[Congressional Record Volume 140, Number 144 (Thursday, October 6, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: October 6, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
             INDIAN SELF-DETERMINATION CONTRACT REFORM ACT

  Mr. FORD. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 625, S. 2036, 
the Indian Self-Determination Contract Reform Act of 1994.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 2036) 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.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill 
which had been reported from the Committee on Indian Affairs, with an 
amendment as follows:

       Strike out all after the enacting clause and insert in lieu 
     thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Indian Self-Determination 
     Contract Reform Act of 1994''.

     SEC. 2. GENERAL AMENDMENTS.

       The Indian Self-Determination and Education Assistance Act 
     (25 U.S.C. 450 et seq.) is amended--
       (1) in section 4--
       (A) by redesignating subsections (a) through (l) as 
     paragraphs (2) through (13), respectively;
       (B) by inserting before paragraph (2), as so redesignated, 
     the following new paragraph:
       ``(1) `Construction contract' means a fixed-price or cost-
     reimbursement self-determination contract for a construction 
     project. Such term does not include any contract--
       ``(A) that is limited to providing architectural and 
     engineering services, planning services, or construction 
     management services (or a combination of such services);
       ``(B) for the Housing Improvement Program or roads 
     maintenance program of the Bureau of Indian Affairs 
     administered by the Secretary of the Interior; or
       ``(C) for the health facility maintenance and improvement 
     program administered by the Secretary of Health and Human 
     Services.'';
       (C) in each of paragraphs (2) through (12), by striking the 
     semicolon at the end and inserting a period;
       (D) in paragraph (2), as so redesignated, by striking 
     ``construction programs'' and inserting ``Construction 
     programs'';
       (E) in paragraph (3), as so redesignated, by striking 
     ``contract funding base'' and inserting ``Contract funding 
     base'';
       (F) in paragraph (4), as so redesignated, by striking 
     ``direct program costs'' and inserting ``Direct program 
     costs'';
       (G) in paragraph (7), as so redesignated, by striking 
     ``indirect costs'' and inserting ``Indirect costs'';
       (H) in paragraph (8), as so redesignated, by striking 
     ``indirect costs rate'' and inserting ``Indirect cost rate'';
       (I) in paragraph (9), as so redesignated, by striking 
     ``mature contract'' and inserting ``Mature contract'';
       (J) in paragraph (11), as so redesignated, by striking 
     ``self-determination contract'' and inserting ``Self-
     determination contract''; and
       (K) in paragraph (13), as so redesignated, by striking 
     ``tribal organization'' and inserting ``Tribal 
     organization'';
       (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 
     entered into, or grant made, under this Act, the tribal 
     organization that requested such contract or grant shall 
     submit to the appropriate 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 related to, but not 
     included as part of, the service delivery programs described 
     in this paragraph that are otherwise contractable. 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''; and

       (III) by striking ``a specific finding is made that'' and 
     inserting ``the Secretary provides written notification to 
     the applicant that contains a specific finding (citing clear 
     and convincing evidence or a controlling legal authority) 
     that'';

       (iii) in subparagraph (A)--

       (I) by inserting ``by the tribal organization'' after 
     ``rendered''; and
       (II) by striking ``not be satisfactory'' and inserting 
     ``endanger the health, safety, or welfare of the 
     beneficiaries'';

       (iv) in subparagraph (B), by inserting ``by the tribal 
     organization'' after ``resources'';
       (v) in subparagraph (C), by striking the period at the end 
     and inserting the following: ``because--
       ``(i) 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
       ``(ii) the program, function, service, or activity (or 
     portion thereof) that is the subject of the proposal is 
     beyond the scope of programs, functions, services, or 
     activities covered under paragraph (1) because the proposal 
     includes activities that cannot lawfully be carried out by 
     the contractor.''; and
       (vi) by adding at the end of the paragraph the following 
     new flush sentence:

