of the

asset; and provide for an accurate, current

and complete disclosure of any other costs,

function or activity which would improve,

increase, or cause devaluation or decrease in

the value of the physical trust asset or natural

resource as would be required to account for

any asset using generally accepted

accounting principles and standards.

The Committee did not include this

provision principally because it is

beyond the scope of these regulations.

Currently, the United States does not

track the values of natural resources (i.e.

national parks or Indian lands) in this

fashion. Therefore, no financial basis

exists to begin the process. The cost of

establishing the basis would undermine

and frustrate self-determination

contracting. While the proposal has

merits, it would not be possible to

implement it effectively until

appropriate guidance is issued on

valuation of Federal natural resources,

the United States enters the information

in its financial records, and funds are

made available to tribal governments to

cover the cost of implementation. In

regard to guidance, the Federal

Accounting Standards Advisory Board

has not issued any authoritative

instructions on the valuation of Federal

natural resources. This matter is

currently under consideration by the

Board.

Another comment asked the

Committee to revise § 900.46 to require

the Secretary to be held to a ‘‘strict

standard of compliance with the terms

of the contract and the annual funding

agreement.’’ Further, the comment

suggested deleting the words ‘‘In regard

to paragraph (g) of Sec. 900.44 [of the

NPRM]’’ and ‘‘based upon the payment

schedule provided for in.’’ The

Committee was asked to add ‘‘in strict

compliance with’’ for the last phrase

deleted. Section 900.46 was amended to

make this section of the regulations

consistent with the statute.

A comment recommended that

§ 900.48(c) be amended to include

provisions requiring ‘‘cost and price

analysis’’ in the procurement standards.

Subsection § 900.48(c) was amended by

adding the phrase ‘‘and ensure the

reasonableness of the price’’ at the end

of the subsection. This was done to

ensure that cost or price analysis be

considered in all procurements, but to

avoid the application of a full Federal

procurement-type cost or price analysis

since self-determination contracts are

not subject to the Federal Acquisition

Regulations (FARs). It is the

responsibility of the Indian tribe or

tribal organization to design a

procurement system based upon the

standards in Subpart F. The amendment

will require those systems to consider

the ‘‘reasonableness of price’’ when

making procurement purchases.

The Committee was asked to clarify

§ 900.50, including the provision of

further guidance about the application

of tribal law generally and the

application of Tribal Employment

Rights Ordinances (TERO) specifically.

§ 900.50 was substantially revised, to

make clear that subcontracts by an

Indian tribe or tribal organization may

require the subcontractor to comply

with certain provisions of the Act and

other Federal laws. The new language

informs subcontractors that they are

responsible for identifying and

complying with applicable Federal laws

and regulations. The section was further

amended to provide that, to the extent

the Secretary and the Indian tribe or

tribal organization identify and specify

laws and regulations that are applicable

to subcontracts in the negotiation of the

self- determination contract, those

identified and specified provisions will

then be included in subcontracts.

These regulations do not specifically

address the application of tribal law, but

establish minimum standards for the

operations of management systems.

Indian tribes may exercise discretion

and create higher standards by

operation or enactment of tribal law.

Similarly, an Indian tribe may seek a

waiver of a standard as noted in

§ 900.36 of the regulations. Nothing in

the regulations is designed to supersede

or suspend the operation of tribal law

that meets these standards. Further

nothing in the regulations affects the

operation of tribal law to activities not

paid for by self-determination contract

funds.

Sections 7(b) and (c) of the Act

authorize the application of Indian

Preference and Tribal Preference (TERO)

in the performance of a selfdetermination contract. To the extent a

TERO ordinance is consistent with the

terms of Section 7(b) and (c) of the Act

it can be made applicable to

procurement subcontracts.

Property Management

The Committee was asked to define

‘‘sensitive property’’ in § 900.52, and as

a result, a definition of ‘‘sensitive

personal property’’ was inserted at

§ 900.52(b). That definition includes all

firearms and provides that the Indian

tribes and tribal organization are to

define such other personal property

‘‘that is subject to theft and pilferage.’’

Since the activities vary from contract to

contract to such a large extent, the

committee decided that a locally-created

definition best meets the needs of all

contractors.

One comment indicated § 900.60(b)

might require revision regarding the

authority of an Indian tribe or tribal

organization to dispose of Federal

property. The Committee revised

subsection (b) of § 900.60 by deleting all

of subsection (1), that previously

allowed for disposal if the Secretary

failed to respond to a disposal request.

As a result, if the Secretary fails to

respond to a request from an Indian

tribe or tribal organization within the

sixty day period, the Indian tribe or

tribal organization may return the

Federal property to the Secretary. The

Secretary is required to accept the

property and is required to reimburse

the contractor for all costs associated

with the transfer. This ensures that

Indian tribes and tribal organizations

have a process to dispose of unneeded

Federal property, and the

reimbursement of transfer costs should

provide the Secretary with an incentive

to respond in a timely fashion to

disposal requests.

The committee was asked to clarify

that the property disposal procedures in

§ 900.60 only apply to personal

property, because the answer to the

question uses the terms ‘‘personal

property’’ and ‘‘property.’’ Using the

term ‘‘property’’ which, by definition,

includes both real and personal

property, creates ambiguity about

application of the paragraph to the

disposal of real property.

Section 900.60 only applies to the

disposal of personal property. The

matter has been clarified through

editorial revision of the introductory

question, to read as follows: ‘‘How does

an Indian tribe or tribal organization

dispose of Federal personal property?’’

Subpart G—Programmatic Reports and

Data Requirements

Summary of Subpart

This brief subpart provides for the

negotiation of all reporting and data

requirements between the Indian tribe

or tribal organization and the Secretary.

Failure to reach an agreement on

specific reporting and data requirements

is subject to the declination process.

Although the Indian Health Service

proposes to develop a uniform data set,

that data set will only be used as a guide

for negotiation of specific requirements.
32490 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

Summary of Comments

One comment argued for the revision

of § 900.65, that provides for the

submission of programmatic reports and

data ‘‘to meet the needs of the

contracting parties.’’ The comment was

concerned that the section could be

used to force Federal minimum

reporting requirements upon Indian

tribes and tribal organizations despite

the provision in Section 5(f) of the Act

that make reporting the subject of

negotiations.

Section 900.65 has been amended to

address the comment. A new

introductory sentence was added that

makes clear that unless there is a

statutory requirement, these regulations

create no mandatory reporting

requirements. The negotiation of

reporting is to be responsive to the

needs of the parties and appropriate for

the purpose of the contract. This

provides the Indian tribe or tribal

organization, as well as the Secretary,

with guidance and limits for

negotiations. Furthermore, because of

the numerous comments made

concerning the § 900.65 provision,

‘‘meet the needs of the contracting

parties,’’ and the amendment noted

above, § 900.67 was also amended to

make it consistent with § 900.65 by

substituting, ‘‘which responds to the

needs of the contracting parties,’’ for

‘‘meets the needs of the contracting

parties’’.

The Committee was asked to clarify

grammar in § 900.68. The Committee

concluded that the word ‘‘for’’ was

inadvertently included in the first line

of § 900.68. The ‘‘for’’ has been and a

comma added between ‘‘set’’ and

‘‘applicable’’ in the first line. This

should eliminate the confusion.

Subpart H—Lease of Tribally-Owned

Buildings by the Secretary

Summary of Subpart

Section 105(l) of the Act authorizes

the Secretary to lease tribally-owned or

tribally-leased facilities and allows for

the definition of ‘‘other reasonable

expenses’’ to be determined by

regulation. This subpart provides a nonexclusive list of cost elements that may

be included as allowable costs under a

lease between the Indian tribe or tribal

organization and the Secretary. It further

clarifies that except for ‘‘fair market

rental,’’ the same types of costs may be

recovered as direct or indirect charges

under a self-determination contract.

The Subpart was substantially revised

based upon comments received

following the NPRM. Please note that

two sections have been added, and

previous § 900.71 and § 900.72 have

now become § 900.73 and § 900.74

respectively.

Summary of Comments

Comments requested that the

Committee specify the type of account

and the guardian of the account for a

reserve for replacement of facilities

identified in § 900.70(c).

The final regulation adds two new

sections to accomplish this. New

§ 900.71 was added to set forth the type

of account as a ‘‘special revenue fund’’

or a ‘‘capital project fund.’’ New

§ 900.72 was also added to provide that

the Indian tribe or tribal organization is

the guardian of the fund. It permits fund

investments in a manner consistent with

the laws, regulations and policies of the

Indian tribe or tribal organization,

subject to lease terms and the selfdetermination contract.

The Committee was asked to add

landscaping costs to those items of cost

included in § 900.70(e)(1–16). No such

addition was made as the Committee

believed that such costs were included

in either subsection (8) or subsection

(16) of § 900.70(e).

Likewise, another comment suggested

adding profit to those matters listed in

§ 900.70(e). In the Committee’s view, a

lease based upon fair market value

provides for the recovery of profit,

adjusted as appropriate, based upon the

Federal Share (if any) of acquisition or

construction. Therefore, no change was

made to this provision.

The committee was asked to identify

the source of funds for these lease

payments. The source of funds is a

subject of negotiation between the

parties to a self-determination contract.

Subpart I—Property Donation

Procedures

Summary of Subpart

This subpart establishes procedures to

implement section 105(f) of the Act.

Section 900.85 provides a statement of

the purpose of the subpart and explains

that while the Secretary has discretion

in the donation of excess and surplus

property, ‘‘maximum’’ consideration

must be given to an Indian tribe or tribal

organization’s request.

This subpart also contains a provision

for the Secretary to elect to reacquire

property under specific conditions. It

clarifies that certain property is eligible

for operation and maintenance funding,

as well as for replacement funding on

the same basis as if title to the property

were held by the United States.

Section 900.87 provides for the

transfer of property used in connection

with a self-determination contract. It

provides slightly different procedures

for personal property versus real

property furnished before the effective

date of the 1994 amendments and

another procedure for property

furnished after the enactment of the

1994 amendments.

Sections 900.91 and 900.92 address

§ 105(f)(2)(A) of the Act, which provides

that a tribal contractor automatically

takes title to property acquired with

contract funds unless an election is

made not to do so. It also addresses the

process for requesting that real property

be placed ‘‘in trust.’’

Section 900.97 addresses BIA and IHS

excess property donation while

§ 900.102 addresses excess or surplus

property from other Agencies.

Summary of Comments

The committee was asked to clarify

this Subpart as it is confusing and

generally repetitive. The Subpart

addresses the methodology that

provides property to Indian tribes and

tribal organizations pursuant to the

Indian Self-Determination Act. Because

there are several classes of property,

with varying rights and mechanisms,

the Subpart must address each

separately. In order to reduce confusion,

the final regulations provide more

uniformity depending on the property

type.

It was suggested that the Committee

restore the language that was initially

adopted by the Committee, but not

included, in § 900.86. The language

change in the NPRM accommodates the

use of ‘‘plain English’’ and was not

intended to change the manner in which

the Secretary exercised discretion. The

Committee has reinstated the originallyapproved version by striking the words

‘‘give maximum weight’’ and

substituting ‘‘exercise discretion in a

way that gives maximum effect’’

following the word ‘‘will’’ in the first

line of the answer in § 900.86. A similar

amendment can be found at § 900.97(a).

To ensure clarity, several comments

requested that the regulation specify as

to whether property is real property or

personal property in given instances.

The Committee has used the word

‘‘property’’ in these regulations to mean

both real and personal property except

where not applicable to one or the other

type of property. If either the words

‘‘real’’ or ‘‘personal’’ modify ‘‘property’’

that provision is limited to that type of

property.

The committee was asked to change

the incorrect reference to 41 CFR 101–

47, 202.2(b)(10) in §§ 900.87 (b)(2) and

(c)(2). The miscitation has been

corrected.

In addition, the committee was asked

to delete the terms ‘‘justify and certify’’
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in § 900.86 as well as § 900.97 and

§ 900.104 because these terms frustrate

the statutory intent and limit access to

property needed to carry out selfdetermination contracts. The Committee

amended the above-noted sections and

substituted ‘‘state how’’ or ‘‘statement of

how’’ for the ‘‘justify and certify’’

provision. This was done to make clear

that what is needed is a concise, simple

statement of how the subject property is

‘‘appropriate for use for a purpose of

which a self-determination contract is

authorized under the Act,’’ the statutory

language. The Committee expects that

the deletion of the terms ‘‘justify or

certify’’ makes it clear that no detailed

submission will be required by the

Secretary or his designee.

Comments requested revision in the

process described in § 900.87 pertaining

to property that was made available

before or after October 25, 1994. The

Committee has chosen not to make

changes, as the October 25, 1994 date is

the result of the 1994 Amendments to

the Act. That date is the effective date

of Public Law 103–413. Those

amendments provided at Section 105 of

the Act that Indian tribes or tribal

organizations could take title to

government-furnished property used in

performance of the contract property

unless the Indian tribe or tribal

organization preferred the Secretary to

retain title. Prior to October 25, 1994,

title to such property remained with the

Secretary.

This provision allows an Indian tribe

or tribal organization to receive title to

government-furnished property put in

use prior to October 25, 1994. In part,

that allows Indian tribes or tribal

organizations greater flexibility with the

Property Management standards in

Subpart F above. For these, reasons no

further changes were made in § 900.87.

One comment suggested that the

regulation clarify the references to the

value of property subject to

reacquisition or acquisition by the

Secretary at the time of retrocession,

reassumption, termination or expiration

of the contract. Among the concerns

expressed were the value at the time of

reacquisition, whether it was

acquisition or reacquisition, the lack of

consideration of depreciation, and the

use of property by multiple contracts

when only one or a portion of one

contract triggers this issue. These

comments relate to Sections 900.89,

900.93, and 900.100, all of which

address this issue depending upon the

class of property.

The Committee took action to make

uniform sections 900.89, 900.93, and

900.100. These new sections all contain

an additional subsection that addresses

the issue of property used in multiple

contracts. This new subsection provides

that the Secretary and contractor shall

negotiate an ‘‘acceptable arrangement’’

for continued sharing and the title to the

property.

In order to address current value (at

the time of retrocession, etc.) the section

was revised to ‘‘current fair market’’ and

another clause was added, ‘‘less the cost

of improvements borne by the Indian

tribe or tribal organization.’’ This was

done so that where an Indian tribe or

tribal organization has made

improvements to a piece of property, the

value of the improvements is factored

into arriving at the $5,000 value

threshold. The Committee also reviewed

the depreciation questions but

concluded that the current fair market

value approach would adequately take

these factors into consideration.

Moreover, since services would be

provided to Indian beneficiaries by the

Secretary, the best approach with the

reacquired property was current fair

market value.

In regard to § 900.93, one comment

proposed a change to the question by

substituting ‘‘reacquire’’ for ‘‘acquire.’’

Upon review the Committee concluded

that ‘‘acquire’’ was the correct term

because this section addresses

contractor-purchased property. In that

instance, the Secretary has never had

title and ‘‘acquire’’ is the proper term.

The revisions to the above-noted

sections have also been incorporated

into Subpart P of the regulations. No

further comments will be discussed in

this preamble on Sections 900.89,

900.93, or 900.100 since the operative

provisions are now uniform.

With regard to Sections 900.96 and

900.103, several comments asked when

the Secretary will notify Indian tribes

and tribal organizations about the

availability of excess BIA and IHS

personal property and GSA excess and

surplus property. Suggestions of

quarterly or semi-annually were made.

At both § 900.96 and § 900.103 the term

‘‘not less than annually’’ has been

added. This creates a minimum

requirement that the Secretary must

meet yet allows for more frequent

notices.

Some comments asked the Committee

to provide further instruction in

§ 900.97(b) relating to multiple requests

by contractors the same excess or

surplus property.

The Committee revised these

subsections to clarify what will occur in

that situation. In regard to personal

property, the request first received by

the Secretary will have precedence. If

the requests are received by the

Secretary on the same date, the

requestor with the lowest transportation

costs will prevail.

A technical amendment was made to

§ 900.97(c) by changing ‘‘piece of real

property’’ to ‘‘parcel of real property.’’

The committee was asked to delete

the reference to the Federal Property

Management Regulation, 41 CFR

Chapter 101, as that reference had at

§ 900.104(b) the potential to incorporate

an entirely different set of regulations,

not consistent with the Act. The

references to the Federal Property

Management Regulation (FPMR) and 41

CFR Chapter 101 were deleted and

‘‘Section 900.86 of this Subpart’’ was

substituted. The Committee made this

revision to reflect that these regulations

are unique to self-determination

contracts and to avoid any conflict

between these regulations and the

FPMR.

Several comments were made

concerning the need for the Secretary to

act expeditiously to acquire excess or

surplus government property when the

property is frozen by the Indian tribe or

tribal organization, in § 900.104(c). The

Committee revised subsection (c) of

§ 900.104 by harmonizing the several

suggestions.

Several comments called for

clarification of § 900.107 by explaining

which type of property remains eligible

for replacement funding. The

Committee changed the question in

§ 900.107 and deleted ‘‘Yes’’ from the

answer. This makes clear that

government-furnished property,

contractor-purchased property and

excess BIA and IHS property are eligible

for replacement funding consistent with

Section 105(f) of the Act. Only excess or

surplus government property from other

agencies is not eligible for such

replacement.

Subpart J—Construction Contracts

Summary of Subpart

Subpart J addresses the process by

which an Indian tribe or tribal

organization may contract for

construction activities or portions

thereof. The subpart is written to inform

readers of the breadth and scope of

construction contracting activities

conducted by the Departments, and

provides opportunities for Indian tribes

or tribal organizations to choose the

degree to which they wish to participate

in those activities. The subpart provides

for extensive cooperation and sharing of

information between the Departments

and an Indian tribe or tribal

organization throughout the

construction process. The subpart

provides for different construction

contracting methods, such as award of
32492 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

contracts through subpart J, award of

contracts through section 108 of the Act,

and award of grants in lieu of contracts

depending on the degree of Federal

involvement and the phase(s) of

construction activities for which the

Indian tribe or tribal organization seeks

to contract.

The construction process is described

in phases, starting with a preplanning

phase, followed by a planning phase, a

design phase, and a construction phase.

Provisions are included so an Indian

tribe or tribal organization can seek a

contract through section 108 of the Act

for the planning phase and for

construction management services. It is

not required that these functions be

pursued through a section 108 contract:

if the Indian tribe or tribal organization

so elects, these activities can be part of

a subpart J contract.

Definitions are provided that are

specific to this subpart and this subpart

establishes new procedures to facilitate

tribal contracting, through such

measures as tribal notification and other

provisions.

The subpart promotes the exploration

of alternative contracting methods, and

eliminates the applicability of the

Federal acquisition regulations except

as may be mutually agreed to by the

parties.

The subpart describes the process for

negotiating a construction contract,

including the process for arriving at a

fair and reasonable price, and details the

process for resolving disagreements in

the contracting process. The subpart

also sets forth minimum requirements

for contract proposals, and details the

respective roles of tribes and the

Secretary.

The subpart promotes tribal flexibility

in several areas, including through

periodic payments at least quarterly,

and the payment of contingency funds

to be administered by the tribal

contractor.

Summary of Comments

Approximately 185 comments were

received from non-governmental

representatives, most of these from

Nations and tribes rather than

individuals. This preamble reflects the

committee response to each comment in

a section-by-section format. References

to no action being taken by the

Committee indicate that no change was

made to the regulation.

Several comments proposed that the

phrase ‘‘or real property’’ be added after

‘‘Federal facilities.’’ The comments were

adopted to ensure that related

construction work was covered under

Subpart J. The new phrase adds ‘‘and/

or other related work’’ after

‘‘demolition.’’

Eight comments argued that

supportive administrative functions

should be specifically recognized as

contractible in the language of

§ 900.111. The Committee decided that

the language was adequate as published.

One comment proposed adding ‘‘or

tribal organization authorized’’ after

‘‘tribe.’’ This comment was adopted.

One comment proposed to add a bid

award phase. The comment was not

adopted because it is presently included

in the individual phases described in

the regulation. Three comments stated

that tribal involvement was not

included in the site selection process.

Site selection was adopted and inserted

into subsection 900.112(a)(2) and (3).

One comment proposed to add

‘‘assessment and’’ after ‘‘initial’’ at

§ 900.112(a)(1) and ‘‘associated

activities’’ after ‘‘assessments’’ at

§ 900.112(b)(2). Both comments were

adopted.

Several comments stated that

§ 900.113(b) implies that Indian tribes

and tribal organizations will always

subcontract with a consultant rather

than using tribal employees to perform

certain functions. This was not the

intent of the proposed regulation. The

Committee adopted the proposed

language: ‘‘An Indian tribe or tribal

organization’s employee or construction

management services consultant

(typically an engineer or architect)

performs such activities as:’’ and struck

‘‘The construction management services

consultant (typically an engineer or

architect) assists and advises the Indian

tribe or tribal organizations in such

activities as.’’

Five comments suggested that the

phrase ‘‘and real property’’ should be

included at § 900.113(c) after ‘‘Buildings

and Facilities.’’ The committee took no

action on these comments.

Three comments stated that the

critical distinction between construction

contracts and section 108 model

agreements are the requirements which

apply to each. The committee took no

action on this comment.

One comment stated that

§ 900.115(b)(1) should be clarified to

indicate that the term ‘‘Act’’ refers to the

Office of Federal Procurement Policy

Act. The comment was adopted and the

work ‘‘such’’ was deleted and the word

‘‘that’’ was inserted.

Nine comments suggested that cost

reimbursement contracts should also

allocate the risk. The Committee took no

action. One comment suggested

replacing ‘‘fixed-price’’ with

‘‘negotiated.’’ The Committee adopted

‘‘negotiated’’ and inserted it before

‘‘fixed-price’’ in both the question and

response.

Two comments stated that subsection

900.117(a)(2) treats the consequences of

the Secretary’s failure to act in a way

that is very unfavorable to Indian tribes

and, therefore, against the policy of the

Self-Determination Act. The comments

argued that the Secretary’s failure to act

should render the POR accepted rather

than rejected. The Committee did not

agree on this change. Three comments

stated that this section should contain

standards or other objective criteria

against which the POR will be reviewed.

The Committee concluded that these

criteria will be negotiated between the

parties and identified in the contract.

One comment suggested revising the

timeframes contained in the subsection

to accommodate a shorter construction

period due to weather concerns. The

Committee decided to add a subsection

at the end of Subpart J to address this

issue.

Seven comments argued that

construction management services may

be performed by tribal employees. The

Committee adopted the language ‘‘and/

or tribal or tribal organization

employees’’ after ‘‘consultants.’’

The Committee received two

comments on subsection 900.120. The

first urged that the 30-day time period

be reduced to 14 days. The Committee

did not agree with this change. The

second comment recommended

inserting the word ‘‘shall’’ in place of

‘‘will’’ and inserting ‘‘By registered mail

with return receipt in order to document

mailing after notify.’’ This language was

adopted.

The Committee received eight

comments on subsection 900.121 of the

NPRM. Six suggested inserting the word

‘‘each’’ before the word ‘‘phase,’’

requiring the Secretary to notify Indian

tribes and tribal organizations before

each phase. One comment proposed

adding the following language: ‘‘Failure

of the tribe or tribal organization to

notify the Secretary within 45 days after

receiving Secretarial notice described in

§ 900.120 shall not serve as a bar to the

applicant tribe or tribal organization

from contracting for the desired

project.’’ Although the proposed

language accurately reflects a

Comptroller General’s Opinion, the

Committee did not agree to this

addition. To resolve the impasse, the

Committee struck subsection 900.121 in

its entirety.

Eight comments suggested adding

language to § 900.121 to clarify who will

be solicited and how. The committee

took no action on these suggestions.

Three comments stated that section

105(m) of the Act establishes a
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negotiation process to be invoked at the

tribes’ option, and section 105(m)

language should be reflected in

subsection 900.122 rather than imposing

a mandatory process that may not be

applicable in all situations. The

regulation will be interpreted

consistently with the applicable

statutory provisions. The reference ‘‘in

accordance with section 900.121(a)’’

was stricken since § 900.121 was in its

entirety. One comment suggested

changing ‘‘will’’ to ‘‘shall’’ after

‘‘Secretary’’ in § 900.122(a). This change

was adopted.

Eight comments stated that the

language of this section should be

changed to mirror the requirements

found at § 900.29. The Committee took

no action on these comments. One

comment suggested adding ‘‘and

provide all documents relied on in

making the declination decision’’ at

§ 900.123(b)(1) after the words ‘‘in

writing.’’ The Committee agreed to this

language with the addition after the

word ‘‘decision’’ of ‘‘within 20 days of

such decision.’’ The Committee did not

agree to the proposed addition of

subsection 900.124(b)(1)(I): ‘‘The

Secretary shall be barred from relying

on any and all such documents which

are not provided in any defense of this

declination decision.’’ The regulation

therefore does not address what the

Secretary may or may not rely upon,

leaving such matters for decision by

administrative bodies or the courts.

Three comments on § 900.124 stated

that the requirements for grants are not

clear. The Committee took no action.

Five comments raised the issue of the

applicability of the Contract Work

Hours Act. The Committee agreed that

the applicability of the Contract Work

Hours Act and other laws is adequately

addressed in § 900.125(d). Accordingly,

the reference to the Contract Work

Hours Act at § 900.125(c)(4) was

deleted.

One comment stated that

§ 900.125(c)(1) requires the contract to

state that the tribal contractor will not

alter title to real property ‘‘without

permission and instructions from the

awarding Agency’’ and is, therefore,

inconsistent with section 105(f) of the

Act, which states that title to property

furnished by the Federal government for

a contracted program ‘‘shall, unless

otherwise requested by the tribe or tribal

organization, vest in the appropriate

tribe or tribal organization.’’ The

Committee adopted ‘‘elects not to take

title (pursuant to Subpart I) to Federal

property used in carrying out the

contract’’ at § 900.125(c)(1) after the

word ‘‘organization.’’ The Committee

also struck the language ‘‘proposes to

use Federal property in carrying out the

contract.’’

One comment stated that ‘‘engineers’’

should be deleted at § 900.126(a)(1) and

§ 900.130(c)(1) because the Act does not

require the use of licensed engineers,

only architects. The comment was

adopted and the word ‘‘engineers’’ was

deleted from those sections.

One comment suggested that

§ 900.125(a)(8) be expanded to include

the following language after the word

‘‘manuals’’: ‘‘and the Secretary shall

accept tribal proposals for alternatives

which are consistent with or exceed

Federal guidelines or manuals

applicable to construction programs.’’

The Committee adopted this language.

One comment stated that

§ 900.125(b)(8) was overreaching and

required production of information that

the Federal government had no

legitimate need to know. The Committee

compromised by agreeing to strike the

language as written and to substitute the

following: ‘‘(8) Identify if the tribe or

tribal organization has a CMS contract

related to this project,’’ and added after

the word ‘‘section’’ at § 900.125(b)(4)

‘‘and minimum staff qualifications

proposed by the tribe or tribal

organization, if any.’’

One comment proposed adding

language at § 900.125(d) which would

include tribal laws, ordinances and

resolutions. The Committee agreed and

added the sentence ‘‘The parties will

make a good faith effort to identify tribal

laws, ordinances and resolutions which

may affect either party in the

performance of the contract.’’

Three comments questioned the

applicability of § 900.126 to cost

reimbursement, fixed-price and nonconstruction contract construction

activities. The Committee took no

action.

Ten comments proposed changes to

the provision on contingency funds.

Four suggested the following language:

‘‘the amount of the contingency

provided shall be 10 percent of the

contingency funds, whichever is

greater.’’ Two comments proposed that

100 percent of the available contingency

should be open for negotiation and one

comment advocated that 100 percent of

the available contingency should be

included in the contract. The comments

proposed alternative language: ‘‘* * *

allow all of the contingency funds to be

transferred to the tribe unless the

government could show proof as to why

such funds should not be transferred.’’

The Committee compromised on the

following language: ‘‘The amount of the

contingency provided shall be 3 percent

of activities being contracted or 50

percent of the available contingency

funds, whichever is greater.’’

Additionally, the following sentence

was added to address concerns

regarding funding: ‘‘In the event

provision of required contingency funds

will cause the project to exceed

available project funds, the discrepancy

shall be reconciled in accordance with

§ 900.129(e).’’

One comment objected to the term

‘‘contract budget,’’ and urged the

language be changed to ‘‘funding

proposal.’’ The Committee took no

action, and noted that the present

language was written to accommodate

redistribution of funds within the

budget.

One comment stated that the ‘‘fair and

reasonable’’ language at § 900.127(a)

‘‘gives too much discretion to

government officials to determine what

is fair and reasonable.’’ The Committee

adopted the reference to § 900.129 at the

end of § 900.127(a).

Three comments raised the question

of the applicability of § 900.128 to cost

reimbursement, fixed-price, and nonconstruction contract construction

activities. The Committee took no action

on this concern, but to clarify changes

made at § 900.127(e)(8), the following

language at § 900.128(d)(3): ‘‘including

but not limited to contingency.’’

Seven comments stated that

§ 900.129(e)(1) should be amended to

reflect that only the amount in excess of

the available amount may be declined.

The Committee decided not to make the

recommended change, but did adopt the

following language after the word ‘‘Act’’

at § 900.129(e)(1): ‘‘or, if the contract has

been awarded, dispute the matter under

the Contract Disputes Act.’’

One comment urged that

§ 900.129(e)(2)(i) ‘‘should be modified to

expressly authorize the parties to jointly

agree on a lump-sum advance payment

to generate earned interest, in order to

bridge the gap between a fair and

reasonable price and the amount

available to the Secretary.’’ The

Committee added the phrase ‘‘advance

payments in accordance with section

900.132’’ at § 900.129(e)(2)(i) after

‘‘contingency funds.’’

Three comments raised the

applicability of § 900.129 to cost

reimbursement, fixed-price, and nonconstruction contract construction

activities. The Committee took no

action.

Five comments stated that architect

and engineer services were appropriate

at the design phase (§ 900.130(b)(1)) but

not required at the construction phase

and should be deleted. One comment

addressed the language requiring

licensed engineers at §§ 900.130(b)(1)

and (c)(1). The Committee struck ‘‘and
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engineers’’ in both places, and inserted

the word ‘‘as’’ before ‘‘needed.’’

Three comments stated that language

at § 900.130(c)(5) should be changed to

read: ‘‘The tribe or tribal organization

may not issue a change order which is

outside the general scope of work

defined in the contract or which

exceeds the contract budget including

contingency funds without Secretarial

approval.’’ The Committee took no

action.

One comment argued that the timing

of the independent cost estimate should

be clarified to facilitate negotiations.

The Committee took no action.

Three comments raised the

applicability of § 900.130 to costreimbursement, fixed-price and nonconstruction contract construction

activities. The Committee took no

action.

One comment proposed that

§ 900.130(b)(5) should delete the

Secretarial approval and substitute

‘‘review and provide written

comments.’’ In compromise, the

Committee adopted language which

allows for Secretarial review and

written comments on the project plans

and specifications only at the concept

phase, the schematic (or preliminary

design) phase, the design development

phase, and the final construction

documents phase, and Secretarial

approval of the project plans and

specifications for general compliance

with contract requirements only at the

schematic (or preliminary design) phase

and the final construction documents

phase, or as otherwise negotiated.

One comment proposed replacing the

word ‘‘shall’’ at § 900.130(b)(8) with

‘‘may,’’ and striking the last sentence

requiring production of copies of

contracts and subcontracts. In

compromise, the Committee struck the

following language: ‘‘of contracts and

major subcontracts and modifications

* * * and A/E service deliverables.’’ At

the end of the first sentence of

§ 900.130(b)(8) the Committee adopted

the following language: ‘‘including but

not limited to descriptions of contracts,

major subcontracts and modifications

implemented during the report period

and A/E service deliverables.’’

The Committee struck the following

language at § 900.130(c)(7)(ii): ‘‘of

change orders, contracts and major

subcontracts’’ and inserted at

§ 900.130(c)(8) ‘‘contracts, major

subcontracts, modifications.’’

One comment argued that § 900.130(e)

should require the Secretary to act

‘‘within 30 days or as negotiated

between and agreed to by the parties.’’

Another comment suggested that the

word ‘‘sufficient’’ replace ‘‘additional’’

before’’funds are awarded.’’ The

Committee took no action on the first

comment and adopted the word

‘‘sufficient’’ in addition to, rather than

in lieu of, ‘‘additional.’’

Six comments urged that

§ 900.131(b)(7) be rewritten as follows:

‘‘The tribe or tribal organization may not

issue a change order which is outside

the general scope of work defined in the

contract or which exceeds the contract

budget including contingency funds

without Secretarial approval.’’ The

Committee took no action.

Eight comments recommended the

deletion of § 900.131(b)(11)(i)(A), stating

that this section takes authority from an

Indian tribe when the tribe is acting as

the contracting officer for its

subcontracts. The Committee took no

action.

Eight comments suggested that

overhead costs should be included at

§ 900.131(b)(11)(i)(D)(iii). The

Committee adopted the language

‘‘including but not limited to overhead

costs’’ before ‘‘reasonable costs.’’

One comment stated that the

Secretary’s role under § 900.131

generally should be substantially

narrower. Specifically, the comment

stated:

The Secretary should not have final

approval authority over planning documents

once a contract is set for planning activities,

the Secretary should not retain final approval

authority for general compliance with

contract requirements, and the Secretary

should not be able to decline acceptance of

the constructed building or facility. The

Secretary should instead be limited to

monitoring contract performance and to

invoking such remedies as may be available

to the Secretary under the Contract Disputes

Act or under other provisions of the SelfDetermination Act.

The Committee adopted compromise

language on this issue at § 900.130(b)(5).

