I
103D CONGRESS
2D SESSION
H. R. 4842
To specify the terms of contracts entered into by the United States and
Indian tribal organizations under the Indian Self-Determination and
Education Assistance Act, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JULY 27, 1994
Mr. RICHARDSON (for himself and Mr. THOMAS of Wyoming) introduced the
following bill; which was referred to the Committee on Natural Resources
A BILL
To specify the terms of contracts entered into by the United
States and Indian tribal organizations under the Indian
Self-Determination and Education Assistance Act, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Indian Self-Determina-
tion Act Amendments of 1994’’.
SEC. 2. AMENDMENTS.
The Indian Self-Determination and Education Assist-
ance Act (25 U.S.C. 450 et seq.) is amended as follows:
(1) At the beginning of section 4, insert the fol-
lowing new paragraph and redesignate all other
paragraphs accordingly:
‘‘(1) ‘construction contract’ means a fixed-price
or cost-reimbursement self-determination contract
for a construction project. Contracts (i) limited to
providing architectural and engineering services,
planning services, and/or construction management
services; (ii) for the Housing Improvement Program
or roads maintenance program administered by the
Secretary of the Interior; and (iii) for the health fa-
cility maintenance and improvement program admin-
istered by the Secretary of Health and Human Serv-
ices, shall not be deemed to be construction con-
tracts within the meaning of this Act;’’.
(2) Amend section 5(f) to read as follows:
‘‘(f) For each fiscal year during which an Indian trib-
al organization receives or expends funds pursuant to a
contract or grant under this title, the tribal organization
which requested such contract or grant shall submit to the
appropriate Secretary a single agency audit report as re-
quired by chapter 75 of title 31, United States Code. Such
tribal organization shall also submit such additional infor-
mation on the conduct of the program or service involved
as the tribal organization may negotiate with the Sec-
retary. Any disagreement over reporting requirements
shall be subject to the declination standards and proce-
dures set forth in section 102 of this Act.’’.
(3) In section 7(a) strike ‘‘of subcontractors’’
and insert in lieu thereof ‘‘or subcontractors (exclud-
ing tribes and tribal organization)’’.
(4) At the end of section 7, insert the following
new subsection:
‘‘(c) Notwithstanding subsections (a) and (b), where
a self-determination contract, or portion thereof, is in-
tended to benefit one tribe, tribal employment or contract
preference laws adopted by such tribe shall govern with
respect to the administration of such contract or portion
thereof.’’.
(5) At the end of paragraph (1) of section
102(a), insert the following new sentence: ‘‘Such
programs shall include administrative functions of
the Department of the Interior or the Department
of Health and Human Services which support the
delivery of services to Indians, including those ad-
ministrative activities related to, but not part of, the
service delivery program, which are otherwise
contractible, without regard to the organization level
within the Department where such functions are car-
ried out.’’.
(6) Amend paragraph (2) of section 102(a) as
follows—
(A) insert ‘‘, or to amend or renew a self-
determination contract,’’ before ‘‘to the Sec-
retary for review’’;
(B) in the second sentence strike ‘‘The’’
and insert ‘‘Subject to the provisions of sub-
section 4 hereof, the’’;
(C) insert ‘‘and award the contract’’ before
‘‘unless’’;
(D) in subparagraph (A), insert ‘‘by the
tribal organization’’ after ‘‘rendered’’;
(E) in subparagraph (B), insert ‘‘by the
tribal organization’’ after ‘‘resources’’;
(F) at the end of subparagraph (C) add
the following: ‘‘, either because (i) the amount
of funds proposed in the contract is in excess
of the funding levels specified in section 106(a)
of this Act, or (ii) the program (or portion
thereof) to be contracted is beyond the scope of
paragraph (1) thereof because the proposal in-
cludes activities which cannot be lawfully car-
ried out by the contractor;’’; and
(G) insert the following new paragraph:
‘‘(4) The Secretary shall approve any severable por-
tion of a contract proposal which does not support a dec-
lination finding as provided in paragraph (3) of this sub-
section. Whenever the Secretary determines under para-
graph (3) that a contract proposal (A) proposes in part
to plan, conduct, or administer a program that is beyond
the scope of paragraph (1), or (B) proposes a funding level
in excess of the funding levels specified in section 106(a)
of this Act, the Secretary shall approve the proposal to
the extent authorized to paragraph (1) of section 106(a)
of this Act, as appropriate (subject to any agreed-upon
alteration in the proposed scope of work). In the event
the tribal organization elects to operate the severable por-
tion of a contract proposal, subsection (b) thereof shall
apply only with respect to the declined portion of the con-
tract.’’.
