H. R. 4842
One Hundred Third Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Tuesday,
the twenty-fifth day of January, one thousand nine hundred and ninety-four
An Act
To specify the terms of contracts entered into by the United States and Indian
tribal organizations under the Indian Self-Determination and Education Assistance
Act and to provide for tribal Self-Governance, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Indian Self-Determination Act
Amendments of 1994’’.
TITLE I—INDIAN SELF-DETERMINATION
ACT CONTRACTS
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Indian Self-Determination Con-
tract Reform Act of 1994’’.
SEC. 102. GENERAL AMENDMENTS.
The Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.) is amended—
(1) in section 4—
(A) in subsection (g), by striking ‘‘indirect costs rate’’
and inserting ‘‘indirect cost rate’’;
(B) by striking ‘‘and’’ at the end of subsection (k);
(C) by striking the period at the end of subsection
(l) and inserting ‘‘; and’’; and
(D) by adding at the end the following new subsection:
‘‘(m) ‘construction contract’ means a fixed-price or cost-
reimbursement self-determination 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 adminis-
tered 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.’’;
(2) by striking subsection (f) of section 5 and inserting
the following new subsection:
‘‘(f)(1) For each fiscal year during which an Indian tribal
organization receives or expends funds pursuant to a contract
H. R. 4842—2
entered into, or grant made, under this Act, the tribal organization
that requested such contract or grant shall submit to the appro-
priate Secretary a single-agency audit report required by chapter
75 of title 31, United States Code.
‘‘(2) In addition to submitting a single-agency audit report
pursuant to paragraph (1), a tribal organization referred to in
such paragraph shall submit such additional information concerning
the conduct of the program, function, service, or activity carried
out pursuant to the contract or grant that is the subject of the
report as the tribal organization may negotiate with the Secretary.
‘‘(3) Any disagreement over reporting requirements shall be
subject to the declination criteria and procedures set forth in section
102.’’;
(3) in section 7(a), by striking ‘‘of subcontractors’’ and
inserting in lieu thereof ‘‘or subcontractors (excluding tribes
and tribal organizations)’’;
(4) at the end of section 7, add the following new subsection:
‘‘(c) Notwithstanding subsections (a) and (b), with respect to
any self-determination contract, or portion of a self-determination
contract, that is intended to benefit one tribe, the tribal employment
or contract preference laws adopted by such tribe shall govern
with respect to the administration of the contract or portion of
the contract.’’;
(5) at the end of section 102(a)(1), add the following new
flush sentence:
‘‘The programs, functions, services, or activities that are contracted
under this paragraph 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 contract-
able. The administrative functions referred to in the preceding
sentence shall be contractable without regard to the organizational
level within the Department that carries out such functions.’’;
(6) in section 102(a)—
(A) in paragraph (2)—
(i) in the first sentence, by inserting ‘‘, or a proposal
to amend or renew a self-determination contract,’’
before ‘‘to the Secretary for review’’;
(ii) in the second sentence—
(I) by striking ‘‘The’’ and inserting ‘‘Subject
to the provisions of paragraph (4), the’’;
(II) by inserting ‘‘and award the contract’’ after
‘‘approve the proposal’’;
(III) by striking ‘‘, within sixty days of receipt
of the proposal,’’; and
(IV) by striking ‘‘a specific finding is made
that’’ and inserting ‘‘the Secretary provides written
notification to the applicant that contains a specific
finding that clearly demonstrates that, or that is
supported by a controlling legal authority that’’;
(iii) in subparagraph (B), by striking ‘‘or’’ after
the semicolon;
(iv) in subparagraph (C), by striking the period
at the end and inserting a semicolon;
H. R. 4842—3
(v) by adding at the end the following new subpara-
graphs:
‘‘(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); or
‘‘(E) the program, function, service, or activity (or por-
tion thereof) that is the subject of the proposal is beyond
the scope of programs, functions, services, or activities cov-
ered under paragraph (1) because the proposal includes
activities that cannot lawfully be carried out by the contrac-
tor.’’; and
(vi) by adding at the end of the paragraph the
following new flush material:
‘‘Notwithstanding any other provision of law, the Secretary may
extend or otherwise alter the 90-day period specified in the second
sentence of this subsection, if before the expiration of such period,
the Secretary obtains the voluntary and express written consent
of the tribe or tribal organization to extend or otherwise alter
such period. The contractor shall include in the proposal of the
contractor the standards under which the tribal organization will
operate the contracted program, service, function, or activity, includ-
ing in the area of construction, provisions regarding the use of
licensed and qualified architects, applicable health and safety stand-
ards, adherence to applicable Federal, State, local, or tribal building
codes and engineering standards. The standards referred to in
the preceding sentence shall ensure structural integrity, account-