One comment stated that the

independent cost estimate described at

§ 900.131(b)4) is a fully contractible

function and the report should be

shared with both parties. The

Committee took no action on this

comment.

One comment urged that

§ 900.131(b)(11)(i)(B) is unacceptable

because it allows the Secretary

subjective discretion to determine what

is ‘‘materially non-compliant work,’’

The Committee took no action on this

comment.

Three comments questioned the

applicability of § 900.131 to costreimbursement, fixed-price and nonconstruction contract construction

activities. The Committee took no action

on those comments.

One comment proposed eliminating

the Secretarial approval function at

§ 900.131(b)(1) and inserting the word

‘‘maximum’’ before the words ‘‘tribal

participation.’’ The Committee adopted

the word ‘‘comment’’ before ‘‘and

approval functions’’ and ‘‘full’’ before

‘‘tribal participation.’’ The Committee

also adopted the words ‘‘in writing’’

with regard to Secretarial notification of

any concerns or issues that may lead to

disapproval and the words ‘‘and

documents’’ after ‘‘relevant

information.’’ The Committee struck the

language ‘‘accommodate tribal

recommendations’’ and inserted

‘‘resolve all issues and concerns of the

tribe or tribal organization’’ after the

words ‘‘good faith effort to.’’ The

Committee added ‘‘appropriate’’ before

the word ‘‘Secretary’’ at § 900.131(b)(2).

One comment proposed changing

§ 900.131(b)(4) to read ‘‘Secretary may

rely on the Indian tribe’s or tribal

organization’s cost estimate or the

Secretary may’’ obtain an independent

government cost estimate that is derived

from the final project plans and

specifications, striking the balance of

the sentence. The Committee adopted

this comment and, after ‘‘tribal

organization,’’ added the following:

‘‘and shall provide all supporting

documentation of the independent cost

estimate to the tribe or tribal

organization within the 90-day time

limit.’’

One comment proposed to strike

‘‘approve’’ at § 900.131(b)(5) and insert

‘‘provide written comments.’’ The

Committee adopted the following

language after ‘‘the Secretary shall have

the authority to review’’: ‘‘for general

compliance with the contract

requirements and provide written

comments on,’’ and struck ‘‘approve for

general compliance with contract

requirements.’’ After ‘‘final construction

documents phase,’’ the Committee also

added ‘‘and approve for general

compliance with contract requirements

the project plans specifications only at

the schematic phase and final

construction documents phase.’’

One comment argued that

§ 900.131(b)(9) be deleted and the

following substituted: ‘‘The Secretary

shall be limited to the number of on-site

monitoring visits negotiated between

and agreed upon by the parties.’’ The

Committee achieved consensus by

striking ‘‘retains the right to’’ and

inserting ‘‘may’’ after ‘‘the Secretary.’’

In response to a comment regarding

§ 900.131(b)(1)(iii), the Committee

inserted ‘‘including but not limited to

overhead costs.’’

One comment proposed an additional

subsection at § 900.131(b)(13)(vi) to

read: ‘‘The Indian tribe or tribal

organization shall be compensated for
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32495

reasonable costs incurred due to

termination of the contract.’’ The

Committee adopted this comment.

One comment proposed adding ‘‘No

further approval or justifying

documentation by the contractor shall

be required before expenditure of

funds’’ to § 900.134. The Committee

adopted this suggestion.

Two additional subsections to

Subpart J were adopted by the

Committee. One responds to tribal

concerns regarding the short period of

actual time available to engage in

construction activities where weather is

an issue. The second clarifies that tribal

employment rights ordinances do apply

to construction contracts and

subcontracts.

The Committees received comments

urging both approval and rejection of

Subpart J as proposed. The Committee

only considered comments which

addressed a specific subsection and/or

proposed language.

Construction management services:

Of the comments received regarding the

proposed rule for construction activities

under Public Law 93–638, many were

directed towards the definition of

Construction Management Services

(CMS) and Construction Project

Management (CPM) contained as part of

the rule. Indeed, one comment,

representative of several Indian tribes,

‘‘. . . objects to the excessively narrow

definition of construction management

services (§ 900.113(b)) in a fashion

which unlawfully defeats the tribal right

to contract for management services

through an ordinary self-determination

contract, contrary to section 4(m) of the

Act.’’ CMS is a management process for

construction projects that in some

instances can provide for project

delivery. Several comments feel that the

activities described in the definition of

CPM should be considered CMS

activities. The distinction is important

in that the statute provides that selfdetermination contracts for CMS can be

through the Section 108 Model

Agreement and not through a selfdetermination construction contract

(Subpart J) as the regulations require for

conduct of CPM activities.

The statute does not provide a

definition for CMS and efforts to

develop a definition dominated

Committee discussion through the

regulation process. At the start of the

negotiation process, discussion departed

upon a path that quickly stalled in a

quagmire of divided opinion as to the

role, both appropriate and statutorily

permissible, available to the Federal

government in self-determination

contracts involving construction.

However, at no point was there any

dispute between tribal or Federal

representatives that a tribe can contract

for all management functions of a

construction contract. The dispute

regarding this issue revolves around the

contracting vehicle utilized—a selfdetermination contract versus a Section

108 Model Agreement—and not the

contractibility of management functions.

Consistent with the Federal argument

for limited Federal involvement in

construction projects was an

unwavering view that a Model

Agreement, invoked through provision

CMS, could not be used to circumvent

other provisions of the statute dealing

with construction.

To move forward, the Committee set

aside initial efforts to define roles and

involvement, and instead focused on

describing processes through which

tribes could pursue construction

activities. From these scenarios, much

discussion ensued and the roles of each

party developed. Through these efforts,

the regulations evolved in a manner that

provides for Indian tribes or tribal

organizations to contract for a spectrum

of responsibilities, ranging from

oversight of Federal efforts to tribal

responsibility for all aspects of the

construction process, through multiple

options of contracting methods. From

the standpoint of the tribal

representatives that actively and

consistently participated throughout the

negotiation process, the practical effect

of the CMS definition is negligible

towards the overall goal of increasing

tribal control of the contracting process.

The limit of the Federal involvement, as

described in § 900.132 of the regulation,

is a direct reflection of efforts to

describe reasonable points of Federal

involvement. Both tribal and Federal

representatives of the Committee

charged with developing the regulations

agree that the end result reflects a

lessening Federal involvement in and an

increase of tribal control of the

construction process through 638

contracting.

However, Federal and tribal

committee members did not reach

consensus on the definition of CMS.

Tribal and federal representatives

included this issue in their nonconsensus reports. The tribal nonconsensus position sought to eliminate

the definition of ‘‘construction project

management’’ and include a less

restrictive definition of ‘‘construction

management services’’ with conforming

changes to the balance of Subpart J.

Tribal representatives are of the view

that these definitions inappropriately

limit the scope of construction

management activities which should be

contractible outside Subpart J. They are

further of the view that the precise

contours of ‘‘construction management

services’’ should be worked out on a

case-by-case basis as tribes engage in

negotiations with particular agencies

over specific construction projects.

Accordingly, the Departments did not

change the definition of CPM.

While the Departments have given

careful consideration to the views of the

tribal representatives on this issue, they

cannot accept the tribal proposal. The

Departments are persuaded that, as a

legal matter, the Act treats construction

contracts governed by Subpart J

differently from contracts for other

activities which may be contracted

using the model agreement in section

108 of the Act. The two definitions

allow contracting under a section 108

model, agreement for certain

administrative support, coordination,

and monitoring activities. However,

construction project design and

construction activities (including dayto-day on site project management and

administration) are appropriately

contracted under Subpart J. Although

the tribal representatives are of a

different legal view, we believe that

expanding the definition of

‘‘construction management services’’ so

that construction projects may be

conducted under a section 108

construction management agreement

circumvents the statutory requirements

for a construction contract between the

government and the Indian tribe or

tribal organization.

Subpart K—Waiver Procedures

Summary of Subpart

This subpart implements section

107(e) of the Act, which authorizes the

Secretary to make exceptions to the

regulations promulgated to implement

the Act or to waive such regulations

under certain circumstances. Section

107(e) of the Act provides that in

reviewing waiver requests, the Secretary

shall follow the time line, findings,

assistance, hearing, and appeal

procedures set forth in section 102 of

the Act. Subpart K explains how an

Indian tribe or tribal organization

applies for a waiver, how the waiver

request is processed, the applicable

timeframes for approval or declination

of waiver requests, and whether

technical assistance is available. In

addition, subpart K restates the

declination criteria of section 102 of the

Act, which apply to waiver requests,

and specifies that a denial of a waiver

request is appealable under subpart L of

these regulations. Finally, subpart K

implements section 107(b) of the Act by

providing a process for a determination
32496 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

by the Secretary that a law or regulation

has been superseded by the provisions

of the Indian Self-Determination Act, as

amended.

Summary of Comments

Several comments indicated that the

scope of Subpart K was unclear. Some

argued that the scope should be

narrowed to authorizing only waivers

under Part 900, while others argued that

it should be expanded to include other

regulations as well. The language in

§ 900.140 has been redrafted to clarify

that the statutory waiver authority in

Section 107(e) of the Act is limited to

regulations under this Part. It should be

noted that the Secretary of the Interior

has the reserved authority to waive

other regulations in 25 CFR if permitted

by law. See 25 CFR 1.2.

One comment asked whether the

Secretary can delegate his or her

authority to waive regulations to lower

administrative levels. The Secretary

does have such authority, but has not

chosen to exercise it.

One comment recommended a

modifying of the last sentence of

§ 900.143 to require a ‘‘clear and

convincing’’ burden of proof on the

Secretary where a waiver request is

denied. This recommendation was

rejected because it is different from the

statutory burden of proof in Section

102(a)(2) of the Act.

One comment objected that the 90-

day period in § 900.143 was too long,

and recommended shortening it to 30

days. This recommendation was

rejected because it is contrary to the 90-

day time frame in Section 102(a)(2) of

the Act. Section 107(e) of the Act

specifically provides that the timeline in

Section 102 of the Act applies to the

review of waiver requests.

One comment asked whether waivers

can be granted even if they are against

the law. Although such a clarification is

unnecessary in this regulation, the

Secretary is not authorized to waive any

provision of the Act that may be restated

in these regulations.

One comment stated that § 900.146

should be amended to allow Indian

tribes or tribal organizations the

discretion to draw on expertise from

other tribes and/or tribal organizations

to meet their needs. To address this

concern, § 900.146 was amended to

cross-reference the provision of

technical assistance under § 900.7.

One comment recommended the

inclusion of an additional paragraph in

§ 900.148 requiring the Secretary to

attach a list of all applicable Federal

requirements to each contract. This

suggestion was not adopted because any

addition to the contract must be by

mutual agreement of the parties

pursuant to Section 108 of the Act.

The Office of Management and Budget

(OMB) expressed concern about

recognition of its ultimate responsibility

for the approval of waivers of any

principles contained in OMB cost

circulars. Therefore, in reviewing

waivers of any cost principles, OMB

requests that the Secretary consult with

OMB prior to approving any requests

under Subpart K.

Subpart L—Appeals

Summary of Subpart

The advisory committee decided to

develop substantive regulations

governing appeals of pre-award

decisions by Federal officials. This

subpart does not govern appeals of postaward decisions subject to the Contract

Disputes Act, since the provisions

governing disputes under a contract can

be found in subpart N of these

regulations. Subpart L implements

sections 102(b), 102(e), and 109 of the

Act, as well as various other provisions

requiring the Secretary to provide an

administrative appeals process when

making certain decisions under the Act.

It provides a road map to the appeals

process for Indian tribes and tribal

organizations.

The regulation is divided in two parts:

the first part concerns appeals from

decisions relating to declination of a

proposal, an amendment of a proposal,

or a program redesign; non-emergency

reassumption decisions; decisions to

refuse to waive regulations under

section 107(e) of the Act; disagreements

over reporting requirements; decisions

relating to mature status conversions;

decisions relating to a request that a law

or regulation has been superseded by

the Act; and a catchall provision

relating to any other preaward

decisions, except Freedom of

Information Act appeals and decisions

relating to the award of discretionary

grants under section 103 of the Act. The

second part concerns decisions relating

to emergency reassumptions under

section 109 of the Act and decisions

relating to suspension, withholding, or

delay of payments under section 106(l)

of the Act.

Subpart L allows for an informal

conference to avoid more timeconsuming and costly formal hearings,

but delineates the appeal process

available to Indian tribes and tribal

organizations that are either unhappy

with the results of the informal

conference or who choose to bypass the

informal process altogether. Subpart L

also states that an Indian tribe or tribal

organization may go directly to Federal

district court rather than exhaust the

administrative appeal process under

this regulation.

Under the regulation, all appeals must

be filed with the Interior Board of

Indian Appeals. Hearings on the record

are conducted by an Administrative

Law Judge of the Department of the

Interior’s Office of Hearings and

Appeals, Hearings Division, who

renders a recommended decision.

Objections to this recommended

decision may be filed either with the

Interior Board of Indian Appeals, if the

case relates to a Department of the

Interior decision, or with the Secretary

for Health and Human Services, if the

case relates to the Department of Health

and Human Services.

The second part contains similar

provisions concerning emergency

reassumption and suspension decisions,

but these decisions are treated

separately because of the statutory

requirement that a hearing on the record

be held within ten days of the

Secretary’s notice of his or her intent to

rescind and reassume a program

immediately, or a notice of intent to

suspend, withhold, or delay payment

under a contract.

Summary of Comments

Several comments noted that the

words ‘‘you’’ and ‘‘your’’ appear

throughout this Subpart, rather than the

words ‘‘Indian tribe’’ and ‘‘tribal

organization.’’ Where appropriate, the

words ‘‘you’’ and ‘‘your’’ have been

replaced throughout this Subpart.

Pursuant to several comments,

§ 900.150 was amended by adding a

new paragraph (j) subjecting decisions

relating to requests for determination

that a law or regulation has been

superseded by the Act to the appeal

procedures under this Subpart.

One comment objected to having IHS

appeals go to the Interior Board of

Indian Appeals (IBIA). This

recommendation was not adopted

because to have all appeals heard by a

single administrative appeals body so

that the Act and these regulations are

uniformly interpreted by both

Departments.

One comment recommended that

Indian tribes should be required to go

through the administrative appeal

process before going to Federal district

court. This recommendation was not

adopted because Section 110 of the Act

specifically authorizes direct access to

Federal courts.

One comment recommended that

there be a mandatory completion time of

six months from the time an Indian tribe

or tribal organization files a notice of

appeal to the time for a final decision
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32497

from the IBIA. This recommendation

was not adopted because there is no

way for the IBIA to anticipate when all

briefings, discovery extensions, and

settlement discussions will be

concluded. Flexibility needs to be

maintained during this process. The

regulation already includes time frames

for the IBIA to render decisions once all

required filings have been made. See,

e.g., § 900.167 and § 900.174.

One comment recommended

enlarging the 30-day period in § 900.152

to 90 days. This recommendation was

not adopted because § 900.159 already

provides for an extension of time.

Several comments requested that

§ 900.152 be clarified to provide that

Indian tribes may appeal decisions

made by agencies of DHHS besides the

IHS. This recommendation was

adopted, and the question in § 900.152

was amended to reflect this

clarification.

One comment suggested that

§ 900.155(b) be redrafted to define the

words ‘‘adequate representation’’ and

suggested that the section be redrafted

so that the costs of the appeal are

chargeable either to the contract, if the

tribe prevails on the appeal, or to the

tribe if the appeal is unsuccessful. These

recommendations were not adopted.

Federal agencies reserve the rights to

determine what is adequate

representation in specific cases. To force

tribes to repay the expense of appeals

either through a charge to the contract

or through tribal funds would be unjust

and would discourage appeals which

are well taken.

Many comments objected to a

provision in § 900.152 and § 900.156

which provides that ‘‘the IBIA will

determine whether you are entitled to a

hearing.’’ This sentence was deleted

from these two sections. As pointed out

in many comments, the standards

governing these decisions are set forth

in § 900.160.

Several comments objected to the

certification requirement in § 900.158(d)

because it is not a statutory requirement

of the Act, and conflicts with the

government-to-government relationship

between tribes and U.S. Government.

This recommendation was not adopted.

The certification requirements here are

the same as in courts and other

administrative appeal forums. The

purpose of the requirement is simply to

ensure that the deciding official has

been informed that his/her decision has

been appealed, and that the IBIA be

informed of this notification. It is not

intended to be a burdensome

requirement, but merely a certification

that is obtained for information

purposes.

Pursuant to a comment, the words

‘‘good reason’’ in § 900.159 were

changed to the words ‘‘valid reason.’’

One comment recommended deletion

of § 900.159 because any request for an

extension should be made within the

30-day time frame in § 900.158. This

recommendation was not adopted

because, although a matter of

considerable debate during the

Committee’s negotiations, it was agreed

that there could be extenuating

circumstances that could prevent a

Indian tribe or tribal organization from

filing its notice of appeal within the 30-

day time frame in § 900.158.

One comment sought clarification of

what happens if the IBIA determines not

to grant an extension. If the IBIA

determines that the appellant does not

have a valid reason to extend the

deadline, and the tribe disagrees with

this determination, it can appeal that

decision to Federal District Court

pursuant to Section 110 of the Act.

Section 900.160(a) was restructured

into two sentences for clarification

purposes. The second sentence of

§ 900.160 now begins with the words

‘‘[i]f so.

One comment recommended

changing the 15-day time frame in

§ 900.161(b) to a longer period. This

recommendation was not adopted

because it is the Committee’s belief that

the time frame is adequate to hold a prehearing conference.

Several comments suggested that

§ 900.163 be amended to impose a clear

and convincing evidence burden of

proof on the Secretary. This

recommendation was rejected because it

is different from the statutory burden of

proof in Section 102(a)(2) of the Act.

Several comments recommended

rewriting the question in § 900.163 to

include all appealable issues. This

recommendation was not adopted

because the burden of proof is on the

appellant to show by a preponderance

of the evidence that the agency erred for

issues under appeals in §§ 900.150(h),

(i), and (j). This is consistent with the

usual Administrative Procedure Act

standard.

One comment objected to the agency

which is one of the parties to the appeal

making the final decision in § 900.167.

The regulatory provision is consistent

with the Act. Section 102(e)(2) of the

Act provides that any decision which

represents final agency action shall be

made ‘‘by an official of the Department

who holds a position at a higher

organizational level within the

Department * * * than the agency

* * * in which the decision was made’’

or by an administrative judge.

Several comments noted that Subpart

L does not address the statutory right of

Indian tribes to recover attorney fees

under the Equal Access to Justice Act

(EAJA). In response to these comments,

a new section was added at the end of

Subpart L clarifying that EAJA applies

to administrative appeals under this

Subpart, and cross-referencing the

appropriate EAJA regulations.

Subpart M—Federal Tort Claims Act

Coverage

Summary of Subpart

Coverage of the Federal Tort Claims

Act (FTCA) has been extended to Indian

tribes, tribal organizations and Indian

contractors carrying out contracts,

grants, and cooperative agreements

under the Act. This subpart explains

which tort claims are covered by the

FTCA and which tort claims are not

covered by the FTCA, for both medical

and non-medical related claims. It also

provides for tribal assistance in giving

notice of tort claims to the Federal

agency involved, and in providing

assistance during the administrative

claim or litigation process.

Summary of Comments

Two comments stated that there

should be no distinction between

medical-related and non-medicalrelated functions under selfdetermination contracts for purposes of

FTCA coverage, defense or payment.

This comment was rejected because the

medical provisions have a unique

history grounded in the Public Health

Service Act, and in Section 102(d) of the

Act.

Several comments expressed concern

that the proposed regulations lacked

guidance regarding insurance. Insurance

is beyond the scope of FTCA authority

for these regulations.

Several comments stated that portions

of this Subpart reflect a fundamental

misunderstanding of the scope of the

Federal government’s obligation to

defend and indemnify tribal contractors

for non-tort claims and claims outside

the contract. Another set of comments

requested that § 900.183 be amended to

explain that an Indian tribe or tribal

organization may not be sued for claims

beyond the scope of the FTCA arising

out of the performance of selfdetermination contacts. In amending

§ 900.183, the Committee determined to

narrow the scope of the regulation

strictly to the remedial FTCA provisions

of section 102(d) of the Act and section

314 of Public Law 101–512, as required

by section 107(a)(1) of the Act. The

Committee therefore chose not to

address the extent to which Indian
32498 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

tribes or tribal organizations are

protected from suits on other claims,

which is beyond the scope of these

regulations.

One comment recommended that

‘‘Indian contractor,’’ as defined in

§ 900.181(a), should be expanded to

include non-medical services as well as

medical services. Although the Eighth

Circuit Court of Appeals (see FGS

Constructors, Inc. v. Carlow, 64 F.3d

1230) has interpreted this provision as

applying only to health programs,

§ 900.181(a)(3) was added to reflect the

desire of some Indian tribes to continue

disputing the scope of this term.

One comment recommended deleting

§ 900.181(b) since ‘‘contract’’ is defined

elsewhere. The comment was adopted.

One comment suggested clarifying

§ 900.183(a) by stating with specificity

which tort claims are barred. The

comment was adopted and this section

was changed.

One comment recommended

§ 900.183(b) be amended by adding a

new subsection including activities

performed by an employee which are

outside of the scope of employment.

The comment was adopted.

One comment asked what law will be

used to implement breach of contract

claims and whether tribal contractors

are subject to Federal employment

statutes. The comment was rejected

because this subject is beyond the scope

of regulatory authority under section

107(a)(1) of the Act.

One comment questioned the

reference to violations of the U.S.

Constitution in § 900.183(b)(4). The

provision was deleted. As sovereigns

pre-existing the Constitution, Indian

tribes have historically been regarded as

unconstrained by those constitutional

provisions framed specifically as

limitations on Federal and state

authority. See Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 56 (1978). To the

extent applicable, 28 U.S.C. 2679(b)(2)

continues to be relevant.

Several comments asked whether

tribal law applied to tort claims. No

change was made because state law

applies to the determination of liability

for tort claims under the FTCA.

One comment suggested amending

§ 900.188(c)(7) to add ‘‘including

Federal employees assigned to the

contractor,’’ after the word

‘‘employees.’’ The comment was

adopted and the sentence re-written.

Two comments recommended that the

notice requirements of 28 U.S.C. 2679(c)

be referenced in § 900.188(b). Also, one

comment suggested adding the same

notice provision to § 900.203. The

comments were adopted.

One comment recommended

synchronizing § 900.206 with § 900.192

so that the list of employees covered for

non-medical-related claims is the same

as for medical-related claims. The

comment was adopted.

Subpart N—Post-Award Contract

Disputes

Summary of Subpart

Under section 110(d) of the Act, the

Contract Disputes Act (CDA) applies to

post-award contract claims. This

subpart explains when a CDA claim can

be filed, the contents of a claim, and

where to file the claim. It also explains

the difference in the handling of claims

over $100,000 and those less than that

amount.

Summary of Comments

Several comments recommended that

language from the withdrawn 1994

NPRM regarding the application of the

Equal Access to Justice Act be

incorporated into the Subpart. The

comments were adopted by adding

§ 900.216(c).

Several comments recommended

adding paragraph 900.805(k) from the

withdrawn 1994 NPRM regarding using

accounting principles as ‘‘guides’’ rather

‘‘rigid measures’’ in IBCA appeals. The

comments were adopted and a new

section was added.

One comment was concerned that

§ 900.217 was silent regarding the Tribal

Court system alternative for alternative

disputes resolution. A change was made

in § 900.217(b) to adopt this

recommendation. Two comments

indicated that § 900.217(b) needs to add

the right of the tribe, if it desires, to file

in Federal District Court or the Court of

Federal Claims. This concern is already

addressed in § 900.222.

Several comments recommended that

§ 900.220(b) be revised to read:

‘‘supporting documents or data are

accurate and complete to the best of the

Indian tribe or tribal organization’s

knowledge and belief.’’ The comments

were adopted.

Two comments recommended that

§ 900.224 be amended so that delay of

the awarding official in making a final

decision should be treated as though the

claim were approved, rather than

denied. These comments were rejected

because the existing language is

statutory.

Several comments recommended

adding the following language to

§ 900.227: ‘‘If a decision is withdrawn

and a new decision acceptable to the

contractor is not issued, the contractor

may proceed with the appeal based on

the new decision or, if no new decision

is issued, proceed under § 900.224.’’

The comments were adopted and a new

§ 900.227(c) was added.

One comment expressed concern that

§ 900.230(a) requires an Indian tribe to

keep performing its contract in spite of

the possibility that the claim being

appealed represents crucial operating

funds from the contact. This is

addressed by the limitation of cost

clause of the model contract.

Subpart O—Conflicts of Interest

Summary of Subpart

Section 900.231 defines an

organizational conflict of interest, and

§ 900.233 defines personal conflicts of

interest which could affect selfdetermination contracts. The balance of

the subpart advises Indian tribes what

must be done in the event a conflict

arises. The subpart also provides that

Indian tribes may elect to negotiate

specific conflicts provisions on a

contract-by-contract basis.

Summary of Comments

The area of conflict of interests—

where an Indian tribe or tribal

organization’s and/or their employees’

administrations of a self-determination

contract affecting allottees and others

could be impaired by financial bias—

raises difficult questions for DOI,

including the proper balance between

the Federal-tribal government-togovernment relationship and the

Secretary’s mandated trust

responsibility. Additional issues

include the degree of monitoring

required for conflicts, if any, where the

United States contracts with Indian

tribes to perform duties that directly

affect the statutory rights of third

parties. In attempting to reconcile these

difficult questions, the DOI has opted

for an approach that seeks to minimize

intrusion and burden to Indian tribes

and tribal organizations, yet provides for

a degree of accountability where

conflicts arise.

The Committee reached consensus on

a personal conflict of interest provision

in the procurement management

standards in Subpart F. The Federal

committee members believed this

section should be supplemented by a

regulation addressing conflicts of the

Indian tribe or tribal organization itself

and conflicts of individual employees

involved in trust resource management.

These regulations appear in Subpart O

of the final regulation and only apply to

contracts awarded by the DOI.

Several comments on the NPRM

noted that no provision on conflicts of

interest has previously been adopted in

the 20 years of contracting trust
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32499

programs. The need to address the

conflicts issue in some form has become

more apparent as the DOI’s experience

with 638 contracts has increased.

Some comments assert that excellent

tribal track records make it clear that no

federal regulation is necessary. Several

other comments state that the NPRM

proposal suggests that in the absence of

regulation Indian tribes will engage in

fraudulent actions. The DOI does not

contend that there is a widespread

problem of unmitigated conflicts of

interest. Rather it is adopting the rule in

recognition of its responsibility as

trustee to ensure that in a trust

relationship, the acts of its agents are in

accordance with high fiduciary

standards. Therefore, the rule is

intended to protect trust beneficiaries.

Because the regulation only requires an

Indian tribe or tribal organization to

provide notice in the case of an

organizational conflicts of interest,

compliance should not be burdensome.

Several comments stated that any

potential conflict between a tribe and

allottees is no different than any other

relationship between a government and

its citizens, where a government uses its

own employees to value private land to

be condemned for government

purposes. Several other comments state

the NPRM’s ‘‘organizational conflict’’

proposal was vague and nonsensical

since the United States retains a

residual component (such as lease

approval or taking fee land into trust

status) which gives the DOI ample

opportunity to protect the interests of

the United States. A related comment

stated that this proposal appeared to

pass on to Indian tribes the costs of the

federal government’s continuing

responsibilities as trustee, constituting

an unauthorized failure to perform nondelegable functions.

The final regulations do address

organizational conflicts, because there is

a significant difference between the

obligation of a trustee to a beneficiary

and that of a government to a citizen. In

response to these comments, the DOI

significantly altered the organizational

conflicts regulation from the NPRM.

First, the final regulation clearly states

that it only applies when the contract

affects the interests of allottees, trust

resources or statutory obligations to

third parties. Second, the Indian tribe or

tribal organization is only required to

provide notice to the federal

government when such a situation

arises, that is not already covered in

their 638 contract.

Several Indian tribes commented that

Federal regulations must not dictate

internal tribal operations in the area of

personal conflicts of interest. Some of

them acknowledge that the federal

proposal would not be particularly

burdensome, but state that it is

inconsistent with the federal policy of

Indian self-determination.

The personal conflict of interest

provisions are narrowly drawn to cover

only trust programs. While there is a

strong federal policy of Indian selfdetermination, there is also a strong

federal policy of strict adherence to the

trust responsibilities arising from treaty

and statute. The self-determination

statute does not sever the fiduciary

relationship between the United States

and Indian trust beneficiaries. For this

reason the ethical standards involved

are not solely an internal tribal concern.

One comment recommended reliance

on tribal codes, supplemented by

negotiated contract provisions, to

protect against personal conflicts of

interest. The comment analogized the

federal proposal to unsatisfactory past

experiences with BIA ‘‘model codes.’’

The rule accommodates tribal codes

and negotiated contract provisions, that

the Department agrees would be the

ideal manner in which to address

conflicts. However it also provides a

rule to apply in the absence of tribal

code or contract terms that adequately

protect trust beneficiaries from conflicts

of interest.

Several comments agree that

regulations should address the problem

of conflicts of interest arising from

familial relations, organizational

relations where elected officials also

serve in programmatic capacities, and

financial relations. These comments

suggest that Indian tribes be authorized

to employ their own written codes of

standards of conducts. Until the

Secretary approves such codes, the

comments suggest terms that should

apply that draw upon standards

applicable to federal employees and

other government contractors.

The Department agrees that

regulations are needed and has provided

in § 900.236 that it will negotiate

conflicts provisions in contracts, to

displace these regulations if there is

agreement to provide equivalent

protection to these regulations. The

Department’s regulations focus solely on

financial interests, and not familial and

organizational relations, believing that

the latter is more susceptible to internal

tribal regulation. Because of concerns

about tribal sovereignty, the final

regulation does not require

Departmental approval of tribal codes,

except as agreed to in individual

contract negotiations.

Some comments described the

proposal in the NPRM as presenting

micro-management opportunities for

federal agency personnel inconsistent

with a government-to-government

relationship. To avoid micromanagement, the final rule was

modified, in the case of organizational

conflicts, to require only notice to the

DOI when and Indian tribe or tribal

organization learns of the existence of a

conflict. No mitigation plan, as

proposed in the 1996 NPRM, is

required. The personal conflicts

regulation only requires the Indian tribe

to address the conflict in a manner that

enables the Department to meet its trust

responsibilities.

Some comments recommended that

Indian tribes and the DOI rely on

contract-by-contract negotiations for

addressing conflicts provision. As

mentioned earlier, because of the trust

and legal responsibilities of the

Department, the regulations are

necessary to address situations where

terms cannot be negotiated in the short

time permitted for negotiation.

Several Indian tribes commented that

the Government does not similarly

regulate its own actions, and consult

with Indian tribes concerning conflicts

with actions proposed on allottee

properties. The DOI agrees that

consultations is appropriate, but

recognized that it has a very high duty

to assure that actions taken with respect

to allottee properties are consistent with

its fiduciary responsibilities to those

allottees. The rule does not require

consultation with allottees on actions

concerning tribal lands, or vice versa.

One comment written on behalf of

several individual owners of trust

resources, strongly supported the

adoption of minimum standards to

assure the integrity of the performance

and administration of trust resources.

The comment suggests that, at a

minimum trust resources be subject to

the same conflict standards applied to

procurement in the proposed § 900.48.

The final rule is very similar to the

agreed provisions in § 900.48.

Subpart P—Retrocession and

Reassumption Procedures

Summary of Subpart

Section 107(a)(1) of the Act authorizes

the Secretaries to promulgate

regulations governing retrocession and

reassumption procedures. Sections

900.240 through 900.245 define

retrocession, what entities are entitled

to retrocede, tribal rights for contracting

and funding as a result of retrocession,

and tribal obligations regarding the

return of property to the Secretary after

retrocession.

Sections 900.246 through 900.256

explain what is meant by reassumption,
32500 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

the two types of reassumption

authorized under the Act, necessary

circumstances when using emergency

and non-emergency reassumption

authority, and Secretarial

responsibilities, including detailed

written notice requirements when

reassumption is invoked. The subpart

describes a number of activities after

reassumption has been completed, such

as authorization for ‘‘wind up’’ costs,

tribal obligations regarding the return of

property to the Secretary, and a funding

reduction protection.

Summary of Comments

One comment recommended that the

phrase ‘‘may retrocede a contract’’ be

added to the end of the answer in

§ 900.232 to provide a more complete

answer to the question of who may

retrocede a contract. This suggestion

adds clarity to the answer, and has been

adopted.

Several comments recommended that

an additional question and answer be

added to address when a retrocession

becomes effective. The recommended

language is contained in the Act,

provides meaningful information to the

users of this regulation, and has been

adopted and inserted as a new

§ 900.233.

Several comments recommended that

the term ‘‘fair market’’ be added to the

answer in § 900.236 and § 900.246 in

describing the value of property to be

returned to the Secretary in the event of

a retrocession or reassumption. While

the essence of this recommendation has

been adopted, to remain consistent

throughout the regulation the definition

of ‘‘fair market’’ as provided in Subpart

I will be restated in this Subpart.

(Subpart I states ‘‘current fair market

value, less the cost of improvements

borne by the Indian tribe or tribal

organization in excess of $5,000.’’) Also,

for clarity the word ‘‘requested’’ has

been added to the answer in § 900.236

in describing property to be returned to

the Secretary.

One comment recommended that the

answer provided in § 900.238, which

has (a) and (b) components, be reversed

to track the order of the question and

avoid confusion. This recommendation

has been adopted to promote uniformity

in this question and answer.