     ``Notwithstanding any other provision of law, the Secretary 
     may extend or otherwise alter a 60-day or 90-day period 
     specified in the first or 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.''; 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) proposed 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, service, 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
       (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 services 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 
     subsections:
       ``(e)(1) With respect to any hearing or appeal conducted 
     pursuant to subsection (b)(3), the Secretary shall have the 
     burden of proof to establish by clear and convincing 
     evidence--
       ``(A) the validity of the grounds for declining the 
     contract proposal (or portion thereof); and
       ``(B) that the tribe or tribal organization, would not be 
     able after the Secretary has provided such assistance as the 
     Secretary is required to provide, to overcome the reasons for 
     the objections to the contract proposal stated in a notice of 
     declination issued by the Secretary pursuant to subsection 
     (b).
       ``(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 conducted under subsection 
     (b)(3) shall be made 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.
       ``(f)(1) Notwithstanding any other provision of law, a 
     tribal organization that is located in Alaska that is 
     authorized by a tribal resolution to enter into a contract 
     under this Act for the operation of a program, function, 
     service, or activity that meets the requirements of this Act 
     may redelegate the authority to enter into such a contract to 
     another tribal organization.
       ``(2) The redelegation of authority referred to in 
     paragraph (1) may be carried out by formal action of the 
     governing body of the tribal organization to another tribal 
     organization, if the tribal organization provides advance 
     notice of such redelegation and provides a copy of the 
     contract proposal to all tribes served by the tribal 
     organization prior to submitting the contract proposal to the 
     Secretary.
       ``(3)(A) A tribe that receives notice of a proposed 
     redelegation of authority under paragraph (2) may--
       ``(i) not later than 60 days after the date of receipt of 
     the notification, notify the tribal organization of its 
     intent to adopt a limiting resolution prohibiting or 
     conditioning the proposed redelegation; and
       ``(ii) during the 60-day period beginning on the date of 
     termination of the period referred to in subparagraph (A), 
     adopt and transmit such resolution to the tribal 
     organization.
       ``(B) A tribal organization that receives notification of 
     the intent of a tribe to adopt a limiting resolution pursuant 
     to subparagraph (A)(i) shall not proceed with the 
     redelegation that is the subject of the notification until 
     the expiration of the period specified in subparagraph 
     (A)(ii).
       ``(4) Nothing in this subsection may be construed as a 
     limitation on the authority of a tribe to limit, restrict, or 
     rescind a resolution to enter into a contract described in 
     paragraph (1) at any time or in any manner.'';
       (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 (2), the contracts and cooperative 
     agreements entered into with, and grants made to, tribal 
     organizations pursuant to sections 102 and 103 shall not be 
     subject to any Federal laws (including any regulations) of 
     general applicability relating to contracts or discretionary 
     cooperative agreements entered into or grants made by the 
     Federal Government, except to the extent that such laws 
     expressly apply to Indian tribes.
       ``(2)(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 
     requirements 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 (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) The Work Hours Act of 1962 (40 U.S.C. 328 et seq.).
       ``(VIII) Section 2 of the Act of June 13, 1934 (48 Stat 
     948, chapter 483).
       ``(IX) Sections 1 through 12 of the Act of June 30, 1936 
     (49 Stat. 2036 et seq. chapter 881).
       ``(X) The Service Control Act of 1965 (41 U.S.C. 351 et 
     seq.).
       ``(XI) The Small Business Act (15 U.S.C. 631 et seq.).
       ``(XII) 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 tribal organization 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 
     Service, or the General Services Administration, except 
     that--
       ``(A) title to property and equipment (other than property 
     and equipment described in subparagraph (B)) furnished by the 
     Federal Government for use in the performance of the contract 
     or purchased with funds under any self-determination contract 
     or grant agreement shall, unless otherwise requested by the 
     tribe or tribal organization, vest in the appropriate tribe 
     or tribal organization; and
       ``(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, and if such property remains in use in 
     support of the contracted program, at the option of the 
     Secretary, upon the retrocession, rescission, or termination, 
     title to such property and equipment shall revert to the 
     Department of the Interior or the Department of Health and 
     Human Services, as appropriate; 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--
       ``(A) endeavor to minimize any adverse effect on the level 
     of services to be provided to all affected tribes;
       ``(B) notify all affected tribes that are not a party to 
     the contract, as soon as practicable after receipt of the 
     contract proposal--
       ``(i) of the receipt of the contract proposal; and
       ``(ii) of the right of such tribes to comment on the best 
     means of dividing the administration of the program to meet 
     the needs of all affected tribes;
       ``(C) explore the feasibility of instituting cooperative 
     agreements among the affected tribes that are not a party to 
     the contract, the tribal organization operating the contract, 
     and the Secretary; and
       ``(D)(i) identify the nature of any diminution in quality, 
     level, or quantity of services to any affected tribe 
     resulting from the division of the program; and
       ``(ii) submit a report to Congress that contains the 
     identification, together with an estimate of the funds 
     required to raise the quality, level, or quantity, of 
     services to correct the diminution.
       ``(2) In determining whether to decline a contract under 
     section 102(a)(2), the Secretary may not consider the effect 
     that a contract proposal would have on--
       ``(A) tribes not represented by the tribe or tribal 
     organization that submits such proposal; or
       ``(B) Indians who are not served by the portion of the 
     program to be contracted.
       ``(3) 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.
       ``(j) Upon providing notice to the Secretary, a tribal 
     organization that carries out a self-determination contract 
     may redesign a program, activity, function, or service 
     carried out by the tribal organization under the contract, 
     including any 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 contract. 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 contract, 
     grant, or agreement and the employees of the tribal 
     organization 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 beneficial 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 paragraph. 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 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) the provisions of this Act, including sections 7, 
     102(a), 102(b), 103 (d) and (e), 105(f), 106(a), 106(f), 110 
     and 111; 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 available 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 
     section 103 and paragraph (2).
       ``(B) A joint scoping session between the Secretary and the 
     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.
       ``(C) An opportunity for the Secretary to revise the plans, 
     designs, or cost estimates of the Secretary in response to 
     concerns 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.
       ``(B) In establishing a contract budget for a construction 
     project, the Secretary shall not be required to separately 
     identify the components 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.
       ``(iv) In the case of a fixed-price contract, a fair profit 
     determined by taking into consideration the relevant risks 
     and local market conditions.
       ``(n) Notwithstanding any other provision of law, the 
     rental rates for housing provided to an employee by the 
     Federal Government 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 of the following: ``, without regard to any 
     organizational 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 
     portion 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 following 
     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--
       ``(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.
       ``(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-determination 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-
     determination 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) in paragraphs (1) and (2), by striking ``indirect 
     costs'' each place it appears and inserting ``indirect costs 
     and other negotiated contract support costs'';
       (B) in paragraph (4), by striking ``and'' at the end;
       (C) in paragraph (5), by striking the period at the end and 
     inserting ``; and''; and
       (D) 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 
     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 allocate 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) 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 
     specifically prohibited by law, including the depreciation of 
     facilities owned by the tribe or tribal organization and 
     constructed with Federal financial assistance.
       ``(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.
       ``(10) Interest expenses paid on capital expenditures such 
     as buildings, building renovation, or acquisition or 
     fabrication of capital equipment, and interest expenses on 
     loans necessitated 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 programs 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) Not later than 1 year after the date of enactment of 
     this subsection, the Director of the Office of Management and 
     Budget, with the active participation of Indian tribes and 
     tribal organizations, the Inspector General of the Department 
     of the Interior, and the head of the Cost Determination 
     Branch of the Department of Health and Human Services, shall 
     develop a separate set of cost principles applicable to 
     Indian tribes and tribal organizations that is consistent 
     with the government-to-government, Federal-tribal 
     relationship provided for in this Act.
       ``(m) Except with respect to a rescission and reassumption 
     of a contract made under section 109, the Secretary shall in 
     no circumstance suspend, withhold, or delay the payment of 
     funds to a tribal organization under a self-determination 
     contract.
       ``(n) 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.
       ``(o) To the extent that--
       ``(1) programs, functions, services, or activities carried 
     out by 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 subsection (a), and
       ``(2) making such savings available to tribal organizations 
     that carry out contracts under this Act will not adversely 
     affect the ability of the Secretary to carry out the 
     responsibilities of the Secretary with respect to other 
     tribes and tribal organizations,