(7) In section 102(b)(3), insert before the pe-
riod ‘‘, subject to the tribe’s or tribal organization’s
option to proceed directly to Federal district court
as provided in section 110(a)’’.
(8) At the end of section 102, insert the follow-
ing new subsections:
‘‘(e) In any hearing or appeal provided under sub-
section (b)(3), the Secretary shall carry the burden of
proof to establish by clear and convincing evidence that
the contract proposal should be declined. Final depart-
mental decisions in all such appeals shall be made at a
level higher than the level of the agency whose decision
under subsection (b) is appealed.
‘‘(f) A tribal organization in Alaska authorized by
tribal resolution or resolutions to contract under this Act
the operation of one or more programs may redelegate
that authority, by formal action of the tribal organiza-
tion’s governing body, to another tribal organization pro-
vided advance notice of such redelegation and a copy of
the contracting proposal, prior to its submission to the
Secretary, are provided to all tribes served by the tribal
organization. Nothing herein is to be construed as a limi-
tation on the authority of a tribe to limit, restrict or re-
scind its resolution at any time or in any manner whatso-
ever. A tribe receiving such notice shall have 60 days from
receipt of the notice to notify the tribal organization in
writing of its intent to adopt a limiting resolution prohibit-
ing or conditioning the proposed redelegation, and there-
after shall have 60 days to adopt and transmit such reso-
lution to the tribal organization. A tribal organization so
notified of a tribe’s intent shall not proceed with any re-
delegation proposal until the expiration of the 60-day pe-
riod.’’.
(9) Amend section 105(a) to read as follows:
‘‘(a) Contracts, grants, and cooperative agreements
with tribal organizations pursuant to sections 102 and 103
of this title shall not be subject to general Federal con-
tracting, discretionary grant or cooperative agreement
laws and regulations, except to the extent such laws ex-
pressly apply to Indian tribes: Provided, That with respect
to construction contracts as defined in section 4 of this
Act (or subcontracts of such a construction contract), the
Office of Federal Procurement Policy Act (88 Stat. 796;
41 U.S.C. 401 et seq.) and Federal acquisition regulations
promulgated thereunder shall apply to the limited extent
such statute or regulations are necessary to assure proper
completion of the contract, are directly relevant to the con-
struction activity, and are not inconsistent with the provi-
sions or policy of this Act: Provided further, That all such
requirements shall be negotiated between the Secretary
and the tribal organization and set forth as an attachment
to the contract: Provided further, That no other laws or
executive orders shall be applicable to construction con-
tracts subject to this Act unless expressly so stated in such
other laws or orders, including chapter 10 of title 40,
United States Code; section 9(a) and (c) of the Act of
August 2, 1946, as amended, 60 Stat. 809; sections 301–
310 of the Act of June 30, 1949, as amended, 63 Stat.
393–397; section 13 of the Act of October 3, 1944, as
amended, 58 Stat. 770; chapters 21, 25, 27, 29, and 31
of title 44, United States Code; chapter 5 of title 40, Unit-
ed States Code, section 2 of the Act of June 13, 1934,
as amended, 48 Stat. 948; sections 1–12 of the Act of
June 30, 1936, as amended, 49 Stat. 2036–39; chapter
6 of title 41, United States Code; chapter 14A of title 15,
United States Code; and Executive Orders 12138, 11246,
11701, and 11758.’’.
(10) Amend section 105(e) to read as follows:
‘‘(e) Whenever an Indian tribe or tribal organization
requests retrocession of the appropriate Secretary for any
contract, or portion thereof, entered into pursuant to this
Act, such retrocession shall, unless the request for ret-
rocession is rescinded by such tribe or tribal organization,
become effective one year from the date of the request by
the Indian tribe or tribal organization, or the date of con-
tract expiration, whichever is earlier, or at such date as
may be mutually agreed by the Secretary and the Indian
tribe.’’.
(11) Amend paragraph (2) of section 105(f) to
read as follows:
‘‘(2) donate to an Indian tribe or tribal organi-
zation the title to any personal or real property
found to be excess to the needs of the Bureau of In-
dian Affairs, the Indian Health Service, or the Gen-
eral Services Administration, except that title to
property and equipment furnished by the Federal
Government for use in the performance of the con-
tract or purchased with funds under any self-deter-
mination contract or grant agreement shall, unless
otherwise requested by the tribe or tribal organiza-
tion, vest in the appropriate tribe or tribal organiza-
tion, and upon retrocession, rescission, or termi-
nation of such self-determination contract or grant,
title to such property having a present value in ex-
cess of $5,000 and remaining in use in support of
the contracted program shall, at the Secretary’s op-
tion, revert to the Secretary; and’’.