A comment recommended language

be added to the answer in § 900.239

incorporating the option for the award

of grants to Indian tribes from the

Secretary for technical assistance to

overcome non-emergency deficiencies.

While the exact language suggested is

not used, the recommendation has been

adopted since such grants are

authorized under the Act.

Several comments recommended that

language be added to § 900.238(b)(1)

dealing with the conditions for

emergency reassumptions. These

comments were not adopted because the

language now contained in

§ 900.238(b)(1) precisely tracks the Act

and the suggested additional language

may confuse statutory intent.

One comment recommended that a

statement be added to § 900.242 that the

Secretary will not rescind a contract

until there is a final decision in any

administrative hearing or appeal on a

non-emergency reassumption. This

recommendation has been adopted.

Internal Agency Procedures

The Departments’ position is that a

comprehensive manual for the internal

management of self-determination

contracts should not be developed

through the formal rulemaking process.

Internal agency procedures are more

appropriately developed outside the

negotiated rulemaking process, to allow

flexibility in addressing practical

considerations which arise in the field,

and to allow maximum participation

from those agency officials who bear

much of the responsibility for

implementing the Act to its fullest

capability. The Federal position

supports a joint tribal and Federal

commitment to work together to

generate a procedural manual which

will promote the purposes underlying

the Indian Self-Determination Act and

facilitate contracting by Indian tribes

and tribal organizations.

One goal of the full committee is to

have uniform procedures for the

implementation and interpretation of

the act and these regulations which

apply to all Federal agencies which

administer contracted programs. The

Federal members of the committee

propose that the parties formally agree

to work together to develop a manual

which guides all contracting agencies

through the contracting process. This is

consistent with the position taken by

the work group charged with making

recommendations regarding internal

agency procedures.

To that end, Federal committee

members would commit to a firm time

line within which to produce a manual.

Administrative Matters

This rule is a significant regulatory

action Executive Order 12866 and

requires review by the Office of

Management and Budget.

The Departments certify that this rule

will not have significant economic

effects on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.).

In accordance with Executive Order

12630 the Department of the Interior

and the Department of Health and

Human Services have determined that

this regulation does not have significant

takings implications. The rule does not

pertain to the taking of private property

interests, nor does it have an effect on

private property.

The Department of the Interior and

the Department of Health and Human

Services have determined that this rule

does not have significant Federalism

effects under Executive Order 12612

and will not interfere with the roles,

rights, and responsibilities of states.

The Departments of the Interior and

Health and Human Services have

determined that this rule does not

constitute a major Federal action

significantly affecting the quality of the

human environment and that no

detailed statement is required under the

National Environmental policy Act of

1969.

This rule imposes no unfunded

mandates on any governmental or

private entity in excess of $100 million

annually and is in compliance with the

provisions of the Unfunded Mandates

Act of 1995.

Paperwork Reduction Act of 1995

The Office of Management and Budget

has approved, under 44 U.S.C. chapter

35, the information collection

requirements in part 900 under assigned

control number 1076–0136. The

information for part 900 is being

collected and used by the Departments

to determine applicant eligibility,

evaluate applicant capabilities, protect

the service population, safeguard

Federal funds and other resources, and

permit the Departments to administer

and evaluate contract programs.

The Departments estimate that the

average burden of complying with the

collection, broken down by subpart, will

be as follows: Subpart C (Contract

Proposal Contents), 222 hours; Subpart

F (Standards for Tribal or Tribal

Organization Management Systems),

250 hours; Subpart G (Programmatic

Reports and Data Requirements), 150

hours; Subpart I (Property Donation

Procedures), 10 hours; Subpart J

(Construction), 564 hours; Subpart K

(Waiver Procedures), 10 hours; and

Subpart L (Appeals), 40 hours.

Responses to the collection of

information under this regulation are

required in order for Indian tribes or

tribal organizations to obtain or retain

benefits under the Act. However, not

every tribal contractor will need to

respond to each request for information

contained in the regulation, as some of

the requests pertain to specific
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32501

situations or to certain types of selfdetermination contracts. Moreover,

under section 5(f)(2) of the Act, tribal

organizations are given authority to

negotiate their individual reporting

requirements with the Secretary on a

contract-by-contract basis. Any

disagreements over reporting

requirements are subject to the

declination criteria and procedures in

section 102 of the Act and subpart E of

the regulation.

There is no assurance of

confidentiality provided to respondents

concerning this information collection.

The Departments may not conduct or

sponsor a collection of information, nor

are Indian tribes or tribal organizations

or other persons required to respond to

such collections unless the Departments

display a currently valid OMB control

number.

List of Subjects in 25 CFR Part 900

Indians; Administrative practice and

procedure, Buildings and facilities,

Claims, Government contracts, Grant

programs—Indians, Health care,

Indians—business and finance,

Government property management.

For the reasons given in the preamble,

the Departments of the Interior and

Health and Human Services hereby

establish a new part 900 in chapter V of

title 25 of the Code of Federal

Regulations as set forth below.

Dated: June 14, 1996.

Bruce Babbitt,

Secretary of the Interior.

Dated: June 13, 1996.

Donna Shalala,

Secretary of Health and Human Services.

CHAPTER V—BUREAU OF INDIAN

AFFAIRS, DEPARTMENT OF THE

INTERIOR, AND INDIAN HEALTH SERVICE,

DEPARTMENT OF HEALTH AND HUMAN

SERVICES

PART 900—CONTRACTS UNDER THE

INDIAN SELF-DETERMINATION AND

EDUCATION ASSISTANCE ACT

Subpart A—General Provisions

Sec.

900.1 Authority.

900.2 Purpose and scope.

900.3 Policy statements.

900.4 Effect on existing tribal rights.

900.5 Effect of these regulations on Federal

program guidelines, manual, or policy

directives.

Subpart B—Definitions

900.6 Definitions.

Subpart C—Contract Proposal Contents

900.7 What technical assistance is available

to assist in preparing an initial contract

proposal?

900.8 What must an initial contract

proposal contain?

900.9 May the Secretary require an Indian

tribe or tribal organization to submit any

other information beyond that identified

in 900.8?

900.10 How does an Indian tribe or tribal

organization secure a list of all Federal

property currently in use in carrying out

the programs, functions, services, or

activities that benefit the Indian tribe or

tribal organization to assist in negotiating

a contract?

900.11 What should an Indian tribe or tribal

organization that is proposing a contract

do about specifying the Federal property

that the Indian tribe or tribal

organization may wish to use in carrying

out the contract?

900.12 Are the proposal contents

requirements the same for renewal of a

contract that is expiring and for securing

an annual funding agreement after the

first year of the funding agreement?

900.13 Does the contract proposal become

part of the final contract?

Subpart D—Review and Approval of

Contract Proposals

900.14 What does this Subpart cover?

900.15 What shall the Secretary do upon

receiving a proposal?

900.16 How long does the Secretary have to

review and approve the proposal and

award the contract, or decline a

proposal?

900.17 Can the statutory 90-day period be

extended?

900.18 What happens if a proposal is not

declined within 90 days after it is

received by the Secretary?

900.19 What happens when a proposal is

approved?

Subpart E—Declination Procedures

900.20 What does this Subpart cover?

900.21 When can a proposal be declined?

900.22 For what reasons can the Secretary

decline a proposal?

900.23 Can the Secretary decline a proposal

where the Secretary’s objection can be

overcome through the contract?

900.24 Can a contract proposal for an

Indian tribe’s or tribal organization’s

share of administrative programs,

functions, services, and activities be

declined for any reason other than the

five reasons specified in § 900.22

900.25 What if only a portion of a proposal

raises one of the five declination criteria?

900.26 What happens if the Secretary

declines a part of a proposal on the

ground that the proposal proposes in

part to plan, conduct, or administer a

program, function, service or activity

that is beyond the scope of programs

covered under section 102(a) of the Act,

or proposes a level of funding that is in

excess of the applicable level determined

under section 106(a) of the Act?

900.27 If an Indian tribe or tribal

organization elects to contract for a

severable portion of a proposal, does the

Indian tribe or tribal organization lose its

appeal rights to challenge the portion of

the proposal that was declined?

900.28 Is technical assistance available to

an Indian tribe or tribal organization to

avoid declination of a proposal?

900.29 What is the Secretary required to do

if the Secretary decides to decline all or

a portion of a proposal?

900.30 When the Secretary declines all or a

portion of a proposal, is the Secretary

required to provide an Indian tribe or

tribal organization with technical

assistance?

900.31 When the Secretary declines all or a

portion of a proposal, is an Indian tribe

or tribal organization entitled to any

appeal?

900.32 Can the Secretary decline an Indian

tribe or tribal organization’s proposed

successor annual funding agreement?

900.33 Are all proposals to renew term

contracts subject to the declination

criteria?

Subpart F—Standards for Tribal or Tribal

Organization Management Systems

General

900.35 What is the purpose of this Subpart?

900.36 What requirements are imposed

upon Indian tribes or tribal organizations

by this Subpart?

900.37 What provisions of Office of

Management and Budget (OMB) circulars

or the ‘‘common rule’’ apply to selfdetermination contracts?

900.38 Do these standards apply to the

subcontractors of an Indian tribe or tribal

organization carrying out a selfdetermination contract?

900.39 What is the difference between a

standard and a system?

900.40 When are Indian tribe or tribal

organization management standards and

management systems evaluated?

900.41 How long must an Indian tribe or

tribal organization keep management

system records?

Standards for Financial Management

Systems

900.42 What are the general financial

management system standards that apply

to an Indian tribe carrying out a selfdetermination contract?

900.43 What are the general financial

management system standards that apply

to a tribal organization carrying out a

self-determination contract?

900.44 What minimum general standards

apply to all Indian tribe or tribal

organization financial management

systems when carrying out a selfdetermination contract?

900.45 What specific minimum

requirements shall an Indian tribe or

tribal organization’s financial

management system contain to meet

these standards?

900.46 What requirements are imposed

upon the Secretary for financial

management by these standards?
32502 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

Procurement Management System Standards

900.47 When procuring property or services

with self-determination contract funds,

can an Indian tribe or tribal organization

follow the same procurement policies

and procedures applicable to other

Indian tribe or tribal organization funds?

900.48 If the Indian tribe or tribal

organization does not propose different

standards, what basic standards shall the

Indian tribe or tribal organization follow?

900.49 What procurement standards apply

to subcontracts?

900.50 What Federal laws, regulations, and

Executive Orders apply to subcontractors?

Property Management System Standards

900.51 What is an Indian tribe or tribal

organization’s property management

system expected to do?

900.52 What type of property is the

property management system required to

track?

900.53 What kind of records shall the

property management system maintain?

900.54 Should the property management

system prescribe internal controls?

900.55 What are the standards for

inventories?

900.56 What maintenance is required for

property?

900.57 What if the Indian tribe or tribal

organization chooses not to take title to

property furnished or acquired under the

contract?

900.58 Do the same accountability and

control procedures described above

apply to Federal property?

900.59 How are the inventory requirements

for Federal property different than for

tribal property?

900.60 How does an Indian tribe or tribal

organization dispose of Federal

property?

Subpart G—Programmatic Reports and

Data Requirements

900.65 What programmatic reports and data

shall the Indian tribe or tribal

organization provide?

900.66 What if the Indian tribe or tribal

organization and the Secretary cannot

come to an agreement concerning the

type and/or frequency of program

narrative and/or program data report(s)?

900.67 Will there be a uniform data set for

all IHS programs?

900.68 Will this uniform data set be

required of all Indian tribe or tribal

organizations contracting with the IHS

under the Act?

Subpart H—Lease of Tribally-Owned

Buildings by the Secretary

900.69 What is the purpose of this Subpart?

900.70 What elements are included in the

compensation for a lease entered into

between the Secretary and an Indian

tribe or tribal organization for a building

owned or leased by the Indian tribe or

tribal organization that is used for

administration or delivery of services

under the Act?

900.71 What type of reserve fund is

anticipated for funds deposited into a

reserve for replacement of facilities as

specified in § 900.70(c)?

900.72 Who is the guardian of the fund and

may the funds be invested?

900.73 Is a lease with the Secretary the only

method available to recover the types of

cost described in 900.70?

900.74 How may an Indian tribe or tribal

organization propose a lease to be

compensated for the use of facilities?

Subpart I—Property Donation Procedures

General

900.85 What is the purpose of this Subpart?

900.86 How will the Secretary exercise

discretion to acquire and donate BIA or

IHS excess property and excess and

surplus Federal property to an Indian

tribe or tribal organization?

Government-Furnished Property

900.87 How does an Indian tribe or tribal

organization obtain title to property

furnished by the Federal government for

use in the performance of a contract or

grant agreement pursuant to section

105(f)(2)(A) of the Act?

900.88 What should the Indian tribe or

tribal organization do if it wants to

obtain title to government-furnished real

property that includes land not already

held in trust?

900.89 When may the Secretary elect to

reacquire government-furnished property

whose title has been transferred to an

Indian tribe or tribal organization?

900.90 Does government-furnished real

property to which an Indian tribe or

tribal organization has taken title

continue to be eligible for facilities

operation and maintenance funding from

the Secretary?

Contractor-Purchased Property

900.91 Who takes title to property

purchased with funds under a selfdetermination contract or grant

agreement pursuant to section

105(f)(2)(A)?

900.92 What should the Indian tribe or

tribal organization do if it wants

contractor-purchased real property to be

taken into trust?

900.93 When may the Secretary elect to

acquire title to contractor-purchased

property?

900.94 Is contractor-purchased real

property to which an Indian tribe or

tribal organization holds title eligible for

facilities operation and maintenance

funding from the Secretary?

BIA and IHS Excess Property

900.95 What is BIA or IHS excess property?

900.96 How can Indian tribes or tribal

organizations learn about BIA and IHS

excess property?

900.97 How can an Indian tribe or tribal

organization acquire excess BIA or IHS

property?

900.98 Who takes title to excess BIA or IHS

property donated to an Indian tribe or

tribal organization?

900.99 Who takes title to any land that is

part of excess BIA or IHS real property

donated to an Indian tribe or tribal

organization?

900.100 May the Secretary elect to

reacquire excess BIA or IHS property

whose title has been transferred to an

Indian tribe or tribal organization?

900.101 Is excess BIA or IHS real property

to which an Indian tribe or tribal

organization has taken title eligible for

facilities operation and maintenance

funding from the Secretary?

Excess or Surplus Government Property of

Other Agencies

900.102 What is excess or surplus

government property of other agencies?

900.103 How can Indian tribes or tribal

organizations learn about property that

has been designated as excess or surplus

government property?

900.104 How may an Indian tribe or tribal

organization receive excess or surplus

government property of other agencies?

900.105 Who takes title to excess or surplus

Federal property donated to an Indian

tribe or tribal organization?

900.106 If a contract or grant agreement or

portion thereof is retroceded, reassumed,

terminated, or expires, may the Secretary

reacquire title to excess or surplus

Federal property of other agencies that

was donated to an Indian tribe or tribal

organization?

Property Eligible for Replacement Funding

900.107 What property to which an Indian

tribe or tribal organization obtains title

under this Subpart is eligible for

replacement funding?

Subpart J—Construction

900.110 What does this Subpart cover?

900.111 What activities of construction

programs are contractible?

900.112 What are construction phases?

900.113 Definitions.

900.114 Why is there a separate subpart in

these regulations for construction

contracts and grants?

900.115 How do self-determination

construction contracts relate to ordinary

Federal procurement contracts?

900.116 Are negotiated fixed-price

contracts treated the same as costreimbursable contracts?

900.117 Do these ‘‘construction contract’’

regulations apply to planning services?

900.118 Do these ‘‘construction contract’’

regulations apply to construction

management services?

900.119 To what extent shall the Secretary

consult with affected Indian tribes before

spending funds for any construction

project?

900.120 How does an Indian tribe or tribal

organization find out about a

construction project?

900.121 What happens during the

preplanning phase and can an Indian

tribe or tribal organization perform any

of the activities involved in this process?

900.122 What does an Indian tribe or tribal

organization do if it wants to secure a

construction contract?
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32503

900.123 What happens if the Indian tribe or

tribal organization and the Secretary

cannot develop a mutually agreeable

contract proposal?

900.124 May the Indian tribe or tribal

organization elect to use a grant in lieu

of a contract?

900.125 What shall a construction contract

proposal contain?

900.126 Shall a construction contract

proposal incorporate provisions of

Federal construction guidelines and

manuals?

900.127 What can be included in the Indian

tribe or tribal organization—s contract

budget?

900.128 What funding shall the Secretary

provide in a construction contract?

900.129 How do the Secretary and Indian

tribe or tribal organization arrive at an

overall fair and reasonable price for the

performance of a construction contract?

900.130 What role does the Indian tribe or

tribal organization play during the

performance of a self-determination

construction contract?

900.131 What role does the Secretary play

during the performance of a selfdetermination construction contract?

900.132 Once a contract and/or grant is

awarded, how will the Indian tribe or

tribal organization receive payments?

900.133 Does the declination process or the

Contract Dispute Act apply to

construction contract amendments

proposed either by an Indian tribe or

tribal organization or the Secretary?

900.134 At the end of a self-determination

construction contract, what happens to

savings on a cost-reimbursement

contract?

900.135 May the time frames for action set

out in this Subpart be reduced?

900.136 Do tribal employment rights

ordinances apply to construction

contracts and subcontracts?

900.137 Do all provisions of the other

subparts apply to contracts awarded

under this subpart?

Subpart K—Waiver Procedures

900.140 Can any provision of the

regulations under this Part be waived?

900.141 How does an Indian tribe or tribal

organization get a waiver?

900.142 Does an Indian tribe or tribal

organization’s waiver request have to be

included in an initial contract proposal?

900.143 How is a waiver request processed?

900.144 What happens if the Secretary

makes no decision within the 90-day

period?

900.145 On what basis may the Secretary

deny a waiver request?

900.146 Is technical assistance available for

waiver requests?

900.147 What appeal rights are available?

900.148 How can an Indian tribe or tribal

organization secure a determination that

a law or regulation has been superseded

by the Indian Self-Determination Act, as

specified in section 107(b) of the Act?

Subpart L—Appeals

Appeals Other Than Emergency

Reassumption and Suspension, Withholding

or Delay in Payment

900.150 What decisions can an Indian tribe

or tribal organization appeal under this

Subpart?

900.151 Are there any appeals this part

does not cover?

900.152 How does an Indian tribe or tribal

organization know where and when to

file its appeal from decisions made by

agencies of DOI or DHHS?

900.153 Does an Indian tribe or tribal

organization have any options besides an

appeal?

900.154 How does an Indian tribe or tribal

organization request an informal

conference?

900.155 How is an informal conference

held?

900.156 What happens after the informal

conference?

900.157 Is the recommended decision

always final?

900.158 How does an Indian tribe or tribal

organization appeal the initial decision,

if it does not request an informal

conference or if it does not agree with

the recommended decision resulting

from the informal conference?

900.159 May an Indian tribe or tribal

organization get an extension of time to

file a notice of appeal?

900.160 What happens after an Indian tribe

or tribal organization files an appeal?

900.161 How is a hearing arranged?

900.162 What happens when a hearing is

necessary?

900.163 What is the Secretary’s burden of

proof for appeals from decisions under

§ 900.150(a) through § 900.150(g)?

900.164 What rights do Indian tribes, tribal

organizations, and the government have

during the appeal process?

900.165 What happens after the hearing?

900.166 Is the recommended decision

always final?

900.167 If an Indian tribe or tribal

organization objects to the recommended

decision, what will the Secretary of

Health and Human Services or the IBIA

do?

900.168 Will an appeal hurt the Indian tribe

or tribal organization’s position in other

contract negotiations?

900.169 Will the decisions on appeals be

available for the public to review?

Appeals of Emergency Reassumption of SelfDetermination Contracts or Suspensions,

Withholding or Delay of Payments Under a

Self-Determination Contract

900.170 What happens in the case of

emergency reassumption or suspension

or withholding or delay of payments?

900.171 Will there be a hearing?

900.172 What happens after the hearing?

900.173 Is the recommended decision

always final?

900.174 If an Indian tribe or tribal

organization objects to the recommended

decision, what will the Secretary of

Health and Human Services or the IBIA

do?

900.175 Will an appeal hurt an Indian tribe

or tribal organization’s position in other

contract negotiations?

900.176 Will the decisions on appeals be

available for the public to review?

Applicability of the Equal Access to Justice

Act

900.177 Does the Equal Access to Justice

Act (EAJA) apply to appeals under this

subpart?

Subpart M—Federal Tort Claims Act

Coverage General Provisions

900.180 What does this Subpart cover?

900.181 What definitions apply to this

subpart?

900.182 What other statutes and regulations

apply to FTCA coverage?

900.183 Do Indian tribes and tribal

organizations need to be aware of areas

which FTCA does not cover?

900.184 Is there a deadline for filing FTCA

claims?

900.185 How long does the Federal

government have to process an FTCA

claim after the claim is received by the

Federal agency, before a lawsuit may be

filed?

900.186 Is it necessary for a selfdetermination contract to include any

clauses about Federal Tort Claims Act

coverage?

900.187 Does FTCA apply to a selfdetermination contract if FTCA is not

referenced in the contract?

900.188 To what extent shall the contractor

cooperate with the Federal government

in connection with tort claims arising

out of the contractor’s performance?

900.189 Does this coverage extend to

subcontractors of self-determination

contracts?

Medical-Related Claims

900.190 Is FTCA the exclusive remedy for

a tort claim for personal injury or death

resulting from the performance of a selfdetermination contract?

900.191 Are employees of selfdetermination contractors providing

health services under the selfdetermination contract protected by

FTCA?

900.192 What employees are covered by

FTCA for medical-related claims?

900.193 Does FTCA coverage extend to

individuals who provide health care

services under a personal services

contract providing services in a facility

that is owned, operated, or constructed

under the jurisdiction of the IHS?

900.194 Does FTCA coverage extend to

services provided under a staff privileges

agreement with a non-IHS facility where

the agreement requires a health care

practitioner to provide reciprocal

services to the general population?

900.195 Does FTCA coverage extend to the

contractor’s health care practitioners

providing services to private patients on

a fee-for-services basis when such

personnel (not the self-determination

contractor) receive the fee?
32504 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

900.196 Do covered services include the

conduct of clinical studies and

investigations and the provision of

emergency services, including the

operation of emergency motor vehicles?

900.197 Does FTCA cover employees of the

contractor who are paid by the contractor

from funds other than those provided

through the self-determination contract?

900.198 Are Federal employees assigned to

a self-determination contractor under the

Intergovernmental Personnel Act or

detailed under section 214 of the Public

Health Service Act covered to the same

extent that they would be if working

directly for a Federal agency?

900.199 Does FTCA coverage extend to

health care practitioners to whom staff

privileges have been extended in

contractor health care facilities operated

under a self-determination contract on

the condition that such practitioner

provide health services to IHS

beneficiaries covered by FTCA?

900.200 May persons who are not Indians

or Alaska Natives assert claims under

FTCA?

Procedure for Filing Medical-Related Claims

900.201 How should claims arising out of

the performance of medical-related

functions be filed?

900.202 What should a self-determination

contractor or a contractor’s employee do

on receiving such a claim?

900.203 If the contractor or contractor’s

employee receives a summons and/or a

complaint alleging a tort covered by

FTCA, what should the contractor do?

Non-Medical Related Claims

900.204 Is FTCA the exclusive remedy for

a non-medical related tort claim arising

out of the performance of a selfdetermination contract?

900.205 To what non-medical-related

claims against self-determination

contractors does FTCA apply?

900.206 What employees are covered by

FTCA for non-medical-related claims?

900.207 How are non-medical related tort

claims and lawsuits filed for IHS?

900.208 How are non-medical related tort

claims and lawsuits filed for DOI?

900.209 What should a self-determination

contractor or contractor’s employee do

on receiving a non-medical related tort

claim?

900.210 If the contractor or contractor’s

employee receives a summons and/or

complaint alleging a non-medical related

tort covered by FTCA, what should an

Indian tribe or tribal organization do?

Subpart N—Post-Award Contract Disputes

900.215 What does this subpart cover?

900.216 What other statutes and regulations

apply to contract disputes?

900.217 Is filing a claim under the CDA our

only option for resolving post-award

contract disputes?

900.218 What is a claim under the CDA?

900.219 How does an Indian tribe, tribal

organization, or Federal agency submit a

claim?

900.220 Does it make a difference whether

the claim is large or small?

900.221 What happens next?

900.222 What goes into a decision?

900.223 When does an Indian tribe or tribal

organization get the decision?

900.224 What happens if the decision does

not come within that time?

900.225 Does an Indian tribe or tribal

organization get paid immediately if the

awarding official decides in its favor?

900.226 What rules govern appeals of cost

disallowances?

900.227 Can the awarding official change

the decision after it has been made?

900.228 Is an Indian tribe or tribal

organization entitled to interest if it wins

its claim?

900.229 What role will the awarding official

play during an appeal?

900.230 What is the effect of a pending

appeal?

Subpart O—Conflicts of Interest

900.231 What is an organizational conflict

of interest?

900.232 What must an Indian tribe or tribal

organization do if an organizational

conflict of interest arises under a

contract?

900.233 When must an Indian tribe or tribal

organization regulate its employees or

subcontractors to avoid a personal

conflict of interest?

900.234 What types of personal conflicts of

interest involving tribal officers,

employees or subcontractors would have

to be regulated by an Indian tribe?

900.235 What personal conflicts of interest

must the standards of conduct regulate?

900.236 May an Indian tribe elect to

negotiate contract provisions on conflict

of interest to take the place of this

regulation?

Subpart P—Retrocession and

Reassumption Procedures

900.240 What does retrocession mean?

900.241 Who may retrocede a contract, in

whole or in part?

900.242 What is the effective date of

retrocession?

900.243 What effect will an Indian tribe or

tribal organization’s retrocession have on

its rights to contract?

900.244 Will an Indian tribe or tribal

organization’s retrocession adversely

affect funding available for the

retroceded program?

900.245 What obligation does the Indian

tribe or tribal organization have with

respect to returning property that was

used in the operation of the retroceded

program?

900.246 What does reassumption mean?

900.247 Under what circumstances is a

reassumption considered an emergency

instead of non-emergency reassumption?

900.248 In a non-emergency reassumption,

what is the Secretary required to do?

900.249 What happens if the contractor

fails to take corrective action to remedy

the contract deficiencies identified in the

notice?

900.250 What shall the second written

notice include?

900.251 What is the earliest date on which

the contract will be rescinded in a nonemergency reassumption?

900.252 In an emergency reassumption,

what is the Secretary required to do?

900.253 What shall the written notice

include?

900.254 May the contractor be reimbursed

for actual and reasonable ‘‘wind up

costs’’ incurred after the effective date of

rescission?

900.255 What obligation does the Indian

tribe or tribal organization have with

respect to returning property that was

used in the operation of the rescinded

contract?

900.256 Will a reassumption adversely

affect funding available for the

reassumed program?

Authority: 25 U.S.C. 450f et seq.

Subpart A—General Provisions

§ 900.1 Authority.

These regulations are prepared,

issued, and maintained jointly by the

Secretary of Health and Human Services

and the Secretary of the Interior, with

the active participation and

representation of Indian tribes, tribal

organizations, and individual tribal

members pursuant to the guidance of

the Negotiated Rulemaking procedures

required by section 107 of the Indian

Self-Determination and Education

Assistance Act.

§ 900.2 Purpose and scope.

(a) General. These regulations codify

uniform and consistent rules for

contracts by the Department of Health

and Human Services (DHHS) and the

Department of the Interior (DOI) in

implementing title I of the Indian SelfDetermination and Education

Assistance Act, Public Law 93–638, 25

U.S.C. 450 et seq., as amended and

sections 1 through 9 preceding that title.

(b) Programs funded by other

Departments and agencies. Included

under this part are programs

administered (under current or future

law or interagency agreement) by the

DHHS and the DOI for the benefit of

Indians for which appropriations are

made to other Federal agencies.

(c) This part included in contracts by

reference. Each contract, including

grants and cooperative agreements in

lieu of contracts awarded under section

9 of the Act, shall include by reference

the provisions of this part, and any

amendment thereto, and they are

binding on the Secretary and the

contractor except as otherwise

specifically authorized by a waiver

under section 107(e) of the Act.

(d) Freedom of Information. Access to

records maintained by the Secretary is

governed by the Freedom of Information

Act (5 U.S.C. 552) and other applicable
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32505

Federal law. Except for previously

provided copies of tribal records that

the Secretary demonstrates are clearly

required to be maintained as part of the

record keeping systems of the DHHS or

the DOI, or both, records of the

contractors (including archived records)

shall not be considered Federal records

for the purpose of the Freedom of

Information Act. The Freedom of

Information Act does not apply to

records maintained solely by Indian

tribes and tribal organizations.

(e) Privacy Act. Section 108(b) of the

Indian Self-Determination Act states

that records of the tribal government or

tribal organizations shall not be

considered Federal records for the

purposes of the Privacy Act.

(f) Information Collection. The Office

of Management and Budget has

approved, under 44 U.S.C. chapter 35,

the information collection requirements

in Part 900 under assigned control

number 1076–0136. The information for

Part 900 is being collected and used by

the Departments to determine applicant

eligibility, evaluate applicant

capabilities, protect the service

population, safeguard Federal funds and

other resources, and permit the

Departments to administer and evaluate

contract programs.

§ 900.3 Policy statements.

(a) Congressional policy.

(1) Congress has recognized the

obligation of the United States to

respond to the strong expression of the

Indian people for self-determination by

assuring maximum Indian participation

in the direction, planning, conduct and

administration of educational as well as

other Federal programs and services to

Indian communities so as to render such

programs and services more responsive

to the needs and desires of those

communities.

(2) Congress has declared its

commitment to the maintenance of the

Federal Government’s unique and

continuing relationship with, and

responsibility to, individual Indian

tribes and to the Indian people as a

whole through the establishment of a

meaningful Indian self-determination

policy which will permit an orderly

transition from the Federal domination

of programs for, and services to, Indians

to effective and meaningful

participation by the Indian people in the

planning, conduct, and administration

of those programs and services. In

accordance with this policy, the United

States is committed to supporting and

assisting Indian tribes in the

development of strong and stable tribal

governments, capable of administering

quality programs and developing the

economies of their respective

communities.

(3) Congress has declared that a major

national goal of the United States is to

provide the quantity and quality of

educational services and opportunities

which will permit Indian children to

compete and excel in the life areas of

their choice, and to achieve the measure

of self-determination essential to their

social and economic well-being.

(4) Congress has declared that the

programs, functions, services, or

activities that are contracted and funded

under this Act shall include

administrative functions of the

Department of the Interior and the

Department of Health and Human

Services (whichever is applicable) that

support the delivery of services to

Indians, including those administrative

activities supportive of, but not

included as part of, the service delivery

programs described in this paragraph

that are otherwise contractible. The

administrative functions referred to in

the preceding sentence shall be

contractible without regard to the

organizational level within the

Department that carries out such

functions. Contracting of the

administrative functions described

herein shall not be construed to limit or

reduce in any way the funding for any

program, function, service, or activity

serving any other tribe under the Act or

any other law. The Secretary is not

required to reduce funding for

programs, projects, or activities serving

a tribe to make funds available to

another Indian tribe or tribal

organization under this Act.

(5) Congress has further declared that

each provision of the Act and each

provision of contracts entered into

thereunder shall be liberally construed

for the benefit of the tribes or tribal

organizations to transfer the funding

and the related functions, services,

activities, and programs (or portions

thereof), that are otherwise contractible

under the Act, including all related

administrative functions, from the

Federal government to the contractor.

(6) Congress has declared that one of

the primary goals of the 1994

amendments to the Act was to minimize

the reporting requirements applicable to

tribal contractors and to eliminate

excessive and burdensome reporting

requirements. Reporting requirements

over and above the annual audit report

are to be negotiated with disagreements

subject to the declination procedures of

section 102 of the Act.

(7) Congress has declared that there

not be any threshold issues which

would avoid the declination, contract

review, approval, and appeal process.

(8) Congress has declared that all selfdetermination contract proposals must

be supported by the resolution of an

Indian tribe(s).

(9) Congress has declared that to the

extent that programs, functions,

services, and activities carried out by

tribes and tribal organizations pursuant

to contracts entered into under this Act

reduce the administrative or other

responsibilities of the Secretary with

respect to the operation of Indian

programs and result in savings that have

not otherwise been included in the

amount of contract funds determined

under Section 106(a) of the Act, the

Secretary shall make such savings

available for the provision of additional

services to program beneficiaries, either

directly or through contractors, in a

manner equitable to both direct and

contracted programs.

(b) Secretarial policy. (1) It is the

policy of the Secretary to facilitate the

efforts of Indian tribes and tribal

organizations to plan, conduct and

administer programs, functions, services

and activities, or portions thereof,

which the Departments are authorized

to administer for the benefit of Indians

because of their status as Indians. The

Secretary shall make best efforts to

remove any obstacles which might

hinder Indian tribes and tribal

organizations including obstacles that

hinder tribal autonomy and flexibility in

the administration of such programs.

(2) It is the policy of the Secretary to

encourage Indian tribes and tribal

organizations to become increasingly

knowledgeable about the Departments’

programs administered for the benefit of

Indians by providing information on

such programs, functions and activities

and the opportunities Indian tribes have

regarding them.

(3) It is the policy of the Secretary to

provide a uniform and consistent set of

rules for contracts under the Act. The

rules contained herein are designed to

facilitate and encourage Indian tribes to

participate in the planning, conduct,

and administration of those Federal

programs serving Indian people. The

Secretary shall afford Indian tribes and

tribal organizations the flexibility,

information, and discretion necessary to

design contractible programs to meet the

needs of their communities consistent

with their diverse demographic,

geographic, economic, cultural, health,

social, religious and institutional needs.