     the Secretary shall make such savings available to tribal 
     organizations described in paragraph (1).
       ``(p) Notwithstanding any other provision of law (including 
     any regulation), a tribal organization that carries out a 
     self-determination contract may, with respect to allocations 
     within the approved budget of the contract, rebudget to meet 
     contract requirements, if such rebudgeting would not have a 
     significant and adverse effect on the level or nature of 
     services provided pursuant to the contract.''.

     SEC. 3. CONTRACT SPECIFICATIONS.

       Section 108 of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450j) is amended to read as 
     follows:

     ``SEC. 108. CONTRACT OR GRANT SPECIFICATIONS.

       ``(a) Each self-determination contract entered into under 
     this Act, or grant made pursuant to this Act, shall--
       ``(1) contain, or incorporate by reference, the provisions 
     of the model agreement described in subsection (c) (with 
     modifications 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)(4) of 
     such model agreement. As provided in section 1(b)(5) 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 ____ 
                   TRIBAL GOVERNMENT.

       ```(a) Authority and Purpose.--
       ```(1) Authority.--This agreement, denoted a Self-
     Determination Contract (referred to in this agreement as the 
     ``Contract''), 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-Determination and Education Assistance Act (25 
     U.S.C. 450 et seq.) and by the authority of the ____ tribal 
     government or tribal organization (referred to in this 
     agreement as the ``Contractor''). Unless otherwise provided 
     in this agreement, the provisions of title I of the Indian 
     Self-Determination and Education Assistance Act (25 U.S.C. 
     450 et seq.) are incorporated in this agreement.
       ```(2) Purpose.--Each provision of the Indian Self-
     Determination 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 programs (or portions thereof), including all 
     related administrative functions, from the Federal Government 
     to the Contractor: (List functions, services, activities, and 
     programs).
       ```(3) Tribal law and forums.--The laws or policies (or 
     both) and procedures of the Contractor shall be applied in 
     the performance of this Contract and the powers and decisions 
     of the tribal court of the Contractor or other dispute 
     resolution mechanism shall be binding to the extent that such 
     laws or policies (or both) and procedures are not 
     inconsistent with applicable Federal laws, including the 
     Indian Self-Determination and Education Assistance Act (25 
     U.S.C. 450 et seq.), construed in accordance with the 
     applicable canons of construction.
       ```(b) Terms, Provisions, and Conditions.--
       ```(1) Term.--The term of this Contract shall not exceed 3 
     years, unless the Secretary and the Contractor agree to a 
     longer period pursuant to section 105(c)(1)(B) of the Indian 
     Self-Determination and Education Assistance Act (25 U.S.C. 
     450j(c)(1)(B)). Pursuant 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 
     effective upon the date of the approval and execution by the 
     Contractor and the Secretary, unless the Contractor and the 
     Secretary agree on an effective date other than the date 
     specified in this paragraph.
       ```(3) Funding amount.--Subject to the availability of 
     appropriations, the Secretary shall make available to the 
     Contractor the total amount specified in the annual funding 
     agreement incorporated by reference in subsection (f)(2). 
     Such amount shall not be less than the applicable amount 
     determined pursuant to section 106(a) of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450j-
     1).
       ```(4) Limitation of costs.--The Contractor shall not be 
     obligated to continue performance that requires an 
     expenditure of funds in excess of the amount of funds awarded 
     under this Contract. If, at any time, the Contractor has 
     reason to believe that the total amount required for 
     performance of this Contract or a specific activity conducted 
     under this Contract would be greater than the amount of funds 
     awarded under this Contract, the Contractor shall notify the 
     appropriate Secretary. If the appropriate Secretary does not 
     take such action as may be necessary to increase the amount 
     of funds awarded under this Contract, the Contractor may 
     suspend performance of the Contract until such time as 
     additional funds are awarded. If, pursuant to the preceding 
     sentence, the Contractor suspends performance of the 
     Contract, all duties and responsibilities assumed by the 
     Contractor before the date on which the Contractor suspends 
     performance shall be transferred to the appropriate 
     Secretary, and the appropriate Secretary shall carry out such 
     duties and responsibilities.
       ```(5) Payment.--
       ```(A) In general.--Payments to the Contractor under this 
     Contract shall--
       ```(i) be made as expeditiously as practicable; and
       ```(ii) include financial arrangements to cover funding 
     during periods covered by joint resolutions adopted by 
     Congress making continuing appropriations, to the extent 
     permitted by such resolutions.
       ```(B) Quarterly semiannual, lump-sum, and other methods of 
     payment.--
       ```(i) In general.--Pursuant to section 108(b) of the 
     Indian Self-Determination and Education Assistance Act, and 
     notwithstanding any other provision of law, for each fiscal 
     year covered by this Contract, the Secretary shall make 
     available to the Contractor the funds specified for the 
     fiscal year under the annual funding agreement incorporated 
     by reference pursuant to subsection (f)(2) by paying to the 
     Contractor, on a quarterly basis, one-quarter of the total 
     amount provided for in the annual funding agreement for that 
     fiscal year, in a lump-sum payment or as semiannual payments, 
     or any other method of payment authorized by law, in 
     accordance with such method as may be requested by the 
     Contractor and specified in the annual funding agreement.
       ```(ii) Method of quarterly payment.--If quarterly payments 
     are specified in the annual funding agreement incorporated by 
     reference pursuant to subsection (f)(2), each quarterly 
     payment made pursuant to clause (i) shall be made on the 
     first day of each quarter of the fiscal year, except that in 
     any case in which 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 
     apportions the appropriations for the fiscal year for the 
     programs, services, functions, and activities subject to this 
     Contract.
       ```(iii) Applicability.--Chapter 39 of title 31, United 
     States Code, shall apply to the payment of funds due under 
     this Contract and the annual funding agreement referred to in 
     clause (i).
       ```(6) Records and monitoring.--
       ```(A) In general.--Except 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 or the Department of Health 
     and Human Services (or both), records of the Contractor shall 
     not be considered Federal records for purposes of chapter 5 
     of title 5, United States Code.
       ```(B) Recordkeeping system.--The Contractor shall maintain 
     a recordkeeping system and, upon reasonable advance request, 
     provide reasonable access to such records to the Secretary.
       ```(C) Responsibilities of contractor.--The Contractor 
     shall be responsible for managing the day-to-day operations 
     conducted under this Contract and for monitoring activities 
     conducted under this Contract to ensure compliance with the 
     contract and applicable Federal requirements. With respect to 
     the monitoring activities of the Secretary, the monitoring 
     visits shall be limited to not more than one performance 
     monitoring visit for this Contract by the head of each 
     operating division, departmental bureau, or departmental 
     agency, or duly authorized representative of such head 
     unless--
       ```(i) the Contractor agrees to one or more additional 
     visits; or
       ```(ii) the appropriate official determines that there is 
     reasonable cause to believe that grounds for reassumption of 
     the Contract or other serious contract performance deficiency 
     exists.