ability of funds, adequate competition for subcontracting under
tribal or other applicable law, the commencement, performance,
and completion of the contract, adherence to project plans and
specifications (including any applicable Federal construction guide-
lines and manuals), the use of proper materials and workmanship,
necessary inspection and testing, and changes, modifications, stop
work, and termination of the work when warranted.’’; and
(B) by adding at the end the following new paragraph:
‘‘(4) The Secretary shall approve any severable portion of a
contract proposal that does not support a declination finding
described in paragraph (2). If the Secretary determines under such
paragraph that a contract proposal—
‘‘(A) proposes in part to plan, conduct, or administer a
program, function, service, or activity that is beyond the scope
of programs covered under paragraph (1), or
‘‘(B) proposes a level of funding that is in excess of the
applicable level determined under section 106(a),
subject to any alteration in the scope of the proposal that the
Secretary and the tribal organization agree to, the Secretary shall,
as appropriate, approve such portion of the program, function, serv-
ice, or activity as is authorized under paragraph (1) or approve
a level of funding authorized under section 106(a). If a tribal
organization elects to carry out a severable portion of a contract
proposal pursuant to this paragraph, subsection (b) shall only apply
to the portion of the contract that is declined by the Secretary
pursuant to this subsection.’’;
(7) in section 102(b)(3)—
(A) by inserting after ‘‘record’’ the following: ‘‘with the
right to engage in full discovery relevant to any issue
raised in the matter’’; and
H. R. 4842—4
(B) by inserting before the period the following: ‘‘,
except that the tribe or tribal organization may, in lieu
of filing such appeal, exercise the option to initiate an
action in a Federal district court and proceed directly to
such court pursuant to section 110(a)’’;
(8) in section 102(d), by striking ‘‘as provided in section
2671 of title 28)’’ and inserting ‘‘as provided in section 2671
of title 28, United States Code, and including an individual
who provides health care services pursuant to a personal serv-
ices contract with a tribal organization for the provision of
services in any facility owned, operated, or constructed under
the jurisdiction of the Indian Health Service)’’;
(9) by adding at the end of section 102 the following new
subsection:
‘‘(e)(1) With respect to any hearing or appeal conducted pursu-
ant to subsection (b)(3), the Secretary shall have the burden of
proof to establish by clearly demonstrating the validity of the
grounds for declining the contract proposal (or portion thereof).
‘‘(2) Notwithstanding any other provision of law, a decision
by an official of the Department of the Interior or the Department
of Health and Human Services, as appropriate (referred to in this
paragraph as the ‘Department’) that constitutes final agency action
and that relates to an appeal within the Department that is con-
ducted under subsection (b)(3) shall be made either—
‘‘(A) by an official of the Department who holds a position
at a higher organizational level within the Department than
the level of the departmental agency (such as the Indian Health
Service or the Bureau of Indian Affairs) in which the decision
that is the subject of the appeal was made; or
‘‘(B) by an administrative judge.’’;
(10) by striking subsection (a) of section 105 and inserting
the following new subsection:
‘‘(a)(1) Notwithstanding any other provision of law, subject to
paragraph (3), the contracts and cooperative agreements entered
into with tribal organizations pursuant to section 102 shall not
be subject to Federal contracting or cooperative agreement laws
(including any regulations), except to the extent that such laws
expressly apply to Indian tribes.
‘‘(2) Program standards applicable to a nonconstruction self-
determination contract shall be set forth in the contract proposal
and the final contract of the tribe or tribal organization.
‘‘(3)(A) 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 relating to acquisitions promulgated under such Act
shall apply only to the extent that the application of such provision
to the construction contract (or subcontract) 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 this Act.
‘‘(B) A list of the Federal requirements that meet the require-
ments of clauses (i) through (iii) of subparagraph (A) shall be
included in an attachment to the contract pursuant to negotiations
between the Secretary and the tribal organization.
‘‘(C)(i) Except as provided in subparagraph (B), no Federal
law listed in clause (ii) or any other provision of Federal law
H. R. 4842—5
(including an Executive order) relating to acquisition by the Federal
Government shall apply to a construction contract that a tribe
or tribal organization enters into under this Act, unless expressly
provided in such law.
‘‘(ii) The laws listed in this paragraph are as follows:
‘‘(I) The Federal Property and Administrative Services Act
of 1949 (40 U.S.C. 471 et seq.).
‘‘(II) Section 3709 of the Revised Statutes.
‘‘(III) Section 9(c) of the Act of Aug. 2, 1946 (60 Stat.
809, chapter 744).
‘‘(IV) Title III of the Federal Property and Administrative
Services Act of 1949 (63 Stat. 393 et seq., chapter 288).
‘‘(V) Section 13 of the Act of Oct. 3, 1944 (58 Stat. 770;
chapter 479).
‘‘(VI) Chapters 21, 25, 27, 29, and 31 of title 44, United
States Code.
