H. R. 4842—9
‘‘(i) direct program expenses for the operation of the Federal
program that is the subject of the contract, and
‘‘(ii) any additional administrative or other expense related
to the overhead incurred by the tribal contractor in connection
with the operation of the Federal program, function, service,
or activity pursuant to the contract,
except that such funding shall not duplicate any funding provided
under section 106(a)(1).
‘‘(B) On an annual basis, during such period as a tribe or
tribal organization operates a Federal program, function, service,
or activity pursuant to a contract entered into under this Act,
the tribe or tribal organization shall have the option to negotiate
with the Secretary the amount of funds that the tribe or tribal
organization is entitled to receive under such contract pursuant
to this paragraph.
‘‘(4) For each fiscal year during which a self-determination
contract is in effect, any savings attributable to the operation of
a Federal program, function, service, or activity under a self-deter-
mination contract by a tribe or tribal organization (including a
cost reimbursement construction contract) shall—
‘‘(A) be used to provide additional services or benefits under
the contract; or
‘‘(B) be expended by the tribe or tribal organization in
the succeeding fiscal year, as provided in section 8.
‘‘(5) Subject to paragraph (6), during the initial year that a
self-determination contract is in effect, the amount required to
be paid under paragraph (2) shall include startup costs consisting
of the reasonable costs that have been incurred or will be incurred
on a one-time basis pursuant to the contract necessary—
‘‘(A) to plan, prepare for, and assume operation of the
program, function, service, or activity that is the subject of
the contract; and
‘‘(B) to ensure compliance with the terms of the contract
and prudent management.
‘‘(6) Costs incurred before the initial year that a self-determina-
tion contract is in effect may not be included in the amount required
to be paid under paragraph (2) if the Secretary does not receive
a written notification of the nature and extent of the costs prior
to the date on which such costs are incurred.’’;
(15) in section 106(c)—
(A) by striking ‘‘March 15’’ and inserting ‘‘May 15’’;
(B) in paragraphs (1) and (2), by striking ‘‘indirect
costs’’ each place it appears and inserting ‘‘contract support
costs’’;
(C) in paragraph (4), by striking ‘‘and’’ at the end;
(D) in paragraph (5), by striking the period at the
end and inserting ‘‘; and’’; and
(E) by adding at the end the following new paragraph:
‘‘(6) an accounting of any deficiency of funds needed to
maintain the preexisting level of services to any tribes affected
by contracting activities under this Act, and a statement of
the amount of funds needed for transitional purposes to enable
contractors to convert from a Federal fiscal year accounting
cycle to a different accounting cycle, as authorized by section
105(d).’’;
(16) in section 106(f), by inserting immediately after the
second sentence the following new sentence: ‘‘For the purpose
H. R. 4842—10
of determining the 365-day period specified in this paragraph,
an audit report shall be deemed to have been received on
the date of actual receipt by the Secretary, if, within 60 days
after receiving the report, the Secretary does not give notice
of a determination by the Secretary to reject the single-agency
report as insufficient due to noncompliance with chapter 75
of title 31, United States Code, or noncompliance with any
other applicable law.’’;
(17) by striking subsection (g) of section 106 and inserting
the following new subsection:
‘‘(g) Upon the approval of a self-determination contract, the
Secretary shall add to the contract the full amount of funds to
which the contractor is entitled under section 106(a), subject to
adjustments for each subsequent year that such tribe or tribal
organization administers a Federal program, function, service, or
activity under such contract.’’;
(18) by striking subsection (i) of section 106 and inserting
the following new subsection:
‘‘(i) 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).’’; and
(19) by adding at the end of section 106 the following
new subsections:
‘‘(j) Notwithstanding any other provision of law, a tribal
organization may use funds provided under a self-determination
contract to meet matching or cost participation requirements under
other Federal and non-Federal programs.
‘‘(k) Without intending any limitation, a tribal organization
may, without the approval of the Secretary, expend funds provided
under a self-determination contract for the following purposes, to
the extent that the expenditure of the funds is supportive of a
contracted program:
‘‘(1) Depreciation and use allowances not otherwise specifi-
cally prohibited by law, including the depreciation of facilities
owned by the tribe or tribal organization.
‘‘(2) Publication and printing costs.
‘‘(3) Building, realty, and facilities costs, including rental
costs or mortgage expenses.
‘‘(4) Automated data processing and similar equipment or
services.
‘‘(5) Costs for capital assets and repairs.
‘‘(6) Management studies.
‘‘(7) Professional services, other than services provided in
connection with judicial proceedings by or against the United
States.
‘‘(8) Insurance and indemnification, including insurance
covering the risk of loss of or damage to property used in
connection with the contract without regard to the ownership
of such property.
‘‘(9) Costs incurred to raise funds or contributions from
non-Federal sources for the purpose of furthering the goals
and objectives of the self-determination contract.
H. R. 4842—11
‘‘(10) Interest expenses paid on capital expenditures such
as buildings, building renovation, or acquisition or fabrication
of capital equipment, and interest expenses on loans neces-
sitated due to delays by the Secretary in providing funds under
a contract.