     No additional visit referred to in clause (i) shall be made 
     until such time as reasonable advance notice that includes a 
     description of the nature of the problem that requires the 
     additional visit has been given to the Contractor.
       ```(7) Property.--
       ```(A) In general.--As provided in section 105(f) of the 
     Indian Self-Determination and Education Assistance Act (25 
     U.S.C. 450j(f)), at the request 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 
     Secretary has used to provide or administer the programs, 
     services, functions, and activities covered by this Contract. 
     A mutually agreed upon list specifying the property, 
     facilities, and equipment so furnished shall also be prepared 
     by the Contractor, with the concurrence of the Secretary, and 
     periodically revised by the contractor, with the concurrence 
     of the Secretary.
       ```(B) Records.--The Secretary shall maintain a record of 
     all property referred to in subparagraph (A) or other 
     property acquired by the Contractor under section 
     105(f)(2)(A) of such Act for purposes of replacement and 
     shall replace such property on the same basis as property 
     remaining under the control of the Secretary.
       ```(C) Joint use agreements.--Upon the request of the 
     Contractor, the Secretary and the Contractor shall enter into 
     a separate joint use agreement to address the shared use by 
     the parties of real or personal property that is not 
     reasonably divisible.
       ```(D) Acquisition of property.--The Secretary shall 
     delegate to the Contractor the authority to acquire such 
     excess property as the Contractor may determine to be 
     appropriate in the judgment of the Contractor to support the 
     programs, services, functions, and activities operated 
     pursuant to this Contract.
       ```(E) Confiscated or excess property.--The Secretary shall 
     assist the Contractor in obtaining such confiscated or excess 
     property as may become available to tribes, tribal 
     organizations, or local governments.
       ```(F) Screener identification card.--A screener 
     identification card (General Services Administration form 
     numbered 2946) shall be issued to the Contractor not later 
     than the effective date of this Contract. The designated 
     official shall, upon request, assist the Contractor in 
     securing the use of the card.
       ```(G) Capital equipment.--The Contractor shall determine 
     the capital equipment, leases, rentals, property, or services 
     the Contractor requires to perform the obligations of the 
     Contractor under this subsection, and shall acquire and 
     maintain records of such capital equipment, property rentals, 
     leases, property, or services through applicable tribal 
     procurement procedures.
       ```(8) Availability of funds.--Notwithstanding any other 
     provision of law, any funds provided under this contract--
       ```(A) shall remain available until expended; and
       ```(B) with respect to such funds, no further--
       ```(i) approval by the Secretary, or
       ```(ii) justifying documentation from the Contractor,