(12) At the end of section 105, insert the fol-
lowing new subsections:
‘‘(i) Where a self-determination contract requires the
Secretary to administratively divide a program which has
previously been administered for the benefit of a greater
number of tribes than are represented by the tribal organi-
zation that is a party to the contract, the Secretary
shall—
‘‘(1) endeavor to minimize any adverse effect on
the level of services to be provided to all affected
tribes;
‘‘(2) notify all affected tribes not party to the
contract of the receipt of the contract proposal at
the earliest possible date, and of the right of such
tribes to comment on how the Secretary’s program
should be divided to best meet the needs of all af-
fected tribes;
‘‘(3) explore the feasibility of instituting cooper-
ative agreements amongst the affected tribes not a
party to the contract, the tribal organization operat-
ing the contract, and the Secretary; and
‘‘(4) identify and report to Congress the nature
of any diminution in quality, level or quantity of
services to any affected tribe resulting from the divi-
sion of the Secretary’s program, together with an es-
timate of the funds which would be required to cor-
rect such diminution. In determining whether to de-
cline a contract under section 102(a)(2), the Sec-
retary shall not consider the effect which a contract
proposal will have on tribes not represented by the
tribal organization submitting such proposal, nor on
Indians not served by the portion of the program to
be contracted. The Secretary shall make such special
provisions as may be necessary to assure that serv-
ices are provided to the tribes not served by a self-
determination contract.
‘‘(j) Upon notice to the Secretary, tribal organiza-
tions carrying out self-determination contracts are author-
ized to redesign programs, activities, functions and serv-
ices under contract, including program standards, to best
meet the local geographic, demographic, economic, cul-
tural, health and institutional needs of the Indian people
and tribes served under the contract. The Secretary shall
evaluate any redesign proposal against the declination cri-
teria set forth in section 102 of this Act.
‘‘(k) For purposes of section 201(a) of the Act of
June 30, 1949 (40 U.S.C. 481(a)) (involving Federal
sources of supply, including lodging providers, airlines,
and other transportation providers), an Indian tribe or
tribal organization carrying out a contract, grant, or coop-
erative agreement under this Act shall be deemed an exec-
utive agency when carrying out such contract, grant, or
agreement.
‘‘(l) Upon the request of an Indian tribe or tribal or-
ganization, the Secretary shall enter into leases with In-
dian tribes and tribal organizations which hold title to,
a leasehold interest in, or a beneficial interest in, facilities
used by Indian tribes or tribal organizations for the ad-
ministration and delivery of contract services under the
Act. The Secretary shall compensate such Indian tribes
or tribal organizations for the use of leased facilities for
contract purposes. Lease compensation may include: rent,
depreciation based on the useful life of the building, prin-
cipal and interest paid or accrued, operation and mainte-
nance expenses, and such other reasonable expenses deter-
mined by regulation to be allowable.
‘‘(m) Construction contracts:
‘‘(1) Construction contracts requested, ap-
proved, or awarded under this Act shall be subject
to all of the provisions of this Act, including without
intending any limitation, sections 7, 102(a), 102(b),
103(d) and (e), 105(f), 106(a), 106(f), 110, and
111, and section 314 of Public Law No. 101–512,
as amended.
‘‘(2) In providing technical assistance to tribes
and tribal organizations in the development of con-
struction contract proposals, the Secretary shall pro-
vide a requesting tribe or tribal organization, within
30 days of receipt of a request, with all available in-
formation regarding the construction project, includ-
ing without intending any limitation, construction
drawings, maps, engineering reports, design reports,
plans of requirements, cost estimates, environmental
assessments or impact reports, and archaeological
reports.
a fair profit determined in light of the relevant risks
and local market conditions.’’.
(13) Amend section 106(a) as follows—
(A) at the end of paragraph (1), insert the
following ‘‘, without regard to the organiza-
tional level or levels within the Department at
which the program (or portion thereof), includ-
ing supportive administrative functions which
are otherwise contractible is operated’’;
(B) in paragraph (2), after ‘‘consist of’’,
insert ‘‘an amount for’’, and add the following
at the end thereof: ‘‘Contract support costs
shall include, without distinction, funds to reim-
burse tribal contractors for reasonable and al-
lowable costs of contracting attributable to di-
rect program expenses, and reasonable addi-
tional administrative or other overhead expenses
in connection with tribal operation of Federal
programs. The amount of funds to which a
tribe or tribal organization is entitled pursuant
to this subparagraph shall be negotiated annu-
ally with the Secretary.’’; and
(C) strike paragraph (3) and insert the fol-
lowing new paragraphs (3) and (4):
‘‘(3) Any savings in operation under a self-de-
termination contract (including a cost reimburse-
ment construction contract) shall be utilized to pro-
vide additional services or benefits under the con-
tract or be expended in the succeeding fiscal year as
provided in section 8 of this Act.