(4) The Secretary recognizes that

contracting under the Act is an exercise

by Indian tribes of the government-togovernment relationship between the

United States and the Indian tribes.

When an Indian tribe contracts, there is

a transfer of the responsibility with the
32506 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

associated funding. The tribal contractor

is accountable for managing the day-today operations of the contracted Federal

programs, functions, services, and

activities. The contracting tribe thereby

accepts the responsibility and

accountability to the beneficiaries under

the contract with respect to use of the

funds and the satisfactory performance

of the programs, functions, services and

activities funded under the contract.

The Secretary will continue to discharge

the trust responsibilities to protect and

conserve the trust resources of Indian

tribes and the trust resources of

individual Indians.

(5) The Secretary recognizes that

tribal decisions to contract or not to

contract are equal expressions of selfdetermination.

(6) The Secretary shall maintain

consultation with tribal governments

and tribal organizations in the

Secretary’s budget process relating to

programs, functions, services and

activities subject to the Act. In addition,

on an annual basis, the Secretary shall

consult with, and solicit the

participation of, Indian tribes and tribal

organizations in the development of the

budget for the Indian Health Service and

the Bureau of Indian Affairs (including

participation of Indian tribes and tribal

organizations in formulating annual

budget requests that the Secretary

submits to the President for submission

to Congress pursuant to section 1105 of

title 31, United States Code).

(7) The Secretary is committed to

implementing and fully supporting the

policy of Indian self-determination by

recognizing and supporting the many

positive and successful efforts and

directions of tribal governments and

extending the applicability of this

policy to all operational components

within the Department. By fully

extending Indian self-determination

contracting to all operational

components within the Department

having programs or portions of

programs for the benefit of Indians

under section 102(a)(1) (A) through (D)

and for the benefit of Indians because of

their status as Indians under section

102(a)(1)(E), it is the Secretary’s intent

to support and assist Indian tribes in the

development of strong and stable tribal

governments capable of administering

quality programs that meet the tribally

determined needs and directions of

their respective communities. It is also

the policy of the Secretary to have all

other operational components within

the Department work cooperatively with

tribal governments on a government-togovernment basis so as to expedite the

transition away from Federal

domination of Indian programs and

make the ideals of Indian selfgovernment and self-determination a

reality.

(8) It is the policy of the Secretary that

the contractibility of programs under

this Act should be encouraged. In this

regard, Federal laws and regulations

should be interpreted in a manner that

will facilitate the inclusion of those

programs or portions of those programs

that are for the benefit of Indians under

section 102(a)(1) (A) through (D) of the

Act, and that are for the benefit of

Indians because of their status of

Indians under section 102(a)(1)(E) of the

Act.

(9) It is the Secretary’s policy that no

later than upon receipt of a contract

proposal under the Act (or written

notice of an Indian tribe or tribal

organization’s intention to contract), the

Secretary shall commence planning

such administrative actions, including

but not limited to transfers or reductions

in force, transfers of property, and

transfers of contractible functions, as

may be necessary to ensure a timely

transfer of responsibilities and funding

to Indian tribes and tribal organizations.

(10) It is the policy of the Secretary to

make available to Indian tribes and

tribal organizations all administrative

functions that may lawfully be

contracted under the Act, employing

methodologies consistent with the

methodology employed with respect to

such functions under titles III and IV of

the Act.

(11) The Secretary’s commitment to

Indian self-determination requires that

these regulations be liberally construed

for the benefit of Indian tribes and tribal

organizations to effectuate the strong

Federal policy of self-determination

and, further, that any ambiguities herein

be construed in favor of the Indian tribe

or tribal organization so as to facilitate

and enable the transfer of services,

programs, functions, and activities, or

portions thereof, authorized by the Act.

§ 900.4 Effect on existing tribal rights.

Nothing in these regulations shall be

construed as:

(a) Affecting, modifying, diminishing,

or otherwise impairing the sovereign

immunity from suit enjoyed by Indian

tribes;

(b) Terminating, waiving, modifying,

or reducing the trust responsibility of

the United States to the Indian tribe(s)

or individual Indians. The Secretary

shall act in good faith in upholding this

trust responsibility;

(c) Mandating an Indian tribe to apply

for a contract(s) or grant(s) as described

in the Act; or

(d) Impeding awards by other

Departments and agencies of the United

States to Indian tribes to administer

Indian programs under any other

applicable law.

§ 900.5 Effect of these regulations on

Federal program guidelines, manual, or

policy directives.

Except as specifically provided in the

Act, or as specified in Subpart J, an

Indian tribe or tribal organization is not

required to abide by any unpublished

requirements such as program

guidelines, manuals, or policy directives

of the Secretary, unless otherwise

agreed to by the Indian tribe or tribal

organization and the Secretary, or

otherwise required by law.

Subpart B—Definitions

§ 900.6 Definitions.

Unless otherwise provided in this

Part:

Act means Secs. 1 through 9, and Title

I of the Indian Self-Determination and

Education Assistance Act of 1975,

Public Law 93–638, as amended.

Annual funding agreement means a

document that represents the negotiated

agreement of the Secretary to fund, on

an annual basis, the programs, services,

activities and functions transferred to an

Indian tribe or tribal organization under

the Act.

Appeal means a request by an Indian

tribe or tribal organization for an

administrative review of an adverse

Agency decision.

Awarding official means any person

who by appointment or delegation in

accordance with applicable regulations

has the authority to enter into and

administer contracts on behalf of the

United States of America and make

determinations and findings with

respect thereto. Pursuant to the Act, this

person can be any Federal official,

including but not limited to, contracting

officers.

BIA means the Bureau of Indian

Affairs of the Department of the Interior.

Contract means a self-determination

contract as defined in section 4(j) of the

Act.

Contract appeals board means the

Interior Board of Contract Appeals.

Contractor means an Indian tribe or

tribal organization to which a contract

has been awarded.

Days means calendar days; except

where the last day of any time period

specified in these regulations falls on a

Saturday, Sunday, or a Federal holiday,

the period shall carry over to the next

business day unless otherwise

prohibited by law.

Department(s) means the Department

of Health and Human Services (HHS) or

the Department of the Interior (DOI), or

both.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32507

IHS means the Indian Health Service

of the Department of Health and Human

Services.

Indian means a person who is a

member of an Indian Tribe.

Indian tribe means any Indian tribe,

band, nation, or other organized group,

or community, including pueblos,

rancherias, colonies and any Alaska

Native Village, or regional or village

corporation as defined in or established

pursuant to the Alaska Native Claims

Settlement Act, which is recognized as

eligible for the special programs and

services provided by the United States

to Indians because of their status as

Indians.

Indirect cost rate means the rate(s)

arrived at through negotiation between

an Indian tribe or tribal organization

and the appropriate Federal Agency.

Indirect costs means costs incurred

for a common or joint purpose

benefiting more than one contract

objective or which are not readily

assignable to the contract objectives

specifically benefitted without effort

disproportionate to the results achieved.

Initial contract proposal means a

proposal for programs, functions,

services, or activities that the Secretary

is authorized to perform but which the

Indian tribe or tribal organization is not

now carrying out.

Real property means any interest in

land together with the improvements,

structures, and fixtures and

appurtenances thereto.

Reassumption means rescission, in

whole or in part, of a contract and

assuming or resuming control or

operation of the contracted program by

the Secretary without consent of the

Indian tribe or tribal organization

pursuant to the notice and other

procedures set forth in Subpart P.

Retrocession means the voluntary

return to the Secretary of a contracted

program, in whole or in part, for any

reason, before the expiration of the term

of the contract.

Secretary means the Secretary of

Health and Human Services (HHS) or

the Secretary of the Interior (DOI), or

both (and their respective delegates).

Tribal organization means the

recognized governing body of any

Indian tribe; any legally established

organization of Indians which is

controlled, sanctioned, or chartered by

such governing body or which is

democratically elected by the adult

members of the Indian community to be

served by such organization and which

includes the maximum participation of

Indians in all phases of its activities:

provided, that, in any case where a

contract is let or a grant made to an

organization to perform services

benefiting more than one Indian tribe,

the approval of each such Indian tribe

shall be a prerequisite to the letting or

making of such contract or grant.

Trust resources means an interest in

land, water, minerals, funds, or other

assets or property which is held by the

United States in trust for an Indian tribe

or an individual Indian or which is held

by an Indian tribe or Indian subject to

a restriction on alienation imposed by

the United States.

Subpart C—Contract Proposal

Contents

§ 900.7 What technical assistance is

available to assist in preparing an initial

contract proposal?

The Secretary shall, upon request of

an Indian tribe or tribal organization

and subject to the availability of

appropriations, provide technical

assistance on a non-reimbursable basis

to such Indian tribe or tribal

organization to develop a new contract

proposal or to provide for the

assumption by the Indian tribe or tribal

organization of any program, service,

function, or activity (or portion thereof)

that is contractible under the Act. The

Secretary may also make a grant to an

Indian tribe or tribal organization for the

purpose of obtaining technical

assistance, as provided in section 103 of

the Act. An Indian tribe or tribal

organization may also request

reimbursement for pre-award costs for

obtaining technical assistance under

sections 106(a) (2) and (5) of the Act.

§ 900.8 What must an initial contract

proposal contain?

An initial contract proposal must

contain the following information:

(a) The full name, address and

telephone number of the Indian tribe or

tribal organization proposing the

contract.

(b) If the tribal organization is not an

Indian tribe, the proposal must also

include:

(1) a copy of the tribal organization’s

organizational documents (e.g., charter,

articles of incorporation, bylaws, etc.).

(2) The full name(s) of the Indian

tribe(s) with which the tribal

organization is affiliated.

(c) The full name(s) of the Indian

tribe(s) proposed to be served.

(d) A copy of the authorizing

resolution from the Indian tribe(s) to be

served.

(1) If an Indian tribe or tribal

organization proposes to serve a

specified geographic area, it must

provide authorizing resolution(s) from

all Indian tribes located within the

specific area it proposes to serve.

However, no resolution is required from

an Indian tribe located outside the area

proposed to be served whose members

reside within the proposed service area.

(2) If a currently effective authorizing

resolution covering the scope of an

initial contract proposal has already

been provided to the agency receiving

the proposal, a reference to that

resolution.

(e) The name, title, and signature of

the authorized representative of the

Indian tribe or tribal organization

submitting the contract proposal.

(f) The date of submission of the

proposal.

(g) A brief statement of the programs,

functions, services, or activities that the

tribal organization proposes to perform,

including:

(1) A description of the geographical

service area, if applicable, to be served.

(2) The estimated number of Indian

people who will receive the benefits or

services under the proposed contract.

(3) An identification of any local,

Area, regional, or national level

departmental programs, functions,

services, or activities to be contracted,

including administrative functions.

(4) A description of the proposed

program standards;

(5) An identification of the program

reports, data and financial reports that

the Indian tribe or tribal organization

will provide, including their frequency.

(6) A description of any proposed

redesign of the programs, services,

functions, or activities to be contracted,

(7) Minimum staff qualifications

proposed by the Indian tribe and tribal

organization, if any; and

(8) A statement that the Indian tribe

or tribal organization will meet the

minimum procurement, property and

financial management standards set

forth in Subpart F, subject to any waiver

that may have been granted under

Subpart K.

(h) The amount of funds requested,

including:

(1) An identification of the funds

requested by programs, functions,

services, or activities, under section

106(a)(1) of the Act, including the

Indian tribe or tribal organization’s

share of funds related to such programs,

functions, services, or activities, if any,

from any Departmental local, area,

regional, or national level.

(2) An identification of the amount of

direct contract support costs, including

one-time start-up or preaward costs

under section 106(a)(2) and related

provisions of the Act, presented by

major categories such as:

(i) Personnel (differentiating between

salary and fringe benefits);

(ii) Equipment;

(iii) Materials and supplies;
32508 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

(iv) Travel;

(v) Subcontracts; and

(vi) Other appropriate items of cost.

(3) An identification of funds the

Indian tribe or tribal organization

requests to recover for indirect contract

support costs. This funding request

must include either:

(i) a copy of the most recent

negotiated indirect cost rate agreement;

or

(ii) an estimated amount requested for

indirect costs, pending timely

establishment of a rate or negotiation of

administrative overhead costs.

(4) To the extent not stated elsewhere

in the budget or previously reported to

the Secretary, any preaward costs,

including the amount and time period

covered or to be covered; and

(5) At the option of the Indian tribe or

tribal organization, an identification of

programs, functions, services, or

activities specified in the contract

proposal which will be funded from

sources other than the Secretary.

(i) The proposed starting date and

term of the contract.

(j) In the case of a cooperative

agreement, the nature and degree of

Federal programmatic involvement

anticipated during the term of the

agreement.

(k) The extent of any planned use of

Federal personnel and Federal

resources.

(l) Any proposed waiver(s) of the

regulations in this part; and

(m) A statement that the Indian tribe

or tribal organization will implement

procedures appropriate to the programs,

functions, services or activities

proposed to be contracted, assuring the

confidentiality of medical records and

of information relating to the financial

affairs of individual Indians obtained

under the proposal contract, or as

otherwise required by law.

§ 900.9 May the Secretary require an

Indian tribe or tribal organization to submit

any other information beyond that identified

in § 900.8?

No.

§ 900.10 How does an Indian tribe or tribal

organization secure a list of all Federal

property currently in use in carrying out the

programs, functions, services, or activities

that benefit the Indian tribe or tribal

organization to assist in negotiating a

contract?

The Indian tribe or tribal organization

submits a written request to the

Secretary. The Secretary shall provide

the requested information, including the

condition of the property, within 60

days.

§ 900.11 What should an Indian tribe or

tribal organization that is proposing a

contract do about specifying the Federal

property that the Indian tribe or tribal

organization may wish to use in carrying

out the contract?

The Indian tribe or tribal organization

is encouraged to provide the Secretary,

as early as possible, with:

(a) A list of the following Federal

property intended for use under the

contract:

(1) Equipment;

(2) Furnishings;

(3) Facilities; and

(4) Other real and personal property.

(b) A statement of how the Indian

tribe or tribal organization will obtain

each item by transfer of title under

§ 105(f)(2) of the Act and section 1(b)(8)

of the model agreement set forth in

section 108(c) of the Act, through a

temporary use permit, similar

arrangement, or otherwise; and

(c) Where equipment is to be shared

by contracted and non-contracted

programs, services, functions, or

activities, a proposal outlining proposed

equipment sharing or other

arrangements.

§ 900.12 Are the proposal contents

requirements the same for renewal of a

contract that is expiring and for securing an

annual funding agreement after the first

year of the funding agreement?

No. In these situations, an Indian tribe

or tribal organization should submit a

renewal proposal (or notification of

intent not to renew) or an annual

funding agreement proposal at least 90

days before the expiration date of the

contract or existing annual funding

agreement. The proposal shall provide

funding information in the same detail

and format as the original proposal and

may also identify any significant

proposed changes.

§ 900.13 Does the contract proposal

become part of the final contract?

No, unless the parties agree.

Subpart D—Review and Approval of

Contract Proposals

§ 900.14 What does this subpart cover?

This Subpart covers any proposal to

enter into a self-determination contract,

to amend an existing self-determination

contract, to renew an existing selfdetermination contract, or to redesign a

program through a self-determination

contract.

§ 900.15 What shall the Secretary do upon

receiving a proposal?

Upon receipt of a proposal, the

Secretary shall:

(a) Within two days notify the

applicant in writing that the proposal

has been received;

(b) Within 15 days notify the

applicant in writing of any missing

items required by § 900.8 and request

that the items be submitted within 15

days of receipt of the notification; and

(c) Review the proposal to determine

whether there are declination issues

under section 102(a)(2) of the Act.

§ 900.16 How long does the Secretary

have to review and approve the proposal

and award the contract, or decline a

proposal?

The Secretary has 90 days after

receipt of a proposal to review and

approve the proposal and award the

contract or decline the proposal in

compliance with section 102 of the Act

and subpart E. At any time during the

review period the Secretary may

approve the proposal and award the

requested contract.

§ 900.17 Can the statutory 90-day period

be extended?

Yes, with written consent of the

Indian tribe or tribal organization. If

consent is not given, the 90-day

deadline applies.

§ 900.18 What happens if a proposal is not

declined within 90 days after it is received

by the Secretary?

A proposal that is not declined within

90 days (or within any agreed extension

under § 900.17) is deemed approved and

the Secretary shall award the contract or

any amendment or renewal within that

90-day period and add to the contract

the full amount of funds pursuant to

Section 106(a) of the Act.

§ 900.19 What happens when a proposal is

approved?

Upon approval the Secretary shall

award the contract and add to the

contract the full amount of funds to

which the contractor is entitled under

section 106(a) of the Act.

Subpart E—Declination Procedures

§ 900.20 What does this Subpart cover?

This subpart explains how and under

what circumstances the Secretary may

decline a proposal to contract, to amend

an existing contract, to renew an

existing contract, to redesign a program,

or to waive any provisions of these

regulations. For annual funding

agreements, see § 900.32.

§ 900.21 When can a proposal be

declined?

As explained in Secs. 900.16 and

900.17, a proposal can only be declined

within 90 days after the Secretary

receives the proposal, unless that period
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32509

is extended with the voluntary and

express written consent of the Indian

tribe or tribal organization.

§ 900.22 For what reasons can the

Secretary decline a proposal?

The Secretary may only decline to

approve a proposal for one of five

specific reasons:

(a) The service to be rendered to the

Indian beneficiaries of the particular

program or function to be contracted

will not be satisfactory;

(b) Adequate protection of trust

resources is not assured;

(c) The proposed project or function

to be contracted for cannot be properly

completed or maintained by the

proposed contract;

(d) The amount of funds proposed

under the contract is in excess of the

applicable funding level for the

contract, as determined under section

106(a) of the Act; or

(e) The program, function, service, or

activity (or a portion thereof) that is the

subject of the proposal is beyond the

scope of programs, functions, services,

or activities covered under section

102(a)(1) of the Act because the

proposal includes activities that cannot

lawfully be carried out by the

contractor.

§ 900.23 Can the Secretary decline a

proposal where the Secretary’s objection

can be overcome through the contract?

No. The Secretary may not decline to

enter into a contract with an Indian tribe

or tribal organization based on any

objection that will be overcome through

the contract.

§ 900.24 Can a contract proposal for an

Indian tribe or tribal organization’s share of

administrative programs, functions,

services, and activities be declined for any

reason other than the five reasons specified

in § 900.22?

No. The Secretary may only decline a

proposal based upon one or more of the

five reasons listed above. If a contract

affects the preexisting level of services

to any other tribe, the Secretary shall

address that effect in the Secretary’s

annual report to Congress under section

106(c)(6) of the Act.

§ 900.25 What if only a portion of a

proposal raises one of the five declination

criteria?

The Secretary must approve any

severable portion of a proposal that does

not support a declination finding

described in § 900.20, subject to any

alteration in the scope of the proposal

that the Secretary and the Indian tribe

or tribal organization approve.

§ 900.26 What happens if the Secretary

declines a part of a proposal on the ground

that the proposal proposes in part to plan,

conduct, or administer a program, function,

service or activity that is beyond the scope

of programs covered under section 102(a)

of the Act, or proposes a level of funding

that is in excess of the applicable level

determined under section 106(a) of the Act?

In those situations the Secretary is

required, as appropriate, to approve the

portion of the program, function,

service, or activity that is authorized

under section 102(a) of the Act, or

approve a level of funding that is

authorized under section 106(a) of the

Act. As noted in § 900.25, the approval

is subject to any alteration in the scope

of the proposal that the Secretary and

the Indian tribe or tribal organization

approve.

§ 900.27 If an Indian tribe or tribal

organization elects to contract for a

severable portion of a proposal, does the

Indian tribe or tribal organization lose its

appeal rights to challenge the portion of the

proposal that was declined?

No, but the hearing and appeal

procedures contained in these

regulations only apply to the portion of

the proposal that was declined.

§ 900.28 Is technical assistance available

to an Indian tribe or tribal organization to

avoid declination of a proposal?

Yes. In accordance with section

103(d) of the Act, upon receiving a

proposal, the Secretary shall provide

any necessary requested technical

assistance to an Indian tribe or tribal

organization, and shall share all relevant

information with the Indian tribe or

tribal organization, in order to avoid

declination of the proposal.

§ 900.29 What is the Secretary required to

do if the Secretary decides to decline all or

a portion of a proposal?

If the Secretary decides to decline all

or a severable portion of a proposal, the

Secretary is required:

(a) To advise the Indian tribe or tribal

organization in writing of the

Secretary’s objections, including a

specific finding that clearly

demonstrates that (or that is supported

by a controlling legal authority that) one

of the conditions set forth in § 900.22

exists, together with a detailed

explanation of the reason for the

decision to decline the proposal and,

within 20 days, any documents relied

on in making the decision; and

(b) To advise the Indian tribe or tribal

organization in writing of the rights

described in § 900.31.

§ 900.30 When the Secretary declines all

or a portion of a proposal, is the Secretary

required to provide an Indian tribe or tribal

organization with technical assistance?

Yes. The Secretary shall provide

additional technical assistance to

overcome the stated objections, in

accordance with section 102(b) of the

Act, and shall provide any necessary

requested technical assistance to

develop any modifications to overcome

the Secretary’s stated objections.

§ 900.31 When the Secretary declines all

or a portion of a proposal, is an Indian tribe

or tribal organization entitled to any

appeal?

Yes. The Indian tribe or tribal

organization is entitled to an appeal on

the objections raised by the Secretary,

with an agency hearing on the record,

and the right to engage in full discovery

relevant to any issue raised in the

matter. The procedures for appeals are

in subpart L of these regulations.

Alternatively, at its option the Indian

tribe or tribal organization has the right

to sue in Federal district court to

challenge the Secretary’s decision.

§ 900.32 Can the Secretary decline an

Indian tribe or tribal organization’s

proposed successor annual funding

agreement?

No. If it is substantially the same as

the prior annual funding agreement

(except for funding increases included

in appropriations acts or funding

reductions as provided in section 106(b)

of the Act) and the contract is with

DHHS or the BIA, the Secretary shall

approve and add to the contract the full

amount of funds to which the contractor

is entitled, and may not decline, any

portion of a successor annual funding

agreement. Any portion of an annual

funding agreement proposal which is

not substantially the same as that which

was funded previously (e.g., a redesign

proposal; waiver proposal; different

proposed funding amount; or different

program, service, function, or activity),

or any annual funding agreement

proposal which pertains to a contract

with an agency of DOI other than the

BIA, is subject to the declination criteria

and procedures in subpart E. If there is

a disagreement over the availability of

appropriations, the Secretary may

decline the proposal in part under the

procedure in subpart E.

§ 900.33 Are all proposals to renew term

contracts subject to the declination

criteria?

Department of Health and Human

Services and the Bureau of Indian

Affairs will not review the renewal of a

term contract for declination issues

where no material and substantial
32510 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

change to the scope or funding of a

program, functions, services, or

activities has been proposed by the

Indian tribe or tribal organization.

Proposals to renew term contracts with

DOI agencies other than the Bureau of

Indian Affairs may be reviewed under

the declination criteria.

Subpart F—Standards for Tribal or

Tribal Organization Management

Systems

General

§ 900.35 What is the purpose of this

subpart?

This subpart contains the minimum

standards for the management systems

used by Indian tribes or tribal

organizations when carrying out selfdetermination contracts. It provides

standards for an Indian tribe or tribal

organization’s financial management

system, procurement management

system, and property management

system.

§ 900.36 What requirements are imposed

upon Indian tribes or tribal organizations by

this subpart?

When carrying out self-determination

contracts, Indian tribes and tribal

organizations shall develop, implement,

and maintain systems that meet these

minimum standards, unless one or more

of the standards have been waived, in

whole or in part, under section 107(e) of

the Act and Subpart K.

§ 900.37 What provisions of Office of

Management and Budget (OMB) circulars or

the ‘‘common rule’’ apply to selfdetermination contracts?

The only provisions of OMB Circulars

and the only provisions of the ‘‘common

rule’’ that apply to self-determination

contracts are the provisions adopted in

these regulations, those expressly

required or modified by the Act, and

those negotiated and agreed to in a selfdetermination contract.

§ 900.38 Do these standards apply to the

subcontractors of an Indian tribe or tribal

organization carrying out a selfdetermination contract?

An Indian tribe or tribal organization

may require that some or all of the

standards in this subpart be imposed

upon its subcontractors when carrying

out a self-determination contract.

§ 900.39 What is the difference between a

standard and a system?

(a) Standards are the minimum

baseline requirements for the

performance of an activity. Standards

establish the ‘‘what’’ that an activity

should accomplish.

(b) Systems are the procedural

mechanisms and processes for the dayto-day conduct of an activity. Systems

are ‘‘how’’ the activity will be

accomplished.

§ 900.40 When are Indian tribe or tribal

organization management standards and

management systems evaluated?

(a) Management standards are

evaluated by the Secretary when the

Indian tribe or tribal organization

submits an initial contract proposal.

(b) Management systems are evaluated

by an independent auditor through the

annual single agency audit report that is

required by the Act and OMB Circular

A–128.

§ 900.41 How long must an Indian tribe or

tribal organization keep management

system records?

The Indian tribe or tribal organization

must retain financial, procurement and

property records for the minimum

periods described below. Electronic,

magnetic or photographic records may

be substituted for hard copies.

(a) Financial records. Financial

records include documentation of

supporting costs incurred under the

contract. These records must be retained

for three years from the date of

submission of the single audit report to

the Secretary.

(b) Procurement records. Procurement

records include solicitations, purchase

orders, contracts, payment histories and

records applicable of significant

decisions. These records must be

retained for three years after the Indian

tribe or tribal organization or

subcontractors make final payment and

all other pending matters are closed.

(c) Property management records.

Property management records of real

and personal property transactions must

be retained for three years from the date

of disposition, replacement, or transfer.

(d) Litigation, audit exceptions and

claims. Records pertaining to any

litigation, audit exceptions or claims

requiring management systems data

must be retained until the action has

been completed.

Standards for Financial Management

Systems

§ 900.42 What are the general financial

management system standards that apply

to an Indian tribe carrying out a selfdetermination contract?

An Indian tribe shall expend and

account for contract funds in

accordance with all applicable tribal

laws, regulations, and procedures.

§ 900.43 What are the general financial

management system standards that apply

to a tribal organization carrying out a selfdetermination contract?

A tribal organization shall expend and

account for contract funds in

accordance with the procedures of the

tribal organization.

§ 900.44 What minimum general standards

apply to all Indian tribe or tribal

organization financial management systems

when carrying out a self-determination

contract?

The fiscal control and accounting

procedures of an Indian tribe or tribal

organization shall be sufficient to:

(a) Permit preparation of reports

required by a self-determination

contract and the Act; and

(b) Permit the tracing of contract

funds to a level of expenditure adequate

to establish that they have not been used

in violation of any restrictions or

prohibitions contained in any statute

that applies to the self-determination

contract.

§ 900.45 What specific minimum

requirements shall an Indian tribe or tribal

organization’s financial management

system contain to meet these standards?

An Indian tribe or tribal

organization’s financial management

system shall include provisions for the

following seven elements.

(a) Financial reports. The financial

management system shall provide for

accurate, current, and complete

disclosure of the financial results of selfdetermination contract activities. This

includes providing the Secretary a

completed Financial Status Report, SF

269A, as negotiated and agreed to in the

self-determination contract.

(b) Accounting records. The financial

management system shall maintain

records sufficiently detailed to identify

the source and application of selfdetermination contract funds received

by the Indian tribe or tribal

organization. The system shall contain

sufficient information to identify

contract awards, obligations and

unobligated balances, assets, liabilities,

outlays, or expenditures and income.

(c) Internal controls. The financial

management system shall maintain

effective control and accountability for

all self-determination contract funds

received and for all Federal real

property, personal property, and other

assets furnished for use by the Indian

tribe or tribal organization under the

self-determination contract.

(d) Budget controls. The financial

management system shall permit the

comparison of actual expenditures or

outlays with the amounts budgeted by
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32511

the Indian tribe or tribal organization for

each self-determination contract.

(e) Allowable costs. The financial

management system shall be sufficient

to determine the reasonableness,

allowability, and allocability of selfdetermination contract costs based upon

the terms of the self-determination

contract and the Indian tribe or tribal

organization’s applicable OMB cost

principles, as amended by the Act and

these regulations. (The following chart

lists certain OMB Circulars and suggests

the entities that may use each, but the

final selection of the applicable circular

may differ from those shown, as agreed

to by the Indian tribe or tribal

organization and the Secretary.

Agreements between an Indian tribe or

tribal organization and the Secretary

currently in place do not require

renegotiation.) Copies of these circulars

are available from the Executive Office

of the President, Publications Service,

725 17th Street N. W., Washington, D.

C. 20503.

Type of tribal organization Applicable OMB cost circular

Tribal Government ..................................................................................................... A–87, ‘‘Cost Principles for State, Local and Indian Tribal

Governments.’’

Tribal private non-profit other than: (1) an institution of higher education, (2) a

hospital, or (3) an organization named in OMB Circular A–122 as not subject to

that circular.

A–122, ‘‘Cost Principles for Non-Profit Organizations.’’

Tribal educational institution ...................................................................................... A–21, ‘‘Cost Principles for Educational Institutions.’’

(f) Source documentation. The

financial management system shall

contain accounting records that are

supported by source documentation,

e.g., canceled checks, paid bills, payroll

records, time and attendance records,

contract award documents, purchase

orders, and other primary records that

support self-determination contract

fund expenditures.

(g) Cash management. The financial

management system shall provide for

accurate, current, and complete

disclosure of cash revenues

disbursements, cash-on-hand balances,

and obligations by source and

application for each Indian tribe or

tribal organization, and subcontractor if

applicable, so that complete and

accurate cash transactions may be

prepared as required by the selfdetermination contract.

§ 900.46 What requirements are imposed

upon the Secretary for financial

management by these standards?

The Secretary shall establish

procedures, consistent with Treasury

regulations as modified by the Act, for

the transfer of funds from the United

States to the Indian tribe or tribal

organization in strict compliance with

the self-determination contract and the

annual funding agreement.

Procurement Management System

Standards

§ 900.47 When procuring property or

services with self-determination contract

funds, can an Indian tribe or tribal

organization follow the same procurement

policies and procedures applicable to other

Indian tribe or tribal organization funds?

Indian tribes and tribal organizations

shall have standards that conform to the

standards in this Subpart. If the Indian

tribe or tribal organization relies upon

standards different than those described

below, it shall identify the standards it

will use as a proposed waiver in the

initial contract proposal or as a waiver

request to an existing contract.

§ 900.48 If the Indian tribe or tribal

organization does not propose different

standards, what basic standards shall the

Indian tribe or tribal organization follow?

(a) The Indian tribe or tribal

organization shall ensure that its

vendors and/or subcontractors perform

in accordance with the terms,

conditions, and specifications of their

contracts or purchase orders.

(b) The Indian tribe or tribal

organization shall maintain written

standards of conduct governing the

performance of its employees who

award and administer contracts.

(1) No employee, officer, elected

official, or agent of the Indian tribe or

tribal organization shall participate in

the selection, award, or administration

of a procurement supported by Federal

funds if a conflict of interest, real or

apparent, would be involved.

(2) An employee, officer, elected

official, or agent of an Indian tribe or

tribal organization, or of a subcontractor

of the Indian tribe or tribal organization,

is not allowed to solicit or accept

gratuities, favors, or anything of

monetary value from contractors,

potential contractors, or parties to subagreements, with the following

exemptions. The Indian tribe or tribal

organization may exempt a financial

interest that is not substantial or a gift

that is an unsolicited item of nominal

value.

(3) These standards shall also provide

for penalties, sanctions, or other

disciplinary actions for violations of the

standards.

(c) The Indian tribe or tribal

organization shall review proposed

procurements to avoid buying

unnecessary or duplicative items and

ensure the reasonableness of the price.

The Indian tribe or tribal organization

should consider consolidating or

breaking out procurement to obtain

more economical purchases. Where

appropriate, the Indian tribe or tribal

organization shall compare leasing and

purchasing alternatives to determine

which is more economical.

(d) The Indian tribe or tribal

organization shall conduct all major

procurement transactions by providing

full and open competition, to the extent

necessary to assure efficient expenditure

of contract funds and to the extent

feasible in the local area.

(1) Indian tribes or tribal

organizations shall develop their own

definition for ‘‘major procurement

transactions.’’

(2) As provided in sections 7 (b) and

(c) of the Act, Indian preference and

tribal preferences shall be applied in

any procurement award.

(e) The Indian tribe or tribal

organization shall make procurement

awards only to responsible entities who

have the ability to perform successfully

under the terms and conditions of the

proposed procurement. In making this

judgment, the Indian tribe or tribal

organization will consider such matters

as the contractor’s integrity, its

compliance with public policy, its

record of past performance, and its

financial and technical resources.

(f) The Indian tribe or tribal

organization shall maintain records on

the significant history of all major

procurement transactions. These records

may include, but are not limited to, the

rationale for the method of

procurement, the selection of contract

type, the contract selection or rejection,

and the basis for the contract price.

(g) The Indian tribe or tribal

organization is solely responsible, using

good administrative practice and sound

business judgment, for processing and

settling all contractual and

administrative issues arising out of a

procurement. These issues include, but
32512 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

are not limited to, source evaluation,

protests, disputes, and claims.

(1) The settlement of any protest,

dispute, or claim shall not relieve the

Indian tribe or tribal organization of any

obligations under a self-determination

contract.