‘‘(VII) Section 2 of the Act of June 13, 1934 (48 Stat
948, chapter 483).
‘‘(VIII) Sections 1 through 12 of the Act of June 30, 1936
(49 Stat. 2036 et seq. chapter 881).
‘‘(IX) The Service Control Act of 1965 (41 U.S.C. 351 et
seq.).
‘‘(X) The Small Business Act (15 U.S.C. 631 et seq.).
‘‘(XI) Executive Order Nos. 12138, 11246, 11701 and
11758.’’;
(11) by striking subsection (e) and inserting the following
new subsection:
‘‘(e) If an Indian tribe, or a tribal organization authorized
by a tribe, requests retrocession of the appropriate Secretary for
any contract or portion of a contract entered into pursuant to
this Act, unless the tribe or tribal organization rescinds the request
for retrocession, such retrocession shall become effective on—
‘‘(1) the earlier of—
‘‘(A) the date that is 1 year after the date the Indian
tribe or tribal organization submits such request; or
‘‘(B) the date on which the contract expires; or
‘‘(2) such date as may be mutually agreed by the Secretary
and the Indian tribe.’’;
(12) by striking paragraph (2) of section 105(f) and inserting
the following new paragraph:
‘‘(2) donate to an Indian tribe or tribal organization title
to any personal or real property found to be excess to the
needs of the Bureau of Indian Affairs, the Indian Health Serv-
ice, or the General Services Administration, except that—
‘‘(A) subject to the provisions of subparagraph (B), title
to property and equipment furnished by the Federal
Government for use in the performance of the contract
or purchased with funds under any self-determination con-
tract or grant agreement shall, unless otherwise requested
by the tribe or tribal organization, vest in the appropriate
tribe or tribal organization;
‘‘(B) if property described in subparagraph (A) has
a value in excess of $5,000 at the time of the retrocession,
rescission, or termination of the self-determination contract
or grant agreement, at the option of the Secretary, upon
the retrocession, rescission, or termination, title to such
property and equipment shall revert to the Department
H. R. 4842—6
of the Interior or the Department of Health and Human
Services, as appropriate; and
‘‘(C) all property referred to in subparagraph (A) shall
remain eligible for replacement on the same basis as if
title to such property were vested in the United States;
and’’;
(13) by adding at the end of section 105 the following
new subsections:
‘‘(i)(1) If a self-determination contract requires the Secretary
to divide the administration of a program that has previously been
administered for the benefit of a greater number of tribes than
are represented by the tribal organization that is a party to the
contract, the Secretary shall take such action as may be necessary
to ensure that services are provided to the tribes not served by
a self-determination contract, including program redesign in con-
sultation with the tribal organization and all affected tribes.
‘‘(2) Nothing in this title shall be construed to limit or reduce
in any way the funding for any program, project, or activity serving
a tribe under this or other applicable Federal law. Any tribe or
tribal organization that alleges that a self-determination contract
is in violation of this section may apply the provisions of section
110.
‘‘(j) Upon providing notice to the Secretary, a tribal organization
that carries out a nonconstruction self-determination contract may
propose a redesign of a program, activity, function, or service carried
out by the tribal organization under the contract, including any
nonstatutory program standard, in such manner as to best meet
the local geographic, demographic, economic, cultural, health, and
institutional needs of the Indian people and tribes served under
the contract. The Secretary shall evaluate any proposal to redesign
any program, activity, function, or service provided under the con-
tract. With respect to declining to approve a redesigned program,
activity, function, or service under this subsection, the Secretary
shall apply the criteria and procedures set forth in section 102.
‘‘(k) For purposes of section 201(a) of the Federal Property
and Administrative Services Act of 1949 (40 U.S.C. 481(a)) (relating
to Federal sources of supply, including lodging providers, airlines
and other transportation providers), a tribal organization carrying
out a contract, grant, or cooperative agreement under this Act
shall be deemed an executive agency when carrying out such con-
tract, grant, or agreement and the employees of the tribal organiza-
tion shall be eligible to have access to such sources of supply
on the same basis as employees of an executive agency have such
access.
‘‘(l)(1) Upon the request of an Indian tribe or tribal organization,
the Secretary shall enter into a lease with the Indian tribe or
tribal organization that holds title to, a leasehold interest in, or
a trust interest in, a facility used by the Indian tribe or tribal
organization for the administration and delivery of services under
this Act.
‘‘(2) The Secretary shall compensate each Indian tribe or tribal
organization that enters into a lease under paragraph (1) for the
use of the facility leased for the purposes specified in such para-
graph. Such compensation may include rent, depreciation based
on the useful life of the facility, principal and interest paid or
accrued, operation and maintenance expenses, and such other
H. R. 4842—7
reasonable expenses that the Secretary determines, by regulation,
to be allowable.