‘‘(4) During the initial year of a self-determina-
tion contract there shall be included, in the amount
required to be paid under paragraph (2), start-up
costs consisting of the reasonable costs, either pre-
viously incurred or to be incurred under the contract
on a one-time basis, necessary to plan, prepare for
and take over operation of the contracted program
and to also ensure compliance with the terms of the
contract and prudent management: Provided, That
previously incurred costs shall not be included to the
extent the Secretary was not notified in advance and
in writing of the nature and extent of the costs to
be incurred.’’.
(14) Amend section 106(c) as follows:
(A) In each of paragraphs (1) and (2),
strike ‘‘indirect costs’’ and insert in lieu thereof
‘‘indirect costs and other negotiated contract
support costs’’.
(B) Strike ‘‘and’’ at the end of paragraph
(4).
(C) Strike the period at the end of para-
graph (5) and insert in lieu thereof ‘‘; and’’.
(D) Insert the following new paragraph:
‘‘(6) a reporting of any deficiency of funds
needed to maintain the preexisting level of services
to any tribes affected by contracting activities under
this Act, and the amount of funds needed for transi-
tional purposes to enable contractors to convert from
Federal fiscal year accounting to a different ac-
counting cycle, as authorized under section 105(d) of
this Act.’’.
(15) At the end of paragraph (2) of section
106(d), insert the following new sentence: ‘‘Notwith-
standing any other provision of law, and subject to
the availability of appropriations, every Federal
agency and every State shall pay its full propor-
tionate share of the indirect costs associated with
federally funded contracts or grants awarded to
tribes or tribal organizations under any other law. In
the event that appropriations are not sufficient for
agencies other than the Department of the Interior
and the Department of Health and Human Services,
or for State governments or State agencies, to pay
their full proportionate share as provided herein, the
Secretary shall, subject to the availability of appro-
priations for this purpose, fund and pay such short-
falls and report all unfunded shortfalls to the Con-
gress, as provided in section 106(c)(2).’’.
(16) Amend section 106(f) by inserting imme-
diately after the second sentence thereof the follow-
ing: ‘‘For the purpose of the 365-day period, an
audit report shall be deemed received on the date of
actual receipt by the Secretary, absent a notice by
the Secretary within 60 days of receipt that the re-
port will be rejected as insufficient due to non-
compliance with chapter 75 of title 31, United
States Code, or other applicable law.’’.
(17) Amend section 106(g) to read as follows:
‘‘(g) Upon approval of a self-determination contract,
the Secretary shall allocate to the contract the full amount
to which the contractor is entitled under section 106(a),
subject to adjustments for each subsequent year that Fed-
eral programs are administered by such tribe or tribal or-
ganization.’’.
(18) Amend section 106(i) to read as follows:
‘‘(i) The Secretary shall consult annually with, and
solicit the participation of, Indian tribes and tribal organi-
zations in the development of the budget for the Indian
Health Service and the Bureau of Indian Affairs, includ-
ing participation in the formulation of annual budget re-
quests to Congress.’’.
(19) Amend section 106 by adding at the end
thereof the following new subsections:
‘‘(j) A tribal organization may use funds provided
under a self-determination contract to meet matching or
cost participation requirements under other Federal and
non-Federal programs.
‘‘(k) Without intending any limitation, a tribal orga-
nization may, without approval, expend funds provided
under a self-determination contract for the following pur-
poses to the extent supportive of a contracted program—
‘‘(1) depreciation and use allowances not other-
wise specifically prohibited by law, including depre-
ciation of facilities owned by the tribe or tribal orga-
nization and constructed with Federal financial as-
sistance;
‘‘(2) publication and printing costs;
‘‘(3) building, realty and facilities costs, includ-
ing rental costs or mortgage expenses;
‘‘(4) automated data processing and similar
equipment or services;
‘‘(5) cost of capital assets and repairs;
‘‘(6) management studies;
‘‘(7) professional services other than services
provided in connection with judicial proceedings by
or against the United States;
‘‘(8) insurance and indemnification, including
insurance covering the risk of loss of or damage to
property used in connection with the contract with-
out regard to the ownership of such property;
‘‘(9) costs incurred to raise funds or contribu-
tions from non-Federal sources for the purpose of
furthering the goals and objectives of a self-deter-
mination contract;
‘‘(10) interest expenses paid on capital expendi-
tures such as buildings, building renovation, or ac-
quisition or fabrication of capital equipment, and in-
terest expenses on loans necessitated due to sec-
retarial delays in providing funds under a contract;
‘‘(11) expenses of a tribal organization’s gov-
erning body to the extent attributable to the man-
agement or operation of programs under this Act;
and
‘‘(12) costs associated with the management of
pension, self-insurance and other funds which in-
clude Federal participation.