(2) Violations of law shall be referred

to the tribal or Federal authority having

proper jurisdiction.

§ 900.49 What procurement standards

apply to subcontracts?

Each subcontract entered into under

the Act shall at a minimum:

(a) Be in writing;

(b) Identify the interested parties,

their authorities, and the purposes of

the contract;

(c) State the work to be performed

under the contract;

(d) State the process for making any

claim, the payments to be made, and the

terms of the contract, which shall be

fixed; and

(e) Be subject to sections 7 (b) and (c)

of the Act.

§ 900.50 What Federal laws, regulations,

and Executive Orders apply to

subcontractors?

Certain provisions of the Act as well

as other applicable Federal laws,

regulations, and Executive Orders apply

to subcontracts awarded under selfdetermination contracts. As a result,

subcontracts should contain a provision

informing the recipient that their award

is funded with Indian SelfDetermination Act funds and that the

recipient is responsible for identifying

and ensuring compliance with

applicable Federal laws, regulations,

and Executive Orders. The Secretary

and the Indian tribe or tribal

organization may, through negotiation,

identify all or a portion of such

requirements in the self-determination

contract and, if so identified, these

requirements should be identified in

subcontracts.

Property Management System

Standards

§ 900.51 What is an Indian tribe or tribal

organization’s property management

system expected to do?

An Indian tribe or tribal

organization’s property management

system shall account for all property

furnished or transferred by the Secretary

for use under a self-determination

contract or acquired with contract

funds. The property management

system shall contain requirements for

the use, care, maintenance, and

disposition of Federally-owned and

other property as follows:

(a) Where title vests in the Indian

tribe, in accordance with tribal law and

procedures; or

(b) In the case of a tribal organization,

according to the internal property

procedures of the tribal organization.

§ 900.52 What type of property is the

property management system required to

track?

The property management system of

the Indian tribe or tribal organization

shall track:

(a) Personal property with an

acquisition value in excess of $5,000 per

item;

(b) Sensitive personal property, which

is all personal property that is subject to

theft and pilferage, as defined by the

Indian tribe or tribal organization. All

firearms shall be considered sensitive

personal property; and

(c) Real property provided by the

Secretary for use under the contract.

§ 900.53 What kind of records shall the

property management system maintain?

The property management system

shall maintain records that accurately

describe the property, including any

serial number or other identification

number. These records should contain

information such as the source,

titleholder, acquisition date, cost, share

of Federal participation in the cost,

location, use and condition of the

property, and the date of disposal and

sale price, if any.

§ 900.54 Should the property management

system prescribe internal controls?

Yes. Effective internal controls should

include procedures:

(a) For the conduct of periodic

inventories;

(b) To prevent loss or damage to

property; and

(c) To ensure that property is used for

an Indian tribe or tribal organization’s

self-determination contract(s) until the

property is declared excess to the needs

of the contract consistent with the

Indian tribe or tribal organization’s

property management system.

§ 900.55 What are the standards for

inventories?

A physical inventory should be

conducted at least once every 2 years.

The results of the inventory shall be

reconciled with the Indian tribe or tribal

organization’s internal property and

accounting records.

§ 900.56 What maintenance is required for

property?

Required maintenance includes the

performance of actions necessary to

keep the property in good working

condition, the procedures recommended

by equipment manufacturers, and steps

necessary to protect the interests of the

contractor and the Secretary in any

express warranties or guarantees

covering the property.

§ 900.57 What if the Indian tribe or tribal

organization chooses not to take title to

property furnished or acquired under the

contract?

If the Indian tribe or tribal

organization chooses not to take title to

property furnished by the government

or acquired with contract funds, title to

the property remains vested in the

Secretary. A list of Federally-owned

property to be used under the contract

shall be included in the contract.

§ 900.58 Do the same accountability and

control procedures described above apply

to Federal property?

Yes, except that requirements for the

inventory and disposal of Federal

property are different.

§ 900.59 How are the inventory

requirements for Federal property different

than for tribal property?

There are three additional

requirements:

(a) The Indian tribe or tribal

organization shall conduct a physical

inventory of the Federally-owned

property and reconcile the results with

the Indian tribe or tribal organization’s

property records annually, rather than

every 2 years;

(b) Within 90 days following the end

of an annual funding agreement, the

Indian tribe or tribal organization shall

certify and submit to the Secretary an

annual inventory of all Federally-owned

real and personal property used in the

contracted program; and

(c) The inventory shall report any

increase or decrease of $5,000 or more

in the value of any item of real property.

§ 900.60 How does an Indian tribe or tribal

organization dispose of Federal personal

property?

The Indian tribe or tribal organization

shall report to the Secretary in writing

any Federally-owned personal property

that is worn out, lost, stolen, damaged

beyond repair, or no longer needed for

the performance of the contract.

(a) The Indian tribe or tribal

organization shall state whether the

Indian tribe or tribal organization wants

to dispose of or return the property.

(b) If the Secretary does not respond

within 60 days, the Indian tribe or tribal

organization may return the property to

the Secretary, who shall accept transfer,

custody, control, and responsibility for

the property (together with all

associated costs).
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32513

Subpart G—Programmatic Reports and

Data Requirements

§ 900.65 What programmatic reports and

data shall the Indian tribe or tribal

organization provide?

Unless required by statute, there are

no mandatory reporting requirements.

Each Indian tribe or tribal organization

shall negotiate with the Secretary the

type and frequency of program narrative

and program data report(s) which

respond to the needs of the contracting

parties and that are appropriate for the

purposes of the contract. The extent of

available resources will be a

consideration in the negotiations.

§ 900.66 What happens if the Indian tribe

or tribal organization and the Secretary

cannot come to an agreement concerning

the type and/or frequency of program

narrative and/or program data report(s)?

Any disagreements over reporting

requirements are subject to the

declination criteria and procedures in

section 102 of the Act and subpart E.

§ 900.67 Will there be a uniform data set

for all IHS programs?

IHS will work with Indian tribe or

tribal organization representatives to

develop a mutually defined uniform

subset of data that is consistent with

Congressional intent, imposes a

minimal reporting burden, and which

responds to the needs of the contracting

parties.

§ 900.68 Will this uniform data set be

required of all Indian tribe or tribal

organizations contracting with the IHS

under the Act?

No. The uniform data set, applicable

to the services to be performed, will

serve as the target for the Secretary and

the Indian tribes or tribal organizations

during individual negotiations on

program data reporting requirements.

Subpart H—Lease of Tribally-Owned

Buildings by the Secretary

§ 900.69 What is the purpose of this

subpart?

Section 105(l) of the Act requires the

Secretary, at the request of an Indian

tribe or tribal organization, to enter into

a lease with the Indian tribe or tribal

organization for a building owned or

leased by the tribe or tribal organization

that is used for administration or

delivery of services under the Act. The

lease is to include compensation as

provided in the statute as well as ‘‘such

other reasonable expenses that the

Secretary determines, by regulation, to

be allowable.’’ This subpart contains

requirements for these leases.

§ 900.70 What elements are included in the

compensation for a lease entered into

between the Secretary and an Indian tribe

or tribal organization for a building owned

or leased by the Indian tribe or tribal

organization that is used for administration

or delivery of services under the Act?

To the extent that no element is

duplicative, the following elements may

be included in the lease compensation:

(a) Rent (sublease);

(b) Depreciation and use allowance

based on the useful life of the facility

based on acquisition costs not financed

with Federal funds;

(c) Contributions to a reserve for

replacement of facilities;

(d) Principal and interest paid or

accrued;

(e) Operation and maintenance

expenses, to the extent not otherwise

included in rent or use allowances,

including, but not limited to, the

following:

(1) Water, sewage;

(2) Utilities;

(3) Fuel;

(4) Insurance;

(5) Building management supervision

and custodial services;

(6) Custodial and maintenance

supplies;

(7) Pest control;

(8) Site maintenance (including snow

and mud removal);

(9) Trash and waste removal and

disposal;

(10) Fire protection/fire fighting

services and equipment;

(11) Monitoring and preventive

maintenance of building structures and

systems, including but not limited to:

(i) Heating/ventilation/air

conditioning;

(ii) Plumbing;

(iii) Electrical;

(iv) Elevators;

(v) Boilers;

(vi) Fire safety system;

(vii) Security system; and

(viii) Roof, foundation, walls, floors.

(12) Unscheduled maintenance;

(13) Scheduled maintenance

(including replacement of floor

coverings, lighting fixtures, repainting);

(14) Security services;

(15) Management fees; and

(16) Other reasonable and necessary

operation or maintenance costs justified

by the contractor;

(f) Repairs to buildings and

equipment;

(g) Alterations needed to meet

contract requirements;

(h) Other reasonable expenses; and

(i) The fair market rental for buildings

or portions of buildings and land,

exclusive of the Federal share of

building construction or acquisition

costs, or the fair market rental for

buildings constructed with Federal

funds exclusive of fee or profit, and for

land.

§ 900.71 What type of reserve fund is

anticipated for funds deposited into a

reserve for replacement of facilities as

specified in § 900.70(c)?

Reserve funds must be accounted for

as a capital project fund or a special

revenue fund.

§ 900.72 Who is the guardian of the fund

and may the funds be invested?

(a) The Indian tribe or tribal

organization is the guardian of the fund.

(b) Funds may be invested in

accordance with the laws, regulations

and policies of the Indian tribe or tribal

organization subject to the terms of the

lease or the self-determination contract.

§ 900.73 Is a lease with the Secretary the

only method available to recover the types

of cost described in § 900.70?

No. With the exception of paragraph

(i) in § 900.70, the same types of costs

may be recovered in whole or in part

under section 106(a) of the Act as direct

or indirect charges to a selfdetermination contract.

§ 900.74 How may an Indian tribe or tribal

organization propose a lease to be

compensated for the use of facilities?

There are three options available:

(a) The lease may be based on fair

market rental.

(b) The lease may be based on a

combination of fair market rental and

paragraphs (a) through (h) of § 900.70,

provided that no element of expense is

duplicated in fair market rental.

(c) The lease may be based on

paragraphs (a) through (h) of § 900.70

only.

Subpart I—Property Donation

Procedures

General

§ 900.85 What is the purpose of this

subpart?

This subpart implements section

105(f) of the Act regarding donation of

Federal excess and surplus property to

Indian tribes or tribal organizations and

acquisition of property with funds

provided under a self-determination

contract or grant.

§ 900.86 How will the Secretary exercise

discretion to acquire and donate BIA or IHS

excess property and excess and surplus

Federal property to an Indian tribe or tribal

organization?

The Secretary will exercise discretion

in a way that gives maximum effect to

the requests of Indian tribes or tribal

organizations for donation of BIA or IHS
32514 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

excess property and excess or surplus

Federal property, provided that the

requesting Indian tribe or tribal

organization shall state how the

requested property is appropriate for

use for any purpose for which a selfdetermination contract or grant is

authorized.

Government-Furnished Property

§ 900.87 How does an Indian tribe or tribal

organization obtain title to property

furnished by the Federal government for

use in the performance of a contract or

grant agreement pursuant to section

105(f)(2)(A) of the Act?

(a) For government-furnished

personal property made available to an

Indian tribe or tribal organization before

October 25, 1994:

(1) The Secretary, in consultation

with each Indian tribe or tribal

organization, shall develop a list of the

property used in a self-determination

contract.

(2) The Indian tribe or tribal

organization shall indicate any items on

the list to which the Indian tribe or

tribal organization wants the Secretary

to retain title.

(3) The Secretary shall provide the

Indian tribe or tribal organization with

any documentation needed to transfer

title to the remaining listed property to

the Indian tribe or tribal organization.

(b) For government-furnished real

property made available to an Indian

tribe or tribal organization before

October 25, 1994:

(1) The Secretary, in consultation

with the Indian tribe or tribal

organization, shall develop a list of the

property furnished for use in a selfdetermination contract.

(2) The Secretary shall inspect any

real property on the list to determine the

presence of any hazardous substance

activity, as defined in 41 CFR 101–

47.202.2(b)(10). If the Indian tribe or

tribal organization desires to take title to

any real property on the list, the Indian

tribe or tribal organization shall inform

the Secretary, who shall take such steps

as necessary to transfer title to the

Indian tribe or tribal organization.

(c) For government-furnished real and

personal property made available to an

Indian tribe or tribal organization on or

after October 25, 1994:

(1) The Indian tribe or tribal

organization shall take title to all

property unless the Indian tribe or tribal

organization requests that the United

States retain the title.

(2) The Secretary shall determine the

presence of any hazardous substance

activity, as defined in 41 CFR 101–

47.202.2(b)(10).

§ 900.88 What should the Indian tribe or

tribal organization do if it wants to obtain

title to government-furnished real property

that includes land not already held in trust?

If the land is owned by the United

States but not held in trust for an Indian

tribe or individual Indian, the Indian

tribe or tribal organization shall specify

whether it wants to acquire fee title to

the land or whether it wants the land to

be held in trust for the benefit of a tribe.

(a) If the Indian tribe or tribal

organization requests fee title, the

Secretary shall take the necessary action

under Federal law and regulations to

transfer fee title.

(b) If the Indian tribe or tribal

organization requests beneficial

ownership with fee title to be held by

the United States in trust for an Indian

tribe:

(1) The Indian tribe or tribal

organization shall submit with its

request a resolution of support from the

governing body of the Indian tribe in

which the beneficial ownership is to be

registered.

(2) If the request is submitted to the

Secretary of Health and Human Services

for land under the jurisdiction of that

Secretary, the Secretary shall take all

necessary steps to effect a transfer of the

land to the Secretary of the Interior and

shall also forward the Indian tribe or

tribal organization’s request and the

tribe’s resolution.

(3) The Secretary of the Interior shall

expeditiously process all requests in

accordance with applicable Federal law

and regulations.

(4) The Secretary shall not require the

Indian tribe or tribal organization to

furnish any information in support of a

request other than that required by law

or regulation.

§ 900.89 When may the Secretary elect to

reacquire government-furnished property

whose title has been transferred to an

Indian tribe or tribal organization?

(a) Except as provided in paragraph

(b) of this section, when a selfdetermination contract or grant

agreement, or portion thereof, is

retroceded, reassumed, terminated, or

expires, the Secretary shall have the

option to take title to any item of

government-furnished property:

(1) That title has been transferred to

an Indian tribe or tribal organization;

(2) That is still in use in the program;

and

(3) That has a current fair market

value, less the cost of improvements

borne by the Indian tribe or tribal

organization in excess of $5,000.

(b) If property referred to in paragraph

(a) of this section is shared between one

or more ongoing contracts or grant

agreements and a contract or grant

agreement that is retroceded,

reassumed, terminated or expires and

the Secretary wishes to use such

property in the retroceded or reassumed

program, the Secretary and the

contractor or grantee using such

property shall negotiate an acceptable

arrangement for continued sharing of

such property and for the retention or

transfer of title.

§ 900.90 Does government-furnished real

property to which an Indian tribe or tribal

organization has taken title continue to be

eligible for facilities operation and

maintenance funding from the Secretary?

Yes.

Contractor-Purchased Property

§ 900.91 Who takes title to property

purchased with funds under a selfdetermination contract or grant agreement

pursuant to section 105(f)(2)(A) of the Act?

The contractor takes title to such

property, unless the contractor chooses

to have the United States take title. In

that event, the contractor must inform

the Secretary of the purchase and

identify the property and its location in

such manner as the contractor and the

Secretary deem necessary. A request for

the United States to take title to any

item of contractor-purchased property

may be made at any time. A request for

the Secretary to take fee title to real

property shall be expeditiously

processed in accordance with applicable

Federal law and regulation.

§ 900.92 What should the Indian tribe or

tribal organization do if it wants contractorpurchased real property to be taken into

trust?

The contractor shall submit a

resolution of support from the governing

body of the Indian tribe in which the

beneficial ownership is to be registered.

If the request to take contractorpurchased real property into trust is

submitted to the Secretary of Health and

Human Services, that Secretary shall

transfer the request to the Secretary of

the Interior. The Secretary of the Interior

shall expeditiously process all requests

in accord with applicable Federal law

and regulation.

§ 900.93 When may the Secretary elect to

acquire title to contractor-purchased

property?

(a) Except as provided in paragraph

(b) of this section when a selfdetermination contract or grant

agreement, or portion thereof, is

retroceded, reassumed, terminated, or

expires, the Secretary shall have the

option to take title to any item of

government-furnished property:
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32515

(1) Whose title has been transferred to

an Indian tribe or tribal organization;

(2) That is still in use in the program;

and

(3) That has a current fair market

value, less the cost of improvements

borne by the Indian tribe or tribal

organization, in excess of $5,000.

(b) If property referred to in paragraph

(a) of this section is shared between one

or more ongoing contracts or grant

agreements and a contract or grant

agreement that is retroceded,

reassumed, terminated or expires and

the Secretary wishes to use such

property in the retroceded or reassumed

program, the Secretary and the

contractor or grantee using such

property shall negotiate an acceptable

arrangement for continued sharing of

such property and for the retention or

transfer of title.

§ 900.94 Is contractor-purchased real

property to which an Indian tribe or tribal

organization holds title eligible for facilities

operation and maintenance funding from

the Secretary?

Yes.

BIA and IHS Excess Property

§ 900.95 What is BIA or IHS excess

property?

BIA or IHS excess property means

property under the jurisdiction of the

BIA or IHS that is excess to the agency’s

needs and the discharge of its

responsibilities.

§ 900.96 How can Indian tribes or tribal

organizations learn about BIA and IHS

excess property?

The Secretary shall not less than

annually send to Indian tribes and tribal

organizations a listing of all excess BIA

or IHS personal property before

reporting the property to GSA or to any

other Federal agency as excess. The

listing shall identify the agency official

to whom a request for donation shall be

submitted.

§ 900.97 How can an Indian tribe or tribal

organization acquire excess BIA or IHS

property?

(a) The Indian tribe or tribal

organization shall submit to the

appropriate Secretary a request for

specific property that includes a

statement of how the property is

intended for use in connection with a

self-determination contract or grant. The

Secretary shall expeditiously process

the request and shall exercise discretion

in a way that gives maximum effect to

the request of Indian tribes or tribal

organizations for the donation of excess

BIA or IHS property.

(b) If more than one request for the

same item of personal property is

submitted, the Secretary shall award the

item to the requestor whose request is

received on the earliest date. If two or

more requests are received on the same

date, the Secretary shall award the item

to the requestor with the lowest

transportation costs. The Secretary shall

make the donation as expeditiously as

possible.

(c) If more than one request for the

same parcel of real property is

submitted, the Secretary shall award the

property to the Indian tribe or tribal

organization whose reservation or trust

land is closest to the real property

requested.

§ 900.98 Who takes title to excess BIA or

IHS property donated to an Indian tribe or

tribal organization?

The Indian tribe or tribal organization

takes title to donated excess BIA or IHS

property. The Secretary shall provide

the Indian tribe or tribal organization

with all documentation needed to vest

title in the Indian tribe or tribal

organization.

§ 900.99 Who takes title to any land that is

part of excess BIA or IHS real property

donated to an Indian tribe or tribal

organization?

(a) If an Indian tribe or tribal

organization requests donation of fee

title to excess real property that

includes land not held in trust for an

Indian tribe, the Indian tribe or tribal

organization shall so specify in its

request for donation. The Secretary shall

take the necessary action under Federal

law and regulations to transfer the title

to the Indian tribe or tribal organization.

(b) If an Indian tribe or tribal

organization asks the Secretary to

donate excess real property that

includes land and requests that fee title

to the land be held by the United States

in trust for an Indian tribe, the requestor

shall submit a resolution of support

from the governing body of the Indian

tribe in which the beneficial ownership

is to be registered.

(1) If the donation request is

submitted to the Secretary of Health and

Human Services, that Secretary shall

take all steps necessary to transfer the

land to the Secretary of the Interior with

the Indian tribe or tribal organization’s

request and the Indian tribe’s resolution.

The Secretary of the Interior shall

expeditiously process all requests in

accordance with applicable Federal law

and regulations.

(2) The Secretary shall not require the

Indian tribe or tribal organization to

furnish any information in support of a

request other than that required by law

or regulation.

§ 900.100 May the Secretary elect to

reacquire excess BIA or IHS property

whose title has been transferred to an

Indian tribe or tribal organization?

Yes. When a self-determination

contract or grant agreement, or

portion— thereof, is retroceded,

reassumed, terminated, or expires, the

Secretary shall have the option to take

title to any item of the property;

(a) Except as provided in paragraph

(b) of this section when a selfdetermination contract or grant

agreement, or portion thereof, is

retroceded, reassumed, terminated, or

expires, the Secretary shall have the

option to take title to any item of

government-furnished property:

(1) Whose title has been transferred to

an Indian tribe or tribal organization;

(2) That is still in use in the program;

and

(3) That has a current fair market

value, less the cost of improvements

borne by the Indian tribe or tribal

organization, in excess of $5,000.

(b) To the extent that any property

referred to in paragraph (a) of this

section is shared between one or more

ongoing contracts or grant agreements

and a contract or grant agreement that

is retroceded, reassumed, terminated or

expires and the Secretary wishes to use

such property in the retroceded or

reassumed program, the Secretary and

the contractor or grantee using such

property shall negotiate an acceptable

arrangement for continued sharing of

such property and for the retention or

transfer of title.

§ 900.101 Is excess BIA or IHS real

property to which an Indian tribe or tribal

organization has taken title eligible for

facilities operation and maintenance

funding from the Secretary?

Yes.

Excess or Surplus Government Property

of Other Agencies

§ 900.102 What is excess or surplus

government property of other agencies?

(a) ‘‘Excess government property’’ is

real or personal property under the

control of a Federal agency, other than

BIA and IHS, which is not required for

the agency’s needs and the discharge of

its responsibilities.

(b) ‘‘Surplus government property’’

means excess real or personal property

that is not required for the needs of and

the discharge of the responsibilities of

all Federal agencies that has been

declared surplus by the General

Services Administration (GSA).
32516 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

§ 900.103 How can Indian tribes or tribal

organizations learn about property that has

been designated as excess or surplus

government property?

The Secretary shall furnish, not less

than annually, to Indian tribes or tribal

organizations listings of such property

as may be made available from time to

time by GSA or other Federal agencies,

and shall obtain listings upon the

request of an Indian tribe or tribal

organization.

§ 900.104 How may an Indian tribe or tribal

organization receive excess or surplus

government property of other agencies?

(a) The Indian tribe or tribal

organization shall file a request for

specific property with the Secretary,

and shall state how the property is

appropriate for use for a purpose for

which a self-determination contract or

grant is authorized under the Act.

(b) The Secretary shall expeditiously

process such request and shall exercise

discretion to acquire the property in the

manner described in § 900.86 of this

Subpart.

(c) Upon approval of the Indian tribe

or tribal organization’s request, the

Secretary shall immediately request

acquisition of the property from the

GSA or the holding agency, as

appropriate, by submitting the necessary

documentation in order to acquire the

requested property prior to the

expiration of any ‘‘freeze’’ placed on the

property by the Indian tribe or tribal

organization.

(d) The Secretary shall specify that

the property is requested for donation to

an Indian tribe or tribal organization

pursuant to authority provided in

section 105(f)(3) of the Act.

(e) The Secretary shall request a

waiver of any fees for transfer of the

property in accordance with applicable

Federal regulations.

§ 900.105 Who takes title to excess or

surplus Federal property donated to an

Indian tribe or tribal organization?

(a) Title to any donated excess or

surplus Federal personal property shall

vest in the Indian tribe or tribal

organization upon taking possession.

(b) Legal title to donated excess or

surplus Federal real property shall vest

in the Indian tribe or tribal organization

upon acceptance by the Indian tribe or

tribal organization of a proper deed of

conveyance.

(c) If the donation of excess or surplus

Federal real property includes land

owned by the United States but not held

in trust for an Indian tribe, the Indian

tribe or tribal organization shall specify

whether it wants to acquire fee title to

the land or whether it wants the land to

be held in trust for the benefit of an

Indian tribe.

(1) If the Indian tribe or tribal

organization requests fee title, the

Secretary shall take the necessary action

under Federal law and regulations to

transfer fee title to the Indian tribe or

tribal organization.

(2) If the Indian tribe or tribal

organization requests beneficial

ownership with fee title to be held by

the United States in trust for an Indian

tribe:

(i) The Indian tribe or tribal

organization shall submit with its

request a resolution of support from the

governing body of the Indian tribe in

which the beneficial ownership is to be

registered.

(ii) If the donation request of the

Indian tribe or tribal organization is

submitted to the Secretary of Health and

Human Services, that Secretary shall

take all necessary steps to acquire the

land and transfer it to the Secretary of

the Interior and shall also forward the

Indian tribe or tribal organization’s

request and the Indian tribe’s resolution.

(iii) The Secretary of the Interior shall

expeditiously process all requests in

accord with applicable Federal law and

regulations.

(iv) The Secretary shall not require

submission of any information other

than that required by Federal law and

regulation.

§ 900.106 If a contract or grant agreement

or portion thereof is retroceded,

reassumed, terminated, or expires, may the

Secretary reacquire title to excess or

surplus Federal property of other agencies

that was donated to an Indian tribe or tribal

organization?

No. Section 105(f)(3) of the Act does

not give the Secretary the authority to

reacquire title to excess or surplus

government property acquired from

other agencies for donation to an Indian

tribe or tribal organization.

Property Eligible for Replacement

Funding

§ 900.107 What property to which an

Indian tribe or tribal organization obtains

title under this Subpart is eligible for

replacement funding?

Government-furnished property,

contractor-purchased property and

excess BIA and IHS property donated to

an Indian tribe or tribal organization to

which an Indian tribe or tribal

organization holds title shall remain

eligible for replacement funding to the

same extent as if title to that property

were held by the United States.

Subpart J—Construction

§ 900.110 What does this subpart cover?

(a) This subpart establishes

requirements for issuing fixed-price or

cost-reimbursable contracts to provide:

design, construction, repair,

improvement, expansion, replacement,

erection of new space, or demolition

and other related work for one or more

Federal facilities. It applies to tribal

facilities where the Secretary is

authorized by law to design, construct

and/or renovate, or make improvements

to such tribal facilities.

(b) Activities covered by construction

contracts under this subpart are: design

and architectural/engineering services,

construction project management, and

the actual construction of the building

or facility in accordance with the

construction documents, including all

labor, materials, equipment, and

services necessary to complete the work

defined in the construction documents.

(1) Such contracts may include the

provision of movable equipment,

telecommunications and data

processing equipment, furnishings

(including works of art), and special

purpose equipment, when part of a

construction contract let under this

subpart.

(2) While planning services and

construction management services as

defined in § 900.113 may be included in

a construction contract under this

subpart, they may also be contracted

separately using the model agreement in

section 108 of the Act.

§ 900.111 What activities of construction

programs are contractible?

The Secretary shall, upon the request

of any Indian tribe or tribal organization

authorized by tribal resolution, enter

into a self-determination contract to

plan, conduct, and administer

construction programs or portions

thereof.

§ 900.112 What are construction phases?

(a) Construction programs generally

include the following activities in

phases which can vary by funding

source (an Indian tribe or tribal

organization should contact its funding

source for more information regarding

the conduct of its program):

(1) The preplanning phase. The phase

during which an initial assessment and

determination of project need is made

and supporting information collected

for presentation in a project application.

This project application process is

explained in more detail in § 900.122;

(2) The planning phase. The phase

during which planning services are

provided. This phase can include
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32517

conducting and preparing a detailed

needs assessment, developing

justification documents, completing

and/or verifying master plans,

conducting predesign site investigations

and selection, developing budget cost

estimates, conducting feasibility studies,

and developing a project Program of

Requirements (POR);

(3) The design phase. The phase

during which licensed design

professional(s) using the POR as the

basis for design of the project, prepare

project plans, specifications, and other

documents that are a part of the

construction documents used to build

the project. Site investigation and

selection activities are completed in this

phase if not conducted as part of the

planning phase.

(4) The construction phase. The phase

during which the project is constructed.

The construction phase includes

providing the labor, materials,

equipment, and services necessary to

complete the work in accordance with

the construction documents prepared as

part of the design phase.

(b) The following activities may be

part of phases described in paragraphs

(a)(2), (a)(3), and (a)(4) of this section:

(1) Management; and

(2) Environmental, archeological,

cultural resource, historic preservation,

and similar assessments and associated

activities.

§ 900.113 Definitions.

(a) Construction contract means a

fixed-price or cost-reimbursement selfdetermination contract for a

construction project, except that such

term does not include any contract:

(1) That is limited to providing

planning services and construction

management services (or a combination

of such services);

(2) For the Housing Improvement

Program or roads maintenance program

of the Bureau of Indian Affairs

administered by the Secretary of the

Interior; or

(3) For the health facility maintenance

and improvement program administered

by the Secretary of Health and Human

Services.

(b) Construction management services

(CMS) means activities limited to

administrative support services;

coordination; and monitoring oversight

of the planning, design, and

construction process. An Indian tribe or

tribal organization’s employee or

construction management services

consultant (typically an engineer or

architect) performs such activities as:

(1) Coordination and information

exchange between the Indian tribe or

tribal organization and the Federal

government;

(2) Preparation of Indian tribe or tribal

organization’s construction contract

proposals;

(3) Indian tribe or tribal organization

subcontract scope of work identification

and subcontract preparation, and

competitive selection of Indian tribe or

tribal organization construction contract

subcontractors (see § 900.110);

(4) Review of work to ensure

compliance with the POR and/or the

construction contract. This does not

involve construction project

management as defined in paragraph (d)

of this section.

(c) Construction programs include

programs for the planning, design,

construction, repair, improvement, and

expansion of buildings or facilities,

including but not limited to, housing,

law enforcement and detention

facilities, sanitation and water systems,

roads, schools, administration and

health facilities, irrigation and

agricultural work, water conservation,

flood control, and port facilities, and

environmental, archeological, cultural

resource, historic preservation, and

conduct of similar assessments.

(d) Construction project management

means direct responsibility for the

construction project through day-to-day

on-site management and administration

of the project. Activities may include

cost management, project budgeting,

project scheduling, procurement

services.

(e) Design means services performed

by licensed design professionals related

to preparing drawings, specifications,

and other design submissions specified

in the contract, as well as services

provided by or for licensed design

professionals during the bidding/

negotiating, construction, and

operational phases of the project.

(f) Planning services means activities

undertaken to support agency and/or

Congressional funding of a construction

project. Planning services may include

performing a needs assessment,

completing and/or verifying master

plans, developing justification

documents, conducting pre-design site

investigations, developing budget cost

estimates, conducting feasibility studies

as needed and completion of approved

justification documents and a program

of requirements (POR) for the project.

(g) Program of Requirements (POR) is

a planning document developed during

the planning phase for an individual

project. It provides background about

the project; site information;

programmatic needs; and, for facilities

projects, a detailed room-by-room listing

of spaces, including net and gross sizes,

finish materials to be used, furnishings

and equipment, and other information

and design criteria on which to base the

construction project documents.

(h) Scope of work means the

description of the work to be provided

through a contract issued under this

subpart and the methods and processes

to be used to accomplish that work. A

scope of work is typically developed

based on criteria provided in a POR

during the design phase, and project

construction documents (plans and

specifications) during the construction

phase.

§ 900.114 Why is there a separate subpart

in these regulations for construction

contracts and grants?

There is a separate subpart because

the Act differentiates between

construction contracts and the model

agreement in section 108 of the Act

which is required for contracting other

activities. Construction contracts are

separately defined in the Act and are

subject to a separate proposal and

review process.

§ 900.115 How do self-determination

construction contracts relate to ordinary

Federal procurement contracts?

(a) A self-determination construction

contract is a government-to-government

agreement that transfers control of the

construction project, including

administrative functions, to the

contracting Indian tribe or tribal

organization to facilitate effective and

meaningful participation by the Indian

tribe or tribal organization in planning,

conducting, and administering the

construction project, and so that the

construction project is responsive to the

true needs of the Indian community.

The Secretary’s role in the conduct of a

contracted construction project is

limited to the Secretary’s

responsibilities set out in § 900.131.

(b) Self-determination construction

contracts are not traditional

‘‘procurement’’ contracts.

(1) With respect to a construction

contract (or a subcontract of such a

construction contract), the provisions of

the Office of Federal Procurement

Policy Act (41 U.S.C. 401 et seq.) and

the regulations promulgated under that

Act, shall apply to a construction

contract or subcontract only to the

extent that application of the provision

is:

(i) Necessary to ensure that the

contract may be carried out in a

satisfactory manner;

(ii) Directly related to the construction

activity; and

(iii) Not inconsistent with the Act.

(2) A list of the Federal requirements

that meet the requirements of this
32518 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

paragraph shall be included in an

attachment to the contract under

negotiations between the Secretary and

the Indian tribe or tribal organization.

(3) Except as provided in paragraph

(b)(2) of this section, no Federal law

listed in section 105(3)(C)(ii) of the Act

or any other provision of Federal law

(including an Executive order) relating

to acquisition by the Federal

government shall apply to a

construction contract that an Indian

tribe or tribal organization enters into

under this Act, unless expressly

provided in the law.

(c) Provisions of a construction

contract under this subpart shall be

liberally construed in favor of the

contracting Indian tribe or tribal

organization.

§ 900.116 Are negotiated fixed-price

contracts treated the same as costreimbursable contracts?

Yes, except that in negotiated fixedprice construction contracts,

appropriate clauses shall be negotiated

to allocate properly the contract risks

between the government and the

contractor.

§ 900.117 Do these ‘‘construction

contract’’ regulations apply to planning

services?

(a) These regulations apply to

planning services contracts only as

provided in this section.