‘‘(11) Expenses of a governing body of a tribal organization
that are attributable to the management or operation of pro-
grams under this Act.
‘‘(12) Costs associated with the management of pension
funds, self-insurance funds, and other funds of the tribal
organization that provide for participation by the Federal
Government.
‘‘(l)(1) The Secretary may only suspend, withhold, or delay
the payment of funds for a period of 30 days beginning on the
date the Secretary makes a determination under this paragraph
to a tribal organization under a self-determination contract, if the
Secretary determines that the tribal organization has failed to
substantially carry out the contract without good cause. In any
such case, the Secretary shall provide the tribal organization with
reasonable advance written notice, technical assistance (subject to
available resources) to assist the tribal organization, a hearing
on the record not later than 10 days after the date of such deter-
mination or such later date as the tribal organization shall approve,
and promptly release any funds withheld upon subsequent compli-
ance.
‘‘(2) With respect to any hearing or appeal conducted pursuant
to this subsection, the Secretary shall have the burden of proof
to establish by clearly demonstrating the validity of the grounds
for suspending, withholding, or delaying payment of funds.
‘‘(m) The program income earned by a tribal organization in
the course of carrying out a self-determination contract—
‘‘(1) shall be used by the tribal organization to further
the general purposes of the contract; and
‘‘(2) shall not be a basis for reducing the amount of funds
otherwise obligated to the contract.
‘‘(n) To the extent that programs, functions, services, or activi-
ties carried out by tribal organizations pursuant to contracts entered
into under this Act reduce the administrative or other responsibil-
ities of the Secretary with respect to the operation of Indian pro-
grams and result in savings that have not otherwise been included
in the amount of contract funds determined under subsection (a),
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.
‘‘(o) Notwithstanding any other provision of law (including any
regulation), a tribal organization that carries out a self-determina-
tion contract may, with respect to allocations within the approved
budget of the contract, rebudget to meet contract requirements,
if such rebudgeting would not have an adverse effect on the perform-
ance of the contract.’’.
SEC. 103. CONTRACT SPECIFICATIONS.
The Indian Self-Determination Education Assistance Act (25
U.S.C. 450 et seq.) is amended by inserting after section 107 the
following new section:
H. R. 4842—12
‘‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.
‘‘(a) Each self-determination contract entered into under this
Act shall—
‘‘(1) contain, or incorporate by reference, the provisions
of the model agreement described in subsection (c) (with modi-
fications where indicated and the blanks appropriately filled
in), and
‘‘(2) contain such other provisions as are agreed to by
the parties.
‘‘(b) Notwithstanding any other provision of law, the Secretary
may make payments pursuant to section 1(b)(6) of such model
agreement. As provided in section 1(b)(7) of the model agreement,
the records of the tribal government or tribal organization specified
in such section shall not be considered Federal records for purposes
of chapter 5 of title 5, United States Code.
‘‘(c) The model agreement referred to in subsection (a)(1) reads
as follows:
‘‘ ‘SECTION 1. AGREEMENT BETWEEN THE SECRETARY AND THE ll
TRIBAL GOVERNMENT.
‘‘ ‘(a) AUTHORITY AND PURPOSE.—
‘‘ ‘(1) AUTHORITY.—This agreement, denoted a Self-Deter-
mination Contract (referred to in this agreement as the ‘‘Con-
tract’’), is entered into by the Secretary of the Interior or
the Secretary of Health and Human Services (referred to in
this agreement as the ‘‘Secretary’’), for and on behalf of the
United States pursuant to title I of the Indian Self-Determina-
tion and Education Assistance Act (25 U.S.C. 450 et seq.)
and by the authority of the ll tribal government or tribal
organization (referred to in this agreement as the ‘‘Contractor’’).
The provisions of title I of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.) are incor-
porated in this agreement.
‘‘ ‘(2) PURPOSE.—Each provision of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C. 450 et seq.)
and each provision of this Contract shall be liberally construed
for the benefit of the Contractor to transfer the funding and
the following related functions, services, activities, and pro-
grams (or portions thereof), that are otherwise contractable
under section 102(a) of such Act, including all related adminis-
trative functions, from the Federal Government to the Contrac-
tor: (List functions, services, activities, and programs).
‘‘ ‘(b) TERMS, PROVISIONS, AND CONDITIONS.—
‘‘ ‘(1) TERM.—Pursuant to section 105(c)(1) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C.
450j(c)(1)), the term of this contract shall be ll years. Pursu-
ant to section 105(d)(1) of such Act (25 U.S.C. 450j(d)), upon
the election by the Contractor, the period of this Contract
shall be determined on the basis of a calendar year, unless
the Secretary and the Contractor agree on a different period
in the annual funding agreement incorporated by reference
in subsection (f)(2).
‘‘ ‘(2) EFFECTIVE DATE.—This Contract shall become effec-
tive upon the date of the approval and execution by the Contrac-
tor and the Secretary, unless the Contractor and the Secretary
agree on an effective date other than the date specified in
this paragraph.