‘‘(l) Within 12 months following the date of enact-
ment of this subsection, the Office of Management and
Budget, with the active participation of Indian tribes and
tribal organizations, the Department of the Interior, Of-
fice of the Inspector General, and the Health and Human
Services Department, Cost Determination Branch, shall
develop a separate set of cost principles applicable to In-
dian tribes and tribal organizations consistent with the
government-to-government Federal-tribal relationship em-
bodied in this Act.
‘‘(m) Except in connection with rescission and
reassumption of a contract under section 109 of this Act,
the Secretary shall in no circumstance suspend, withhold
or delay the payment of funds to a tribal organization
under a self-determination contract.
‘‘(n) Program income earned by a tribal organization
in the course of carrying out a self-determination contract
shall be used by the tribal organization to further the gen-
eral purposes of the contract and shall not be a basis for
reducing the amount of funds otherwise obligated to the
contract.
‘‘(o) To the extent contracting activities under this
Act reduce the Secretary’s administrative or other respon-
sibilities in connection with the operation of Indian pro-
grams, resulting in savings which have not otherwise been
included in the contract amount specified in subsection (a)
of this section, and to the extent that doing so will not
adversely affect the Secretary’s ability to carry out his re-
sponsibilities to other tribes and tribal organizations, the
Secretary shall make such savings available to tribal orga-
nizations contracting under this Act.
‘‘(p) Notwithstanding any laws or regulations to the
contrary, a tribal organization may rebudget within the
approved budget of its contract to meet contract require-
ments, if such rebudgeting does not have a significant and
adverse effect upon the level or nature of services.’’.
SEC. 3. CONTRACT SPECIFICATIONS.
Section 108 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450j), currently re-
served, is amended to read as follows:
‘‘SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.
‘‘Each Self-Determination Contract or grant entered
into under this Act shall contain, or incorporate by ref-
erence, the following provisions, with modifications where
indicated and the blanks appropriately filled together with
such other provisions as the parties may agree upon:
‘‘(1) AUTHORITY AND PURPOSE.—
‘‘(A) AUTHORITY.—This agreement, de-
noted a Self-Determination Contract (herein-
after referred to as the ‘Contract’), is entered
into by the Secretary of the Interior or the Sec-
retary of Health and Human Services (herein-
after referred to as the ‘Secretary’), for and on
behalf of the United States pursuant to titles I
and II of the Indian Self-Determination and
Education Assistance Act and by the authority
of the lllllll tribal government or
tribal organization (hereinafter referred to as
the ‘Contractor’). Unless otherwise provided in
this agreement, all of the provisions of title I of
the Indian Self-Determination and Education
Assistance Act are incorporated herein.
‘‘(B) PURPOSE.—Each and every provision
of the Indian Self-Determination Act and of
this Contract shall be liberally construed for the
benefit of the Contractor to transfer the fund-
ing and the following related functions, services,
activities, and programs (or portion thereof), in-
cluding all related administrative functions
from the Federal Government to the Contrac-
tor: (List functions, services, activities, and pro-
grams.)
‘‘(C) TRIBAL
LAW
AND
FORUMS.—The
laws and/or policies and procedures of the Con-
tractor shall be applied in the performance of
this Contract and the powers and decisions of
the Contractor’s Tribal Court or other dispute
resolution mechanism shall be binding to the
extent that Federal law, construed in accord-
ance with the applicable canons of construction
and the Indian Self-Determination and Edu-
cation Assistance Act, is not inconsistent.
‘‘(2) TERMS, PROVISIONS AND CONDITIONS.—
‘‘(A) TERM.—The term of this Contract
shall not exceed 3 years, unless the Secretary
and the Contractor agree on a longer period
pursuant to section 105(c)(1)(B) of the Indian
Self-Determination and Education Assistance
Act. Pursuant to section 105(d)(1) of the Act,
upon the Contractor’s election, the calendar
year shall be the basis for contracts under this
Act, unless the Secretary and the Contractor
agree on a different period in the annual fund-
ing agreement.
‘‘(B) EFFECTIVE
DATE.—This Contract
shall become effective upon approval and execu-
tion by the Contractor and the Secretary, un-
less otherwise agreed to by the Secretary and
the Contractor.