(1) The Indian tribe or tribal

organization shall submit to the

Secretary for review and approval the

POR documents produced as a part of a

model contract under section 108 of the

Act or under a construction contract

under this subpart.

(i) Within 60 days after receipt of the

POR from the Indian tribe or tribal

organization for a project that has

achieved priority ranking or that is

funded, the Secretary shall:

(A) Approve the POR;

(B) Notify the Indian tribe or tribal

organization of and make available any

objections to the POR that the Secretary

may have; or

(C) Notify the Indian tribe or tribal

organization of the reasons why the

Secretary will be unable either to

approve the POR or to notify the Indian

tribe or tribal organization of any

objections within 60 days, and state the

time within which the notification will

be made, provided that the extended

time shall not exceed 60 additional

days.

(ii) Within a maximum of 180 days

after receipt of a POR from an Indian

tribe or tribal organization for a project

that is not funded and is not described

in paragraph (a)(1)(i) of this section, the

Secretary shall:

(A) Approve the POR; or

(B) Notify the Indian tribe or tribal

organization of and make available any

objections to the POR; or

(C) Notify the Indian tribe or tribal

organization of the reasons why the

Secretary will be unable either to

approve the POR or to notify the Indian

tribe or tribal organization of any

objections within 180 days, and state

the time within which the notification

will be made, provided that the

extended time shall not exceed 60

additional days.

(2) Any failure of the Secretary to act

on a POR within the applicable period

required in paragraph (a)(1) of this

section will be deemed a rejection of the

POR and will authorize the

commencement of any appeal as

provided in section 110 of the Act, or,

if a model agreement under section 108

of the Act is used, the disputes

provision of that agreement.

(3) If an Indian tribe or tribal

organization elects to provide planning

services as part of a construction

contract rather than under a model

agreement as set out in section 108 of

the Act, the regulations in this subpart

shall apply.

(b) The parties to the contract are

encouraged to consult during the

development of the POR and following

submission of the POR to the Secretary.

§ 900.118 Do these ‘‘construction

contract’’ regulations apply to construction

management services?

No. Construction management

services may be contracted separately

under section 108 of the Act.

Construction management services

consultants and/or Indian tribe or tribal

organization employees assist and

advise the Indian tribe or tribal

organization to implement construction

contracts, but have no contractual

relationship with or authority to direct

construction contract subcontractors.

(a) If the Indian tribe or tribal

organization chooses to contract solely

for construction management services,

these services shall be limited to:

(1) Coordination and exchange of

information between the Indian tribe or

tribal organization and the Secretary;

(2) Review of work produced by the

Secretary to determine compliance with:

(i) The POR and design contract

during the design stage; or

(ii) The project construction

documents during the construction

stage;

(3) Disputes shall be resolved in

accordance with the disputes clause of

the CMS contract.

(b) If the Indian tribe or tribal

organization conducts CMS under

section 108 of the Act and the Indian

tribe or tribal organization contracts

separately under this subpart for all or

some of the activities in § 900.110, the

contracted activities shall be limited to:

(1) Coordination and exchange of

information between the Indian tribe or

tribal organization and Secretary;

(2) Preparation of tribal or tribal

organization construction subcontract

scope of work identification and

subcontract preparation, and

competitive selection of tribal or tribal

organization construction contract

subcontractors;

(3) Review of work produced by tribal

or tribal organization construction

subcontractors to determine compliance

with:

(i) The POR and the design contract

during the design stage; or

(ii) The project construction

documents during the construction

stage.

§ 900.119 To what extent shall the

Secretary consult with affected Indian tribes

before spending funds for any construction

project?

Before spending any funds for a

planning, design, construction, or

renovation project, whether subject to a

competitive application and ranking

process or not, the Secretary shall

consult with any Indian tribe or tribal

organization(s) that would be

significantly affected by the expenditure

to determine and to follow tribal

preferences to the greatest extent

feasible concerning: size, location, type,

and other characteristics of the project.

§ 900.120 How does an Indian tribe or

tribal organization find out about a

construction project?

Within 30 days after the Secretary’s

allocation of funds for planning phase,

design phase, or construction phase

activities for a specific project, the

Secretary shall notify, by registered mail

with return receipt in order to document

mailing, the Indian tribe or tribal

organization(s) to be benefitted by the

availability of the funds for each phase

of a project. The Secretarial notice of

fund allocation shall offer technical

assistance in the preparation of a

contract proposal.

(a) The Secretary shall, within 30 days

after receiving a request from an Indian

tribe or tribal organization, furnish the

Indian tribe or tribal organization with

all information available to the

Secretary about the project including,

but not limited to: construction

drawings, maps, engineering reports,

design reports, plans of requirements,

cost estimates, environmental

assessments, or environmental impact

reports and archeological reports.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32519

(b) An Indian tribe or tribal

organization is not required to request

this information prior to submitting a

notification of intent to contract or a

contract proposal.

(c) The Secretary shall have a

continuing responsibility to furnish

information.

§ 900.121 What happens during the

preplanning phase and can an Indian tribe

or tribal organization perform any of the

activities involved in this process?

(a) The application and ranking

process for developing a priority listing

of projects varies between agencies.

There are, however, steps in the

selection process that are common to

most selection processes. An Indian

tribe or tribal organization that wishes

to secure a construction project should

contact the appropriate agency to

determine the specific steps involved in

the application and selection process

used to fund specific types of projects.

When a priority process is used in the

selection of construction projects, the

steps involved in the application and

ranking process are as follows:

(1) Application. The agency solicits

applications from Indian tribes or tribal

organizations. In the request for

applications, the Secretary provides

specific information regarding the type

of project to be funded, the objective

criteria that will be used to evaluate

applications, the points or weight that

each criterion will be assigned, and the

time when applications are due. An

Indian tribe or tribal organization may

prepare the application (technical

assistance from the agency, within

resources available, shall be provided

upon request from an Indian tribe or

tribal organization) or may rely upon the

agency to prepare the application.

(2) Ranking/Prioritization. The

Secretary evaluates the applications

based on the criteria provided as part of

the application preparation process. The

Secretary applies only criteria and

weights assigned to each criteria that

were disclosed to the Indian tribe or

tribal organization during the

application stage. The applications are

then ranked in order from the

application that best meets application

criteria to the application that least meet

the application criteria.

(3) Validation. Before final acceptance

of a ranked application, the information,

such as demographic information,

deficiency levels reported in

application, the condition of existing

facilities, and program housing needs, is

validated. During this process,

additional information may be

developed by the Indian tribe or tribal

organization in support of the original

information or the Secretary may

designate a representative of the

Department to conduct an on-site

review of the information contained in

the application.

(b) [Reserved]

§ 900.122 What does an Indian tribe or

tribal organization do if it wants to secure

a construction contract?

(a) The Act establishes a special

process for review and negotiation of

proposals for construction contracts

which is different than that for other

self-determination contract proposals.

The Indian tribe or tribal organization

should notify the Secretary of its intent

to contract. After notification, the Indian

tribe or tribal organization should

prepare its contract proposal in

accordance with the sections of this

subpart. While developing its

construction contract proposal, the

Indian tribe or tribal organization can

request technical assistance from the

Secretary. Not later than 30 days after

receiving a request from an Indian tribe

or tribal organization, the Secretary

shall provide to the Indian tribe or tribal

organization all information available

about the construction project,

including construction drawings, maps,

engineering reports, design reports,

plans of requirements, cost estimates,

environmental assessments, or

environmental impact reports, and

archaeological reports. The

responsibility of the Secretary to furnish

this information shall be a continuing

one.

(b) At the request of the Indian tribe

or tribal organization and before

finalizing its construction contract

proposal, the Secretary shall provide for

a precontract negotiation phase during

the development of a contract proposal.

Within 30 days the Secretary shall

acknowledge receipt of the proposal

and, if requested by the Indian tribe or

tribal organization, shall confer with the

Indian tribe or tribal organization to

develop a negotiation schedule. The

negotiation phase shall include, at a

minimum:

(1) The provision of technical

assistance under section 103 of the Act

and paragraph (a) of this section;

(2) A joint scoping session between

the Secretary and the Indian tribe or

tribal organization to review all plans,

specifications, engineering reports, cost

estimates, and other information

available to the parties, for the purpose

of identifying all areas of agreement and

disagreement;

(3) An opportunity for the Secretary to

revise plans, designs, or cost estimates

of the Secretary in response to concerns

raised, or information provided by, the

Indian tribe or tribal organization;

(4) A negotiation session during

which the Secretary and the Indian tribe

or tribal organization shall seek to

develop a mutually agreeable contract

proposal; and

(5) Upon the request of the Indian

tribe or tribal organization, the use of

alternative dispute resolution to resolve

remaining areas of disagreement under

the dispute resolution provisions under

subchapter IV of chapter 5 of the United

States Code.

§ 900.123 What happens if the Indian tribe

or tribal organization and the Secretary

cannot develop a mutually agreeable

contract proposal?

(a) If the Secretary and the Indian

tribe or tribal organization are unable to

develop a mutually agreeable

construction contract proposal under

the procedures in § 900.122, the Indian

tribe or tribal organization may submit

a final contract proposal to the

Secretary. Not later than 30 days after

receiving the final contract proposal, the

Secretary shall approve the contract

proposal and award the contract, unless,

during the period the Secretary declines

the proposal under sections 102(a)(2)

and 102(b) of the Act (including

providing opportunity for an appeal

under section 102(b)).

(b) Whenever the Secretary declines

to enter into a self-determination

contract or contracts under section

102(a)(2) of the Act, the Secretary shall:

(1) State any objections to the contract

proposal (as submitted by the Indian

tribe or tribal organization) in writing

and provide all documents relied on in

making the declination decision within

20 days of such decision to the Indian

tribe or tribal organization;

(2) Provide assistance to the Indian

tribe or tribal organization to overcome

the stated objections;

(3) Provide the Indian tribe or tribal

organization with a hearing on the

record with the right to engage in full

discovery relevant to any issue raised in

the matter and the opportunity for

appeal on the objections raised, under

the regulations set forth in subpart L,

except that the Indian tribe or tribal

organization may, in lieu of filing the

appeal, initiate an action in a Federal

district court and proceed directly

under section 110(a) of the Act.

§ 900.124 May the Indian tribe or tribal

organization to use a grant in lieu of a

contract?

Yes. A grant agreement or a

cooperative agreement may be used in

lieu of a contract under sections 102 and

103 of the Act when agreed to by the

Secretary and the Indian tribe or tribal
32520 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

organization. Under the grant concept,

the grantee will assume full

responsibility and accountability for

design and construction performance

within the funding limitations. The

grantee will manage and administer the

work with minimal involvement by the

government. The grantee will be

expected to have acceptable

management systems for finance,

procurement, and property. The

Secretary may issue Federal

construction guidelines and manuals

applicable to its construction programs,

and the government shall accept tribal

proposals for alternatives which are

consistent with or exceed Federal

guidelines or manuals applicable to

construction programs.

§ 900.125 What shall a construction

contract proposal contain?

(a) In addition to the full name,

address, and telephone number of the

Indian tribe or tribal organization

submitting the construction proposal, a

construction contract proposal shall

contain descriptions of the following

standards under which they propose to

operate the contract:

(1) The use of licensed and qualified

architects;

(2) Applicable health and safety

standards;

(3) Adherence to applicable Federal,

State, local, or tribal building codes and

engineering standards;

(4) Structural integrity;

(5) Accountability of funds;

(6) Adequate competition for

subcontracting under tribal or other

applicable law;

(7) The commencement, performance,

and completion of the contract;

(8) Adherence to project plans and

specifications (including any applicable

Federal construction guidelines and

manuals and the Secretary shall accept

tribal proposals for alternatives which

are consistent with or exceed Federal

guidelines or manuals applicable to

construction programs);

(9) The use of proper materials and

workmanship;

(10) Necessary inspection and testing;

(11) With respect to the selfdetermination contract between the

Indian tribe or tribal organization and

Federal government, a process for

changes, modifications, stop work, and

termination of the work when

warranted;

(b) In addition to provisions regarding

the program standards listed in

paragraph (a) of this section or the

assurances listed in paragraph (c) of this

section, the Indian tribe or tribal

organization shall also include in its

construction contract proposal the

following:

(1) In the case of a contract for design

activities, this statement, ‘‘Construction

documents produced as part of this

contract will be produced in accordance

with the Program of Requirements and/

or Scope of Work,’’ and the POR and/

or Scope of Work shall be attached to

the contract proposal. If tribal

construction procedures, standards and

methods (including national, regional,

state, or tribal building codes or

construction industry standards) are

consistent with or exceed applicable

Federal standards then the Secretary

shall accept the tribally proposed

standards; and

(2) In the case of a contract for

construction activities, this statement,

‘‘The facility will be built in accordance

with the construction documents

produced as a part of design activities.

The project documents, including plans

and specifications, are hereby

incorporated into this contract through

this reference.’’ If tribal construction

procedures, standards and methods

(including national, regional, state, or

tribal building codes or construction

industry standards) are consistent with

or exceed applicable Federal standards

then the Secretary shall accept the

tribally proposed standards; and

(3) Proposed methods to

accommodate the responsibilities of the

Secretary provided in § 900.131; and

(4) Proposed methods to

accommodate the responsibilities of the

Indian tribe or tribal organization

provided in § 900.130 unless otherwise

addressed in paragraph (a) of this

section and minimum staff

qualifications proposed by the Indian

tribe or tribal organization, if any;

(5) A contract budget as described in

§ 900.127; and

(6) A period of performance for the

conduct of all activities to be contracted;

(7) A payment schedule as described

in § 900.132;

(8) A statement indicating whether or

not the Indian tribe or tribal

organization has a CMS contract related

to this project;

(9) Current (unrevoked) authorizing

resolutions in accordance with

§ 900.5(d) from all Indian tribes

benefitting from the contract proposal;

and

(10) Any responsibilities, in addition

to the Federal responsibilities listed in

§ 900.131, which the Indian tribe or

tribal organization proposes the Federal

government perform to assist with the

completion of the scope of work;

(c) The Indian tribe or tribal

organization will provide the following

assurances in its contract proposal:

(1) If the Indian tribe or tribal

organization elects not to take title

(pursuant to subpart I) to Federal

property used in carrying out the

contract, ‘‘The Indian tribe or tribal

organization will not dispose of, modify

the use of, or change the terms of the

real property title, or other interest in

the site and facilities without

permission and instructions from the

awarding agency. The Indian tribe or

tribal organization will record the

Federal interest in the title of real

property in accordance with awarding

agency directives and will include a

covenant in the title of real property

acquired in whole or in part with

Federal assistance funds to assure

nondiscrimination during the useful life

of the project’’; and

(2) ‘‘The Indian tribe or tribal

organization will comply with the LeadBased Paint Poisoning Prevention Act

(42 U.S.C. 4801 et seq.)’’ which

prohibits the use of lead based paint in

construction or rehabilitation of

residential structures;

(3) ‘‘The Indian tribe or tribal

organization will comply, or has already

complied, with the requirements of

Titles II and III of the Uniform

Relocation Assistance and Real Property

Acquisition Policies Act of 1970 (Pub. L.

91–646),’’ which provides for fair and

equitable treatment of persons displaced

or whose property is acquired as a result

of Federal participation in purchases;

and

(4) ‘‘Except for work performed by

tribal or tribal organization employees,

the Indian tribe or tribal organization

will comply, as applicable, with the

provisions of the Davis-Bacon Act (40

U.S.C. 276c and 18 U.S.C. 874),’’ for

Federally assisted construction

subagreements;

(5) ‘‘The Indian tribe or tribal

organization will comply with the flood

insurance purchase requirements of

section 102(a) of the Flood Disaster

Protection Act of 1973 (Pub. L. 93–

234),’’ which requires recipients in a

special flood hazard area to participate

in the program and to purchase flood

insurance if the total cost of insurable

construction and acquisition is $10,000

or more;

(6) ‘‘The Indian tribe or tribal

organization will comply with all

applicable Federal environmental laws,

regulations, and Executive Orders;’’

(7) ‘‘The Indian tribe or tribal

organization will comply with the Wild

and Scenic Rivers Act of 1968 (16 U.S.C.

1271 et seq.) related to protecting the

components or potential components of

the national wild and scenic rivers

system;’’

(8) ‘‘The Indian tribe or tribal

organization will assist the awarding

agency in assuring compliance with
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32521

section 106 of the National Historic

Preservation Act of 1966, as amended

(16 U.S.C. 470), EO 11593

(identification and preservation of

historic properties), and the

Archaeological and Historic

Preservation Act of 1974 (16 U.S.C.

469a–1 et seq.).’’

(d) The Indian tribe or tribal

organization and the Secretary will both

make a good faith effort to identify any

other applicable Federal laws, Executive

Orders, or regulations applicable to the

contract, share them with the other

party, and refer to them in the

construction contract. The parties will

make a good faith effort to identify tribal

laws, ordinances, and resolutions which

may affect either party in the

performance of the contract.

§ 900.126 Shall a construction contract

proposal incorporate provisions of Federal

construction guidelines and manuals?

Each agency may provide or the

Indian tribe or tribal organization may

request Federal construction guidelines

and manuals for consideration by the

Indian tribe or tribal organization in the

preparation of its contract proposal. If

tribal construction procedures,

standards and methods (including

national, regional, State, or tribal

building codes or construction industry

standards) are consistent with or exceed

applicable Federal standards, the

Secretary shall accept the tribally

proposed standards.

§ 900.127 What can be included in the

Indian tribe or tribal organization’s contract

budget?

(a) The costs incurred will vary

depending on which phase (see

§ 900.112) of the construction process

the Indian tribe or tribal organization is

conducting and the type of contract that

will be used. The total amount awarded

under a construction contract shall

reflect an overall fair and reasonable

price to the parties (see § 900.129).

(b) Costs for activities under this

subpart that have not been billed,

allocated, or recovered under a contract

issued under section 108 of the Act

should be included.

(c) The Indian tribe or tribal

organization’s budget should include

the cost elements that reflect an overall

fair and reasonable price. These costs

include:

(1) The reasonable costs to the Indian

tribe or tribal organization of performing

the contract, taking into consideration

the terms of the contract and the

requirements of the Act and any other

applicable law;

(2) The costs of preparing the contract

proposal and supporting cost data;

(3) The costs associated with auditing

the general and administrative costs of

the Indian tribe or tribal organization

associated with the management of the

construction contract; and

(4) In cases where the Indian tribe or

tribal organization is submitting a fixedprice construction contract:

(i) The reasonable costs to the Indian

tribe or tribal organization for general

administration incurred in connection

with the project that is the subject of the

contract;

(ii) The ability of the contractor that

carries out the construction contract to

make a reasonable profit, taking into

consideration the risks associated with

carrying out the contract, local market

conditions, and other relevant

considerations.

(d) In establishing a contract budget

for a construction project, the Secretary

shall not be required to identify

separately the components described in

paragraphs (c)(4)(i) and (c)(4)(ii) of this

section.

(e) The Indian tribe or tribal

organization’s budget proposal includes

a detailed budget breakdown for

performing the scope of work including

a total ‘‘not to exceed’’ dollar amount

with which to perform the scope of

work. Specific budget line items, if

requested by the Indian tribe or tribal

organization, can include the following:

(1) The administrative costs the

Indian tribe or tribal organization may

incur including:

(i) Personnel needed to provide

administrative oversight of the contract;

(ii) Travel costs incurred, both local

travel incurred as a direct result of

conducting the contract and remote

travel necessary to review project status

with the Secretary;

(iii) Meeting costs incurred while

meeting with community residents to

develop project documents;

(iv) Fees to be paid to consultants,

such as demographic consultants,

planning consultants, attorneys,

accountants, and personnel who will

provide construction management

services;

(2) The fees to be paid to architects

and engineers to assist in preparing

project documents and to assist in

oversight of the construction process;

(3) The fees to be paid to develop

project surveys including topographical

surveys, site boundary descriptions,

geotechnical surveys, archeological

surveys, and NEPA compliance, and;

(4) In the case of a contract to conduct

project construction activities, the fees

to provide a part-time or full-time onsite inspector, depending on the terms

of the contract, to monitor construction

activities;

(5) In the case of a contract to conduct

project construction activities, project

site development costs;

(6) In the case of a contract to conduct

project construction activities, project

construction costs including those costs

described in paragraph (c)(4), of this

section;

(7) The cost of securing and installing

moveable equipment,

telecommunications and data

processing equipment, furnishings,

including works of art, and special

purpose equipment when part of a

construction contract;

(8) A contingency amount for

unanticipated conditions of the

construction phase of cost-reimbursable

contracts. The amount of the

contingency provided shall be 3 percent

of activities being contracted or 50

percent of the available contingency

funds, whichever is greater. In the event

provision of required contingency funds

will cause the project to exceed

available project funds, the discrepancy

shall be reconciled in accordance with

§ 900.129(e). Any additional

contingency funds for the construction

phase will be negotiated on an asneeded basis subject to the availability

of funds and the nature, scope, and

complexity of the project. Any

contingency for other phases will be

negotiated on a contract-by-contract

basis. Unused contingency funds

obligated to the contract and remaining

at the end of the contract will be

considered savings.

(9) Other costs incurred that are

directly related to the conduct of

contract activities.

§ 900.128 What funding shall the Secretary

provide in a construction contract?

The Secretary shall provide an

amount under a construction contract

that reflects an overall fair and

reasonable price to the parties. These

costs include:

(a) The reasonable costs to the Indian

tribe or tribal organization of performing

the contract, taking into consideration

the terms of the contract and the

requirements of the Act and any other

applicable law;

(b) The costs of preparing the contract

proposal and supporting cost data; and

(c) The costs associated with auditing

the general and administrative costs of

the tribal organization associated with

the management of the construction

contract; and

(d) If the Indian tribe or tribal

organization is submitting a fixed-price

construction contract:

(1) The reasonable costs to the Indian

tribe or tribal organization for general

administration incurred in connection
32522 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

with the project that is the subject of the

contract;

(2) The ability of the contractor that

carries out the construction contract to

make a reasonable profit, taking into

consideration the risks associated with

carrying out the contract, local market

conditions, and other relevant

considerations including but not limited

to contingency.

(3) In establishing a contract budget

for a construction project, the Secretary

is not required to identify separately the

components described in paragraph (d)

(1) and (d) (2) of this sections.

§ 900.129 How do the Secretary and Indian

tribe or tribal organization arrive at an

overall fair and reasonable price for the

performance of a construction contract?

(a) Throughout the contract award

process, the Secretary and Indian tribe

or tribal organization shall share all

construction project cost information

available to them in order to facilitate

reaching agreement on an overall fair

and reasonable price for the project or

part thereof. In order to enhance this

communication, the government’s

estimate of an overall fair and

reasonable price shall:

(1) Contain a level of detail

appropriate to the nature and phase of

the work and sufficient to allow

comparisons to the Indian tribe or tribal

organization’s estimate;

(2) Be prepared in a format

coordinated with the Indian tribe or

tribal organization; and

(3) Include the cost elements

contained in section 105(m)(4) of the

Act.

(b) The government’s cost estimate

shall be an independent cost estimate

based on such information as the

following:

(1) Prior costs to the government for

similar projects adjusted for comparison

to the target location, typically in unit

costs, such as dollars per pound, square

meter cost of building, or other unit cost

that can be used to make a comparison;

(2) Actual costs previously incurred

by the Indian tribe or tribal organization

for similar projects;

(3) Published price lists, to include

regional adjustment factors, for

materials, equipment, and labor; and

(4) Projections of inflation and cost

trends, including projected changes

such as labor, material, and

transportation costs.

(c) The Secretary shall provide the

initial government cost estimate to the

Indian tribe or tribal organization and

make appropriate revisions based on

concerns raised or information provided

by the Indian tribe or tribal

organization. The Secretary and the

Indian tribe or tribal organization shall

continue to revise, as appropriate, their

respective cost estimates based on

changed or additional information such

as the following:

(1) Actual subcontract bids;

(2) Changes in inflation rates and

market conditions, including local

market conditions;

(3) Cost and price analyses conducted

by the Secretary and the Indian tribe or

tribal organization during negotiations;

(4) Agreed-upon changes in the size,

scope and schedule of the construction

project; and

(5) Agreed-upon changes in project

plans and specifications.

(d) Considering all of the information

available, the Secretary and the Indian

tribe or tribal organization shall

negotiate the amount of the construction

contract. The objective of the

negotiations is to arrive at an amount

that is fair under current market

conditions and reasonable to both the

government and the Indian tribe or

tribal organization. As a result, the

agreement does not necessarily have to

be in strict conformance with either

party’s cost estimate nor does agreement

have to be reached on every element of

cost, but only on the overall fair and

reasonable price of each phase of the

work included in the contract.

(e) If the fair and reasonable price

arrived at under paragraph (d) of this

section would exceed the amount

available to the Secretary, then:

(1) If the Indian tribe or tribal

organization elects to submit a final

proposal, the Secretary may decline the

proposal under section 105(m)(4)(C)(v)

of the Act or if the contract has been

awarded, dispute the matter under the

Contract Disputes Act; or

(2) If requested by the Indian tribe or

tribal organization:

(i) The Indian tribe or tribal

organization and the Secretary may

jointly explore methods of expanding

the available funds through the use of

contingency funds, advance payments

in accordance with § 900.132,

rebudgeting, or seeking additional

appropriations; or

(ii) The Indian tribe or tribal

organization may elect to propose a

reduction in project scope to bring the

project price within available funds; or

(iii) The Secretary and Indian tribe or

tribal organization may agree that the

project be executed in phases.

§ 900.130 What role does the Indian tribe

or tribal organization play during the

performance of a self-determination

construction contract?

(a) The Indian tribe or tribal

organization is responsible for the

successful completion of the project in

accordance with the approved contract

documents.

(b) If the Indian tribe or tribal

organization is contracting to perform

design phase activities, the Indian tribe

or tribal organization shall have the

following responsibilities:

(1) The Indian tribe or tribal

organization shall subcontract with or

provide the services of licensed and

qualified architects and other

consultants needed to accomplish the

self-determination construction

contract.

(2) The Indian tribe or tribal

organization shall administer and

disburse funds provided through the

contract in accordance with subpart F,

§ 900.42 through § 900.45 and

implement a property management

system in accordance with subpart F,

§ 900.51 through § 900.60.

(3) The Indian tribe or tribal

organization shall direct the activities of

project architects, engineers, and other

project consultants, facilitate the flow of

information between the Indian tribe or

tribal organization and its

subcontractors, resolve disputes

between the Indian tribe or tribal

organization and its subcontractors or

between its subcontractors, and monitor

the work produced by its subcontractors

to ensure compliance with the POR.

(4) The Indian tribe or tribal

organization shall direct the work of its

subcontractors so that work produced is

provided in accordance with the

contract budget and contract

performance period as negotiated

between and agreed to by the parties.

(5) The Indian tribe or tribal

organization shall provide the Secretary

with an opportunity to review and

provide written comments on the

project plans and specifications only at

the concept phase, the schematic phase

(or the preliminary design), the design

development phase, and the final

construction documents phase and

approve the project plans and

specifications for general compliance

with contract requirements only at the

schematic phase (or the preliminary

design) and the final construction

documents phase or as otherwise

negotiated.

(6) The Indian tribe or tribal

organization shall provide the Secretary

with the plans and specifications after

their final review so, if needed, the

Secretary may obtain an independent

government cost estimate in accordance

with § 900.131(b)(4) for the construction

of the project.

(7) The Indian tribe or tribal

organization shall retain project records

and design documents for a minimum of
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32523

3 years following completion of the

contract.

(8) The Indian tribe or tribal

organization shall provide progress

reports and financial status reports

quarterly, or as negotiated, that contain

a narrative of the work accomplished,

including but not limited to

descriptions of contracts, major

subcontracts, and modifications

implemented during the report period

and A/E service deliverables, the

percentage of the work completed, a

report of funds expended during the

reporting period, and total funds

expended for the project. The Indian

tribe or tribal organization shall also

provide copies, for the information of

the Secretary, of an initial work and

payment schedule and updates as they

may occur.

(c) If the Indian tribe or tribal

organization is contracting to perform

project construction phase activities, the

Indian tribe or tribal organization shall

have the following responsibilities:

(1) The Indian tribe or tribal

organization shall subcontract with or

provide the services of licensed and

qualified architects and other

consultants as needed to accomplish the

self-determination construction

contract.

(2) The Indian tribe or tribal

organization shall administer and

dispense funds provided through the

contract in accordance with subpart F,

§ 900.42 through § 900.45 and

implement a property management

system in accordance with subpart F,

§ 900.51 through § 900.60.

(3) The Indian tribe or tribal

organization shall subcontract with or

provide the services of construction

contractors or provide its own forces to

conduct construction activities in

accordance with the project

construction documents or as otherwise

negotiated between and agreed to by the

parties.

(4) The Indian tribe or tribal

organization shall direct the activities of

project architects, engineers,

construction contractors, and other

project consultants, facilitate the flow of

information between the Indian tribe or

tribal organization and its

subcontractors, resolve disputes

between itself and its subcontractors or

between its subcontractors, and monitor

the work produced by its subcontractors

to assure compliance with the project

plans and specifications.

(5) The Indian tribe or tribal

organization shall manage or provide for

the management of day-to-day activities

of the contract including the issuance of

construction change orders to

subcontractors except that, unless the

Secretary agrees:

(i) The Indian tribe or tribal

organization may not issue a change

order to a construction subcontractor

that will cause the Indian tribe or tribal

organization to exceed its selfdetermination contract budget;

(ii) The Indian tribe or tribal

organization may not issue a change

order to a construction subcontractor

that will cause the Indian tribe or tribal

organization to exceed the performance

period in its self-determination contract

budget; or

(iii) The Indian tribe or tribal

organization may not issue to a

construction subcontractor a change

order that is a significant departure from

the scope or objective of the project.

(6) The Indian tribe or tribal

organization shall direct the work of its

subcontractors so that work produced is

provided in accordance with the

contract budget and performance period

as negotiated between and agreed to by

the parties.

(7) The Indian tribe or tribal

organization shall provide to the

Secretary progress and financial status

reports.

(i) The reports shall be provided

quarterly, or as negotiated, and shall

contain a narrative of the work

accomplished, the percentage of the

work completed, a report of funds

expended during the reporting period,

and total funds expended for the

project.

(ii) The Indian tribe or tribal

organization shall also provide copies,

for the information of the Secretary, of

an initial schedule of values and

updates as they may occur, and an

initial construction schedule and

updates as they occur.

(8) The Indian tribe or tribal

organization shall maintain on the jobsite or project office, and make available

to the Secretary during monitoring

visits: contracts, major subcontracts,

modifications, construction documents,

change orders, shop drawings,

equipment cut sheets, inspection

reports, testing reports, and current

redline drawings.

(d) Upon completion of the project,

the Indian tribe or tribal organization

shall provide to the Secretary a

reproducible copy of the record plans

and a contract closeout report.

(e) For cost-reimbursable projects, the

Indian tribe or tribal organization shall

not be obligated to continue

performance that requires an

expenditure of more funds than were

awarded under the contract. If the

Indian tribe or tribal organization has a

reason to believe that the total amount

required for performance of the contract

will be greater than the amount of funds

awarded, it shall provide reasonable

notice to the Secretary. If the Secretary

does not increase the amount of funds

awarded under the contract, the Indian

tribe or tribal organization may suspend

performance of the contract until

sufficient additional funds are awarded.

§ 900.131 What role does the Secretary

play during the performance of a selfdetermination construction contract?

(a) If the Indian tribe or tribal

organization is contracting solely to

perform construction management

services either under this subpart or

section 108 of the Act, the Secretary has

the following responsibilities:

(1) The Secretary is responsible for

the successful completion of the project

in accordance with the approved

contract documents. In fulfilling those

responsibilities, the Secretary shall

consult with the Indian tribe or tribal

organization on a regular basis as agreed

to by the parties to facilitate the

exchange of information between the

Indian tribe or tribal organization and

Secretary;

(2) The Secretary shall provide the

Indian tribe or tribal organization with

regular opportunities to review work

produced to determine compliance with

the following documents:

(i) The POR, during the conduct of

design phase activities. The Secretary

shall provide the Indian tribe or tribal

organization with an opportunity to

review the project construction

documents at the concept phase, the

schematic phase, the design

development phase, and the final

construction documents phase, or as

otherwise negotiated. Upon receipt of

project construction documents for

review, the Indian tribe or tribal

organization shall not take more than 21

days to make available to the Secretary

any comments or objections to the

construction documents as submitted by

the Secretary. Resolution of any

comments or objections shall be in

accordance with dispute resolution

procedures as agreed to by the parties

and contained in the contract; or

(ii) The project construction

documents, during conduct of the

construction phase activities. The

Indian tribe or tribal organization shall

have the right to conduct monthly or

critical milestone on-site monitoring

visits or as negotiated with the

Secretary;

(b) If the Indian tribe or tribal

organization is contracting to perform

design and/or construction phase

activities, the Secretary shall have the

following responsibilities:
32524 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

(1) In carrying out the responsibilities

of this section, and specifically in

carrying out review, comment, and

approval functions under this section,

the Secretary shall provide for full tribal

participation in the decision making

process and shall honor tribal

preferences and recommendations to the

greatest extent feasible. This includes

promptly notifying the Indian tribe or

tribal organization of any concerns or

issues in writing that may lead to

disapproval, meeting with the Indian

tribe or tribal organization to discuss

these concerns and issues and to share

relevant information and documents,

and making a good faith effort to resolve

all issues and concerns of the Indian

tribe or tribal organization. The time

allowed for Secretarial review,

comment, and approval shall be no

more than 21 days per review unless a

different time period is negotiated and

specified in individual contracts. The

21-day time period may be extended if

the Indian tribe or tribal organization

agrees to the extension in writing.