‘‘(m)(1) Each construction contract requested, approved, or
awarded under this Act shall be subject to—
‘‘(A) except as otherwise provided in this Act, the provisions
of this Act, other than sections 102(a)(2), 106(l), 108 and 109;
and
‘‘(B) section 314 of the Department of the Interior and
Related Agencies Appropriations Act, 1991 (104 Stat. 1959).
‘‘(2) In providing technical assistance to tribes and tribal
organizations in the development of construction contract proposals,
the Secretary shall provide, not later than 30 days after receiving
a request from a tribe or tribal organization, all information avail-
able to the Secretary regarding 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.
‘‘(3) Prior to finalizing a construction contract proposal pursuant
to section 102(a), and upon request of the tribe or tribal organization
that submits the proposal, the Secretary shall provide for a
precontract negotiation phase in the development of a contract
proposal. Such phase shall include, at a minimum, the following
elements:
‘‘(A) The provision of technical assistance pursuant to sec-
tion 103 and paragraph (2).
‘‘(B) A joint scoping session between the Secretary and
the tribe or tribal organization to review all plans, specifica-
tions, engineering reports, cost estimates, and other information
available to the parties, for the purpose of identifying all areas
of agreement and disagreement.
‘‘(C) An opportunity for the Secretary to revise the plans,
designs, or cost estimates of the Secretary in response to con-
cerns raised, or information provided by, the tribe or tribal
organization.
‘‘(D) A negotiation session during which the Secretary and
the tribe or tribal organization shall seek to develop a mutually
agreeable contract proposal.
‘‘(E) Upon the request of the tribe or tribal organization,
the use of an alternative dispute resolution mechanism to seek
resolution of all remaining areas of disagreement pursuant
to the dispute resolution provisions under subchapter IV of
chapter 5 of title 5, United States Code.
‘‘(F) The submission to the Secretary by the tribe or tribal
organization of a final contract proposal pursuant to section
102(a).
‘‘(4)(A) Subject to subparagraph (B), in funding a fixed-price
construction contract pursuant to section 106(a), the Secretary shall
provide for the following:
‘‘(i) The reasonable costs to the 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
and other relevant considerations.
H. R. 4842—8
‘‘(B) In establishing a contract budget for a construction project,
the Secretary shall not be required to separately identify the compo-
nents described in clauses (i) and (ii) of subparagraph (A).
‘‘(C) The total amount awarded under a construction contract
shall reflect an overall fair and reasonable price to the parties,
including the following costs:
‘‘(i) The reasonable costs to the tribal organization of
performing the contract, taking into consideration the terms
of the contract and the requirements of this Act and any other
applicable law.
‘‘(ii) The costs of preparing the contract proposal and
supporting cost data.
‘‘(iii) The costs associated with auditing the general and
administrative costs of the tribal organization associated with
the management of the construction contract.
‘‘(iv) In the case of a fixed-price contract, a fair profit
determined by taking into consideration the relevant risks and
local market conditions.
‘‘(v) If the Secretary and the tribe or tribal organization
are unable to develop a mutually agreeable construction con-
tract proposal pursuant to the procedures set forth in this
subsection, the tribe or tribal organization may submit a final
contract proposal to the Secretary. Not later than 30 days
after receiving such final contract proposal, the Secretary shall
approve the contract proposal and award the contract, unless,
during such period the Secretary declines the proposal pursuant
to sections 102(a)(2) and 102(b) of section 102 (including provid-
ing opportunity for an appeal pursuant to section 102(b)).
‘‘(n) Notwithstanding any other provision of law, the rental
rates for housing provided to an employee by the Federal Govern-
ment in Alaska pursuant to a self-determination contract shall
be determined on the basis of—
‘‘(1) the reasonable value of the quarters and facilities
(as such terms are defined under section 5911 of title 5, United
States Code) to such employee, and
‘‘(2) the circumstances under which such quarters and
facilities are provided to such employee,
as based on the cost of comparable private rental housing in the
nearest established community with a year-round population of
1,500 or more individuals.’’;
(14) in section 106(a)—
(A) in paragraph (1), by inserting before the period
at the end the following: ‘‘, without regard to any organiza-
tional level within the Department of the Interior or the
Department of Health and Human Services, as appropriate,
at which the program, function, service, or activity or por-
tion thereof, including supportive administrative functions
that are otherwise contractable, is operated’’;
(B) in paragraph (2), by inserting after ‘‘consist of’’
the following: ‘‘an amount for’’; and
(C) by striking paragraph (3) and inserting the follow-
ing new paragraphs:
‘‘(3)(A) The contract support costs that are eligible costs for
the purposes of receiving funding under this Act shall include
the costs of reimbursing each tribal contractor for reasonable and
allowable costs of—