‘‘(C) FUNDING AMOUNT.—
‘‘(i) AMOUNT
OF
ANNUAL
FUNDING
AGREEMENT.—Subject to the appropria-
tion of funds by Congress, the Secretary
shall make available to the Contractor the
total amount specified in the annual fund-
ing agreement incorporated by reference in
paragraph (6)(B), which amount shall not
be less than the amounts specified in sec-
tion 106(a) of the Act.
‘‘(ii) LIMITATION
OF
COSTS.—The
Contractor shall not be obligated to con-
tinue performance beyond the amount of
funds awarded, and if at any time the Con-
tractor has reason to believe that the total
amount for performance of this contract or
a specific activity of this Contract will be
greater than the amount awarded, the
Contractor shall notify the appropriate
Secretary. If the amount awarded is not
increased, the Contractor may cease per-
formance. In such event all duties and re-
sponsibilities previously assumed by the
Contractor shall become the duties and re-
sponsibilities of the Secretary.
‘‘(D) PAYMENT.—
‘‘(i) IN GENERAL.—Payments shall be
made as expeditiously as possible and shall
include financial arrangements to cover
funding during periods under continuing
resolutions to the extent permitted by such
resolutions.
‘‘(ii) QUARTERLY SEMIANNUAL, LUMP
SUM, 
AND
OTHER
METHODS
OF
PAY-
MENT.—Notwithstanding the provisions of
any other law, for each fiscal year covered
by this Contract, the Secretary is author-
ized to and shall make available the funds
specified for the fiscal year under the an-
nual funding agreement by paying to the
Contractor on a quarterly basis one-quar-
ter of the total amount provided for in the
annual funding agreement for that fiscal
year, by making a lump-sum payment or
semiannual payments, or by using any
other method authorized by law, as may be
requested by the Contractor and specified
in the annual funding agreement. Each
quarterly payment shall be made on the
first day of each quarter of the fiscal year
except that in instances where the contract
year coincides with the Federal fiscal year,
payment for the first quarter shall be
made not later than the date that is 10
calendar days after the date on which the
Office of Management and Budget appor-
tions the appropriations for the fiscal year
for the programs, servicers, functions, and
activities subject to the Contract. Chapter
39 of title 31, United States Code, shall
apply to the payment of funds due under
the contract and the annual funding agree-
ment.
‘‘(E) RECORDS AND MONITORING.—(i) Ex-
cept for previously provided copies of tribal
records that the Secretary demonstrates are
clearly required to be maintained as part of the
recordkeeping system of the Department of the
Interior and/or the Department of Health and
Human Services, Contractor records shall not
be considered Federal records for purposes of
chapter 5 of title 5, United States Code.
‘‘(ii) The Contractor shall maintain a rec-
ordkeeping system, and upon reasonable ad-
vance request provide reasonable access to such
records to the Secretary.
‘‘(iii) Contractors are responsible for man-
aging the day-to-day operations of the Contract
and for monitoring activities to assure compli-
ance with the Contract and applicable Federal
requirements. Monitoring visits shall be limited
to not more than one performance monitoring
visit per contract by each operating division, de-
partmental bureau or departmental agency or
duly authorized representatives thereof unless
(I) the Contractor has agreed to such additional
visits, or (II) there is reasonable cause to be-
lieve that grounds for reassumption of the con-
tract or other serious contract performance de-
ficiency exists: Provided, however, That such ad-
ditional visits shall not be made until after rea-
sonable advance notice has been given to the
Contractor, including the nature of the problem
which requires the additional visits.
‘‘(F) PROPERTY.—(i) As provided in sec-
tion 105(f) of the Act, as amended, at the re-
quest of the Contractor the Secretary shall
make available or transfer to the Contractor all
reasonably divisible real property, facilities,
equipment, and personal property that the Sec-
retary had previously utilized to provide or ad-
minister the programs, services, functions, and
activities covered by this Contract. A mutually
agreed upon list specifying the property, facili-
ties, and equipment so furnished shall also be
prepared and periodically revised. The Sec-
retary shall maintain a record of all such prop-
erty for purposes of replacement and shall re-
place such property on the same basis as prop-
erty remaining under the Secretary’s control.
Upon the request of the Contractor, the Sec-
retary and the Contractor shall enter into a
separate joint use agreement to address the
parties’ shared use of real or personal property
that is not reasonably divisible.