     shall be required prior to the expenditure of such funds.
       ```(9) Transportation.--Beginning on the effective date of 
     this Contract, the Secretary shall authorize the Contractor 
     to obtain interagency motor pool vehicles and related 
     services for performance of any activities carried out under 
     this Contract.
       ```(10) Regulatory authority.--Except as specifically 
     provided in the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450 et seq.) the Contractor is not 
     required to abide by Federal program guidelines, manuals, or 
     policy directives, unless otherwise agreed to by the 
     Contractor and the Secretary.
       ```(11) Disputes.--
       ```(A) Third-party mediation defined.--For the purposes of 
     this Contract, the term ``third-party mediation'' means a 
     form of mediation whereby the Secretary and the Contractor 
     nominate a third party who is not employed by or 
     significantly involved with the Secretary of the Interior, 
     the Secretary of Health and Human Services, or the 
     Contractor, to serve as a third-party mediator to mediate 
     disputes under this Contract.
       ```(B) Alternative procedures.--In addition to, or as an 
     alternative to, remedies and procedures prescribed by section 
     110 of the Indian Self-Determination and Education Assistance 
     Act (25 U.S.C. 450m-1), the parties to this Contract may 
     jointly--
       ```(i) submit disputes under this Contract to third-party 
     mediation;
       ```(ii) submit the dispute to the adjudicatory body of the 
     Contractor, including the tribal court of the Contractor;
       ```(iii) submit the dispute to mediation processes provided 
     for under the laws, policies, or procedures of the 
     Contractor; or
       ```(iv) use the administrative dispute resolution processes 
     authorized in subchapter IV of chapter 5 of title 5, United 
     States Code.
       ```(C) Effect of decisions.--The Secretary shall be bound 
     by decisions made pursuant to the processes set forth in 
     subparagraph (B), except that the Secretary shall not be 
     bound by any decision that significantly conflicts with the 
     interests of Indians or the United States.
       ```(12) Administrative procedures of contractor.--Pursuant 
     to the Indian Civil Rights Act of 1968 (25 U.S.C. 1301 et 
     seq.), the laws, policies, and procedures of the Contractor 
     shall provide for administrative due process (or the 
     equivalent of administrative due process) with respect to 
     programs, services, functions, and activities that are 
     provided by the Contractor pursuant to this Contract.
       ```(13) Successor annual funding agreement.--
       ```(A) In general.--Negotiations for a successor annual 
     funding agreement, provided for in subsection (f)(2), shall 
     begin not later than 120 days prior to the conclusion of the 
     preceding annual funding agreement. The funding for each such 
     successor annual funding agreement shall only be reduced 
     pursuant to section 106(b) of the Indian Self-Determination 
     and Education Assistance Act (25 U.S.C. 450j-1(b)).
       ```(B) Information.--The Secretary shall prepare and supply 
     relevant information, and promptly comply with any request by 
     the Contractor for information that the Contractor reasonably 
     needs to determine the amount of funds that may be available 
     for a successor annual funding agreement, as provided for in 
     subsection (f)(2) of this Contract.
       ```(14) Contract requirements; approval by secretary.--
       ```(A) In general.--Except as provided in subparagraph (B), 
     for the term of the Contract, section 2103 of the Revised 
     Statutes (25 U.S.C. 81) and section 16 of the Act of June 18, 
     1934 (48 Stat. 987, chapter 576; 25 U.S.C. 476), shall not 
     apply to any contract entered into in connection with this 
     Contract.
       ```(B) Requirements.--Each Contract entered into by the 
     Contractor with a third party in connection with performing 
     the obligations of the Contractor under this Contract shall--
       ```(i) be in writing;
       ```(ii) identify the interested parties, the authorities of 
     such parties, and purposes of the Contract;
       ```(iii) state the work to be performed under the Contract; 
     and
       ```(iv) state the process for making any claim, the 
     payments to be made, and the terms of the Contract, which 
     shall be fixed.
       ```(c) Obligation of the Contractor.--
       ```(1) Contract performance.--Except as provided in 
     subsection (d)(2), the Contractor shall perform the programs, 
     services, functions, and activities as provided in the annual 
     funding agreement under subsection (f)(2) of this Contract.
       ```(2) Amount of funds.--The total amount of funds to be 
     paid under this Contract shall be determined in an annual 
     funding agreement entered into between the Secretary and the 
     Contractor, which shall be incorporated into this Contract.
       ```(3) Contracted programs.--Subject to the availability of 
     appropriated funds, the Contractor shall administer the 
     programs, services, functions, and activities identified in 
     this Contract and funded through the annual funding agreement 
     under subsection (f)(2).
       ```(4) Trust services for individual indians.--
       ```(A) In general.--To the extent that the annual funding 
     agreement provides funding for the delivery of trust services 
     to individual Indians that have been provided by the 
     Secretary, the Contractor shall maintain at least the same 
     level of service as the Secretary provided for such 
     individual Indians, subject to the availability of 
     appropriated funds for such services.
       ```(B) Trust services to individual indians.--For the 
     purposes of this paragraph only, the term ``trust services 
     for individual Indians'' means only those services that 
     pertain to land or financial management connected to 
     individually held allotments.
       ```(5) 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 
     judicial body empowered to adjudicate or otherwise resolve 
     complaints, claims, and grievances brought by program 
     beneficiaries against the Contractor arising out of the 
     performance of the Contract.
       ```(d) Obligation of the United States.--
       ```(1) Trust responsibility.--
       ```(A) In general.--The United States reaffirms the trust 
     responsibility of the United States to the ____ Indian 
     tribe(s) to protect and conserve the trust resources of the 
     Indian tribe(s) and the trust resources of individual 
     Indians.
       ```(B) Construction of contract.--Nothing in this Contract 
     may be construed to terminate, waive, modify, or reduce the 
     trust responsibility of the United States to the tribe(s) or 
     individual Indians.
       ```(C) Duties of secretary.--The Secretary shall act in 
     good faith in upholding such trust responsibility. To the 
     extent that health programs are included in this Contract, 
     the Secretary shall act in good faith in cooperating with the 
     Contractor to achieve the goals set forth in the Indian 
     Health Care Improvement Act (25 U.S.C. 1601 et seq.).
       ```(2) Programs retained.--As specified in the annual 
     funding agreement, the United States hereby retains the 
     programs, services, functions, and activities with respect to 
     the tribe(s) that are not specifically assumed by the 
     Contractor in the annual funding agreement under subsection 
     (f)(2).
       ```(e) Other Provisions.--
       ```(1) Designated officials.--Not later than the effective 
     date of this Contract, the United States shall provide to the 
     Contractor, and the Contractor shall provide to the United 
     States, a written designation of a senior official to serve 
     as a representative for notices, proposed amendments to the 
     Contract, and other purposes for this Contract.
       ```(2) Contract modifications or amendment.--
       ```(A) In general.--Except as provided in subparagraph (B), 
     no modification to this Contract shall take effect unless 
     such modification is made in the form of a written amendment 
     to the Contract, and the Contractor and the Secretary provide 
     written consent for the modification.
       ```(B) Exception.--The addition of supplemental funds for 
     programs, functions, and activities (or portions thereof) 
     already included in the annual funding agreement under 
     subsection (f)(2) shall not be subject to subparagraph (A).
       ```(3) 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 from such contract. This paragraph may 
     not be construed to apply to any contract with a third party 
     entered into under this Contract if such contract is made 
     with a corporation for the general benefit of the 
     corporation.
       ```(4) 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 understanding for a 
     commission, percentage, brokerage, or contingent fee, 
     excepting bona fide employees or bona fide established 
     commercial or selling agencies maintained by the Contractor 
     for the purpose of securing business.
       ```(f) Attachments.--
       ```(1) Approval of contract.--Unless previously furnished 
     to the Secretary, the resolution of the ____ Indian tribe(s) 
     authorizing the contracting of the programs, services, 
     functions, and activities identified in this Contract is 
     attached to this Contract as attachment 1.
       ```(2) Annual funding agreement.--
       ```(A) In general.--The negotiated and duly approved annual 
     funding agreement under this Contract shall only contain--
       ```(i) terms that identify the programs, services, 
     functions, and activities to be performed or administered, 
     the general budget category assigned, the funds to be 
     provided, and the time and method of payment; and
       ```(ii) such other provisions, including a brief 
     description of the programs, services, functions, and 
     activities to be performed (including those supported by 
     financial resources other than those provided by the 
     Secretary), as the Contractor may request and to which the 
     parties agree.
       ```(B) Incorporation by reference.--The annual funding 
     agreement is hereby incorporated in its entirety in this 
     Contract and attached to this Contract as attachment 2.'''.