Disagreements over the Secretary’s

decisions in carrying out these

responsibilities shall be handled under

subpart N governing contract disputes

under the Contract Disputes Act.

(2) To the extent the construction

project is subject to NEPA or other

environmental laws, the appropriate

Secretary shall make the final

determination under such laws. All

other environmentally related functions

are contractible.

(3) If the Indian tribe or tribal

organization conducts planning

activities under this subpart, the

Secretary shall review and approve final

planning documents for the project to

ensure compliance with applicable

planning standards.

(4) When a contract or portion of a

contract is for project construction

activities, the Secretary may rely on the

Indian tribe or tribal organization’s cost

estimate or the Secretary may obtain an

independent government cost estimate

that is derived from the final project

plans and specifications. The Secretary

shall obtain the cost estimate, if any,

within 90 days or less of receiving the

final plans and specifications from the

Indian tribe or tribal organization and

shall provide all supporting

documentation of the independent cost

estimate to the Indian tribe or tribal

organization within the 90 day time

limit.

(5) If the contracted project involves

design activities, the Secretary shall

have the authority to review for general

compliance with the contract

requirements and provide written

comments on the project plans and

specifications only at the concept phase,

the schematic phase, the design

development phase and the final

construction documents phase, and

approve for general compliance with

contract requirements the project plans

and specifications only at the schematic

phase and the final construction

documents phase or as otherwise

negotiated.

(6) If the contracted project involves

design activities, the Secretary reserves

a royalty-free, nonexclusive, and

irrevocable license to reproduce,

publish or otherwise use, for Federal

government purposes:

(i) The copyright in any work

developed under a contract or

subcontract of this subpart; and

(ii) Any rights of copyright to which

an Indian tribe or tribal organization or

a tribal subcontractor purchases

ownership through this contract.

(7) Changes that require an increase to

the negotiated contract budget or an

increase in the negotiated performance

period or are a significant departure

from the scope or objective of the

project shall require approval of the

Secretary.

(8) Review and comment on specific

shop drawings as negotiated and

specified in individual contracts.

(9) The Secretary may conduct

monthly on-site monitoring visits, or

alternatively if negotiated with the

Indian tribe or tribal organization,

critical milestone on-site monitoring

visits.

(10) The Secretary retains the right to

conduct final project inspections jointly

with the Indian tribe or tribal

organization and to accept the building

or facility. If the Secretary identifies

problems during final project

inspections the information shall be

provide to the Indian tribe or tribal

organization and shall be limited to

items that are materially noncompliant.

(11) The Secretary can require an

Indian tribe or tribal organization to

suspend work under a contract in

accordance with this paragraph. The

Secretary may suspend a contract for no

more than 30 days unless the Indian

tribe or tribal organization has failed to

correct the reason(s) for the suspension

or unless the cause of the suspension

cannot be resolved through either the

efforts of the Secretary or the Indian

tribe or tribal organization.

(i) The following are reasons the

Secretary may suspend work under a

self-determination contract for

construction:

(A) Differing site conditions

encountered upon commencement of

construction activities that impact

health or safety concerns or shall

require an increase in the negotiated

project budget;

(B) The Secretary discovers materially

non-compliant work;

(C) Funds allocated for the project

that is the subject of this contract are

rescinded by Congressional action; or

(D) Other Congressional actions occur

that materially affect the subject matter

of the contract.

(ii) If the Secretary wishes to suspend

the work, the Secretary shall first

provide written notice and an

opportunity for the Indian tribe or tribal

organization to correct the problem. The

Secretary may direct the Indian tribe or

tribal organization to suspend

temporarily work under a contract only

after providing a minimum of 5 working

days’ advance written notice to the

Indian tribe or tribal organization

describing the nature of the performance

deficiencies or imminent safety, health

or environmental issues which are the

cause for suspending the work.

(iii) The Indian tribe or tribal

organization shall be compensated for

reasonable costs, including but not

limited to overhead costs, incurred due

to any suspension of work that occurred

through no fault of the Indian tribe or

tribal organization.

(iv) Disputes arising as a result of a

suspension of the work by the Secretary

shall be subject to the Contract Disputes

Act or any other alternative dispute

resolution mechanism as negotiated

between and agreed to by the parties

and contained in the contract.

(12) The Secretary can terminate the

project for cause in the event noncompliant work is not corrected through

the suspension process specified in

paragraph (11) of this section.

(13) The Secretary retains authority to

terminate the project for convenience

for the following reasons:

(i) Termination for convenience is

requested by the Indian tribe or tribal

organization;

(ii) Termination for convenience is

requested by the Secretary and agreed to

by the Indian tribe or tribal

organization;

(iii) Funds allocated for the project

that is the subject of the contract are

rescinded by Congressional action;

(iv) Other Congressional actions take

place that affect the subject matter of the

contract;

(v) If the Secretary terminates a selfdetermination construction contract for

convenience, the Secretary shall provide

the Indian tribe or tribal organization 21

days advance written notice of intent to

terminate a contract for convenience; or

(vi) The Indian tribe or tribal

organization shall be compensated for
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32525

reasonable costs incurred due to

termination of the contract.

§ 900.132 Once a contract and/or grant is

awarded, how will the Indian tribe or tribal

organization receive payments?

(a) A schedule for advance payments

shall be developed based on progress,

need, and other considerations in

accordance with applicable law. The

payment schedule shall be negotiated by

the parties and included in the contract.

The payment schedule may be adjusted

as negotiated by the parties during the

course of the project based on progress

and need.

(b) Payments shall be made to the

Indian tribe or tribal organization

according to the payment schedule

contained in the contract. If the contract

does not provide for the length of each

allocation period, the Secretary shall

make payments to the Indian tribe or

tribal organization at least quarterly.

Each allocation shall be adequate to

provide funds for the contract activities

anticipated to be conducted during the

allocation period, except that:

(1) The first allocation may be greater

than subsequent allocations and include

mobilization costs, and contingency

funds described in § 900.128(e)(8); and

(2) Any allocation may include funds

for payment for materials that will be

used during subsequent allocation

periods.

(c) The Indian tribe or tribal

organization may propose a schedule of

payment amounts measured by time or

measured by phase of the project (e.g.,

planning, design, construction).

(d) The amount of each payment

allocation shall be stated in the Indian

tribe or tribal organization’s contract

proposal. Upon award of the contract,

the Secretary shall transfer the amount

of the first allocation to the Indian tribe

or tribal organization within 21 days

after the date of contract award. The

second allocation shall be made not

later than 7 days before the end of the

first allocation period.

(e) Not later than 7 days before the

end of each subsequent allocation

period after the second allocation, the

Secretary shall transfer to the Indian

tribe or tribal organization the amount

for the next allocation period, unless the

Indian tribe or tribal organization is

delinquent in submission of allocation

period progress reports and financial

reports or the Secretary takes action to

suspend or terminate the contract in

accordance with § 900.131(b)(11),

§ 900.131(b)(12), or § 900.131(b)(13).

§ 900.133 Does the declination process or

the Contract Dispute Act apply to

construction contract amendments

proposed either by an Indian tribe or tribal

organization or the Secretary?

The Contract Disputes Act generally

applies to such amendments. However,

the declination process and the

procedures in § 900.122 and § 900.123

apply to the proposal by an Indian tribe

or tribal organization when the proposal

is for a new project, a new phase or

discreet stage of a phase of a project, or

an expansion of a project resulting from

an additional allocation of funds by the

Secretary under § 900.120.

§ 900.134 At the end of a selfdetermination construction contract, what

happens to savings on a costreimbursement contract?

The savings shall be used by the

Indian tribe or tribal organization to

provide additional services or benefits

under the contract. Unexpended

contingency funds obligated to the

contract, and remaining at the end of the

contract, are savings. No further

approval or justifying documentation by

the Indian tribe or tribal organization

shall be required before expenditure of

funds.

§ 900.135 May the time frames for action

set out in this subpart be reduced?

Yes. The time frames in this subpart

are intended to be maximum times and

may be reduced based on urgency and

need, by agreement of the parties. If the

Indian tribe or tribal organization

requests reduced time frames for action

due to unusual or special conditions

(such as limited construction periods),

the Secretary shall make a good faith

effort to accommodate the requested

time frames.

§ 900.136 Do tribal employment rights

ordinances apply to construction contracts

and subcontracts?

Yes. Tribal employment rights

ordinances do apply to construction

contracts and subcontracts pursuant to

§ 7(b) and § 7(c) of the Act.

§ 900.137 Do all provisions of the other

subparts apply to contracts awarded under

this subpart?

Yes, except as otherwise provided in

this subpart and unless excluded as

follows: programmatic reports and data

requirements, reassumption, contract

review and approval process, contract

proposal contents, and § 900.150 (d) and

(e) of these regulations.

Subpart K—Waiver Procedures

§ 900.140 Can any provision of the

regulations under this Part be waived?

Yes. Upon the request of an Indian

tribe or tribal organization, the Secretary

shall waive any provision of these

regulations, including any cost

principles adopted by the regulations

under this part, if the Secretary finds

that granting the waiver is either in the

best interest of the Indians served by the

contract, or is consistent with the

policies of the Act and is not contrary

to statutory law.

§ 900.141 How does an Indian tribe or

tribal organization get a waiver?

To obtain a waiver, an Indian tribe or

tribal organization shall submit a

written request to the Secretary

identifying the regulation to be waived

and the basis for the request. The Indian

tribe or tribal organization shall explain

the intended effect of the waiver, the

impact upon the Indian tribe or tribal

organization if the waiver is not granted,

and the specific contract(s) to which the

waiver will apply.

§ 900.142 Does an Indian tribe or tribal

organization’s waiver request have to be

included in an initial contract proposal?

No. Although a waiver request may be

included in a contract proposal, it can

also be submitted separately.

§ 900.143 How is a waiver request

processed?

The Secretary shall approve or deny

a waiver within 90 days after the

Secretary receives a written waiver

request. The Secretary’s decision shall

be in writing. If the requested waiver is

denied, the Secretary shall include in

the decision a full explanation of the

basis for the decision.

§ 900.144 What happens if the Secretary

makes no decision within the 90-day

period?

The waiver request is deemed

approved.

§ 900.145 On what basis may the Secretary

deny a waiver request?

Consistent with section 107(e) of the

Act, the Secretary may only deny a

waiver request based on a specific

written finding. The finding must

clearly demonstrate (or be supported by

controlling legal authority) that if the

waiver is granted:

(a) The service to be rendered to the

Indian beneficiaries of the particular

program or function to be contracted

will not be satisfactory;

(b) Adequate protection of trust

resources is not assured;

(c) The proposed project or function

to be contracted for cannot be properly
32526 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

completed or maintained by the

proposed contract;

(d) The amount of funds proposed

under the contract is in excess of the

applicable funding level for the

contract, as determined under section

106(a) of the Act; or

(e) The program, function, service, or

activity (or portion of it) that is the

subject of the proposal is beyond the

scope of programs, functions, services,

or activities that are contractible under

the Act because the proposal includes

activities that cannot lawfully be carried

out by the contractor.

§ 900.146 Is technical assistance available

for waiver requests?

Yes. Technical assistance is available

as provided in section 900.7 to prepare

a waiver request or to overcome any

stated objection which the Secretary

might have to the request.

§ 900.147 What appeal rights are

available?

If the Secretary denies a waiver

request, the Indian tribe or tribal

organization has the right to appeal the

decision and request a hearing on the

record under the procedures for

hearings and appeals contained in

subpart L of these regulations.

Alternatively, the Indian tribe or tribal

organization may sue in Federal district

court to challenge the Secretary’s action.

§ 900.148 How can an Indian tribe or tribal

organization secure a determination that a

law or regulation has been superseded by

the Indian Self-Determination Act, as

specified in section 107(b) of the Act?

Any Indian tribe or tribal organization

may at any time submit a request to the

Secretary for a determination that any

law or regulation has been superseded

by the Act and that the law has no

applicability to any contract or

proposed contract under the Act. The

Secretary is required to provide an

initial decision on such a request within

90 days after receipt. If such a request

is denied, the Indian tribe or tribal

organization may appeal under Subpart

L of these regulations. The Secretary

shall provide notice of each

determination made under this Subpart

to all Indian tribes and tribal

organizations.

Subpart L—Appeals

Appeals Other Than Emergency

Reassumption and Suspension,

Withholding or Delay in Payment

§ 900.150 What decisions can an Indian

tribe or tribal organization appeal under this

Subpart?

(a) A decision to decline to award a

self-determination contract, or a portion

thereof, under section 102 of the Act;

(b) A decision to decline to award a

construction contract, or a portion

thereof, under sections 105(m) and 102

of the Act;

(c) A decision to decline a proposed

amendment to a self-determination

contract, or a portion thereof, under

section 102 of the Act;

(d) A decision not to approve a

proposal, in whole or in part, to

redesign a program;

(e) A decision to rescind and

reassume a self-determination contract,

in whole or in part, under section 109

of the Act except for emergency

reassumptions;

(f) A decision to refuse to waive a

regulation under section 107(e) of the

Act;

(g) A disagreement between an Indian

tribe or tribal organization and the

Federal government over proposed

reporting requirements;

(h) A decision to refuse to allow an

Indian tribe or tribal organization to

convert a contract to mature status,

under section 4(h) of the Act;

(i) All other appealable pre-award

decisions by a Federal official as

specified in these regulations, whether

an official of the Department of the

Interior or the Department of Health and

Human Services; or

(j) A decision relating to a request for

a determination that a law or regulation

has been superseded by the Act.

§ 900.151 Are there any appeals this

subpart does not cover?

This subpart does not cover:

(a) Disputes which arise after a selfdetermination contract has been

awarded, or emergency reassumption of

self-determination contracts or

suspension of payments under selfdetermination contracts, which are

covered under § 900.170 through

§ 900.176 of these regulations.

(b) Other post-award contract

disputes, which are covered under

Subpart N.

(c) Denials under the Freedom of

Information Act, 5 U.S.C. 552, which

may be appealed under 43 CFR 2 for the

Department of the Interior and 45 CFR

5 for the Department of Health and

Human Services; and

(d) Decisions relating to the award of

discretionary grants under section 103

of the Act, which may be appealed

under 25 CFR 2 for the Department of

the Interior, and under 45 CFR 5 for the

Department of Health and Human

Services.

§ 900.152 How does an Indian tribe or

tribal organization know where and when to

file its appeal from decisions made by

agencies of DOI or DHHS?

Every decision in any of the ten areas

listed above shall contain information

which shall tell the Indian tribe or tribal

organization where and when to file the

Indian tribe or tribal organization’s

appeal. Each decision shall include the

following statement:

Within 30 days of the receipt of this

decision, you may request an informal

conference under 25 CFR 900.154, or appeal

this decision under 25 CFR 900.158 to the

Interior Board of Indian Appeals (IBIA).

Should you decide to appeal this decision,

you may request a hearing on the record. An

appeal to the IBIA under 25 CFR 900.158

shall be filed with the IBIA by certified mail

or by hand delivery at the following address:

Board of Indian Appeals, U.S. Department of

the Interior, 4015 Wilson Boulevard,

Arlington, VA 22203. You shall serve copies

of your Notice of Appeal on the Secretary

and on the official whose decision is being

appealed. You shall certify to the IBIA that

you have served these copies.

§ 900.153 Does an Indian tribe or tribal

organization have any options besides an

appeal?

Yes. The Indian tribe or tribal

organization may request an informal

conference. An informal conference is a

way to resolve issues as quickly as

possible, without the need for a formal

hearing. The Indian tribe or tribal

organization may also choose to sue in

U.S. District Court under section

102(b)(3) and section 110(a) of the Act.

§ 900.154 How does an Indian tribe or

tribal organization request an informal

conference?

The Indian tribe or tribal organization

shall file its request for an informal

conference with the office of the person

whose decision it is appealing, within

30 days of the day it receives the

decision. The Indian tribe or tribal

organization may either hand-deliver

the request for an informal conference to

that person’s office, or mail it by

certified mail, return receipt requested.

If the Indian tribe or tribal organization

mails the request, it will be considered

filed on the date the Indian tribe or

tribal organization mailed it by certified

mail.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32527

§ 900.155 How is an informal conference

held?

(a) The informal conference shall be

held within 30 days of the date the

request was received, unless the Indian

tribe or tribal organization and the

authorized representative of the

Secretary agree on another date.

(b) If possible, the informal

conference will be held at the Indian

tribe or tribal organization’s office. If the

meeting cannot be held at the Indian

tribe or tribal organization’s office and

is held more than fifty miles from its

office, the Secretary shall arrange to pay

transportation costs and per diem for

incidental expenses to allow for

adequate representation of the Indian

tribe or tribal organization.

(c) The informal conference shall be

conducted by a designated

representative of the Secretary.

(d) Only people who are the

designated representatives of the Indian

tribe or tribal organization, or

authorized by the Secretary of Health

and Human Services or by the

appropriate agency of the Department of

the Interior, are allowed to make

presentations at the informal

conference.

§ 900.156 What happens after the informal

conference?

(a) Within 10 days of the informal

conference, the person who conducted

the informal conference shall prepare

and mail to the Indian tribe or tribal

organization a written report which

summarizes what happened at the

informal conference and a

recommended decision.

(b) Every report of an informal

conference shall contain the following

language:

Within 30 days of the receipt of this

recommended decision, you may file an

appeal of the initial decision of the DOI or

DHHS agency with the Interior Board of

Indian Appeals (IBIA) under 25 CFR 900.157.

You may request a hearing on the record. An

appeal to the IBIA under 25 CFR 900.157

shall be filed with the IBIA by certified mail

or hand delivery at the following address:

Board of Indian Appeals, U.S. Department of

the Interior, 4015 Wilson Boulevard,

Arlington, VA 22203. You shall serve copies

of your Notice of Appeal on the Secretary

and on the official whose decision is being

appealed. You shall certify to the IBIA that

you have served these copies.

§ 900.157 Is the recommended decision

always final?

No. If the Indian tribe or tribal

organization is dissatisfied with the

recommended decision, it may still

appeal the initial decision within 30

days of receiving the recommended

decision and the report of the informal

conference. If the Indian tribe or tribal

organization does not file a notice of

appeal within 30 days, or before the

expiration of the extension it has

received under § 900.159, the

recommended decision becomes final.

§ 900.158 How does an Indian tribe or

tribal organization appeal the initial

decision, if it does not request an informal

conference or if it does not agree with the

recommended decision resulting from the

informal conference?

(a) If the Indian tribe or tribal

organization decides to appeal, it shall

file a notice of appeal with the IBIA

within 30 days of receiving either the

initial decision or the recommended

decision.

(b) The Indian tribe or tribal

organization may either hand-deliver

the notice of appeal to the IBIA, or mail

it by certified mail, return receipt

requested. If the Indian tribe or tribal

organization mails the Notice of Appeal,

it will be considered filed on the date

the Indian tribe or tribal organization

mailed it by certified mail. The Indian

tribe or tribal organization should mail

the notice of appeal to: Board of Indian

Appeals, U.S. Department of the

Interior, 4015 Wilson Boulevard,

Arlington, VA 22203.

(c) The Notice of Appeal shall:

(1) Briefly state why the Indian tribe

or tribal organization thinks the initial

decision is wrong;

(2) Briefly identify the issues involved

in the appeal; and

(3) State whether the Indian tribe or

tribal organization wants a hearing on

the record, or whether the Indian tribe

or tribal organization wants to waive its

right to a hearing.

(d) The Indian tribe or tribal

organization shall serve a copy of the

notice of appeal upon the official whose

decision it is appealing. The Indian tribe

or tribal organization shall certify to the

IBIA that it has done so.

(e) The authorized representative of

the Secretary of Health and Human

Services or the authorized

representative of the Secretary of the

Interior will be considered a party to all

appeals filed with the IBIA under the

Act.

§ 900.159 May an Indian tribe or tribal

organization get an extension of time to file

a notice of appeal?

Yes. If the Indian tribe or tribal

organization needs more time, it can

request an extension of time to file its

Notice of Appeal within 60 days of

receiving either the initial decision or

the recommended decision resulting

from the informal conference. The

request of the Indian tribe or tribal

organization shall be in writing, and

shall give a reason for not filing its

notice of appeal within the 30-day time

period. If the Indian tribe or tribal

organization has a valid reason for not

filing its notice of appeal on time, it may

receive an extension from the IBIA.

§ 900.160 What happens after an Indian

tribe or tribal organization files an appeal?

(a) Within 5 days of receiving the

Indian tribe or tribal organization’s

notice of appeal, the IBIA will decide

whether the appeal falls under

§ 900.150(a) through § 900.150(g). If so,

the Indian tribe or tribal organization is

entitled to a hearing.

(1) If the IBIA determines that the

appeal of the Indian tribe or tribal

organization falls under § 900.150(h),

§ 900.150(i), or § 900.150(j), and the

Indian tribe or tribal organization has

requested a hearing, the IBIA will grant

the request for a hearing unless the IBIA

determines that there are no genuine

issues of material fact to be resolved.

(2) If the IBIA cannot make that

decision based on the information

included in the notice of appeal, the

IBIA may ask for additional statements

from the Indian tribe or tribal

organization, or from the appropriate

Federal agency. If the IBIA asks for more

statements, it will make its decision

within 5 days of receiving those

statements.

(b) If the IBIA decides that the Indian

tribe or tribal organization is not

entitled to a hearing or if the Indian

tribe or tribal organization has waived

its right to a hearing on the record, the

IBIA will ask for the administrative

record under 43 CFR 4.335. The IBIA

shall tell the parties that the appeal will

be considered under the regulations at

43 CFR 4, Subpart D, except the case

shall be docketed immediately, without

waiting for the 20-day period described

in 43 CFR 4.336.

§ 900.161 How is a hearing arranged?

(a) If a hearing is to be held, the IBIA

will refer the Indian tribe or tribal

organization’s case to the Hearings

Division of the Office of Hearings and

Appeals of the U.S. Department of the

Interior. The case will then be assigned

to an Administrative Law Judge (ALJ),

appointed under 5 U.S.C. 3105.

(b) Within 15 days of the date of the

referral, the ALJ will hold a pre-hearing

conference, by telephone or in person,

to decide whether an evidentiary

hearing is necessary, or whether it is

possible to decide the appeal based on

the written record. At the pre-hearing

conference the ALJ will provide for:

(1) A briefing and discovery schedule;

(2) A schedule for the exchange of

information, including, but not limited
32528 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

to witness and exhibit lists, if an

evidentiary hearing is to be held;

(3) The simplification or clarification

of issues;

(4) The limitation of the number of

expert witnesses, or avoidance of

similar cumulative evidence, if an

evidentiary hearing is to be held;

(5) The possibility of agreement

disposing of all or any of the issues in

dispute; and

(6) Such other matters as may aid in

the disposition of the appeal.

(c) The ALJ shall order a written

record to be made of any conference

results that are not reflected in a

transcript.

§ 900.162 What happens when a hearing is

necessary?

(a) The ALJ shall hold a hearing

within 60 days of the date of the order

referring the appeal to the ALJ, unless

the parties agree to have the hearing on

a later date.

(b) At least 30 days before the hearing,

the government agency shall file and

serve the Indian tribe or tribal

organization with a response to the

notice of appeal.

(c) If the hearing is held more than 50

miles from the Indian tribe or tribal

organization’s office, the Secretary shall

arrange to pay transportation costs and

per diem for incidental expenses to

allow for adequate representation of the

Indian tribe or tribal organization.

(d) The hearing shall be conducted in

accordance with the Administrative

Procedure Act, 5 U.S.C. 556.

§ 900.163 What is the Secretary’s burden

of proof for appeals from decisions under

§ 900.150(a) through § 900.150(g)?

For those appeals, the Secretary has

the burden of proof (as required by

section 102(e)(1) of the Act) to establish

by clearly demonstrating the validity of

the grounds for declining the contract

proposal.

§ 900.164 What rights do Indian tribes,

tribal organizations, and the government

have during the appeal process?

Both the Indian tribe or tribal

organization and the government agency

have the same rights during the appeal

process. These rights include the right

to:

(a) Be represented by legal counsel;

(b) Have the parties provide witnesses

who have knowledge of the relevant

issues, including specific witnesses

with that knowledge, who are requested

by either party;

(c) Cross-examine witnesses;

(d) Introduce oral or documentary

evidence, or both;

(e) Require that oral testimony be

under oath;

(f) Receive a copy of the transcript of

the hearing, and copies of all

documentary evidence which is

introduced at the hearing;

(g) Compel the presence of witnesses,

or the production of documents, or both,

by subpoena at hearings or at

depositions;

(h) Take depositions, to request the

production of documents, to serve

interrogatories on other parties, and to

request admissions; and

(i) Any other procedural rights under

the Administrative Procedure Act, 5

U.S.C. 556.

§ 900.165 What happens after the hearing?

(a) Within 30 days of the end of the

formal hearing or any post-hearing

briefing schedule established by the

ALJ, the ALJ shall send all the parties

a recommended decision, by certified

mail, return receipt requested. The

recommended decision shall contain the

ALJ’s findings of fact and conclusions of

law on all the issues. The recommended

decision shall also state that the Indian

tribe or tribal organization has the right

to object to the recommended decision.

(b) If the appeal involves the

Department of Health and Human

Services, the recommended decision

shall contain the following statement:

Within 30 days of the receipt of this

recommended decision, you may file an

objection to the recommended decision with

the Secretary of Health and Human Services

under 25 CFR 900.165(b). An appeal to the

Secretary under 25 CFR 900.165(b) shall be

filed at the following address: Department of

Health and Human Services, 200

Independence Ave. S.W., Washington, DC,

20201. You shall serve copies of your notice

of appeal on the official whose decision is

being appealed. You shall certify to the

Secretary that you have served this copy. If

neither party files an objection to the

recommended decision within 30 days, the

recommended decision will become final.

(c) If the appeal involves the

Department of the Interior, the

recommended decision shall contain the

following statement:

Within 30 days of the receipt of this

recommended decision, you may file an

objection to the recommended decision with

the Interior Board of Indian Appeals (IBIA)

under 25 CFR 900.165(c). An appeal to the

IBIA under 25 CFR 900.165(c) shall be filed

at the following address: Board of Indian

Appeals, 4015 Wilson Boulevard, Arlington,

VA 22203. You shall serve copies of your

notice of appeal on the Secretary of the

Interior, and on the official whose decision

is being appealed. You shall certify to the

IBIA that you have served these copies. If

neither party files an objection to the

recommended decision within 30 days, the

recommended decision will become final.

§ 900.166 Is the recommended decision

always final?

No. Any party to the appeal may file

precise and specific written objections

to the recommended decision, or any

other comments, within 30 days of

receiving the recommended decision.

Objections shall be served on all other

parties. The recommended decision

shall become final 30 days after the

Indian tribe or tribal organization

receives the ALJ’s recommended

decision, unless a written statement of

objections is filed with the Secretary of

Health and Human Services or the IBIA

during the 30-day period. If no party

files a written statement of objections

within 30 days, the recommended

decision shall become final.

§ 900.167 If an Indian tribe or tribal

organization objects to the recommended

decision, what will the Secretary of Health

and Human Services or the IBIA do?

(a) The Secretary of Health and

Human Services or the IBIA has 20 days

from the date it receives any timely

written objections to modify, adopt, or

reverse the recommended decision. If

the Secretary of Health and Human

Services or the IBIA does not modify or

reverse the recommended decision

during that time, the recommended

decision automatically becomes final.

(b) When reviewing the recommended

decision, the IBIA or the Secretary may

consider and decide all issues properly

raised by any party to the appeal, based

on the record.

(c) The decision of the Secretary or

the IBIA shall:

(1) Be in writing;

(2) Specify the findings of fact or

conclusions of law which are modified

or reversed;

(3) Give reasons for the decision,

based on the record; and

(4) State that the decision is final for

the Department.

§ 900.168 Will an appeal hurt the Indian

tribe or tribal organization’s position in

other contract negotiations?

No. A pending appeal will not affect

or prevent the negotiation or award of

another contract.

§ 900.169 Will the decisions on appeals be

available for the public to review?

Yes. The Secretary shall publish all

final decisions from the ALJs, the IBIA,

and the Secretary of Health and Human

Services.
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32529

Appeals of Emergency Reassumption of

Self-Determination Contracts or

Suspensions, Withholding or Delay of

Payments Under a Self-Determination

Contract

§ 900.170 What happens in the case of

emergency reassumption or suspension or

withholding or delay of payments?

(a) This subpart applies when the

Secretary gives notice to an Indian tribe

or tribal organization that the Secretary

intends to:

(1) Immediately rescind a contract or

grant and reassume a program; or

(2) Suspend, withhold, or delay

payment under a contract.

(b) When the Secretary advises an

Indian tribe or tribal organization that

the Secretary intends to take an action

referred to in paragraph (a)(1) of this

section, the Secretary shall also notify

the Deputy Director of the Office of

Hearings and Appeals, Department of

the Interior, 4015 Wilson Boulevard,

Arlington, VA 22203.

§ 900.171 Will there be a hearing?

Yes. The Deputy Director of the Office

of Hearings and Appeals shall appoint

an Administrative Law Judge (ALJ) to

hold a hearing.

(a) The hearing shall be held within

10 days of the date of the notice referred

to in § 900.170 unless the Indian tribe or

tribal organization agrees to a later date.

(b) If possible, the hearing will be

held at the office of the Indian tribe or

tribal organization. If the hearing is held

more than 50 miles from the office of

the Indian tribe or tribal organization,

the Secretary shall arrange to pay

transportation costs and per diem for

incidental expenses. This will allow for

adequate representation of the Indian

tribe or tribal organization.

§ 900.172 What happens after the hearing?

(a) Within 30 days after the end of the

hearing or any post-hearing briefing

schedule established by the ALJ, the ALJ

shall send all parties a recommended

decision by certified mail, return receipt

requested. The recommended decision

shall contain the ALJ’s findings of fact

and conclusions of law on all the issues.

The recommended decision shall also

state that the Indian tribe or tribal

organization has the right to object to

the recommended decision.

(b) If the appeal involves the

Department of Health and Human

Services, the recommended decision

shall contain the following statement:

Within 15 days of the receipt of this

recommended decision, you may file an

objection to the recommended decision with

the Secretary of Health and Human Services

under 25 CFR 900.165(b). An appeal to the

Secretary under 25 CFR 900.165(b) shall be

filed at the following address: Department of

Health and Human Services, 200

Independence Ave. S.W., Washington, DC

20201. You shall serve copies of your notice

of appeal on the official whose decision is

being appealed. You shall certify to the

Secretary that you have served this copy. If

neither party files an objection to the

recommended decision within 15 days, the

recommended decision will become final.

(c) If the appeal involves the

Department of the Interior, the

recommended decision shall contain the

following statement:

Within 15 days of the receipt of this

recommended decision, you may file an

objection to the recommended decision with

the Interior Board of Indian Appeals (IBIA)

under 25 CFR 900.165(c). An appeal to the

IBIA under 25 CFR 900.165(c) shall be filed

at the following address: Board of Indian

Appeals, 4015 Wilson Boulevard, Arlington,

VA 22203. You shall serve copies of your

notice of appeal on the Secretary of the

Interior, and on the official whose decision

is being appealed.

You shall certify to the IBIA that you

have served these copies. If neither

party files an objection to the

recommended decision within 15 days,

the recommended decision will become

final.

§ 900.173 Is the recommended decision

always final?

No. Any party to the appeal may file

precise and specific written objections

to the recommended decision, or any

other comments, within 15 days of

receiving the recommended decision.

You shall serve a copy of your

objections on the other party. The

recommended decision will become

final 15 days after the Indian tribe or

tribal organization receives the ALJ’s

recommended decision, unless a written

statement of objections is filed with the

Secretary of Health and Human Services

or the IBIA during the 15-day period. If

no party files a written statement of

objections within 15 days, the

recommended decision will become

final.

§ 900.174 If an Indian tribe or tribal

organization objects to the recommended

decision, what will the Secretary of Health

and Human Services or the IBIA do?

(a) The Secretary or the IBIA has 15

days from the date he/she receives

timely written objections to modify,

adopt, or reverse the recommended

decision. If the Secretary or the IBIA

does not modify or reverse the

recommended decision during that

time, the recommended decision

automatically becomes final.

(b) When reviewing the recommended

decision, the IBIA or the Secretary may

consider and decide all issues properly

raised by any party to the appeal, based

on the record.

(c) The decision of the Secretary or of

the IBIA shall:

(1) Be in writing;

(2) Specify the findings of fact or

conclusions of law which are modified

or reversed;

(3) Give reasons for the decision,

based on the record; and

(4) State that the decision is final for

the Department.

§ 900.175 Will an appeal hurt an Indian

tribe or tribal organization’s position in

other contract negotiations?

No. A pending appeal will not affect

or prevent the negotiation or award of

another contract.

§ 900.176 Will the decisions on appeals be

available for the public to review?

Yes. The Secretary shall publish all

final decisions from the ALJs, the IBIA,

and the Secretary of Health and Human

Services.

Applicability of the Equal Access to

Justice Act

§ 900.177 Does the Equal Access to

Justice Act (EAJA) apply to appeals under

this subpart?

Yes. EAJA claims against the DOI or

the DHHS will be heard by the IBIA

under 43 CFR 4.601–4.619. For DHHS,

appeals from the EAJA award will be

according to 25 CFR 900.165(b).

Subpart M—Federal Tort Claims Act

Coverage General Provisions

§ 900.180 What does this subpart cover?