‘‘(ii) The Secretary shall delegate to the
Contractor the authority to acquire such ‘ex-
cess’ property as may be appropriate in the
judgment of the Contractor to support the pro-
grams, services, functions, and activities oper-
ated pursuant to this Contract. The Secretary
shall assist the Contractor in obtaining such
confiscated or excess property as may become
available to tribes, tribal organizations, or local
governments. A screener identification card
(General Services Administration form 2946)
shall be issued to the Contractor not later than
the effective date of this Contract. The des-
ignated official shall, upon request, assist the
Contractor in securing the use of the card.
‘‘(iii) The Contractor shall determine what
capital equipment, leases, rentals, property, or
services it shall require to perform its obliga-
tions under this subsection, and shall acquire
and maintain records of such capital equipment,
property rentals, leases, property, or services
through tribal procurement procedures.
‘‘(G) 
SAVINGS.—Notwithstanding 
any
other provision of law, any funds provided
under this Contract shall remain available until
expended and shall require no further approval
by the Secretary nor further justifying docu-
mentation from the Contractor prior to expendi-
ture.
‘‘(H) TRANSPORTATION.—Upon the effec-
tive date of this contract, the Secretary shall
authorize the Contractor to obtain interagency
motor pool vehicles and related services for per-
formance of any activities under this Contract.
‘‘(I) REGULATORY AUTHORITY.—The Con-
tractor is not required to abide by Federal pro-
gram guidelines, manuals, or policy directives
unless otherwise agreed to by the Contractor
and the Secretary.
‘‘(J) DISPUTES.—(i) In addition or as an
alternative to remedies and procedures pre-
scribed by section 110 of the Indian Self-Deter-
mination and Education Assistance Act, the
parties may jointly—
‘‘(I) submit disputes under this Con-
tract to third-party mediation, which for
purposes of this section means that the
Secretary and the Contractor nominate a
third party who together choose a third
party mediator (‘third-party’ means a per-
son not employed by or significantly in-
volved with either the Contractor, the Sec-
retary, or the Department of the Interior
or the Department of Health and Human
Services);
‘‘(II) submit the dispute to the court
of the Contractor’s adjudicatory body, in-
cluding but not limited to the Contractor’s
tribal court;
‘‘(III) submit the dispute to mediation
processes provided for under the Contrac-
tor’s laws, policies, or procedures; or
‘‘(IV) use the processes authorized in
the Administrative Dispute Resolution Act
(5 U.S.C. 571).
‘‘(ii) The Secretary shall be bound by deci-
sions reached by the processes set forth in
clause (i) of this subparagraph of this Contract,
except that the Secretary shall not be bound by
any decision that significantly conflicts with the
interests of the Indians or the United States.
‘‘(K) 
CONTRACTOR’S
ADMINISTRATIVE
PROCEDURES.—Pursuant to the Indian Civil
Rights Act of 1968 (25 U.S.C. 1301 et seq.),
the Contractor’s laws, policies, and procedures
shall provide for administrative due process (or
its equivalent) with respect to programs, serv-
ices, functions, and activities that are provided
by the Contractor pursuant to this Contract.
‘‘(L) 
SUCCESSOR
ANNUAL
FUNDING
AGREEMENT.—Negotiations for a successor an-
nual funding agreement, as provided for in
paragraph (6)(B), shall begin not later than
120 days prior to the conclusion of the preced-
ing annual funding agreement. Funding of suc-
cessor annual funding agreements shall only be
reduced pursuant to section 106(b) of the In-
dian Self-Determination and Education Assist-
ance Act. The Secretary shall prepare and sup-
ply relevant information, and promptly comply
with any request by the Contractor for informa-
tion reasonably needed to determine the funds
that may be available for a successor annual
funding agreement as provided for in paragraph
(6)(B) of this Contract.
‘‘(M) SECRETARIAL
APPROVAL.—(i) Ex-
cept as provided in clause (ii), for the term of
the Contract, section 2103 of the Revised Stat-
utes (25 U.S.C. 81) and section 16 of the Act
of June 18, 1934 (25 U.S.C. 476), shall not
apply to any contract entered into in connection
with this Contract.
‘‘(ii) Each contract entered into by the
Contractor with third parties in connection with
performing its obligations under this Contract
shall—
‘‘(I) be in writing;
‘‘(II) identify the interested parties,
their authorities, and purposes;
‘‘(III) state the work to be performed;
and
‘‘(IV) state the process for making
any claim, the payments to be made, and
the terms of the contract, which shall be
fixed.
‘‘(3) OBLIGATION OF THE CONTRACTOR.—
‘‘(A) CONTRACT
PERFORMANCE.—Except
as provided in paragraph (4)(B), the Contractor
shall perform the programs, services, functions,
and activities as provided in the annual funding
agreement under paragraph (6)(B) of this Con-
tract.