     SEC. 4. ADDITIONAL AMENDMENTS.

       The Indian Self-Determination and Education Assistance Act 
     (25 U.S.C. 450 et seq.), as amended by sections 2 and 3, is 
     further amended--
       (1) in section 109--
       (A) by striking ``action as prescribed by him'' and all 
     that follows through ``in such cases, he'' and inserting the 
     following: ``action as prescribed by the Secretary to remedy 
     the contract deficiency, except that the appropriate 
     Secretary may, upon written notice to a tribal organization, 
     and the tribe served by the tribal organization, immediately 
     rescind a contract or grant and resume control or operation 
     of a program, activity, function, or service, if the 
     Secretary finds that (i) there is an immediate threat of 
     imminent harm to the safety of any person, and (ii) such 
     threat arises from the failure of the contractor to fulfill 
     the requirements of the contract. In such cases, the 
     Secretary'';
       (B) by striking the second period after ``the tribal 
     organization may approve''; and
       (C) by inserting before the last sentence, the following 
     new sentence: ``In any hearing or appeal provided for under 
     this section, the Secretary shall have the burden of proof to 
     establish, by clear and convincing evidence, the validity of 
     the grounds for rescinding, assuming, or reassuming the 
     contract that is the subject of the hearing.'';
       (2) in section 110(a), by inserting immediately before the 
     period at the end the following: ``(including immediate 
     injunctive relief to reverse a declination finding under 
     section 102(a)(2) or to compel the Secretary to award and 
     fund an approved self-determination contract)''; and
       (3) in section 110(d), by inserting immediately before the 
     period at the end the following: ``, except that all 
     administrative appeals relating to such contracts shall be 
     heard by the Interior Board of Contract Appeals established 
     pursuant to section 8 of such Act (41 U.S.C. 607)''.

     SEC. 5. REGULATIONS.