This subpart explains the

applicability of the Federal Tort Claims

Act (FTCA). This section covers:

(a) Coverage of claims arising out of

the performance of medical-related

functions under self-determination

contracts;

(b) Coverage of claims arising out of

the performance of non-medical-related

functions under self-determination

contracts; and

(c) Procedures for filing claims under

FTCA.

§ 900.181 What definitions apply to this

subpart?

Indian contractor means:

(1) In California, subcontractors of the

California Rural Indian Health Board,

Inc. or, subject to approval of the IHS

Director after consultation with the

DHHS Office of General Counsel,

subcontractors of an Indian tribe or

tribal organization which are:

(i) Governed by Indians eligible to

receive services from the Indian Health

Service;

(ii) Which carry out comprehensive

IHS service programs within
32530 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

geographically defined service areas;

and

(iii) Which are selected and identified

through tribal resolution as the local

provider of Indian health care services.

(2) Subject to the approval of the IHS

Director after consultation with the

DHHS Office of General Counsel, Indian

tribes and tribal organizations which

meet in all respects the requirements of

the Indian Self-Determination Act to

contract directly with the Federal

Government but which choose through

tribal resolution to subcontract to carry

out IHS service programs within

geographically defined service areas

with another Indian tribe or tribal

organization which contracts directly

with IHS.

(3) Any other contractor that qualifies

as an ‘‘Indian contractor’’ under the

Indian Self-Determination Act.

§ 900.182 What other statutes and

regulations apply to FTCA coverage?

A number of other statutes and

regulations apply to FTCA coverage,

including the Federal Tort Claims Act

(28 U.S.C. 1346(b), 2401, 2671–2680)

and related Department of Justice

regulations in 28 CFR part 14.

§ 900.183 Do Indian tribes and tribal

organizations need to be aware of areas

which FTCA does not cover?

Yes. There are claims against selfdetermination contractors which are not

covered by FTCA, claims which may

not be pursued under FTCA, and

remedies that are excluded by FTCA.

General guidance is provided below as

to these matters but is not intended as

a definitive description of coverage,

which is subject to review by the

Department of Justice and the courts on

a case-by-case basis.

(a) What claims are expressly barred

by FTCA and therefore may not be made

against the United States, an Indian

tribe or tribal organization? Any claim

under 28 U.S.C. 2680, including claims

arising out of assault, battery, false

imprisonment, false arrest, malicious

prosecution, abuse of process, libel,

slander, misrepresentation, deceit, or

interference with contract rights, unless

otherwise authorized by 28 U.S.C.

2680(h).

(b) What claims may not be pursued

under FTCA?

(1) Except as provided in

§ 900.181(a)(1) and § 900.189, claims

against subcontractors arising out of the

performance of subcontracts with a selfdetermination contractor;

(2) claims for on-the-job injuries

which are covered by workmen’s

compensation;

(3) claims for breach of contract rather

than tort claims; or

(4) claims resulting from activities

performed by an employee which are

outside the scope of employment.

(c) What remedies are expressly

excluded by FTCA and therefore are

barred?

(1) Punitive damages, unless

otherwise authorized by 28 U.S.C. 2674;

and

(2) other remedies not permitted

under applicable state law.

§ 900.184 Is there a deadline for filing

FTCA claims?

Yes. Claims shall be filed within 2

years of the date of accrual. (28 U.S.C.

2401).

§ 900.185 How long does the Federal

government have to process an FTCA claim

after the claim is received by the Federal

agency, before a lawsuit may be filed?

Six months.

§ 900.186 Is it necessary for a selfdetermination contract to include any

clauses about Federal Tort Claims Act

coverage?

No, it is optional. At the request of

Indian tribes and tribal organizations,

self-determination contracts shall

include the following clauses to clarify

the scope of FTCA coverage:

(a) The following clause may be used

for all contracts:

For purposes of Federal Tort Claims Act

coverage, the contractor and its employees

(including individuals performing personal

services contracts with the contractor to

provide health care services) are deemed to

be employees of the Federal government

while performing work under this contract.

This status is not changed by the source of

the funds used by the contractor to pay the

employee’s salary and benefits unless the

employee receives additional compensation

for performing covered services from anyone

other than the contractor.

(b) The following clause is for IHS

contracts only:

Under this contract, the contractor’s

employee may be required as a condition of

employment to provide health services to

non-IHS beneficiaries in order to meet

contractual obligations. These services may

be provided in either contractor or noncontractor facilities. The employee’s status

for Federal Tort Claims Act purposes is not

affected.

§ 900.187 Does FTCA apply to a selfdetermination contract if FTCA is not

referenced in the contract?

Yes.

§ 900.188 To what extent shall the

contractor cooperate with the Federal

government in connection with tort claims

arising out of the contractor’s

performance?

(a) The contractor shall designate an

individual to serve as tort claims liaison

with the Federal government.

(b) As part of the notification required

by 28 U.S.C. 2679(c), the contractor

shall notify the Secretary immediately

in writing of any tort claim (including

any proceeding before an administrative

agency or court) filed against the

contractor or any of its employees that

relates to performance of a selfdetermination contract or subcontract.

(c) The contractor, through its

designated tort claims liaison, shall

assist the appropriate Federal agency in

preparing a comprehensive, accurate,

and unbiased report of the incident so

that the claim may be properly

evaluated. This report should be

completed within 60 days of

notification of the filing of the tort

claim. The report should be complete in

every significant detail and include as

appropriate:

(1) The date, time and exact place of

the accident or incident;

(2) A concise and complete statement

of the circumstances of the accident or

incident;

(3) The names and addresses of tribal

and/or Federal employees involved as

participants or witnesses;

(4) The names and addresses of all

other eyewitnesses;

(5) An accurate description of all

government and other privately-owned

property involved and the nature and

amount of damage, if any;

(6) A statement as to whether any

person involved was cited for violating

a Federal, State or tribal law, ordinance,

or regulation;

(7) The contractor’s determination as

to whether any of its employees

(including Federal employees assigned

to the contractor) involved in the

incident giving rise to the tort claim

were acting within the scope of their

employment in carrying out the contract

at the time the incident occurred;

(8) Copies of all relevant

documentation, including available

police reports, statements of witnesses,

newspaper accounts, weather reports,

plats and photographs of the site or

damaged property, such as may be

necessary or useful for purposes of

claim determination by the Federal

agency; and

(9) Insurance coverage information,

copies of medical bills, and relevant

employment records.

(d) The contractor shall cooperate

with and provide assistance to the U.S.

Department of Justice attorneys assigned

to defend the tort claim, including, but

not limited to, case preparation,

discovery, and trial.

(e) If requested by the Secretary, the

contractor shall make an assignment

and subrogation of all the contractor’s

rights and claims (except those against
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32531

the Federal government) arising out of a

tort claim against the contractor.

(f) If requested by the Secretary, the

contractor shall authorize

representatives of the Secretary to settle

or defend any claim and to represent the

contractor in or take charge of any

action. If the Federal government

undertakes the settlement or defense of

any claim or action the contractor shall

provide all reasonable additional

assistance in reaching a settlement or

asserting a defense.

§ 900.189 Does this coverage extend to

subcontractors of self-determination

contracts?

No. Subcontractors or subgrantees

providing services to a Public Law 93–

638 contractor or grantee are generally

not covered. The only exceptions are

Indian contractors such as those under

subcontract with the California Rural

Indian Health Board to carry out IHS

programs in geographically defined

service areas in California and personal

services contracts under § 900.193 (for

§ 900.183(b)(1)) or § 900.183(b) (for

§ 900.190).

Medical-Related Claims

§ 900.190 Is FTCA the exclusive remedy

for a tort claim for personal injury or death

resulting from the performance of a selfdetermination contract?

Yes, except as explained in

§ 900.183(b). No claim may be filed

against a self-determination contractor

or employee for personal injury or death

arising from the performance of

medical, surgical, dental, or related

functions by the contractor in carrying

out self-determination contracts under

the Act. Related functions include

services such as those provided by

nurses, laboratory and x-ray technicians,

emergency medical technicians and

other health care providers including

psychologists and social workers. All

such claims shall be filed against the

United States and are subject to the

limitations and restrictions of the FTCA.

§ 900.191 Are employees of selfdetermination contractors providing health

services under the self-determination

contract protected by FTCA?

Yes. For the purpose of Federal Tort

Claims Act coverage, an Indian tribe or

tribal organization and its employees

performing medical-related functions

under a self-determination contract are

deemed a part of the Public Health

Service if the employees are acting

within the scope of their employment in

carrying out the contract.

§ 900.192 What employees are covered by

FTCA for medical-related claims?

(a) Permanent employees;

(b) Temporary employees;

(c) Persons providing services without

compensation in carrying out a contract;

(d) Persons required because of their

employment by a self-determination

contractor to serve non-IHS

beneficiaries (even if the services are

provided in facilities not owned by the

contractor); and

(e) Federal employees assigned to the

contract.

§ 900.193 Does FTCA coverage extend to

individuals who provide health care

services under a personal services contract

providing services in a facility that is

owned, operated, or constructed under the

jurisdiction of the IHS?

Yes. The coverage extends to

individual personal services contractors

providing health services in such a

facility, including a facility owned by an

Indian tribe or tribal organization but

operated under a self-determination

contract with IHS.

§ 900.194 Does FTCA coverage extend to

services provided under a staff privileges

agreement with a non-IHS facility where the

agreement requires a health care

practitioner to provide reciprocal services

to the general population?

Yes. Those services are covered, as

long as the contractor’s health care

practitioners do not receive additional

compensation from a third party for the

performance of these services and they

are acting within the scope of their

employment under a self-determination

contract. Reciprocal services include:

(a) Cross-covering other medical

personnel who temporarily cannot

attend their patients;

(b) Assisting other personnel with

surgeries or other medical procedures;

(c) Assisting with unstable patients or

at deliveries; or

(d) Assisting in any patient care

situation where additional assistance by

health care personnel is needed.

§ 900.195 Does FTCA coverage extend to

the contractor’s health care practitioners

providing services to private patients on a

fee-for-services basis when such personnel

(not the self-determination contractor)

receive the fee?

No.

§ 900.196 Do covered services include the

conduct of clinical studies and

investigations and the provision of

emergency services, including the

operation of emergency motor vehicles?

Yes, if the services are provided in

carrying out a self-determination

contract. (An emergency motor vehicle

is a vehicle, whether government,

contractor, or employee-owned, used to

transport passengers for medical

services.)

§ 900.197 Does FTCA cover employees of

the contractor who are paid by the

contractor from funds other than those

provided through the self-determination

contract?

Yes, as long as the services out of

which the claim arose were performed

in carrying out the self-determination

contract.

§ 900.198 Are Federal employees assigned

to a self-determination contractor under the

Intergovernmental Personnel Act or

detailed under section 214 of the Public

Health Service Act covered to the same

extent that they would be if working directly

for a Federal agency?

Yes.

§ 900.199 Does FTCA coverage extend to

health care practitioners to whom staff

privileges have been extended in contractor

health care facilities operated under a selfdetermination contract on the condition that

such practitioner provide health services to

IHS beneficiaries covered by FTCA?

Yes, health care practitioners with

staff privileges in a facility operated by

a contractor are covered when they

perform services to IHS beneficiaries.

Such personnel are not covered when

providing services to non-IHS

beneficiaries.

§ 900.200 May persons who are not

Indians or Alaska Natives assert claims

under FTCA?

Yes. Non-Indian individuals served

under the contract whether or not on a

fee-for-service basis, may assert claims

under this Subpart.

Procedure for Filing Medical-Related

Claims

§ 900.201 How should claims arising out of

the performance of medical-related

functions be filed?

Claims should be filed on Standard

Form 95 (Claim for Damage, Injury or

Death) or by submitting comparable

written information (including a

definite amount of monetary damage

claimed) with the Chief, PHS Claims

Branch, Room 18–20, Parklawn

Building, 5600 Fishers Lane, Rockville,

MD 20857, or at such other address as

shall have been provided to the

contractor in writing.

§ 900.202 What should a selfdetermination contractor or a contractor’s

employee do on receiving such a claim?

They should immediately forward the

claim to the PHS Claims Branch at the

address indicated in § 900.201 and

notify the contractor’s tort claims

liaison.
32532 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

§ 900.203 If the contractor or contractor’s

employee receives a summons and/or a

complaint alleging a tort covered by FTCA,

what should the contractor do?

As part of the notification required by

28 U.S.C. 2679(c), the contractor should

immediately inform the Chief, Litigation

Branch, Business and Administrative

Law Division, Office of General

Counsel, Department of Health and

Human Services, 330 Independence

Avenue SW., Room 5362, Washington,

DC 20201, and the contractor’s tort

claims liaison, and forward the

following materials:

(a) Four copies of the claimant’s

medical records of treatment, inpatient

and outpatient, and any related

correspondence, as well as reports of

consultants;

(b) A narrative summary of the care

and treatment involved;

(c) The names and addresses of all

personnel who were involved in the

care and treatment of the claimant;

(d) Any comments or opinions that

the employees who treated the claimant

believe to be pertinent to the allegations

contained in the claim; and

(e) Other materials identified in

§ 900.188(c).

Non-Medical Related Claims

§ 900.204 Is FTCA the exclusive remedy

for a non-medical related tort claim arising

out of the performance of a selfdetermination contract?

Yes. Except as explained in

§ 900.183(b), no claim may be filed

against a self-determination contractor

or employee based upon performance of

non-medical-related functions under a

self-determination contract. Claims of

this type must be filed against the

United States under FTCA.

§ 900.205 To what non-medical-related

claims against self-determination

contractors does FTCA apply?

It applies to:

(a) All tort claims arising from the

performance of self-determination

contracts under the authority of the Act

on or after October 1, 1989; and

(b) Any tort claims first filed on or

after October 24, 1989, regardless of

when the incident which is the basis of

the claim occurred.

§ 900.206 What employees are covered by

FTCA for non-medical-related claims?

(a) Permanent employees;

(b) Temporary employees;

(c) Persons providing services without

compensation in carrying out a contract;

(d) Persons required because of their

employment by a self-determination

contractor to serve non-IHS

beneficiaries (even if the services are

provided in facilities not owned by the

contractor); and

(e) Federal employees assigned to the

contract.

§ 900.207 How are non-medical related tort

claims and lawsuits filed for IHS?

Non-medical-related tort claims and

lawsuits arising out of the performance

of self-determination contracts with the

Indian Health Service should be filed in

the manner described in § 900.201 (for

both § 900.207 and § 900.208).

§ 900.208 How are non-medical related tort

claims and lawsuits filed for DOI?

Non-medical-related claims arising

out of the performance of selfdetermination contracts with the

Secretary of the Interior should be filed

in the manner described in § 900.201

with the Assistant Solicitor,

Procurement and Patents, Office of the

Solicitor, Department of the Interior,

Room 6511, 1849 C Street NW.,

Washington, DC 20240.

§ 900.209 What should a selfdetermination contractor or contractor’s

employee do on receiving a non-medical

related tort claim?

(a) If the contract is with DHHS, they

should immediately forward the claim

to the PHS Claims Branch at the address

indicated in § 900.201 and notify the

contractor’s tort claims liaison.

(b) If the contract is with DOI, they

should immediately notify the Assistant

Solicitor, Procurement and Patents,

Office of the Solicitor, Department of

the Interior, Room 6511, 1849 C Street

N.W., Washington, DC 20240.

§ 900.210 If the contractor or contractor’s

employee receives a summons and/or

complaint alleging a non-medical related

tort covered by FTCA, what should an

Indian tribe or tribal organization do?

(a) If the contract is with the DHHS,

they should immediately inform the

Chief, Litigation Branch, Business and

Administrative Law Division, Office of

General Counsel, Department of Health

and Human Services, 330 Independence

Avenue S.W., Room 5362, Washington,

DC 20201 and the contractor’s tort

claims liaison.

(b) If the contract is with the

Department of the Interior, they should

immediately notify the Assistant

Solicitor, Procurement and Patents,

Office of the Solicitor, Department of

the Interior, Room 6511, 1849 C Street

N.W., Washington, DC 20240, and the

contractor’s tort claims liaison.

Subpart N—Post-Award Contract

Disputes

§ 900.215 What does this subpart cover?

(a) This subpart covers:

(1) All HHS and DOI selfdetermination contracts, including

construction contracts; and

(2) All disputes regarding an awarding

official’s decision relating to a selfdetermination contract.

(b) This subpart does not cover the

decisions of an awarding official that are

covered under subpart L.

§ 900.216 What other statutes and

regulations apply to contract disputes?

(a) The Contract Disputes Act of 1978

(CDA), Public Law 95–563 (41 U.S.C.

601 as amended);

(b) If the matter is submitted to the

Interior Board of Contract Appeals, 43

CFR 4.110–126; and

(c) The Equal Access to Justice Act, 5

U.S.C. 504 and 28 U.S.C. 2412 and

regulations at 43 CFR 4.601 through

4.619 (DOI) and 45 CFR 13 (DHHS).

§ 900.217 Is filing a claim under the CDA

our only option for resolving post-award

contract disputes?

No. The Federal government attempts

to resolve all contract disputes by

agreement at the awarding official’s

level. These are alternatives to filing a

claim under the CDA:

(a) Before issuing a decision on a

claim, the awarding official should

consider using informal discussions

between the parties, assisted by

individuals who have not substantially

participated in the matter, to aid in

resolving differences.

(b) In addition to filing a CDA claim,

or instead of filing a CDA claim, the

parties may choose to use an alternative

dispute resolution mechanism, pursuant

to the provisions of the Administrative

Dispute Resolution Act, Public Law

101–552, as amended, 5 U.S.C. 581 et

seq., or the options listed in section

108(1)(b)(12) of the Indian SelfDetermination Act, as applicable.

§ 900.218 What is a claim under the CDA?

(a) A claim is a written demand by

one of the contracting parties, asking for

one or more of the following:

(1) Payment of a specific sum of

money under the contract;

(2) Adjustment or interpretation of

contract terms; or

(3) Any other claim relating to the

contract.

(b) However, an undisputed voucher,

invoice, or other routing request for

payment is not a claim under the CDA.

A voucher, invoice, or routing request

for payment may be converted into a

CDA claim if:

(1) It is disputed as to liability or

amount; or

(2) It is not acted upon in a reasonable

time and written notice of the claim is

given to the awarding official by the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32533

senior official designated in the

contract.

§ 900.219 How does an Indian tribe, tribal

organization, or Federal agency submit a

claim?

(a) An Indian tribe or tribal

organization shall submit its claim in

writing to the awarding official. The

awarding official shall document the

contract file with evidence of the date

the claim was received.

(b) A Federal agency shall submit its

claim in writing to the contractor’s

senior official, as designated in the

contract.

§ 900.220 Does it make a difference

whether the claim is large or small?

Yes. The Contract Disputes Act

requires that an Indian tribe or tribal

organization making a claim for more

than $100,000 shall certify that:

(a) The claim is made in good faith,

(b) Supporting documents or data are

accurate and complete to the best of the

Indian tribe or tribal organization’s

knowledge and belief;

(c) The amount claimed accurately

reflects the amount believed to be owed

by the Federal government; and

(d) The person making the

certification is authorized to do so on

behalf of the Indian tribe or tribal

organization.

§ 900.221 What happens next?

(a) If the parties do not agree on a

settlement, the awarding official will

issue a written decision on the claim.

(b) The awarding official shall always

give a copy of the decision to the Indian

tribe or tribal organization by certified

mail, return receipt requested, or by any

other method which provides a receipt.

§ 900.222 What goes into a decision?

A decision shall:

(a) Describe the claim or dispute;

(b) Refer to the relevant terms of the

contract;

(c) Set out the factual areas of

agreement and disagreement;

(d) Set out the actual decision, based

on the facts, and outline the reasoning

which supports the decision; and

(e) Contain the following language:

This is a final decision. You may appeal

this decision to the Interior Board of Contract

Appeals (IBCA), U.S. Department of the

Interior, 4015 Wilson Boulevard, Arlington,

VA 22203. If you decide to appeal, you shall,

within 90 days from the date you receive this

decision, mail or otherwise furnish written

notice to the IBCA and provide a copy to the

individual from whose decision the appeal is

taken. The notice shall indicate that an

appeal is intended, and refer to the decision

and contract number. Instead of appealing to

the IBCA, you may bring an action in the U.S.

Court of Federal Claims or in the United

States District Court within 12 months of the

date you receive this notice.

§ 900.223 When does an Indian tribe or

tribal organization get the decision?

(a) If the claim is for more than

$100,000, the awarding official shall

issue the decision within 60 days of the

day he or she receives the claim. If the

awarding official cannot issue a

decision that quickly, he or she shall tell

you when the decision will be issued.

(b) If the claim is for $100,000 or less,

and you want a decision within 60 days,

you shall advise the awarding official in

writing that you want a decision within

that period. If you advise the awarding

official in writing that you do want a

decision within 60 days, the awarding

official shall issue the decision within

60 days of the day he or she receives

your written notice.

(c) If your claim is for $100,000 or less

and you do not advise the awarding

official that you want a decision within

60 days, or if your claim exceeds

$100,000 and the awarding official has

notified you of the time within which a

decision will be issued, the awarding

official shall issue a decision within a

reasonable time. What is ‘‘reasonable’’

depends upon the size and complexity

of your claim, and upon the adequacy

of the information you have given to the

awarding official in support of your

claim.

§ 900.224 What happens if the decision

does not come within that time?

If the awarding official does not issue

a decision within the time required

under § 900.223, the Indian tribe or

tribal organization may treat the delay

as though the awarding official has

denied the claim, and proceed

according to § 900.222(e),

§ 900.225 Does an Indian tribe or tribal

organization get paid immediately if the

awarding official decides in its favor?

Yes. Once the awarding official

decides that money should be paid

under the contract, the amount due,

minus any portion already paid, should

be paid as promptly as possible, without

waiting for either party to file an appeal.

Any payment which is made under this

subsection will not affect any other

rights either party might have. In

addition, it will not create a binding

legal precedent as to any future

payments.

§ 900.226 What rules govern appeals of

cost disallowances?

In any appeal involving a

disallowance of costs, the Board of

Contract Appeals will give due

consideration to the factual

circumstances giving rise to the

disallowed costs, and shall seek to

determine a fair result without rigid

adherence to strict accounting

principles. The determination of

allowability shall assure fair

compensation for the work or service

performed, using cost and accounting

data as guides, but not rigid measures,

for ascertaining fair compensation.

§ 900.227 Can the awarding official change

the decision after it has been made?

(a) The decision of the awarding

official is final and conclusive, and not

subject to review by any forum, tribunal

or government agency, unless an appeal

or suit is timely commenced as

authorized by the Contract Disputes Act.

Once the decision has been made, the

awarding official may not change it,

except by agreement of the parties, or

under the following limited

circumstances:

(1) If evidence is discovered which

could not have been discovered through

due diligence before the awarding

official issued the decision;

(2) If the awarding official learns that

there has been fraud, misrepresentation,

or other misconduct by a party;

(3) If the decision is beyond the scope

of the awarding official’s authority;

(4) If the claim has been satisfied,

released or discharged; or

(5) For any other reason justifying

relief from the decision.

(b) Nothing in this subpart shall be

interpreted to discourage settlement

discussions or prevent settlement of the

dispute at any time.

(c) If a decision is withdrawn and a

new decision is issued that is not

acceptable to the contractor, the

contractor may proceed with the appeal

based on the new decision. If no new

decision is issued, the contractor may

proceed under § 900.224.

(d) If an appeal or suit is filed, the

awarding official may modify or

withdraw his or her final decision.

§ 900.228 Is an Indian tribe or tribal

organization entitled to interest if it wins its

claim?

Yes. If an Indian tribe or tribal

organization wins the claim, it will be

entitled to interest on the amount of the

award. The interest will be calculated

from the date the awarding official

receives the claim until the day it is

paid. The interest rate will be the rate

which the Secretary of the Treasury sets

for the Renegotiation Board under the

Renegotiation Act of 1951, Public Law

92–41, 26 U.S.C. 1212 and 26 U.S.C.

7447.
32534 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations

§ 900.229 What role will the awarding

official play during an appeal?

(a) The awarding official shall provide

any data, documentation, information or

support required by the IBCA for use in

deciding a pending appeal.

(b) Within 30 days of receiving an

appeal or learning that an appeal has

been filed, the awarding official shall

assemble a file which contains all the

documents which are pertinent to the

appeal, including:

(1) The decision and findings of fact

from which the appeal is taken;

(2) The contract, including

specifications and pertinent

modifications, plans and drawings;

(3) All correspondence between the

parties which relates to the appeal,

including the letter or letters of claims

in response to which the decision was

issued;

(4) Transcripts of any testimony taken

during the course of the proceedings,

and affidavits or statements of any

witnesses on the matter in dispute,

which were made before the filing of the

notice of appeal with the IBCA; and

(5) Any additional information which

may be relevant.

§ 900.230 What is the effect of a pending

appeal?

(a) Indian tribes and tribal

organizations shall continue

performance of a contract during the

appeal of any claims to the same extent

they would had there been no dispute.

(b) A pending dispute will not affect

or bar the negotiation or award of any

subsequent contract or negotiation

between the parties.

Subpart O—Conflicts of Interest

§ 900.231 What is an organizational

conflict of interest?

An organizational conflict of interest

arises when there is a direct conflict

between the financial interests of the

contracting Indian tribe or tribal

organization and:

(a) The financial interests of beneficial

owners of Indian trust resources;

(b) The financial interests of the

United States relating to trust resources,

trust acquisitions, or lands conveyed or

to be conveyed pursuant to the Alaska

Native Claims Settlement Act 43 U.S.C.

1601 et seq.; or

(c) An express statutory obligation of

the United States to third parties. This

section only applies if the conflict was

not addressed when the contract was

first negotiated. This section only

applies where the financial interests of

the Indian tribe or tribal organization

are significant enough to impair the

Indian tribe or tribal organization’s

objectivity in carrying out the contract,

or a portion of the contract.

§ 900.232 What must an Indian tribe or

tribal organization do if an organizational

conflict of interest arises under a contract?

This section only applies if the

conflict was not addressed when the

contract was first negotiated. When an

Indian tribe or tribal organization

becomes aware of an organizational

conflict of interest, the Indian tribe or

tribal organization must immediately

disclose the conflict to the Secretary.

§ 900.233 When must an Indian tribe or

tribal organization regulate its employees or

subcontractors to avoid a personal conflict

of interest?

An Indian tribe or tribal organization

must maintain written standards of

conduct to govern officers, employees,

and agents (including subcontractors)

engaged in functions related to the

management of trust assets.

§ 900.234 What types of personal conflicts

of interest involving tribal officers,

employees or subcontractors would have to

be regulated by an Indian tribe?

The Indian tribe or tribal organization

would need a tribally-approved

mechanism to ensure that no officer,

employee, or agent (including a

subcontractor) of the Indian tribe or

tribal organization reviews a trust

transaction in which that person has a

financial or employment interest that

conflicts with that of the trust

beneficiary, whether the tribe or an

allottee. Interests arising from

membership in, or employment by, an

Indian tribe or rights to share in a tribal

claim need not be regulated.

§ 900.235 What personal conflicts of

interest must the standards of conduct

regulate?

The standards must prohibit an

officer, employee, or agent (including a

subcontractor) from participating in the

review, analysis, or inspection of trust

transactions involving an entity in

which such persons have a direct

financial interest or an employment

relationship. It must also prohibit such

officers, employees, or agents from

accepting any gratuity, favor, or

anything of more than nominal value,

from a party (other than the Indian tribe)

with an interest in the trust transactions

under review. Such standards must also

provide for sanctions or remedies for

violation of the standards.

§ 900.236 May an Indian tribe elect to

negotiate contract provisions on conflict of

interest to take the place of this regulation?

Yes. An Indian tribe and the Secretary

may agree to contract provisions,

concerning either personal or

organizational conflicts, that address the

issues specific to the program and

activities contracted in a manner that

provides equivalent protection against

conflicts of interest to these regulations.

Agreed-upon contract provisions shall

be followed, rather than the related

provisions of this regulation. For

example, the Indian tribe and the

Secretary may agree that using the

Indian tribe’s own written code of ethics

satisfies the objectives of the personal

conflicts provisions of this regulation, in

whole or in part.

Subpart P—Retrocession and

Reassumption Procedures

§ 900.240 What does retrocession mean?

A retrocession means the return to the

Secretary of a contracted program, in

whole or in part, for any reason, before

the expiration of the term of the

contract.

§ 900.241 Who may retrocede a contract,

in whole or in part?

An Indian tribe or tribal organization

authorized by an Indian tribe may

retrocede a contract.

§ 900.242 What is the effective date of

retrocession?

The retrocession is effective on the

date which is the earliest date among:

(a) One year from the date of the

Indian tribe or tribal organization’s

request;

(b) The date the contract expires; or

(c) A mutually agreed-upon date.

§ 900.243 What effect will an Indian tribe or

tribal organization’s retrocession have on

its rights to contract?

An Indian tribe or tribal

organization’s retrocession shall not

negatively affect:

(a) Any other contract to which it is

a party;

(b) Any other contracts it may request;

and

(c) Any future request by the Indian

tribe or tribal organization to contract

for the same program.

§ 900.244 Will an Indian tribe or tribal

organization’s retrocession adversely affect

funding available for the retroceded

program?

No. The Secretary shall provide not

less than the same level of funding that

would have been available if there had

been no retrocession.

§ 900.245 What obligation does the Indian

tribe or tribal organization have with

respect to returning property that was used

in the operation of the retroceded program?

On the effective date of any

retrocession, the Indian tribe or tribal

organization shall, at the request of the
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Rules and Regulations 32535

Secretary, deliver to the Secretary all

requested property and equipment

provided under the contract which have

a per item current fair market value, less

the cost of improvements borne by the

Indian tribe or tribal organization, in

excess of $5,000 at the time of the

retrocession.

§ 900.246 What does reassumption mean?

Reassumption means rescission, in

whole or in part, of a contract and

assuming or resuming control or

operation of the contracted program by

the Secretary without consent of the

Indian tribe or tribal organization. There

are two types of reassumption:

emergency and non-emergency.

§ 900.247 Under what circumstances is a

reassumption considered an emergency

instead of non-emergency reassumption?

(a) A reassumption is considered an

emergency reassumption if an Indian

tribe or tribal organization fails to fulfill

the requirements of the contract and this

failure poses:

(1) An immediate threat of imminent

harm to the safety of any person; or

(2) Imminent substantial and

irreparable harm to trust funds, trust

lands, or interest in such lands.

(b) A reassumption is considered a

non-emergency reassumption if there

has been:

(1) A violation of the rights or

endangerment of the health, safety, or

welfare of any person; or

(2) Gross negligence or

mismanagement in the handling or use

of:

(i) Contract funds;

(ii) Trust funds;

(iii) Trust lands; or

(iv) Interests in trust lands under the

contract.

§ 900.248 In a non-emergency

reassumption, what is the Secretary

required to do?

The Secretary must:

(a) Notify the Indian tribes or tribal

organizations served by the contract and

the contractor in writing by certified

mail of the details of the deficiencies in

contract performance;

(b) Request specified corrective action

to be taken within a reasonable period

of time, which in no case may be less

than 45 days; and

(c) Offer and provide, if requested, the

necessary technical assistance and

advice to assist the contractor to

overcome the deficiencies in contract

performance. The Secretary may also

make a grant for the purpose of

obtaining such technical assistance as

provided in section 103 of the Act.

§ 900.249 What happens if the contractor

fails to take corrective action to remedy the

contract deficiencies identified in the

notice?

The Secretary shall provide a second

written notice by certified mail to the

Indian tribes or tribal organizations

served by the contract and the

contractor that the contract will be

rescinded, in whole or in part.

§ 900.250 What shall the second written

notice include?

The second written notice shall

include:

(a) The intended effective date of the

reassumption;

(b) The details and facts supporting

the intended reassumption; and

(c) Instructions that explain the

Indian tribe or tribal organization’s right

to a formal hearing within 30 days of

receipt of the notice.

§ 900.251 What is the earliest date on

which the contract will be rescinded in a

non-emergency reassumption?

The contract will not be rescinded by

the Secretary before the issuance of a

final decision in any administrative

hearing or appeal.

§ 900.252 In an emergency reassumption,

what is the Secretary required to do?

(a) Immediately rescind, in whole or

in part, the contract;

(b) Assume control or operation of all

or part of the program; and

(c) Give written notice to the

contractor and the Indian tribes or tribal

organizations served.

§ 900.253 What shall the written notice

include?

The written notice shall include the

following:

(a) A detailed statement of the

findings which support the Secretary’s

determination;

(b) A statement explaining the

contractor’s right to a hearing on the

record under § 900.160 and § 900.161

within 10 days of the emergency

reassumption or such later date as the

contractor may approve;

(c) An explanation that the contractor

may be reimbursed for actual and

reasonable ‘‘wind up costs’’ incurred

after the effective date of the rescission;

and

(d) A request for the return of

property, if any.

§ 900.254 May the contractor be

reimbursed for actual and reasonable ‘‘wind

up costs’’ incurred after the effective date

of rescission?

Yes.

§ 900.255 What obligation does the Indian

tribe or tribal organization have with

respect to returning property that was used

in the operation of the rescinded contract?

On the effective date of any

rescission, the Indian tribe or tribal

organization shall, at the request of the

Secretary, deliver to the Secretary all

property and equipment provided under

the contract which has a per item

current fair market value, less the cost

of improvements borne by the Indian

tribe or tribal organization, in excess of

$5,000 at the time of the retrocession.

§ 900.256 Will a reassumption adversely

affect funding available for the reassumed

program?

No. The Secretary shall provide at

least the same level of funding that

would have been provided if there had

been no reassumption.

[FR Doc. 96–15793 Filed 6–21–96; 8:45 am]

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