‘‘(B) AMOUNT
OF
FUNDS.—The total
amount of funds to be paid under this Contract
shall be determined in an annual funding agree-
ment entered into between the Secretary and
the Contractor, which shall be incorporated in
its entirety into this Contract.
‘‘(C) CONTRACTED PROGRAMS.—Subject to
the availability of appropriated funds, the Con-
tractor shall administer the programs, services,
functions, and activities identified herein and
funded through the annual funding agreement.
‘‘(D) TRUST
SERVICES
FOR
INDIVIDUAL
INDIANS.—To the extent that the annual fund-
ing agreement provides funding for the delivery
of trust services to individual Indians that were
formerly provided by the Secretary, the Con-
tractor shall maintain at least the same level of
service as was previously provided by the Sec-
retary, subject to the availability of appro-
priated funds for such services. Strictly for the
purposes of this subsection only, ‘‘trust services
for individual Indians’’ means only those serv-
ices that pertain to land or financial manage-
ment connected to individually held allotments.
‘‘(E) FAIR AND UNIFORM SERVICES.—The
Contractor shall provide services under this
contract in a fair and uniform manner and
shall provide access to an administrative or ju-
dicial body empowered to adjudicate or other-
wise resolve complaints, claims, and grievances
brought by program beneficiaries against the
Contractor arising out of the performance of
the Contract.
‘‘(4) OBLIGATION OF THE UNITED STATES.—
‘‘(A) 
TRUST
RESPONSIBILITY.—The
United States reaffirms its trust responsibility
to the lllllll Indian tribes to protect
and conserve the trust resources of the Indian
tribes and of individual Indians. Nothing in this
Contract is intended to, nor shall be construed,
to terminate, waive, modify, or reduce the trust
responsibility of the United States to the tribes
or individual Indians. The Secretary shall act in
good faith in upholding said trust responsibility.
To the extent that health programs are in-
cluded in this Contract, the Secretary shall act
in good faith in cooperating with the Contractor
to achieve the goals set forth in chapter 18 of
title 25, United States Code.
‘‘(B) PROGRAMS RETAINED.—As specified
in the annual funding agreement, the United
States hereby retains the programs, services,
functions, and activities with respect to the
tribes that are not specially assumed by the
Contractor in the annual funding agreement.
‘‘(5) OTHER PROVISIONS.—
‘‘(A) DESIGNATED OFFICIALS.—On or be-
fore the effective date of this Contract, both the
United States and the Contractor shall provide
each other with a written designation of a sen-
ior official as its representative for notices, pro-
posed amendments to the Contract and other
purposes for this Contract.
‘‘(B) 
CONTRACT
MODIFICATIONS
OR
AMENDMENT.—To be effective any modifica-
tions of this Contract shall be in the form of a
written amendment to the Contract, and shall
require the written consent of the Contractor
and the Secretary, except for the addition of
supplemental funds for programs, functions,
and activities (or portions thereof) already in-
cluded in the annual funding agreement.
‘‘(C) OFFICIALS
NOT
TO
BENEFIT.—No
Member of Congress, or resident commissioner,
shall be admitted to any share or part of any
contract executed pursuant to this Contract, or
to any benefit that may arise therefrom; but
this provision shall not be construed to extend
to any contract under this Contract if made
with a corporation for its general benefit.
‘‘(D) COVENANT
AGAINST
CONTINGENT
FEES.—The parties warrant that no person or
selling agency has been employed or retained to
solicit or secure any contract executed pursuant
to this Contract upon an agreement or under-
standing for a commission, percentage, broker-
age, or contingent fee, excepting bona fide em-
ployees or bona fide established commercial or
selling agencies maintained by the contractor
for the purpose of securing business.
‘‘(6) ATTACHMENTS.—
‘‘(A) APPROVAL
OF
CONTRACT.—Unless
previously furnished to the Secretary, the reso-
lution of the ll Indian tribe(s) authorizing
the contracting of the programs, services, func-
tions, and activities identified herein is (are) at-
tached hereto as attachment 1.
‘‘(B) ANNUAL
FUNDING
AGREEMENT.—
The negotiated and duly approved annual fund-
ing agreement shall only contain terms that
identify the programs, services, functions, and
activities to be performed or administered, the
general budget category assigned, the funds to
be provided, the time and method of payment,
and such other provisions, including but not
limited to, a brief description of the programs,
services, functions, and activities to be per-
formed (including those supported by financial
resources other than those provided by the Sec-
retary), as the Contractor may request and to
which the parties agree. The annual funding
agreement is hereby incorporated in its entirety