       The Indian Self-Determination and Education Assistance Act 
     (25 U.S.C. 450 et seq.), as amended by sections 2 through 4, 
     is further amended--
       (1) by striking subsections (a) and (b) of section 107 and 
     inserting the following new subsections:
       ``(a)(1) Except as may be specifically authorized in this 
     subsection, or in any other provision of this Act, the 
     Secretary of the Interior and the Secretary of Health and 
     Human Services may not promulgate any regulation, nor impose 
     any nonregulatory requirement, relating to self-determination 
     contracts or the approval, award, or declination of such 
     contracts, except that the Secretary of the Interior and the 
     Secretary of Health and Human Services may promulgate 
     regulations under this Act relating to chapter 171 of title 
     28, 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 appeal procedures, reassumption 
     procedures, and retrocession procedures.
       ``(2)(A) The regulations promulgated under this Act, 
     including the regulations referred to in this subsection, 
     shall be promulgated--
       ``(i) in conformance with sections 552 and 553 of title 5, 
     United States Code and subsections (c), (d), and (e) of this 
     section; and
       ``(ii) as a single set of regulations in title 25 of the 
     Code of Federal Regulations.
       ``(B) The authority to promulgate regulations set forth in 
     this Act shall expire if final regulations are not 
     promulgated within 1 year after the date of enactment of the 
     Indian Self-Determination Contract Reform Act of 1994.
       ``(b) The provisions of this Act shall supersede any 
     conflicting provisions of law (including any conflicting 
     regulations) in effect on the day before the date of 
     enactment of the Indian Self-Determination Contract Reform 
     Act of 1994.''; and
       (2) by adding at the end of section 107, the following new 
     subsections:
       ``(d)(1) In drafting and promulgating regulations as 
     provided in subsection (a) (including drafting and 
     promulgating any revised regulations), the Secretary of the 
     Interior and the Secretary of Health and Human Services shall 
     confer with, and allow for active participation by, 
     representatives of Indian tribes, tribal organizations, 
     individual tribal members, and representatives of other 
     parties interested in the implementation of this Act.
       ``(2)(A) In carrying out rulemaking processes under this 
     Act, the Secretary of the Interior and the Secretary of 
     Health and Human Services shall follow the guidance of--
       ``(i) subchapter III of chapter 5 of title 5, United States 
     Code, commonly known as the `Negotiated Rulemaking Act of 
     1990'; and
       ``(ii) the recommendations of the Administrative Conference 
     of the United States numbered 82-4 and 85-5 entitled 
     `Procedures for Negotiating Proposed Regulations' under 
     sections 305.82-4 and 305.85-5 of title 1, Code of Federal 
     Regulations, and any successor recommendation or law 
     (including any successor regulation).
       ``(B) The tribal participants in the negotiation process 
     referred to in subparagraph (A) shall be chosen by the tribes 
     and tribal organizations participating in regional and 
     national meetings that the Secretary shall convene. The 
     participants shall represent the groups described in this 
     paragraph and shall include tribal representatives from all 
     geographic regions.
       ``(C) The negotiations referred to in subparagraph (B) 
     shall be conducted in a timely manner. Proposed regulations 
     to implement the amendments made by the Indian Self-
     Determination Contract Reform Act of 1994 shall be published 
     in the Federal Register by the Secretary of the Interior and 
     the Secretary of Health and Human Services not later than 180 
     days after the date of enactment of such Act.
       ``(D) Notwithstanding any other provision of law (including 
     any regulation), the Secretary of the Interior and the 
     Secretary of Health and Human Services are authorized to 
     jointly establish and fund such interagency committees or 
     other interagency bodies, including advisory bodies comprised 
     of tribal representatives, as may be necessary or appropriate 
     to carry out the provisions of this Act.
       ``(e) Notwithstanding any other provision of law (including 
     any regulation), the Secretary may, with respect to a 
     contract entered into under this Act, make exceptions in the 
     regulations promulgated by the Secretary to carry out this 
     Act, or waive such regulations, if the Secretary finds that 
     such exception or waiver is in the best interest of the 
     Indians served by the contract. The Secretary shall review 
     each request for a waiver submitted by a tribe or tribal 
     organization under this subsection in accordance with the 
     declination criteria and procedures set forth in section 
     102(a)(2).''.

     SEC. 6. CONFORMING AMENDMENTS.

       Section 105(h) of the Indian Self-Determination and 
     Education Assistance Act (25 U.S.C. 450j(h)) is amended by 
     striking ``and the rules and regulations adopted by the 
     Secretaries of the Interior and Health and Human Services 
     pursuant to section 107 of this Act''.


                           amendment no. 2635

              (Purpose: To provide a substitute amendment)

  Mr. SIMPSON. Mr. President, on behalf of Senator McCain, I send a 
substitute amendment to the desk and ask for its immediate 
consideration.
  The PRESIDING OFFICER. The clerk will report. The legislative clerk 
read as follows:

       The Senator from Wyoming [Mr. Simpson], for Mr. McCain, 
     proposes an amendment numbered 2635.

  (The text of the amendment is printed in today's Record under 
``Amendments Submitted''.)
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Without objection, the amendment (No. 2635) is agreed to.
  The PRESIDING OFFICER. The bill is open to further amendment. If 
there be no further amendment to be proposed, the question is on 
agreeing to the committee amendment in the nature of a substitute, as 
amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading, was read 
the third time, and passed, as follows:
  (The text of the bill will be printed in a future edition of the 
Record.)
  Mr. FORD. Mr. President, I move to reconsider the vote by which the 
bill, as amended, was passed.
  Mr. SIMPSON. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. FORD. Mr. President, I ask unanimous consent that any statements 
on this measure appear in the Record at the appropriate place as though 
read.
  The PRESIDING OFFICER. Without objection, it is so ordered.


       the indian self-determination contract reform act of 1994

  Mr. McCAIN. Mr. President, I rise today to offer an amendment in the 
nature of a substitute to S. 2036, the Indian Self-Determination 
Contract Reform Act of 1994. The substitute amendment makes over 40 
changes to the bill and by doing so responds to a significant number of 
concerns raised by the Department of the Interior and the Department of 
Health and Human Services. The substitute reflects a good faith effort 
on the part of the Senate, House and the tribes to be responsive to the 
administration's concerns. With the inclusion of the changes 
incorporated in this amendment, I am advised that the administration 
has expressed its full support for the bill.
  Nevertheless, I am deeply troubled by what has taken place during 
this debate. In my view, after the administration concluded that its 
attempts to delay the bill would be useless, the administration had one 
thing in mind with respect to self-determination reform: the 
administration's concerns were critical; tribal concerns were 
negotiable. I suspect the tribes themselves will be troubled by this 
because the administration has gone out if its way to proclaim itself 
as an administration that is more sensitive to tribal concerns. 
Frankly, if there is a unifying theme in this administration's Indian 
policy, it is the casual relationship between words and action.
  It is my hope that S. 2036, as amended, will assist tribes in 
recapturing the vision of Indian self-determination that has its 
origins in President Nixon's 1970 ``Special Message to the Congress on 
Indian Affairs'' which stated:

       For years we have talked about encouraging Indians to 
     exercise greater self-determination, but our progress has 
     never been commensurate with our promises. Part of the reason 
     for this situation has been the threat of termination. But 
     another reason is the fact that when a decision is made as to 
     whether a Federal program will be turned over to Indian 
     administration, it is the federal authorities and not the 
     Indian people who finally make that decision.
       This situation should be reversed. In my judgment, it 
     should be up to the Indian tribe to determine whether it is 
     willing to assume administrative responsibility for a service 
     program which is presently administered by a federal agency.

  For the benefit of my colleagues, I will summarize briefly the 
amendments contained in the substitute bill.
  In section 2(1): deletes architectural and engineering services from 
the category of programs not covered by the special rules applicable to 
construction contracts.
  In section 2(5): replaces the words ``relating to'' with the words 
``supportive of''.
  In section 2(6): enlarges the declination timeframe from 60 days to 
90 days; replaces the ``clear and convincing'' standard for declination 
with the ``clearly demonstrate'' standard, an intermediate standard 
higher than a ``preponderance of the evidence''; deletes the proposed 
amendment to the ``satisfactory services'' standard of existing law; 
and separates out the declination criteria relating to funding and 
contractibility issues. Requires that program standards be set forth in 
contract proposals so that they can be evaluated against the 
declination criteria.
  In section 2(9): replaces the ``clear and convincing'' standard with 
the ``clearly demonstrate'' standard; deletes the requirement that a 
declination finding include a technical assistance finding; adds a 
provision permitting administrative judges to make final decisions in 
declination appeals; and deletes the so-called Alaska indirect 
redelegation provision.
  In section 2(10): eliminates section 103 grants from the scope of the 
section; improves upon the language specifying those laws which do not 
apply to non-construction contracts; again requires that program 
standards be included in contract proposals and in final contracts so 
that the Departments can evaluate those standards in light of the 
declination criteria.

  In section 2(11): limits the authority of a tribal organization that 
is itself not a tribe to technically retrocede a program back to the 
government to instances where the authority has been delegated to the 
tribal organization.
  In section 2(12): eliminates the limitation on return of property to 
the federal government relating to use of the property in the 
contracted program.
  In section 2(13): deletes virtually all of the divisibility section, 
and replacing it with a new explicit protection for non-contracting 
tribes; limits redesign authority to non-construction contracts; makes 
redesign a matter for a tribal organization to propose to the 
Secretary; prohibits any redesign that would be contrary to statute; 
clarifies the types of property interests necessary to support a tribal 
lease; clarifies that certain sections of Title I do not apply to 
construction contracts, including the model contract and the 
reassumption section; and clarifies that auditing costs that are to be 
covered in construction contracts are those that relate to the 
management of the contract, and not those relating to other aspects of 
the tribal organization's operations.
  In section 2(14): adds language to assure against any inadvertent 
double payment of contract support costs which duplicate the 
Secretarial amount already included in the contract.
  In section 2(15): changes the reporting deadlines from March 15 to 
May 15, to provide adequate time to include reports relating to 
calendar year contracts within the supplemental appropriations cycle.
  In section 2(17): changes the word ``allocate'' to ``add''.
  In section 2(19): clarifies the matching provision; clarifies the 
depreciation provision; deletes the mandate to OMB to issue a new 
circular, leaving such matters up to OMB's discretion; entirely 
rewrites the ``funding suspension'' provision to grant the agencies 
this authority within certain guidelines; rewrites the ``savings'' 
provision so that savings equally benefit both contracted and non-
contracted parts of the Secretary's programs; and clarifies the 
limitation applicable to a tribal organization's rebudgeting authority.
  In section 3 of the bill (containing the model contract): deletes the 
paragraph relating to tribal forums; requires that the contract set 
forth the program standards applicable to the contracted programs; 
amends and narrows the ``limitation of cost'' clause; enlarges the 
Secretary's monitoring rights; changes certain recordkeeping 
requirements; conforms the funding reduction provisions of the contract 
with section 105(c)(2) of the Act; clarifies that the funding amount 
specified in the annual funding agreement is tied to the funding amount 
required to be paid under section 106(a) of the Act; clarifies the 
Secretary's responsibilities; and edits the annual funding agreement 
paragraphs as requested.

  In section 4 of the bill (relating to reassumption): adds a new 
reassumption ground tied to endangerment of trust resources; provides 
for partial reassumption; and changes the ``clear and convincing'' 
standard to the ``clearly demonstrate'' standard.
  In section 5 of the bill (relating to regulatory implementation): 
adds several additional topic areas with respect to which Congress 
delegates its legislative rulemaking authority to the departments; adds 
an explicit regulatory repeal authority; amends the tribal participant 
and meeting requirements related to negotiated rulemaking; and 
substantially rewrites the waiver and exception provisions.
  Mr. President, S. 2036, as amended, is legislation that is strongly 
supported by the tribes. I urge my colleagues to pass this legislation.

                          ____________________